Roberson v. Torres et al
Filing
118
ORDER Denying 110 MOTION for Leave to File Second Amended Complaint, Granting 111 MOTION in Limine and Setting Dates. ( Final Pretrial Conference set for 12/14/2015 02:15 PM before District Judge Denise Page Hood, Jury Trial set for 1/12/2016 09:00 AM before District Judge Denise Page Hood). Signed by District Judge Denise Page Hood. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NICHOLAS ROBERSON,
Plaintiff,
v.
Case No. 09-12927
HONORABLE DENISE PAGE HOOD
J. TORRES, et al.,
Defendants.
___________________________________/
ORDER DENYING MOTION FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT,
GRANTING MOTION IN LIMINE
and SETTING DATES
I.
BACKGROUND
On July 24, 2009, this action filed by Plaintiff Roberson was transferred from
the United States District Court, Western District of Michigan. On August 12, 2009
an Amended Complaint was filed pro se naming seven individual Defendants and
eight unknown correctional officers who were members of the Emergency Response
Team. (Doc. No. 15) Roberson alleges excessive force, deliberate indifference to
medical needs, unsafe conditions, failure to protect and investigate and retaliation.
(Doc. No. 15, Pg ID 51)
On September 27, 2010, the Court entered an Order adopting the Magistrate
Judge’s Report and Recommendation dismissing certain Defendants and allowing the
monetary claims to proceed as to Torres and Juan De Los Santos and eight unknown
correctional officers. (Doc. No. 55, Pg ID 333) A Notice of Appearance was filed by
Edwin B. Sadik representing Roberson. (Doc. No. 74) De Los Santos was voluntarily
dismissed by Plaintiff on May 10, 2012. (Doc. No. 78) On March 13, 2013, the Court
entered an Order rejecting the Magistrate Judge’s Report and Recommendation and
denying Defendants’ Motion for Summary Judgment. (Doc. No. 85) The matter was
referred back to the Magistrate Judge for a recommendation as to the remaining John
Does.
On March 27, 2013, the Magistrate Judge entered an order allowing Edwin B.
Sadik to withdraw as Plaintiff’s counsel. (Doc. No. 88) Counsel was assigned to
represent Roberson on July 18, 2013 by the Magistrate Judge. (Doc. No. 98)
Defendants appealed the Court’s order on March 29, 2013. This matter was stayed
pending the resolution of the appeal. (Doc. No. 100) On October 21, 2014, the Sixth
Circuit issued its opinion affirming this Court’s Order denying summary judgment
motion. (Doc. No. 101) This matter thereafter proceeded through discovery, with
discovery completed by August 10, 2015.
This matter is now before the Court on Roberson’s Motion for Leave to file a
Second Amended the Complaint to add named Defendants. A response and reply
have been filed. A hearing was held on the matter.
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II.
ANALYSIS
Roberson seeks to amend the Complaint to add named-Defendants and to relate
back to the original Complaint regarding the statute of limitations period. Torres
opposes the motion as untimely and because the statute of limitations has passed as
to the claims against the proposed Defendants.
Rule 15(a) provides that a party may amend its pleading once as a matter of
course within 21 days after a responsive pleading is served. Fed. R. Civ. P. 15(a)(1).
Rule 15(a)(2) further provides that a party may amend its pleading on leave of court.
Leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). A
district court may deny leave to amend in cases of undue delay, undue prejudice to the
opposing party, repeated failure to cure deficiencies by amendment previously
allowed or futility. Foman v. Davis, 371 U.S. 178, 184 (1962). Delay alone,
regardless of its length is not enough to bar amendment if the other party is not
prejudiced. Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999).
Allowing an amendment after the close of discovery and dispositive motion deadline
has passed creates significant prejudice because discovery would have to be reopened
and the defendant must now prepare a defense for a claim quite different than the
claim that was before the court. Id. When an amendment is sought at a late state of
litigation, there is an increased burden on the moving party to show justification for
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failing to move earlier. Bridgeport Music, Inc. v. Dimension Films, 401 F.3d 647, 662
(6th Cir. 2004). If a complaint cannot withstand a motion to dismiss under Rule
12(b)(6), the motion to amend should be denied as futile.
Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000).
The crux of the parties’ dispute concerns Rule 15(c)(1)(C)(ii). That subsection
has two components: 1) whether there was a mistake concerning the identity of a
prospective defendants; and 2) whether a prospective defendant knew or should have
known that it should have been sued but for the mistake of identity. Black-Hosang
v. Ohio Dep’t of Public Safety, 96 F. App’x 372, 375 (6th Cir. 2004). The Sixth
Circuit allows substitutions to correct the plaintiff’s misidentification of a defendant.
Id. at 376-77.
“As a general rule, an amendment pursuant to Rule 15 ... relates back only to
the matters relating to the original parties of the complaint, or to correct a misnomer
or misdescription of defendant, and not to add or substitute a new party defendant.”
U.S. v. Western Cas. & Sur. Co., 359 F.2d 521, 523 (6th Cir. 1966). The focus is not
whether a plaintiff knew or should have known the identity of the proper defendant,
but whether the proper defendant knew or should have known that it would have been
named as a defendant but for an error in defendant’s identity. Krupski v. Costa
Crociere S.p.A., 560 U.S. 538, 549 (2010). A plaintiff may know that the prospective
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defendant exists but nonetheless harbor a misunderstanding about his status or role in
the events giving rise to the claim at issue and may mistakenly chose to sue a different
defendant based on that misimpression. Id. This kind of deliberate but mistaken
choice does not foreclose a finding that Rule 15(c)(1)(C)(ii) has been satisfied. Id.
Courts may infer an absence of mistake only if the complaint and a plaintiff’s conduct
together demonstrate that a plaintiff sought some strategic advantage in naming the
wrong defendant in the original complaint. Id. at 552. The purpose of relation back
is to balance the interests of the defendant protected by the statute of limitations with
the preference expressed in the Federal Rules for resolving disputes on their merits.
Id. at 550. The Sixth Circuit has held that a complete lack of knowledge as to the
identity of a defendant–a suit against a Doe defendant, for example–is not equivalent
to a “mistake” concerning the identity of the actual defendant’s identity within the
meaning of Rule 15(c). Moore v. State of Tenn., 267 F. App’x 450, 455 (6th Cir.
2008).
In this case, Roberson agrees the statute of limitations is well passed. The
statute of limitations in a section1983 case borrows its limitation period from the
applicable state law injury torts which in Michigan is 3 years. MCL § 600.5805(1).
The incident in the complaint occurred on March 10, 2009, which means the
limitations period expired on March 10, 2012. During discovery in this case, defense
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counsel sent documents on January 5, 2012 to Roberson’s then-counsel which
identified the names of all the proposed new Defendants Roberson now seeks to add.
(Doc. No. 114, Exs. A, B) Roberson does not argue he made a “mistake” in
identifying current Defendant Torres as a defendant, but rather that the eight unknown
correctional officers was not known to him because his former counsel did not give
his current counsel the discovery provided by the defense. Roberson is also not
substituting Torres with the additional defendants because he “mistakenly” named
Torres as a Defendant. Roberson is instead adding new Defendants because they were
unknown to him, or rather, current counsel.
As the Sixth Circuit has held, a complete lack of knowledge as to the identity
of a defendant–a suit against a Doe defendant, for example–is not equivalent to a
“mistake” concerning the identity of the actual defendant’s identity within the
meaning of Rule 15(c). Moore, 267 F. App’x at 455. Roberson cannot meet the
criteria for adding a defendant at this late date and relating the limitations period back
to the original complaint because he has not shown a “mistake” in identifying the
original named-defendant. Roberson relies on Daily v. Monte, 26 F. Supp. 2d 984
(E.D. Mich. 1998) to support his request to amend the Complaint, but Daily is
inapplicable since Roberson, through his counsel, had knowledge of the identity of the
Doe defendants. It is noted the Daily case is a district court case, which was issued
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well before the Moore case issued by the Sixth Circuit. The proposed amended
complaint adding certain named defendants is futile.
III.
CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Plaintiff’s Motion for Leave to File Second Amended
Complaint (Doc. No. 110) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion in Limine to Exclude at
Trial Evidence of Plaintiff’s Prior Misconduct (Doc. No. 111) is GRANTED, in light
of the parties’ agreement placed on the record.
IT IS FURTHER ORDERED that the following dates govern this matter:
Final Pretrial Conference is set for:
Dec. 14, 2015, 2: 15 p.m.
(All parties with authority to settle must appear)
Proposed Joint Final Pretrial Order
must be submitted by:
Dec. 7, 2015
Jury Trial is set for:
Jan. 12, 2016, 9:00 a.m.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: October 13, 2015
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I hereby certify that a copy of the foregoing document was served upon counsel of
record on October 13, 2015, by electronic and/or ordinary mail.
S/LaShawn Saulsberry
Case Manager
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