Lopez-Aguirre v. Board of County Commissioners of Shawnee County, Kansas et al

Filing 163

MEMORANDUM AND ORDER denying 123 Motion for Leave to Amend Complaint. Signed by Magistrate Judge Kenneth G. Gale on 9/30/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAURA V. LOPEZ-AGUIRRE,
Individually, as Administrator of the Estate
of Julio C. Aguirre, deceased, and as
Next Friend for her Minor Children
Em. A. and El. Al,

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Plaintiffs,
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vs.
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BOARD OF COUNTY
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COMMISSIONERS, et al.,
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Defendants.
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___________________________________ )

Case No. 12-2752-JWL-KGG

MEMORANDUM AND ORDER
Before the Court is Plaintiff’s Motion for Leave to File a Third Amended
Complaint to Add New Parties (Doc. 123), seeking permission to add three
Shawnee County Department of Corrections employees as new Defendants. (See
generally Doc. 124.) After a careful review of the submissions of the parties, the
Court DENIES Plaintiff’s motion.
BACKGROUND
In the present action, Plaintiff brings various state law and federal
Constitutional claims against Defendants resulting from the death of her husband
following his arrest in December 2010. The factual background of this case was

summarized in the District Court’s Order granting in part and denying in part
Defendants’ Motion to Dismiss. (See Doc. 75, at 2-4.) That summary is
incorporated herein by reference.
Following this Order from the District Court, Plaintiff filed her Second
Amended Complaint on May 5, 2013. (Doc. 76.) A revised Scheduling Order was
entered on June 7, 2013, including a deadline of July 22, 2013, to file motions to
join additional parties or otherwise amend the pleadings. (Doc. 94, at 6.) In the
present motion, which was timely filed, Plaintiff seeks leave to file a Third
Amended Complaint, which identifies three new Department of Corrections
employees as individual Defendants. (Doc. 123.)
DISCUSSION
Federal Rule 15(a) provides, in pertinent part, that “a party may amend its
pleading only with the opposing party’s written consent or the court’s leave.” In
the absence of any apparent or declared reason, such as undue delay, undue
prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment, leave to
amend should be freely given, as required by the federal rule. Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Frank v. U.S. West,
Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). A court is justified in denying a motion to
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amend as futile if the proposed amendment could not withstand a motion to
dismiss or otherwise fails to state a claim. Ketchum v. Cruz, 961 F.2d 916, 920
(10th Cir. 1992); see 6 Wright, Miller & Kane, FEDERAL PRACTICE AND
PROCEDURE § 1487 at 642 (1990).
As stated above, the events at issue occurred in December 2010. Defendant
argues that Plaintiff’s claims are futile because the two-year statute of limitations
has expired unless they relate back to the filing of the original complaint per
Fed.R.Civ.P. 15(c). (Doc. 134, at 2.) Fed.R.Civ.P. 15 (c)(1) states that
An amendment to a pleading relates back to the date of the
original pleading when:
(A)

the law that provides the applicable statute of
limitations allows relation back;

(B)

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

(C)

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:
(I)

received such notice of the action that
it will not be prejudiced in defending
on the merits; and
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(ii)

knew or should have known that the
action would have been brought
against it, but for a mistake
concerning the proper party's identity.

See Rule 15(c)(1); see also Loveall v. Employer Health Servs., Inc., 196 F.R.D.
399, 403 (D. Kan. 2000).
Plaintiffs concedes that they “were previously aware of some aspects” of the
incidents relating to decedent’s treatment in custody” after receiving a surveillance
video through the open records act. (Doc. 124, at 2.) Plaintiffs argue, however,
that they “were unable to gain a full picture of what occurred due to materials
being omitted form the response to that request,” but that “[s]everal key details
have now emerged,” necessitating the requested amendment. (Id., at 2-3.)
Plaintiffs continue that the “failure to initially name [these three potential new
Defendants] was not the result undue delay, bad faith, or dilatory motive, but was
due to insufficient information about [these individuals’] role in this use of force
against [decedent] during his incarceration.” (Doc. 124, at 9.) Tellingly, Plaintiffs
concede that they “did not know the identity of these other officers at the time of
filing but [are] not contending that such information was unavailable.” (Id., at 9,
n.4.)
In opposing Plaintiffs’ motion, Defendants rely on the case of Bell v. City of
Topeka, 279 Fed. Appx. 689 (10th Cir. 2008). Therein, the plaintiff filed an
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excessive force case against “Four Unknown Narcotics Agents of the City of
Topeka Police Department” on March 2, 2006, based on events that occurred
during the search of a house on March 3, 2004. Id., at 690-91. The plaintiff
received defendants’ initial disclosures on May 12, 2006, and filed an Amended
Complaint on May 24, 2006, substituting names of specific officers’ names for the
“Unknown Officers.” Id., at 691. After striking the Amended Complaint and
instructing the plaintiff to file a motion to amend, the District Court denied the
motion holding that “the proposed amendment was futile because the claims
against the individual officers were barred by a two-year statute of limitations. See
Kan. Stat. Ann. § 60-513(a).” Id.
The plaintiff in Bell appealed to the Tenth Circuit, which upheld the District
Court, stating that
[w]e have specifically held that ‘a plaintiff's lack of
knowledge of the intended defendant's identity is not a
mistake concerning the identity of the proper party within
the meaning of [Rule 15(c)(1)(C) ].’ Garrett, 362 F.3d at
696 (quotation omitted). In other words, a ‘plaintiff's
designation of an unknown defendant ... in the original
complaint is not a formal defect of the type [the rule] was
meant to address,’ and a later amendment that
specifically names that defendant does not relate back to
the original complaint. Id. at 697.
Id., at 692. The same is true the in matter before the Court.

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Plaintiffs argue that “Defendant had the opportunity to supply the
information that would have provided full context as to the claim against” the
proposed new Defendants, but withheld certain information for “over a year.”
(Doc. 142, at 4.) Defendants have specifically contended, however, that the
written statements of the three potential Defendants “were provided to Plaintiff as
well as the use of force report, the investigation memorandum, and the video
regarding the December 3, 2010, incident.” (Doc. 134, at 4.) Defendants continue
that Plaintiffs would not have been able to identify Kevin Horn and Jackie Doud,
officers included in Plaintiffs initial Complaint, without reviewing the use of force
report provided as part of the response to Plaintiff’s open records request. (Id., at
4-5.) According to Defendants, the report “clearly identifies” the three potential
Defendants. (Id., at 5.) Plaintiffs do not dispute this contention in their reply. (See
generally Doc. 142.) The Court therefore sees no basis to toll the statute of
limitations as a result of Defendants’ alleged failure to provide Plaintiffs with
sufficient information in response to the Open Records request.
As such, Plaintiffs’ proposed amendment is futile because the statute of
limitations has expired and the proposed amendment does not relate back to the
initial filing. Plaintiffs’ motion (Doc. 123) is, therefore, DENIED.

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IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 30th day of September, 2013.

S/ KENNETH G. GALE

Kenneth G. Gale
United States Magistrate Judge

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