Spencer v. Lewis et al

Filing 31

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER RE: MOTION FOR JOINDER OF PARTIES (DOCKET ENTRY #29)is DENIED.(Feeney, Eileen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BARRY SPENCER II,
Plaintiff,
v.

CIVIL ACTION NO.
13-11528-MMB

MR. LEWIS, et al.,
CITY OF BOSTON POLICE DEPARTMENT,
Defendants. 1
MEMORANDUM AND ORDER RE:
MOTION FOR JOINDER OF PARTIES
(DOCKET ENTRY # 29)
April 4, 2014
BOWLER, U.S.M.J.
On March 21, 2014, plaintiff Barry Spencer II (“plaintiff”)
filed a motion to join eight defendants.

(Docket Entry # 29).

Defendant Lewis (“Lewis” or “defendant”) 2 opposes the motion as
to six of the eight defendants due to the absence of facts to
support their liability.

(Docket Entry # 30).
BACKGROUND

In the original complaint, plaintiff filed suit against
Lewis, unknown defendants John Doe Boston police officers,
including a Sergeant John Doe, a booking officer and the City of
Boston Police Department.

1

(Docket Entry # 1).

The caption is taken directly from the complaint. (Docket
Entry # 1).
2
The complaint does not identify Officer Lewis’ full name. In
a supporting memorandum to a motion to dismiss, the City of
Boston Police Department identified Lewis’ full name as “Officer
Roderick Lewis.” (Docket Entry # 16, p. 1).

On March 14, 2014, this court dismissed the Boston Police
Department as a defendant.

(Docket Entry # 25).

The Memorandum

and Order also informed plaintiff that he may seek leave to
amend the complaint to name the City of Boston as a defendant.
(Docket Entry # 25).

The Memorandum and Order sets out the

facts as described in the complaint.

Accordingly it is not

necessary to address them here in further detail.
Plaintiff presently seeks to join as defendants the “City
of Boston/Commonwealth of Massachusetts, Peter King, Sgt. Smith,
Sgt. Kraft, Officer O’Brien, Officer Cepeda, Officer Maldonado
[and the] Booking Officer 3-11 shift on 9/14/12.”
# 29).

(Docket Entry

Defendant submits that plaintiff should seek leave to

amend the complaint under Fed.R.Civ.P. 15 (“Rule 15”) to include
the City of Boston.
Defendant also argues that joinder is futile as to six of
the defendants because the complaint fails to allege any facts
against them.

The six defendants are Peter King, Sgt. Smith,

Sgt. Kraft, Officer O’Brien, Officer Cepeda and Officer
Maldonado.
DISCUSSION
Permissive joinder is governed by Fed.R.Civ.P. 20(a)(2)
(“Rule 20(a)(2)”).

A plaintiff may join multiple defendants

under Rule 20(a)(2) if:

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(A) any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising
out of the same transaction, occurrence, or series of
transactions or occurrences; and
(B) any question of law or fact common to all defendants
will arise in the action.
Fed.R.Civ.P. 20(a)(2).
Permissive joinder is a cumulative two prong test requiring
both transactional relatedness and commonality.

4 James Wm.

Moore et al., Moore’s Federal Practice, § 20.02[1][a] (3rd ed.
2013).

The rule “is liberally construed to entertain a broad

scope of litigation” and is based on “common sense, fact-based
considerations,” not on “arcane historic formulations of legal
relationships.”

Id.; see also Collazo v. Calderón, 212 F.R.D.

437, 441 (D.P.R. 2002).
Where, as here, a plaintiff seeks “to add defendants more
than twenty-one days after a motion to dismiss was filed,
Plaintiff ‘must seek leave to amend the complaint under Federal
Rule of Civil Procedure 15(a), and the joinder must also satisfy
the requirements of Federal Rule of Civil Procedure 20(a)(2).’”
White v. Ameritel Corp., 2011 WL 6837644, at *4 (D.Md. Dec. 28,
2011); accord Bayatfshar v. Aeronautical Radio, Inc., 934
F.Supp.2d 138, 142 (D.D.C. 2013); see also Boyd v. District of
Columbia, 465 F.Supp.2d 1, 3 (D.D.C. 2006) (once responsive
pleading is served, “plaintiff may amend the complaint only by
leave of the court or by written consent of the adverse party”);
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Fed.R.Civ.P. 15(a).

Consequently, even assuming for purposes of

argument that the complaint satisfies Rule 20(a)(2), plaintiff
must also seek leave to amend under Rule 15(a) in order to add
these defendants.

White v. Ameritel Corp., 2011 WL 6837644, at

*4; Bayatfshar v. Aeronautical Radio, Inc., 934 F.Supp.2d at
142.
Defendant challenges the motion on the basis of futility.
Futility constitutes an adequate basis to deny an amendment
under Rule 15(a).

See Universal Communications Systems, Inc. v.

Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007); Maine State
Building and Construction Trades Council, AFL CIO v. United
States Department of Labor, 359 F.3d 14, 19 (1st Cir. 2004).

“An

amendment is futile if it could not withstand a Rule 12(b)(6)
motion to dismiss.”

Menard v. CSX Transp., Inc., 2012 WL 13372,

*5 (D.Mass. Jan. 3, 2012).

To survive a Rule 12(b)(6) motion to

dismiss, the complaint must include factual allegations that
when taken as true demonstrate a plausible claim to relief even
See Bell Atlantic

if actual proof of the facts is improbable.
v. Twombly, 550 U.S. 544, 555-558 (2007).

Moreover, “in a civil

rights action as in any other action subject to notice pleading
standards, the complaint should at least set forth minimal facts
as to who did what to whom, when, where, and why.”

Educadores

Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 68 (1st Cir.
2004).
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Plaintiff does not attach a proposed amended complaint.
The original complaint is devoid of any facts connecting the
proposed six defendants to the September 18, 2012 incident set
out in the complaint.

Although the complaint refers to various

unknown John Doe officers, it does not attribute any of these
unknown officers’ actions to the additional parties plaintiff
seeks to join.

The motion to join these six defendants

therefore lacks merit because it does not satisfy Rule 15(a).
In the event plaintiff seeks leave to amend the complaint
in the future, he should attach a proposed amended complaint.
See Clayton v. White Hall School District, 778 F.2d 457, 460 (8th
Cir. 1985) (“to preserve the right to amend the complaint, a
party must submit the proposed amendment along with its
motion”); Bownes v. City of Gary, Ind., 112 F.R.D. 424, 425
(N.D.Ind. 1986).

At a minimum, the proposed amended complaint

should set out facts connecting the proposed defendants to the
September 2012 incident detailed in the complaint.

As advised

in the March 2014 Memorandum and Order, plaintiff should also
seek leave to amend under Rule 15 in the event he wishes to join
the City of Boston as a defendant.

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CONCLUSION
In accordance with the foregoing discussion, the motion to
join (Docket Entry # 29) is DENIED.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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