Gerhart et al v. Rankin County, Mississippi et al
Filing
259
ORDER denying 223 Motion for Summary Judgment; granting 225 Motion for Leave to File; denying 226 Motion to Strike Signed by District Judge Henry T. Wingate on 9/5/2018 (ab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JOSEPH GERHART, et al.
vs.
PLAINTIFFS
CIVIL ACTION NO.: 3:11-CV-586-HTW-LRA
RANKIN COUNTY, et al.
DEFENDANTS
ORDER DENYING THE DEFENDANT’S
SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT
BEFORE THIS COURT are the following motions: Rankin County Defendants’
Supplemental Motion for Summary Judgment. [Docket no. 223]; the Rankin County Defendants’
Motion for Leave to File Supplemental Motion for Summary Judgement [Docket no. 225]; and
the Plaintiffs’ Motion to Strike Supplemental Motion for Summary Judgment [Docket no. 226].
This court is convinced the Rankin County Defendants’ Motion for Leave to File Supplemental
Motion for Summary Judgement [Docket no. 225] is well-taken and is due to be GRANTED.
Further, this court is persuaded that the Plaintiffs’ Motion to Strike Supplemental Motion for
Summary Judgment [Docket no. 226] is not well-taken and is, therefore, due to be DENIED.
This court held a hearing in this matter on January 3, 2017, in which the parties argued
their respective positions.1 This court requested a letter brief from the parties in this matter
regarding the issue of the “relation-back” of Brett Gerhart’s claims – acting as an adult in his own
capacity – in the fourth amended complaint [Docket no. 206] to the original complaint [Docket
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After this court held its hearing on January 3, 2017, it issued its memorandum opinions denying two (2) pending
motions for summary judgment based on the purported qualified immunity of three law enforcement defendants. The
defendants, aggrieved, filed interlocutory notices of appeal in April, 2017. This court then stayed further proceedings
in this matter pending the United States Fifth Circuit Court of Appeals’ rulings on defendants’ interlocutory notices
of appeal. The Fifth Circuit Court of Appeals issued its opinions in November, 2017, and June, 2018, whereupon this
court returned this lawsuit to its active docket and held a status conference with the parties.
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no.1]. The parties submitted their letter briefs to this court on January 5, 2017, which are attached
to this Order as exhibits.
The Rankin County Defendants cited no new case law in their letter brief, but reiterated
their points of law which were encompassed by their brief on this matter. [Docket no. 224]. The
Rankin County Defendants urge this court to treat the amendment as an amendment changing the
name of a “John Doe” defendant in a complaint. Thus, say the Defendants, Jacobsen v. Osborne,
133 F.3d 315 (5th Cir. 1998), applies.
In this Supplemental Motion for Summary Judgment, the court only addresses one aspect
of the Fourth Amended Complaint, and that is whether plaintiff Brett Gerhart can sue in his own
individual capacity. This lawsuit was originally brought by his parents acting as next friend to
Brett Gerhart (and his siblings who were minors at the time of the incidents at issue here).
Defendants herein are: Johnny Barnes; Brett McAlpin; Brad McLendon; Sheriff Ronnie
Pennington; Rankin County, Mississippi; Ben Schuler; Jamie Scouten; and the City of Pearl,
Mississippi. Defendants contend that at this late date, Brett Gerhart cannot be substituted in his
own adult, individual capacity.
During the entire course of this litigation, the issue before this court has been whether Brett
Gerhart had been deprived of his constitutional rights by the defendants during their alleged search
and seizure of his person and residence. The parties have engaged in copious discovery to flesh
out the details of what occurred during the encounter between Brett Gerhart and the defendants.
On December 1, 2016, in plaintiffs’ fourth amended complaint [Docket no. 205], Brett
Gerhart is suing in his own adult, individual capacity. The defendants herein contend that his [Brett
Gerhart’s] claims in his individual, adult capacity are barred by the Mississippi statutes of
limitations codified at Miss. Code §§ 11-15-135 and 11-15-149.
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For the reasons stated infra, this court is convinced the Rankin County Defendants’
Supplemental Motion for Summary Judgment [Docket no. 223] is not well-taken and therefore, is
due to be DENIED.
I.
PROCEDURAL HISTORY
The Plaintiffs filed their lawsuit on September 20, 2011. [Docket no. 1]. Before the
complaint had been served, the Plaintiffs filed their [First] Amended Complaint on November 17,
2011 [Docket no. 2]. The Rankin County Defendants filed their answer to the amended complaint
on December 12, 2011. [Docket no. 19]. The City of Pearl Defendants filed their answer to the
amended complaint on December 21, 2011. [Docket no. 20].
The Plaintiffs filed a Second Amended Complaint on February 21, 2012. [Docket no. 31].
The Defendants filed their answers on February 27, 2012 [Docket no. 33], and March 2, 2012
[Docket no. 38].
The Plaintiffs filed their Third Amended Complaint on May 31, 2012. [Docket no. 85].
The defendants filed their answers on June 6, 2012 [Docket no. 93], and June 20, 2012 [Docket
no. 99].
The Rankin County Defendants filed a Motion for Partial Summary Judgment on July 29,
2016, alleging the misnomer of Brett Gerhart. [Docket no. 162]. In all the complaints operative in
the lawsuit sub judice until the filing of the Fourth Amended Complaint, Brett Gerhart was not
named in his own capacity by the Plaintiffs, but his parents Joseph Gerhart and Amanda Jo Gerhart
were named as next friend of Brett Gerhart. As a result of the filing of the Rankin County
Defendants’ Partial Motion for Summary Judgment, the Plaintiffs filed a Motion for Leave to File
an Amended Complaint. [Docket no. 175]. This court granted the Plaintiffs leave to file a fourth
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amended complaint to correct the misnomer of Brett Gerhart on November 29, 2016. [Docket no.
205].
The Plaintiffs filed their Fourth Amended Complaint on December 1, 2016. [Docket no.
206]. The Rankin County Defendants filed their Motion to Strike the Amended Complaint on
December 13, 2016, which this court will address in a separate order. [Docket no. 209]. The Rankin
County Defendants filed the instant Supplemental Motion for Summary Judgment on January 3,
2017. [Docket no. 223]. The Plaintiffs have not filed a responsive pleading but filed a letter brief
as requested by this court, which this court will attach as an exhibit to this Order. The City of Pearl
Defendants have filed a Joinder in Document supporting the Rankin County Defendants’
supplemental motion for summary judgment. [Docket no. 227].
II.
ARGUMENT
a. Standard of Review
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The movant has the initial burden of showing that no genuine issue of material fact exists. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). When determining whether summary judgment is
appropriate, this court must examine “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,” to determine indeed whether genuine
disputes exist as to any material facts and whether the moving party is entitled to a judgment as a
matter of law. McDonald v. Entergy Operations Inc., 2005 WL 2474701, at *3 (S.D. Miss. Apr.
29, 2005) (quoting Fed. R. Civ. P. 56(c)).
The court must view the facts, evidence and all inferences drawn therefrom in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
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U.S. 574, 587 (1986); Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014).
“Summary judgment can be granted only if everything in the record demonstrates that no genuine
issue of material fact exists. It is improper for the district court to ‘resolve factual disputes by
weighing conflicting evidence . . . since it is the province of the jury to assess the probative value
of the evidence.’” McDonald, 2005 WL 2474701, at *3 (quoting Kennett–Murray Corp. v. Bone,
622 F.2d 887, 892 (5th Cir. 1980)).
“A genuine dispute as to a material fact exists ‘if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’” Rogers, 755 F.3d at 350 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “Summary judgment is also improper where the
court merely believes it unlikely that the non-moving party will prevail at trial.” McDonald, 2005
WL 2474701, at *3 (citing National Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647,
651 (5th Cir. 1962)). “[C]onclusory allegations, speculation, unsubstantiated assertions, and
legalistic arguments have never constituted an adequate substitute for specific facts showing a
genuine issue for trial.” Id. (citing TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759
(5th Cir.2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1997).
It is clear Fifth Circuit precedent that “[a] district court’s [decision about] leave to amend
is reviewed for an abuse of discretion.” Ballard v. Devon Energy Prod. Co., 678 F.3d 360, 364
(5th Cir.2012) (citation omitted). Simmons v. Sabine River Auth. Louisiana, 732 F.3d 469, 478
(5th Cir. 2013).
b. Statutes of Limitations
Mississippi law mandates that a plaintiff must “file an action within three years of its date
of accrual.” Walker v. Epps, 550 F.3d 407, 415 (5th Cir. 2008) (citing MISS. CODE ANN. § 151-49). “Although the federal courts look to state law to determine the applicable statute of
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limitations, they look to federal law to determine when the cause of action accrues.” Metcalf v.
Robertson, 62 F.3d 394, 394 (5th Cir. 1995) (citing Pete v. Metcalfe, 8 F.3d 214, 217 (5th Cir.
1993)). “[T]he accrual date of a § 1983 cause of action is a question of federal law that is …
governed by federal rules conforming in general to common-law tort principles. Under those
principles, it is the standard rule that [accrual occurs] when the plaintiff has a complete and present
cause of action, that is, when the plaintiff can file suit and obtain relief.” Aly v. City of Lake
Jackson, 453 F. App’x 538, 539 (5th Cir. 2011) (quoting Wallace v. Kato, 549 U.S. 384, 388, 127
S. Ct. 1091, 166 L. Ed. 2d 973 (2007)).
Brett Gerhart has also asserted claims under Mississippi’s Tort Claims Act (hereinafter
referred to as “MCTA”). The MTCA requires that “[a]ll actions brought under this chapter shall
be commenced within one (1) year next after the date of the tortious, wrongful or otherwise
actionable conduct on which the liability phase of the action is based, and not after….” MISS.
CODE ANN. § 11-46-11(3).
The incident at the heart of this lawsuit occurred on June 7, 2010. Plaintiffs herein filed
their original complaint on September 20, 2011. [Docket no. 1]. Accordingly, plaintiffs filed their
original complaint within the three (3) year statute of limitations. Plaintiffs filed their Fourth
Amended Complaint on December 1, 2017. [Docket no. 205]. Plaintiffs’ Fourth Amended
Complaint, therefore, was filed approximately four (4) and a half years after the three (3) year
statute of limitations would have run. This court must then determine whether Brett Gerhart’s
claims relate back to the filing of the original complaint in this lawsuit.
c. Relation Back of Amendments
“[A] party may amend its pleading only with the opposing party's written consent or the
court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2).
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“Whether to grant leave to amend a complaint is entrusted to the sound discretion of the district
court [.]” Ballard, 678 F.3d at 364 (citation and internal quotation marks omitted). Simmons v.
Sabine River Auth. Louisiana, 732 F.3d 469, 478 (5th Cir. 2013).
“[G]enerally, ‘relation back will not apply to an amendment that substitutes or adds a new
party for those named initially in the earlier timely pleadings.’” Altamirano v. Vickers, 2004 WL
1147002 (E.D. La. May 20, 2004)(Quoting Williams v. United States, 405 F.2d 234, 237 (5th Cir.
19680)). “Courts have found, however, that amendments that add or substitute a plaintiff will relate
back in certain limited circumstances.” Id. “[N]otice is the critical element involved in Rule 15(c)
decisions.” Id. “Most of the cases in which an amendment that adds or substitutes a plaintiff relates
back are cases in which the plaintiff was already in the lawsuit in some capacity or there is a direct
relationship, such as ownership, between the current plaintiffs and the new or substituted
plaintiffs.” Id. (Collecting cases).
In a determination of whether a new plaintiff's claims relate back to the original
complaint, courts consider whether “(1) the new plaintiff's claim arose out of the
same conduct, transaction or occurrence set forth in the original complaint; (2) the
new plaintiff shares an identity of interest with the original plaintiff; (3) the
defendants have fair notice of the new plaintiff's claim; and (4) the addition of the
new plaintiff causes the defendants prejudice.” Olech v. The Village of
Willowbrook, 138 F.Supp. 1036, 1044 (N.D.Ill.2000) (internal citations omitted).
Notice is the “linchpin” of the analysis. Young v. Lepone, 305 F.3d 1, 16–17 (1st
Cir.2002) (quoting Schiavone v. Fortune, 477 U.S. 21, 31, 106 S.Ct. 2379, 91
L.Ed.2d 18 (1986)).
Altamirano at *4.
In looking at the Olech analysis, this court must analyze the four Olech factors, weighing
notice most heavily of the four factors. The defendants, do not, and cannot allege the plaintiff’s
claims did not arise out of the same conduct, transaction or occurrence set forth in the original
complaint. It is undisputed that the Plaintiff has alleged throughout this lawsuit that Brett Gerhart’s
injuries arose from the purported illegal conduct of the defendants.
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The “new” plaintiff, Brett Gerhart, shares an identity of interest with the former plaintiff,
Joseph Gerhart as next friend of Brett Gerhart and Amanda Jo Gerhart as next friend of Brett
Gerhart. It would be a strange result for this court to find that Brett Gerhart, asserting his own
claims as an adult, is not a party in privity with his parents asserting claims on his behalf.
Further, the defendants cannot claim they were not on notice of Brett Gerhart’s claims.
Nothing in this matter, factually, has changed, except Brett Gerhart’s status as an infant or adult.
Regardless of that status, this court finds the defendants should have been, and, indeed were on
notice of Brett Gerhart’s claims, whether as an adult or infant.
Finally, this court can find no situation where the relation back of Brett Gerhart’s claims
as an adult would prejudice the defendants. The parties have litigated this matter over the course
of five and a half years. They have conducted extensive discovery in this matter, including
deposing Brett Gerhart himself. This court finds no prejudice would attach by treating Brett
Gerhart’s claims as the parties have been treating them throughout the course of this lawsuit.
The Rankin County Defendants urge this court to treat this matter as that in Jacobsen v.
Osborne, 133 F.3d 315 (5th Cir. 1998). This court finds Jacobsen distinguishable. In Jacobsen the
plaintiffs initially named several “unknown police officers” in their original complaint. The
magistrate judge did not allow the amendment of the complaint to name the officers citing both
futility of the amendment and untimeliness of the request. The Fifth Circuit found the magistrate
judge abused her discretion and the amendment should have been allowed; the court, however,
still refused to allow the relation-back of the amendment because Rule 15 did not allow for
amended complaints to relate back when the plaintiff does not know the identity of the purported
defendants – John Does. Relation back, according to the Jacobsen court, can only occur where the
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plaintiff misidentifies a defendant. The court analyzed Federal Rule of Civil Procedure 15(c) and
stated:
For the circumstances presented by this action, our court has not addressed whether,
in order to prevent a time-bar, an amendment to substitute a named party for a “John
Doe” defendant may relate back under amended Rule 15(c)(3). We conclude that,
in the circumstances present in this case, relation back should not be allowed. This
is consistent with the majority of the other circuits that have considered the issue.
They have held that, for a “John Doe” defendant, there was no “mistake” in
identifying the correct defendant; rather, the problem was not being able to identify
that defendant.
Jacobsen v. Osborne, 133 F.3d 315, 320–21 (5th Cir. 1998)(Emphasis added). The facts of
Jacobsen are not the facts in the lawsuit sub judice. The parties in this lawsuit were properly able
to identify Brett Gerhart, the only issue was; not who Brett Gerhart was, but, in what capacity Brett
Gerhart was named, as an adult or as a minor.
III.
CONCLUSION
After a review of the pleadings of the parties, the letter briefs requested by the court,
arguments of counsel, and the jurisprudence, this court is convinced the Rankin County
Defendants’ Motion for Leave to File Supplemental Motion for Summary Judgement [Docket no.
225] is well-taken and hereby GRANTED; however, this court is persuaded after a copious review
of that motion – the Rankin County Defendants’ Supplemental Motion for Summary Judgment
[Docket no. 223] – that the thrust of such is not well-taken and, therefore, must be DENIED.
Finally, this court is persuaded that the Plaintiffs’ Motion to Strike Supplemental Motion
for Summary Judgment [Docket no. 226] is not well-taken and is hereby DENIED.
SO ORDERED this the 5th day of September, 2018.
s/ HENRY T. WINGATE__________________
UNITED STATES DISTRICT COURT JUDGE
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