THOMAS v. INDIANAPOLIS METROPOLITAN POLICE DEPARTMENT et al

Filing 151

Entry on Defendants' Motion for Leave to File Answer - Defendants' Motion for Leave to File Answer and Affirmative Defenses to Plaintiff's First Amended Complaint (Dkt. 125 ) is GRANTED. Clerk is directed to file Defendants' Answer. Defendants' motions in limine (Dkt. 123 ) are GRANTED in part and DENIED in part. Plaintiff's motions in limine (Dkt. 116 ) are GRANTED in part and DENIED in part. Signed by Judge Tanya Walton Pratt. (See Entry for details)(TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DENNIS W. THOMAS,
Plaintiff,
vs.
OFFICER GREGORY P. BRINKER,
and OFFICER MARK RAND,
Defendants.

)
)
)
)
)
)
)
)
)

NO. 1:09-cv-01516-TWP-MJD

ENTRY ON DEFENDANTS’ MOTION FOR LEAVE TO FILE ANSWER
This matter is before the Court on Defendants’ (Officers Gregory Brinker and Mark
Rand) Motion for Leave to File Answer and Affirmative Defenses to Plaintiff’s First Amended
Complaint. This case sits in a unique procedural posture. Specifically, a trial in this matter will
begin in 20 days, but due to a serious technical mistake, Defendants inadvertently failed to file an
answer. Plaintiff contends that, as a result, Defendants have conceded liability, and the trial
should only pertain to damages. Defendants counter that they have vigorously disputed liability
since the genesis of this 26-month old lawsuit, and ignoring that fact due to a procedural error
elevates form over substance. Needless to say, these circumstances put the Court in a difficult
situation, requiring it to analyze and weigh competing principles found in the Federal Rules of
Civil Procedure.
In the end, the Court finds that it has discretion in this area. When vested with discretion
to resolve such conflicts, this Court will, when possible, err on the side of allowing a trial on the
merits encompassing both liability and damages. See Foman v. Davis, 371 U.S. 178, 181-82
(1962) (“It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil
Procedure for decisions on the merits to be avoided on the basis of such mere technicalities. The
1

Federal Rules reject the approach that pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome and accept the principle that the purpose of pleading is
to facilitate a proper decision on the merits.”) (citation and internal quotations omitted). A
contrary ruling would subvert the purpose of a jury trial and ignore common sense in the name of
rigidity. Litigation is often thought of as a zero sum game; that said, one party’s careless blunder
should not always operate as the other party’s windfall blessing. For the reasons set forth below,
Defendants’ Motion for Leave to File Answer and Affirmative Defenses to Plaintiff’s First
Amended Complaint (Dkt. 125) is GRANTED.
A. Background
On December 9, 2009, Plaintiff’s Complaint was removed to this Court, making a
responsive pleading due on or before December 30, 2009 (Dkt. 1). After Defendants received a
series of enlargements of time to respond to the complaint, (Dkt. 7, 13), Plaintiff filed a motion
for leave to file an amended complaint on April 1, 2010 (Dkt. 19). The Court granted Plaintiff’s
motion, and Plaintiff’s First Amended Complaint was deemed filed on April 22, 2010 (Dkt. 23).
On June 7, 2010, Defendant City of Indianapolis – a Defendant no longer in this case – filed an
answer with affirmative defenses (Dkt. 30). In doing so, the City of Indianapolis denied the
factual allegations forming the basis of Plaintiff’s claims against the two individual Defendants
currently in this case. (Dkt. 30 at 4-7). That same day, the two remaining Defendants in this case,
among others, filed a motion to dismiss (Dkt. 31). On March 28, 2011, the Court granted, in part,
and denied, in part, Defendants’ motion to dismiss (Dkt. 62). Accordingly, Defendants had 14
days (until April 11, 2011) to file a responsive pleading. See Fed. R. Civ. P. 12(a)(4)(A). This
day came and went without a responsive pleading from either Officer Brinker or Officer Rand.

2

Lead counsel for Defendants has apologized to the Court for this inadvertent oversight,
representing that, at the time the answer came due, she was actively preparing for a trial in front
of the undersigned judge, in addition to serving as Indianapolis Metropolitan Police
Department’s advisory counsel while a colleague was out on maternity leave.1 Moreover,
counsel claims that her error is partially attributable to the confusing state of the docket. Indeed,
when the Court issued its order on the motion to dismiss, an answer had been filed in this case –
but it only applied to the City of Indianapolis, not the individual Defendants currently in this
case. To be sure, Defendants – who were represented by five lawyers at the time their answer
came due – should not have glossed over the docket in such a cavalier fashion. Plaintiff
emphasizes this fact repeatedly, and with good reason. But, presumably, the disjointed nature of
the defense partially contributed to the mistake: this appears to be a quintessential case where the
left hand didn’t know what the right hand was doing.
During the discovery process of this case, both parties litigated as if liability was in
dispute. Apparently, throughout the entirety of this time period, Defendants were blissfully
ignorant of their failure to file an answer. Moreover, on September 22, 2010 – long after
Defendants had dropped the ball on filing a timely answer to the Amended Complaint (Dkt. 23)
– the parties filed a joint Case Management Plan (Dkt. 45). In that plan, Plaintiff stated his
position as follows:
Dennis Thomas’ claims against the defendants arise out of certain
actions taken by the defendant Officers during Mr. Thomas’ arrest on
May 1, 2009, in Indianapolis, Indiana. Mr. Thomas’ claims are
brought pursuant to 42 U.S.C. § 1983 and § 1988. Specifically, during
the course of Mr. Thomas’ arrest, the defendant Officers used
excessive force against Mr. Thomas, which involved pistol-whipping
and the use of K-9 dogs. The force employed by the defendant
Officers, is strictly prohibited by the Fourth Amendment to the United
1

From its past experience with counsel, the Court has come to appreciate counsel’s preparedness and vigilance with
deadlines. This case, it appears, is an anomaly, not part of a larger pattern of behavior.
3

States Constitution. The defendant Officers’ actions which form the
basis of Mr. Thomas’ claims herein, including their use of K-9 dogs,
were employed without provocation and/or justification. With respect
to defendant, City of Indianapolis, it is believed that the City’s training
policy concerning its police officers’ use of K-9’s for arrests and its
policy concerning the oversight of police officers’ use of K-9’s for
arrests are defective. Mr. Thomas’ constitutional rights were violated
and he sustained devastating physical injuries as a result of the
defendants’ actions, including, but not limited to injuries to his face,
left hand and left leg, the necessity of future surgical procedures and
permanent impairment. As a result of his severe injuries, Mr. Thomas
has endured, and continues to endure, extensive physical and
emotional pain and suffering and has incurred and continues to incur
medical and rehabilitation expenses.
(Dkt. 45 at 2). Defendants, by contrast, stated their position as follows:
On May 1, 2009, Officer Gregory Brinker initiated a traffic stop and
found Plaintiff, a passenger in the vehicle had an outstanding felony
warrant and was on parole. Plaintiff ran on foot from the scene of the
traffic stop, despite being instructed to stop by Officer Brinker. Officer
Brinker lost sight of Plaintiff during the foot pursuit, and called for the
assistance of a K-9 unit to locate the Plaintiff. After the K-9 unit and
other backup units arrived, the search for Plaintiff brought the K-9 and
Officer Mark Rand to a vacant house located on West 35th Street in
Indianapolis, Indiana. Officer Rand made loud announcements, warning
anyone inside to come out or that he would enter the home with the K9. After there was no response, Officer Rand entered the vacant house
and the K-9 led him towards the basement. The Plaintiff was located in
the basement, hiding on top of a fuel tank. Plaintiff engaged Officer
Rand in an attempt to escape, at which point the K-9 responded.
Plaintiff began fighting the K-9, at which point Officer Rand engaged
Plaintiff in an attempt to take him into custody and to protect the K-9.
During this struggle, Officer Elsie Torres arrived in the basement and
assisted in getting Plaintiff into custody. After securing custody of the
Plaintiff, he was transported to Wishard Hospital for treatment. Plaintiff
was charged with Resisting Law Enforcement by Force and Resisting
Law Enforcement by Fleeing. Plaintiff pled guilty to Resisting Law
Enforcement by Fleeing, and was sentenced, on September 23, 2009.
Plaintiff was never pistol-whipped and his injuries are a result of his
own actions during his lawful arrest. The force used by Officers Rand
and Torres was limited to that force necessary to effect Plaintiff’s arrest.
In addition, the City’s training and oversight policies with respect to the
use of K-9s are more than sufficient and were not a cause of Plaintiff’s
alleged injuries.

4

(Dkt. 45 at 2-3) (emphasis added). Given the irreconcilable differences in the parties’ synopses
of the case, the notion that liability was not in dispute is far-fetched. Nonetheless, that same Case
Management Plan stated that “[a]ll motions for leave to amend the pleadings and/or to join
additional parties shall be filed on or before December 20, 2010.” That date came and went
without any movement from Defendants on the pleadings front.
According to Defendants’ representations,2 on August 18, 2011, during a telephonic
status conference with Magistrate Judge Dinsmore, Defendants put Plaintiff on notice that they
intended to retain liability experts. Then, on September 19, 2011, Defendants disclosed their two
liability experts and produced their reports to Plaintiff. Notably, Plaintiff ‘s counsel never raised
the issue of conceded liability. Further, since April 11, 2011, the parties have participated in five
telephonic status conferences, two hearings, and one settlement conference. Plaintiff’s counsel
never mentioned her view that liability was a foregone conclusion.
But just over one month before trial, on January 4, 2012, Plaintiff ended her silence on
this front, filing a motion in limine asking the Court to preclude Defendants from contesting
liability in this matter due to their failure to file an answer or forge affirmative defenses (Dkt.
123). That motion prompted Defendants, finally, to seek leave to file an answer with affirmative
defenses (Dkt. 125).3 For understandable reasons, Plaintiff vigorously opposes that request (Dkt.
143). Importantly, Plaintiff never moved for default judgment or summary judgment on the issue
of liability. Additional facts are added below as needed.
B. Discussion
Both parties devote considerable attention to arguing which Rule of the Federal Rules of
2

This paragraph is largely derived from representations that Defendants made to the Court in their reply brief. (Dkt.
150 at 3-4). The Court has no reason to question the veracity of these contentions.

3

Defendants’ proposed answer with affirmative defenses is nearly identical to the one previously filed by the City of
Indianapolis.
5

Civil Procedure governs. Plaintiff argues that this case is nothing more than a straightforward
application of Rule 8(b)(6), which provides that “[a]n allegation – other than one relating to the
amount of damages – is admitted if a responsive pleading is required and the allegation is not
denied.” Fed. R. Civ. P. 8(b)(6).4 Because Defendants failed to file an answer, Plaintiff argues,
they have effectively admitted the following allegations:
●

Officer Brinker pistol-whipped Plaintiff without provocation or
justification. (Amended Compl. ¶ 12).

●

Officers Brinker and Rand saw that Plaintiff had peacefully surrendered
and that he was not resisting arrest, yet ordered the canine dog to attack
Plaintiff. (Amended Compl. ¶ 14-15).

●

Officers Brinker and Rand stood idly by while the canine mauled Plaintiff
for several minutes. (Amended Compl. ¶ 16).

●

After the dog stopped mauling Plaintiff, Officers Brinker and Rand beat
Plaintiff about his face and body without justification or provocation.
(Amended Compl. ¶ 17).

●

The imposition of punitive damages is appropriate and necessary to deter
Defendants and all others similarly situated from engaging in such conduct
in the future. (Amended Compl. ¶ 48).

Of course, if these allegations are true, this case presents an appalling example of
excessive force and police brutality. Logically following, any reasonable juror who believes
Plaintiff’s version of events would find that Defendants are on the hook for liability. Defendants,
meanwhile, argue that Rule 15 should govern this analysis. Indeed, Rule 15 is, by civil procedure
standards, quite flexible and forgiving, ordering courts to allow a party to amends its pleadings
“freely . . . when justice so requires.” See Fed. R. Civ. P. 15(a)(2).
Both parties’ arguments are well-taken. That said, both parties’ arguments paint an
incomplete picture. Specifically, Plaintiff’s argument ignores that the Federal Rules of Civil
Procedure vest the Court with some discretion to be flexible in this area. For instance, Rule
4

Plaintiff also contends that this dispute implicates Rules 7, 12, and 15 of the Federal Rules of Civil Procedure.
6

6(b)(1)(B) provides that “[w]hen an act may or must be done within a specified time, the court
may, for good cause, extend the time . . . on motion made after the time has expired if the party
failed to act because of excusable neglect.” See Fed. R. Civ. P. 6(b)(1)(B); Johnson v. City of
Kankakee, Ill., 397 Fed. Appx. 238, 239-40 (7th Cir. 2010) (district court did not abuse its
discretion when it excused defendant’s failure to file an answer, denied plaintiff’s request for a
default judgment, and allowed the suit to proceed; “[A] district court’s decision to tolerate a
defendant’s harmless delay in answering a complaint cannot be an abuse of discretion.”)
(emphasis in original). Defendants’ argument ignores that Rule 15(a)(2) applies to amended
pleadings. This dispute does not involve an amended pleading per se. To the contrary,
Defendants are seeking to file an initial answer.
Here, the Court finds that the current situation is most comparable to the situation where
a defendant defaults by failing to file an answer, but then asks the court to set aside the default
judgment so that it can defend its case. Indeed, a motion to set aside a default judgment – like the
present motion – dictates whether the defendant will be permitted to contest liability. In other
words, “[t]he effect of an entry of default is that the defendant against whom entry of default is
made is deemed to have admitted the allegations in plaintiff’s complaint and is prohibited from
defending on the merits of the case.” 46 AM. JUR. 2D Judgments § 304. In that vein, “while the
defaulting defendant may lose standing to contest liability, he or she may still have standing to
contest the amount of its liability.” Id.
Rules 55(c) and 60(b) govern whether a Court should set aside a default judgment.
Specifically, Rule 55(c) provides that “[t]he court may set aside an entry of default for good
cause, and it may set aside a default judgment under Rule 60(b).” Fed. R. Civ. P. 55(c) (emphasis
added). Rule 60(b) provides that “the court may relieve a party . . . from a final judgment . . . for

7

the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . . . or (6) any
other reason that justifies relief.” See Fed. R. Civ. P. 60(b) (emphasis added). In light of these
rules and standards, the Court will exercise its discretion to find that a trial on the merits on the
issue of liability is appropriate.
Specifically, the Court finds that either the excusable neglect standard of Rule 60(b)(1) or
the catch-all standard of Rule 60(b)(6) would operate to allow Defendants to stave off an
automatic liability determination. In the Court’s view, Defendants’ quandary is clearly the
product of excusable neglect, which requires an elastic and equitable determination that can
“encompass situations in which the failure to comply with a filing deadline is attributable to
negligence.” Robb v. Norfolk & W. Ry. Co., 122 F.3d 354, 355-56 (7th Cir. 1997) (citation and
quotations omitted; remanding case to district judge so that he could exercise discretion on Rule
60(b)(1) motion). Indeed, the only logical inference to draw from these circumstances is that
Defendants’ failure to file was the product of attorney oversight. It cannot be seriously argued,
for instance, that they acted on the basis of an improper motive in order to gain a strategic
advantage. Indeed, why would an attorney play with such fire for no good reason? Overall, the
Court finds that it has discretion in this area, and, where possible, this Court will err on the side
of permitting a trial on the merits. This approach is consistent with the general approach adopted
by the Seventh Circuit. Cracco v. Vitran Exp., Inc., 559 F.3d 625, 629 (7th Cir. 2009) (“Our
cases articulate a policy of favoring trial on the merits over default judgment.”).
This ruling is strongly reinforced by the fact that, in all other respects, Defendants have
contested liability at every stage of this lawsuit. Further, Defendants (outside of the present
mistake) have displayed no obstinance, laziness, or foot-dragging; nor have they behaved in a
fashion that raises the specter of bad faith. Moreover, to the extent “good cause” is relevant to

8

this determination, it is worth noting that Defendants sought leave as soon as they realized their
serious omission. See Durden v. Semafore Pharmaceuticals, Inc., 2011 WL 2118952, at *2 (S.D.
Ind. May 25, 2011) (“good cause” as it applies to Rule 16(b) – which involves amending
pleadings after the expiration of the trial court’s scheduling order deadline – “depends primarily
on the ‘diligence of the party seeking amendment’”) (quoting Trustmark Ins. Co. v. Gen. &
Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005)).
Finally, although this case might not be a blockbuster patent or antitrust dispute, the
monetary stakes at issue are presumably high; the Court is confident that Plaintiff will not be
asking for a paltry sum, given the nature of his injuries and the brutality of his allegations. The
sum of money at stake is yet another reason why a ruling that has the effect of defaulting
Defendants should be avoided. See, e.g., Phillips v. Weiner, 103 F.R.D. 177, 179, 182 (D. Me.
1984) (large sum of money involved militates against default judgment); Horn v. Intelectron
Corp., 294 F. Supp. 1153, 1154-55 (S.D.N.Y. 1968) (“Matters which involve large sums of
money should not be determined by default judgments if it can reasonably be avoided.”) (citing
Tozer v. Charles A. Krause Milling Co., 189 F.2d 242 (3d Cir. 1951)).
If Plaintiff could show reasonable reliance on Defendants’ blunder, so that granting
Defendants’ request for leave would unduly prejudice Plaintiff, such a showing might alter the
Court’s conclusion. But, in the end, the Court is not persuaded that Plaintiff has suffered any
undue prejudice stemming from reasonable reliance on Defendants’ error. On this point,
Plaintiff’s counsel’s response brief states that it “it was always [her] belief that the [individual
Defendants] would eventually seek leave to file an answer.” (Dkt. 143 at 12). This is an implicit
concession that, for the vast majority of the litigation, Plaintiff’s counsel knew that liability was
contested. This position is further fortified by the fact that, earlier in the litigation, the City of

9

Indianapolis filed an answer denying all of the material allegations underlying Plaintiff’s claims
against the individual Defendants. Moreover, in the months leading up to trial, Defendants
disclosed their liability experts to Plaintiff and the parties participated in numerous conferences
and hearings.5 Throughout this time period, Plaintiff’s counsel remained silent on the issue of
conceded liability. Nonetheless, Plaintiff’s counsel claims that, as more time passed, she arrived
at a different conclusion: that Defendants had simply conceded liability. Apparently, counsel
gave short shrift to the possibility that Defendants’ counsel had negligently failed to file an
answer.
Plaintiff’s counsel contends that, as a result of her assumption that liability was not at
issue, Plaintiff has been prejudiced in two ways. First, counsel did not depose Defendants’
liability experts. Nonetheless, with almost three weeks before trial, this problem can easily be
remedied. Upon Plaintiff’s request, the Court will reopen discovery for the limited purpose of
deposing Defendants’ liability experts, and Defendants will be ordered to pay Plaintiff’s
accompanying costs and reasonable attorney’s fees associated with conducting such discovery.6
Second, Plaintiff’s counsel claims that, due to Defendants’ concession, she did not secure
her own liability expert. In the Court’s view, to the extent this is a problem, it is one of Plaintiff’s
counsel’s own making. Given the factual backdrop of this dispute, it is clear that Plaintiff knew
that Defendants intended to contest liability. Plaintiff’s counsel stayed silent on the issue of
liability throughout many interactions between the parties, presumably hoping to play
Defendants’ failure as a trump card just one month before trial. Strategic gambits are an
important part of the practice of law, but they do not always work. The more prudent approach
5

When Defendants revealed that they intended to use liability experts, Plaintiff simply had to know that liability was
disputed. Why else would Defendants use liability experts?
6

In footnote 3 of their reply brief (Dkt. 150 at 5), Defendants note that they “will make their experts available if
Plaintiff would like the opportunity to depose them prior to trial.”
10

would have been to file for summary judgment on the issue of liability or a default judgment on
the basis of Defendants’ failure to answer. Finally, as a practical matter, Plaintiff’s version of
events clearly alleges unlawful excessive force and battery. Plainly stated, it is unclear what real
benefit Plaintiff could gain by using a liability expert.
C. Conclusion
The Court is mindful that this order is an extraordinary remedy, especially given the
eleventh hour nature of the proceedings. That said, the Court finds that this remedy is
proportionate to the stakes at issue and appropriate given the background of this dispute. In sum,
to err is human, and, despite their mistake, Defendants deserve the opportunity to defend
themselves in Court in front of a jury who will decide the merits of the case. For the reasons set
forth above, Defendants’ Motion for Leave to File Answer and Affirmative Defenses to
Plaintiff’s First Amended Complaint (Dkt. 125) is GRANTED.
The Clerk is directed to file the Answer currently found at Dkt. 125-2.
Nonetheless, the Court finds that Defendants should not be permitted to make such
serious mistakes with impunity. Consequently, Defendants will be held responsible for Plaintiff’s
costs and reasonable attorney’s fees associated with responding to this motion. Moreover, if
Plaintiff wishes to depose Defendants’ liability experts, the Court will reopen discovery for this
limited purpose, and Defendants will be responsible for Plaintiff’s costs and reasonable
attorney’s fees associated with those depositions.
Now that the Court has resolved this issue, it can issue definitive rulings on the parties’
motions in limine. Specifically, the Court rules as follows. Plaintiff’s motions in limine D
(information pertaining to Plaintiff’s current incarceration); E (information pertaining to
Plaintiff’s conduct while incarcerated); G (failure to call equally available witnesses); and H (the

11

existence of motions in limine) are GRANTED. Plaintiff’s motions in limine A (pertaining to
contesting liability and affirmative defenses); B (information concerning Plaintiff’s criminal
history); C (information concerning Plaintiff’s injury-related actions or inactions); and F
(information pertaining to Plaintiff’s alleged resistance) are DENIED.
Defendants’ motions in limine 2 (inadmissible hearsay of employees at Wishard Hospital
or the Indiana Department of Correction); 4 (404(b) evidence offered against the individual
defendants); 5 (specific incidents of conduct of individual Defendants); 6 (lawsuits involving the
City of Indianapolis, IMPD, or other similar entities); 7 (settlement negotiations); 9 (evidence
supporting Plaintiff’s character); 10 (whether City of Indianapolis will pay for judgments against
individual Defendants); and 12 (substantive evidence not previously disclosed or discovered) are
GRANTED. Defendants’ motions in limine 1 (relating to subjective intent of the officers); 3
(relating to causation/comparison testimony); 8 (message to punish Defendants); and 11 (medical
testimony by lay witnesses) are DENIED.
Finally, now that the parties have a clearer picture of what the trial will entail, they are
ordered, once again, to collaborate and devise a mutually agreeable issue instruction, which will
be read with the preliminary instructions. The parties have until noon on Thursday, January 19,
2012 to report to the Court whether they have agreed on an issue instruction. If they are unable to
do so, the Court will devise its own issue instruction.

SO ORDERED.

1/17/2012
________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

12

Copies to:
Scott Leroy Barnhart
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail],[e-mail]
Amy L. Cueller
THE CUELLER LAW OFFICE
[e-mail]
Beth Ann Dale
CITY OF INDIANAPOLIS, CORPORATION COUNSEL
[e-mail],[e-mail]
Andrew R. Duncan
RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK
[e-mail],[e-mail]
John F. Kautzman
RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK
[e-mail],[e-mail]
Edward J. Merchant
RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK
[e-mail],[e-mail]
John C. Ruckelshaus
RUCKELSHAUS KAUTZMAN BLACKWELL BEMIS & HASBROOK
[e-mail]
Clifford R. Whitehead
CITY OF INDIANAPOLIS, CORPORATION COUNSEL
[e-mail],[e-mail],[e-mail]
Alexander Phillip Will
OFFICE OF CORPORATION COUNSEL
[e-mail],[e-mail],[e-mail]

13