Hibbert v. Schmitz et al
Filing
20
OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Plaintiff Christina Hibbert's Motion for Leave to File Amended Complaint 17 is ALLOWED. Plaintiff is directed to file by 4/15/2018, an Amended Complaint that incorporates Counts I, II, and III into a single document. Defendants are directed to respond to the Amended Complaint by 4/30/2018. Plaintiff shall serve Bryan Ley with the Amended Complaint in accordance with Federal Rule 4, and he shall be entitled to respond in accord ance with Federal Rule 12(a). This matter is set for a telephonic status conference on Thursday, 5/10/2018, at 2:00 p.m. (Court will place call) for discussion of a schedule for additional discovery, if needed. The 4/15/2018 deadline for dispositive motions is suspended. The revised dispositive motion deadline and pretrial and trial dates will be addressed at the status conference. See written order. (LB, ilcd)
E-FILED
Tuesday, 03 April, 2018 04:21:31 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
CHRISTINA HIBBERT,
Plaintiff,
v.
LEO P. SCHMITZ, et al.,
Defendants.
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No. 16-cv-3028
OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Christina Hibbert’s
Motion for Leave to File Amended Complaint (d/e 17). For the reasons set
forth below, the Motion is ALLOWED.
BACKGROUND
Plaintiff Hibbert was a civilian employee of the Illinois State Police.
The Defendants were officers of the Illinois State Police. On several
occasions in October, November, and December of 2014, Hibbert had sex
with Illinois State Police Master Seargent Anthony L. McClure in the Illinois
State Police headquarters office building. McClure and Hibbert had sex in
a closed conference room during working hours. In November and
December of 2014, Defendant Agnes Kindred-Johnson arranged for
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installation of video cameras in the conference room to establish that
McClure and Hibbert were having sex in the office during working hours.
The Illinois State Police went through an extensive administrative
process to terminate McClure. During the course of the administrative
proceedings, the Defendants subpoenaed Hibbert’s personal cell phone.
McClure was ultimately terminated. Hibbert was also terminated.
Hibbert brought this action alleging two counts. Complaint (d/e 1).
She alleged that securing her phone through use of a subpoena violated
her rights under the Fourth Amendment. Complaint, Count I. She also
alleged that under the Fourth Amendment, she had a reasonable
expectation of privacy to have sex in an Illinois State Police conference
room, and Defendants violated her right by installing video cameras and
recording her sexual activities. Complaint, Count II.
The Court issued a Scheduling Order on February 17, 2017 (d/e 14).
The Scheduling Order set May 15, 2017, as the deadline for amending
pleadings or adding parties, and December 15, 2017, as the deadline for
completing discovery. Scheduling Order, at 1-2. On September 27, 2017,
the Court extended the deadline to complete discovery to February 15,
2018. Text Order entered September 27, 2017.
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On January 18, 2018, Hibbert took the deposition of Defendant
Kindred-Johnson. Kindred-Johnson testified that she set up the video
cameras in November and December 2014. She also testified that Illinois
State Police Deputy Director Bryan Ley set up cameras in the conference
room in October 2014. The cameras that Ley set up also recorded Hibbert
having sex with McClure. Memorandum of Law in Support of Motion for
Leave to File Amended Complaint, at 1-2.
Hibbert did not know about the October 2014 video recordings until
the January 2018 deposition. Hibbert states that the October 2014
recordings were not disclosed in McClure’s administrative proceedings or in
discovery prior to this deposition. Id. at 3. Defendants do not dispute this.
See Response to Plaintiff’s Motion to Amend (d/e 19) (Response), at 6-7.
On February 15, 2018, the Court extended the deadline to complete
discovery to March 15, 2018. Text Order entered February 15, 2018. On
March 14, 2018, Hibbert deposed Ley and confirmed that he installed the
cameras and recorded her and McClure in October 2014.
On March 15, 2018, Hibbert filed the Motion to amend her complaint
to add Ley as a defendant and to add an additional Count III, claiming
violation of Hibbert’s Fourth Amendment rights based on substantially the
same theory as Count II. Defendants oppose the Motion.
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ANALYSIS
Hibbert seeks to amend the pleadings and add a party after the May
15, 2017 deadline in the Scheduling Order. Hibbert must first establish
good cause to amend the Scheduling Order before she may proceed with
the Motion. Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011).
Hibbert claims she had good cause because she did not know of the
possibility that Ley placed cameras in the conference room and recorded
her having sex until January 2018, and she did not confirm that fact until
she deposed Ley in March 2018. Ley’s recording of her in October 2014
was not disclosed in any of the administrative proceedings or in earlier
discovery in this proceeding. The Court finds that discovery on new
evidence such as this is sufficient to constitute good cause. See Direct
Enterprises Inc. v. Sensient Colors LLC, 2017 WL 2985623, at *3 (S.D. Ind.
July 13 2017); Armitage v. Apex Control Systems, Inc., 2010 WL 4318846,
at *1 (S.D. Ind. October 26, 2010).
The Defendants argue Hibbert did not have good cause because she
did not act diligently. She delayed filing the motion until 10 months after
the May 15, 2017 deadline to amend. In support of this argument,
Defendants cite Bell v. Taylor, 827 F.3d 699 (7th Cir. 2016). In Bell,
however, the plaintiff discovered the new evidence in April 2013. The
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deadline to amend was set on July 15, 2013. The plaintiff did not file the
motion to amend until March 2014. Bell, 827 F.3d at 705. Hibbert did not
discover the information until after the deadline passed and filed the motion
promptly after deposing Ley. The Bell case does not apply.
The other cases cited by Defendants did not involve discovery of new
evidence. Most involved motions to amend in response to dispositive
motions or an adverse dispositive order. See Alioto, 651 F.3d at 718-19;
Adams v. City of Indianapolis, 742 F.3d 720, 723 (7th Cir. 2014) (motion
filed in response to motion for judgment on the pleadings); Carroll v.
Stryker Corp., 658 F.3d 675, 684 (7th Cir. 2011) (motion filed in response to
motion to dismiss); CMFG Life Ins. Co. v. RBS Securities, Inc., 799 F.3d
729, 749 (7th Cir. 2015) (motion filed in response to entry of summary
judgment). One case involved amending to add new claims after the
plaintiff secured a right to sue letter from the EEOC. Arrigo v. Link, 836
F.3d 787, 797-98 (7th Cir. 2016). The Arrigo case did not involve discovery
of new evidence.
The Court finds good cause for filing the Motion after the deadline in
the Scheduling Order.
The Court will generally allow requests to amend freely when justice
requires. Fed. R. Civ. P. 15(a)(2). The Court may deny requests to amend
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pleadings for several reasons, including undue delay, undue prejudice to
defendants, and a proposed amendment that is futile. See Mulvania v.
Sheriff of Rock Island County, 850 F.3d 849, 854 (7th Cir. 2017).
The Motion presents a close question whether the amendment is
futile. The statute of limitations is two years, and Hibbert brought this
claim against Ley four years after the relevant events occurred. See Smith
v. City of Chicago Heights, 951 F.2d 834, 8836 n.1 (7th Cir. 1992). Hibbert
states she is entitled to equitable tolling. The availability of equitable tolling
will depend on Hibbert’s diligence in discovering her claim against Ley.
See Id. at 839. Hibbert discovered the existence of this evidence in
January 2018, a few months before the end of fact discovery. The
Defendants state that Hibbert did not begin conducting discovery until
January 2018. See Response, at 7. The delay in conducting discovery will
make her equitable tolling argument factually challenging. The Court,
however, will not say at this point that the assertion of equitable tolling
would be futile.
Hibbert may also be unable to establish that she had a reasonable
expectation of privacy. An employee may under appropriate
circumstances, have an expectation of privacy at her workplace for some
purposes. O’Connor v. Ortega, 480 U.S. 709, 716-17 (1987). The scope
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of that expectation, however, is dependent on the circumstances. See e.g.,
Chicago Fire Fighters Union, Local 2, 717 F.Supp. 1314, 1318-19 (N.D. Ill.
1989). Even if Hibbert can prove that she had a reasonable expectation of
privacy to have sex at work with a co-worker during working hours, she
must also demonstrate that such an expectation of privacy was clearly
established in October 2014. Otherwise, Ley may be entitled to qualified
immunity. See e.g., Pearson v. Callahan, 555 U.S. 223, 231-32 (2009).
Here again, Hibbert faces a significant challenge to prove a constitutional
expectation of privacy under these circumstances and to overcome the
qualified immunity defense. The challenges are dependent on the
sufficiency of her pleadings and the evidence. The Court, again, at this
point will not say that these challenges render her claim futile. The Court
believes that these issues under these circumstances are better addressed
through a motion to dismiss or a motion for summary judgment. The Court,
therefore, will not deny the motion on the grounds of futility.
These challenges to Hibbert’s proposed claim against Ley, however,
demonstrate that the proposed amendment will undoubtedly cause
significant delay in this case. Ley will be entitled to move to dismiss the
claims before answering. The adjudication of that motion will cause delays.
If the claims survive a motion to dismiss, Ley will undoubtedly want to
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conduct discovery to determine the basis of Hibbert’s equitable tolling
claim. For example, Ley may want to discover how Hibbert was acting
diligently, but was unable to discover her claim against him until four years
after the events occurred and two years after she filed suit. See Smith v.
City of Chicago Heights, 951 F.2d 834, 839 (7th Cir. 1992). Ley will
certainly want to discover the basis of Hibbert’s claim that he is not entitled
to qualified immunity. Ley may also want to conduct discovery on the
elements of the claim. Hibbert, for example, claims that Ley has retained a
copy of the recording of her having sex in October 2014. Motion, attached
Proposed Count III, ¶¶ 91-93. Ley may want to discover information
regarding that allegation. He may also want to conduct discovery on other
issues.
These delays will affect the Defendants. Discovery has closed on the
claims against the Defendants. The matter is set for trial on July 17, 2018.
Text Order entered September 27, 2017. If Hibbert adds her claim against
Ley, the delays discussed above will very likely cause the trial to be
delayed. On the other hand, denying the Motion will deny Hibbert the right
to seek redress for the alleged wrongdoing.
After careful consideration, the Court concludes in its discretion that
Hibbert should be allowed to amend. The sufficiency of the claim against
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Ley will be better addressed through a motion to dismiss or at summary
judgment. The amendment will result in some delays, but the Court
determines that the potential delay is not sufficient to bar the amendment.
THEREFORE, IT IS ORDERED that Plaintiff Christina Hibbert’s
Motion for Leave to File Amended Complaint (d/e 17) is ALLOWED.
Plaintiff is directed to file by April 15, 2018, an Amended Complaint that
incorporates Counts I, II, and III into a single document. Defendants are
directed to respond to the Amended Complaint by April 30, 2018. Plaintiff
shall serve Ley with the Amended Complaint in accordance with Federal
Rule 4, and he shall be entitled to respond in accordance with Federal Rule
12(a). This matter is set for a telephonic status conference on Thursday,
May 10, 2018, at 2:00 p.m. for discussion of a schedule for additional
discovery, if needed. The April 15, 2018 deadline for dispositive motions is
suspended. The revised dispositive motion deadline and pretrial and trial
dates will be addressed at the status conference.
ENTER: April 3, 2018
s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE
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