Foster v. Cerro Gordo County et al
ORDER granting 16 Motion For Leave to Amend Complaint filed by Plaintiff Margaret R Foster. The Clerk is directed to docket the amended complaint submitted with the motion. Signed by Magistrate Judge Leonard T Strand on 4/25/2014. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
MARGARET RAE FOSTER,
CERRO GORDO COUNTY, et al.,
This case is before me on plaintiff’s June 25, 2014, motion (Doc. No. 16) for
leave to amend her complaint. The proposed amended complaint would, if allowed, add
seven new defendants to this case while also adding additional allegations to Count IV.
In addition to seeking leave to file the amended complaint, plaintiff seeks entry of an
order finding that the amended complaint relates back to the filing of the original
All existing defendants have filed resistances (Doc. Nos. 18, 19) to plaintiff’s
No party has requested oral argument and, in any event, I find that oral
argument is not necessary. L.R. 7(c). The motion is fully submitted.
Plaintiff Margaret Rae Foster commenced this action in the Iowa District Court
for Cerro Gordo County on January 17, 2014. Doc. No. 3. The state court petition
names the following defendants: Cerro Gordo County, Iowa (County), City of Mason
City (City), Roungaroun Phaiboun, additional unidentified Mason City police officers or
employees, Kevin Pals, Shad Stoeffler, Terry Allen-Burns and additional unidentified
Cerro Gordo County jail staff.
Foster contends she was arrested by Officer
Phaiboun and another officer on January 19, 2012, that they inflicted a fracture
dislocation to her elbow (along with other physical damage) and that they denied her
requests for medical attention – instead delivering her to the County jail.
Id. at ¶¶ 3-4.
She further contends that she requested medical attention at the jail but jail staff ignored
her requests. Id. at ¶ 5. She alleges that she was held at the jail overnight and that she
underwent surgery to repair her fracture and dislocation five days after being released.
Id. at ¶ 7. The petition includes causes of action for negligence, intentional or reckless
infliction of injury, intentional infliction of emotional distress and violation of Foster’s
constitutional rights. Id. at 6-8. Foster seeks compensatory and punitive damages,
attorney fees and other relief. Id. at 9.
Defendants County, Pals, Stoeffler and Allen-Burns removed the action to this
court on March 3, 2014. Doc. No. 2. Defendants City and Phaiboun joined in the
removal two days later. Doc. No. 6. All of the named defendants have filed answers
denying liability and raising affirmative defenses. Doc. Nos. 5, 8.
On April 15, 2014, I approved (with one minor exception) and entered the parties’
joint proposed scheduling order and discovery plan.
Doc. No. 10.
things, that order established June 2, 2014, as the deadline for any motions to add parties
and/or amend pleadings. Id. at 1. Discovery is scheduled to close January 30, 2015,
and a jury trial is scheduled to begin August 10, 2015. Doc. Nos. 10, 11.
On June 2, 2014, the deadline for any motions to amend or add parties, Foster
filed an amended complaint and jury demand.
Doc. No. 12. She did not file a motion
for leave to do so. The defendants quickly pointed this out by moving (Doc. Nos. 14,
15) to strike the amended complaint, prompting Foster to file her present motion on June
25, 2014. On July 1, 2014, I entered an order (Doc. No. 17) granting the defendants’
motion to strike the improperly-filed amended complaint and indicating that Foster’s
motion for leave to amend would be considered after defendants had the opportunity to
resist that motion. The resistances (Doc. Nos. 18, 19) were filed the following day.
Should Leave to Amend be Granted?
A party may amend its pleading once as a matter of course within a limited period
of time after filing it. Fed. R. Civ. P. 15(a)(1). Once that period has expired, a
pleading may be amended “only with the opposing party's written consent or the court's
leave.” Fed. R. Civ. P. 15(a)(2). Such leave, when sought, Ashall be freely given when
justice so requires.@ Id. There is, however, no absolute right to amend a pleading.
See, e.g., Hammer v. Osage Beach, 318 F.3d 832, 844 (8th Cir. 2003); Becker v. Univ.
of Nebraska, 191 F.3d 904, 908 (8th Cir. 1999); Williams v. Little Rock Mun. Water
Works, 21 F.3d 218, 224 (8th Cir. 1994). Notwithstanding Rule 15’s liberal amendment
policy, a motion to amend may be denied on grounds of “undue delay, bad faith or
dilatory motive on the part of the movant, ... undue prejudice to the opposing party by
virtue of allowance of the amendment, [and] futility of amendment.”
See Bell v. Allstate
Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998).
When a motion to amend is filed beyond the scheduling order’s deadline for such
motions, Rule 16(b) comes into play, as well. Scheduling orders may be modified only
for Agood cause.@ Fed. R. Civ. P. 16(b)(4); see also Local Rule 16(f) (AThe deadlines
established by the Rule 16(b) and 26(f) scheduling order and discovery plan will be
extended only upon written motion and a showing of good cause.@). “The interplay
between Rule 15(a) and Rule 16(b) is settled in this circuit.”
Sherman v. Winco
Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008). The liberal amendment standard
contained in Rule 15(a) applies when a motion for leave to amend is filed within the time
permitted by the court’s scheduling order and discovery plan. On the other hand, “[i]f
a party files for leave to amend outside of the court's scheduling order, the party must
show cause to modify the schedule.” Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497
(8th Cir. 2008); see also In re Milk Prods. Antitrust Litig., 195 F.3d 430, 437-38 (8th
Cir. 1999) (AIf we considered only Rule 15(a) without regard to Rule 16(b), we would
render scheduling orders meaningless and effectively would read Rule 16(b) and its good
cause requirement out of the Federal Rules of Civil Procedure.@) (quoting Sosa v. Airprint
Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998)).
In Sherman, the Eighth Circuit Court of Appeals explained the Rule 16(b) Agood
cause@ standard as follows:
AThe primary measure of good cause is the movant's diligence in attempting
to meet the order's requirements.@ Rahn v. Hawkins, 464 F.3d 813, 822
(8th Cir. 2006); see also Fed. R. Civ. P. 16(b), advisory committee note
(1983 Amendment) (A[T]he court may modify the schedule on a showing of
good cause if it cannot reasonably be met despite the diligence of the party
seeking the extension.@). While the prejudice to the nonmovant resulting
from modification of the scheduling order may also be a relevant factor,
generally, we will not consider prejudice if the movant has not been diligent
in meeting the scheduling order's deadlines. See Bradford v. DANA Corp.,
249 F.3d 807, 809 (8th Cir. 2001) (concluding that there was Ano need to
explore beyond the first criterion, [diligence,] because the record clearly
demonstrate[d] that Bradford made only minimal efforts to satisfy the
[scheduling order's] requirements@). Our cases reviewing Rule 16(b)
rulings focus in the first instance (and usually solely) on the diligence of the
party who sought modification of the order. See, e.g., Rahn, 464 F.3d at
822 (affirming the district court's denial of Rahn's request for a
modification of the scheduling order because the record made clear that
Rahn did not act diligently to meet the order's deadlines); Barstad v.
Murray County, 420 F.3d 880, 883 (8th Cir. 2005) (affirming the district
court's denial of leave to amend the Barstads' complaint under Rule 16(b)
because the Barstads had eight months to request an amendment of the
scheduling order and Aknew of the claims they sought to add when they
filed the original complaint@); Freeman v. Busch, 349 F.3d 582, 589 (8th
Cir. 2003) (affirming, under Rule 16(b), the district court's denial of
Freeman's motion to amend her complaint because she provided no reasons
why the amendment could not have been made earlier or why her motion
to amend was filed so late).
Sherman, 532 F.3d at 716-17. Applying this standard, the court held that leave to add
a new defense should have been denied, as such leave was not sought until almost eighteen
months after the deadline to amend pleadings had expired. Id. at 717-18.
Here, as noted above, the deadline for motions to add parties and amend pleadings
was June 2, 2014. Doc. No. 10. Foster filed her motion three weeks later, on June 25,
2014. This would normally require that Foster show good cause under Rule 16 for the
untimely filing. Foster’s motion does not address this issue, nor do the defendants, in
their respective resistances, allege that the motion should be denied because it was filed
beyond the scheduling order’s deadline. It appears that all parties assume Foster’s
improper filing of an amended complaint on June 2, 2014, without seeking leave to do
so, was “close enough” to comply with the scheduling order’s deadline. While that
assumption is certainly arguable, the fact that no defendant has raised an objection based
on Foster’s failure to comply with the scheduling order persuades me that it would be
inappropriate to deny the motion on that basis. Defendants were, at least, made aware
of the contents of the proposed amended complaint on June 2, 2014, even though Foster
failed to file the required motion. Foster then filed that motion within a reasonable time
after defendants moved to strike the improperly-filed amendment.
circumstances, I will analyze the motion under Rule 15 despite Foster’s technical failure
to comply with the Rule 16(a) scheduling order.
As noted above, a motion for leave to amend may be denied under Rule 15 on
grounds of “undue delay, bad faith or dilatory motive on the part of the movant, ... undue
prejudice to the opposing party by virtue of allowance of the amendment, [and] futility
of amendment.” Bell, 160 F.3d at 454. Here, while the parties do not couch their
arguments in terms of futility, that is clearly the fighting issue.
amendment would add seven new defendants and include additional allegations to Count
IV. Defendants only challenge the amendment based on the alleged futility of adding
the new defendants.
Foster requests a finding that her amended complaint relates back to the filing of
her original state court petition, which she filed on January 17, 2014. She makes this
request because (a) her alleged injuries occurred on January 19 and 20, 2012, and (b) all
of her claims are subject to a two-year statute of limitations.
See Iowa Code 614.1(2)
(two-year limitation on personal injury claims); Wycoff v. Menke, 773 F.2d 983, 984 (8th
Cir. 1985) (applying Iowa Code § 614.1(2) to claims brought pursuant to 42 U.S.C. §
1983). Because Foster waited until virtually the last possible minute to commence this
action, any new parties added at this stage will have viable statute of limitations arguments
if the amended complaint does not relate back to the original filing date.
Defendants thus devote the bulk of their resistances to arguments concerning the
“relation back” request. All parties invoke Rule 15(c) which provides, in relevant part:
Relation Back of Amendments.
When an Amendment Relates Back. An amendment to a
pleading relates back to the date of the original pleading when:
the law that provides the
limitations allows relation back;
the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to
be set out—in the original pleading; or
the amendment changes the party or the naming
of the party against whom a claim is asserted, if
Rule 15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
received such notice of the action that it will
not be prejudiced in defending on the merits;
knew or should have known that the action
would have been brought against it, but for a
mistake concerning the proper party's identity.
Fed. R. Civ. P.15(c)(1). Foster contends that the proposed amendment qualifies for
relation back under this rule, while the defendants disagree.
The parties present their “relation back” arguments as if I should make a final
determination, now, as to whether the proposed amendment relates back to the original
However, the proposed new defendants are not yet part of this case and,
therefore, have not raised any arguments based on the statute of limitations. Neither
plaintiff nor defendants address the issue of whether the current defendants have standing
to argue that Foster’s claims against the proposed defendants are futile. Courts are
divided on this issue. See Agri Star Meat & Poultry, LLC v. Moriah Capital, L.P., No.
C10-1019, 2011 WL 1743712, at *6-7 (N.D. Iowa May 6, 2011) (finding a current
defendant could assert futility on behalf of prospective defendants where prospective
defendants had close legal relationship with current defendant and it appeared likely that
all defendants would be represented by the same attorneys); Custom Pak Brokerage, LLC
v. Dandrea Produce, Inc., CIV. 13-5592 NLH/AMD, 2014 WL 988829 (D.N.J. Feb.
27, 2014) (finding that neither current defendants nor proposed defendant had standing
to oppose motion to amend based on futility of adding defendant because of lack of
In deciding whether an amendment to add/change parties is futile, courts have
considered arguments similar to the one presented here based on the statute of limitations.
See Carter v. Great Am. Grp. WF, LLC, 3:11-0794, 2012 WL 3286048 (M.D. Tenn.
July 23, 2012) report and recommendation adopted sub nom. Carter v. Movie Gallery
US, LLC, 3-11-0794, 2012 WL 3332409 (M.D. Tenn. Aug. 10, 2012) (“Because futility
is a valid objection to a motion to amend and because the district court may make the
legal determination that a motion to amend is futile based on the expiration of the statute
of limitations, the defendants have standing to invoke the statute of limitations as a
defense against plaintiff’s motion to amend.”); Presnell v. Paulding Cnty., Ga., 454 F.
App’x 763, 767-68 (11th Cir. 2011) (finding district court did not abuse its discretion in
denying motion to amend to add new parties as the claims against the new parties would
have been barred by the statute of limitations, and thus the amendment was futile). Based
on these cases and the fact that the prospective defendants in this case have a close legal
relationship with the current defendants (a factor considered in Agri Star Meat & Poultry,
LLC), I will consider the futility argument presented by defendants.
A proposed amendment is futile if it could not survive a Rule 12 motion to dismiss.
See In re Senior Cottages of Am., LLC, 482 F.3d 997, 1001 (8th Cir. 2007); Van Stelton
v. Van Stelton, 904 F. Supp. 2d 965, 969 (N.D. Iowa 2012); Quality Refrigerated
Services, Inc. v. City of Spencer, 908 F. Supp. 1471, 1489 (N.D. Iowa 1995). As I
have recently explained:
I will not deem a proposed new claim to be “futile” absent a high likelihood
that it is doomed to near-certain failure. Thus, even if I have doubts about
a particular claim, and suspect that it might be dismissed upon a Rule 12
motion, I will not deem it to be “futile” for purposes of Rule 15.
Community Voice Line, LLC, v. Great Lakes Comm. Corp., 295 F.R.D. 313, 321 (N.D.
Iowa 2013). “A court may dismiss a claim under Rule 12(b)(6) as barred by the statute
of limitations if the complaint itself establishes that the claim is time-barred.”
Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011) (citing Jessie v. Potter, 516 F.3d
709, 713 n.2 (8th Cir. 2008)).
Defendants contend Foster’s claims against the proposed defendants are futile
because (1) the statute of limitations for asserting such claims has expired and (2) the
claims against the new defendants do not “relate back” under Rule 15(c)(1)(C).
Defendants also argue that Foster has failed to demonstrate compelling circumstances for
equitable tolling of the statute of limitations.
Claims brought pursuant to 42 U.S.C. § 1983 for damages arising from alleged
constitutional violations are subject to the statute of limitations that applies to a personal
injury action in the state in which the cause of action arose. Wilson v. Garcia, 471 U.S.
261, 278–79 (1985). In Iowa, those claims are governed by Iowa's two-year statute of
limitations for personal injury actions. Wycoff, 773 F.2d at 984 (applying Iowa Code §
614.1(2)). Foster’s proposed amended complaint alleges that her arrest, injuries and
denial of necessary medical care occurred on January 19, 2012. Doc. No. 16-1 at 2.
The proposed amended complaint was filed on June 25, 2014. While it would appear
that the claims against the proposed defendants are outside the two-year statute of
limitations, dismissal on this basis is not so clearly warranted when considering the
relation-back doctrine under Rule 15(c)(1)(C).
Plaintiff characterizes her proposed amendment as a “substitution” of the named
defendants for the previously “unidentified” defendants and argues her amended
complaint “relates back” under Rule 15(c)(1)(C) because the named defendants had
adequate notice of the lawsuit and knew action would be brought against them, but for
Foster’s lack of knowledge concerning their names. Rule 15(c)(1)(C) applies when “the
amendment changes the party or the naming of the party against whom a claim is
asserted . . . .”
Fed. R. Civ. P. 15(c)(1)(C).
The Rule requires:
(a) that the
amendment assert a claim that arose out of the same conduct, transaction or occurrence
set out in the original pleading, and (b) that within the period provided by Rule 4(m) for
serving the summons and complaint, the party to be brought in by the amendment
“received such notice of the action that it will not be
prejudiced in defending on the merits” and
“knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper
Id. The issue presented here relates to the final requirement - whether listing “John
Doe” defendants in the original petition can be considered a “mistake concerning the
proper party’s identity.” Id.
Defendants point out that several federal appellate courts have found that replacing
“John Doe” defendants with named defendants does not constitute a mistake under Rule
15(c)(1)(C). See e.g., Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013) (“This
Court’s interpretation of Rule 15(c)(1)(C) makes clear that the lack of knowledge of a
John Doe defendant’s name does not constitute a ‘mistake of identity.’”)1; Smith v. City
of Akron, 476 F. App’x 67, 69-70 (6th Cir. 2012) (“The problem with Smith’s amended
complaint is that adding new, previously unknown defendants in place of ‘John Doe’
defendants ‘is considered a change in parties, not a mere substitution of parties,’ and
‘such amendments do not satisfy the ‘mistaken identity’ requirements of Rule 15(c).”).
The Eighth Circuit Court of Appeals has not yet addressed this issue.2
Plaintiff relies on Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 549 (2010),
to argue that “mistake” is read broadly and that I should focus only on what the
prospective defendants knew or should have known within the Rule 4(m) period without
regard to plaintiff’s knowledge or her timeliness in seeking to amend.
U.S. at 541. Plaintiff acknowledges that Krupski is not a case involving “John Doe”
defendants. In Krupski, the plaintiff identified “Costa Cruise” as the named defendant
in her original complaint. Id. at 543. Costa Cruise notified plaintiff multiple times that
Costa Crociere was the proper defendant. Id. at 543-44. When Costa Cruise moved
for summary judgment stating that Costa Crociere was the proper defendant, the plaintiff
filed a response along with a motion to amend her complaint to add Costa Crociere as a
In Hogan, a section 1983 case, the court concluded that although an amendment naming the
previous “John Doe” defendants would not relate back under Rule 15(c)(1)(C), it would relate
back under Rule 15(c)(1)(A) and New York law related to claims alleged against John Doe
defendants. Neither side has presented an argument as to whether this provision and Iowa law
would allow the amendment.
However, the Eighth Circuit has favorably cited Barrow v. Wethersfield, 66 F.3d 466, 467 (2d
Cir. 1995), in which the Second Circuit Court of Appeals stated, “[i]t is familiar law that ‘John
Doe’ pleadings cannot be used to circumvent statutes of limitations because replacing a ‘John
Doe’ with a named party in effect constitutes a change in the party sued.’ Thus, ‘[s]uch an
amendment may only be accomplished when all of the specifications of Fed. R. Civ. P. 15(c)
are met.’” See Foulk v. Charrier, 262 F.3d 687, 696 (8th Cir. 2001) (declining to consider
whether identifying a defendant by name relates back to a previously filed complaint against a
“John Doe” defendant because the argument was not presented to the district court).
defendant. Id. at 544. Summary judgment was denied and plaintiff’s motion for leave
to amend her complaint was granted. Costa Crociere was served with the amended
complaint and Costa Cruise was dismissed pursuant to a joint stipulation. Id.
Costa Crociere (represented by the same counsel as Costa Cruise) filed a motion
to dismiss arguing the amended complaint did not relate back under Rule 15(c) and was
untimely. Id. at 544-45. The District Court agreed, finding plaintiff had not made a
mistake concerning the identity of the proper party because she had been informed of the
proper defendant multiple times and delayed moving to amend to her complaint. Id. at
545-46. The Eleventh Circuit affirmed, pointing out that Costa Crociere was identified
as the carrier on plaintiff’s passenger ticket such that she either knew or should have
known Costa Crociere was a potential party. Id. at 546. The United States Supreme
Court reversed, clarifying that Rule 15(c)(1)(C)(ii) “asks what the prospective defendant
knew or should have known during the Rule 4(m) period, not what the plaintiff knew or
should have known at the time of filing her original complaint.” Id. at 548 [emphasis in
original]. Applying the facts, the Court considered that Costa Cruise and Costa Crociere
were related entities with similar names and that Costa Crociere had contributed to the
confusion by ambiguously advertising on passenger tickets that “Costa Cruises” had
achieved a certification of quality. Id. at 556. The Court concluded Costa Crociere
should have known that plaintiff’s failure to name it as a defendant was due to a mistake
concerning the proper party’s identity. Id. at 557.
Here, I find that defendants have failed to establish that there is no set of facts
under which Foster could show that the prospective defendants “knew or should have
known that the action would have been brought against [them], but for a mistake
concerning [their] identify.” Fed. R. Civ. P. 15(c)(1)(C). There appears to be no
dispute that the amended complaint is based on the same “conduct, transaction, or
occurrence” as the original complaint, which meets the first requirement under Rule
15(c)(1)(C). As to the other requirements, Krupski makes it clear that the determination
must be made in light of what the defendants knew or should have known within 120
days3 after the petition was filed. The current record contains limited information as to
whether, during that time period, the prospective defendants (1) received notice of the
action such that they would not be prejudiced in defending the merits or (2) knew or
should have known that the action would have been brought against them, but for a
mistake of their identity. That information is also outside of the amended complaint
itself. Because I cannot determine at this time that the amendment cannot relate back
under Rule 15(c)(1)(C) as a matter of law, I find defendants have failed to demonstrate
that plaintiff’s amendment is futile. Plaintiff’s motion for leave to file her amended
complaint will be granted.4
Of course, and as noted above, a finding that the proposed amendment is not futile
does not mean it is meritorious. The newly-named defendants are free to assert a statute
of limitations defense once they are added to the case and present arguments as to why
the claims against them do not relate back pursuant to Rule 15(c)(1)(C).
See Fed. R. Civ. P. 4(m).
Because I have not reached a conclusion as to whether plaintiff’s amended complaint relates
back under Rule 15(c)(1)(C), I find it unnecessary to consider defendants’ other argument that
the statute of limitations cannot be equitably tolled.
For the reasons explained above, plaintiff’s motion (Doc. No. 16) for leave to
amend her complaint is granted. The Clerk is directed to docket the amended complaint
(Doc. No. 16-1) submitted with the motion.
IT IS SO ORDERED.
DATED this 25th day of July, 2014.
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
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