Feeley v. Minkoff et al

Filing 75

ORDER Granting in part and Denying in part 38 Motion to Dismiss Individual Defendants and Claims Against Them. Defendants Minkoff, Chapman, and Does 1 and 2 are DISMISSED. Counts I and III of Complaint are DISMISSED. Denying 43 Motion to Issue Summons. Denying 53 City's Motion to Exclude the Deposition of Misti Robertson. Denying 55 City's Motion to Require Payment of Deposition Costs. Signed by Judge Richard F. Cebull on 1/3/2013. (EMA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

VINCENT FEELEY,

Case No. CV-10-103-BLG-RFC

Plaintiff,
ORDER DISMISSING
INDIVIDUAL DEFENDANTS AND
DENYING THE CITY’S
DEPOSITION-RELATED
MOTIONS

vs.
THE CITY OF BILLINGS,
MONTANA,
Defendant.

Plaintiff Vincent Feeley filed this action against the City of Billings and
four of its police officers to recover damages for injuries sustained when he was
shot by a Billings police officer in August of 2005. Pending before the Court are
two motions filed by the City regarding depositions and the City’s Motion to
Dismiss Individual Defendants, which Plaintiff counters with his Motion to Issue
Summons.
I.

The City of Billings’s Rule 4(m) Motion to Dismiss Individual
Defendants and the Claims Against Them (doc. 38) and Plaintiff’s
Motion to Issue Summons (doc. 43)
Rule 4(m) Fed.R.Civ.P. provides in relevant part:
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If a defendant is not served within 120 days after the complaint is
filed, the court--on motion or on its own after notice to the
plaintiff--must dismiss the action without prejudice against that
defendant or order that service be made within a specified time. But if
the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.
Rule 4(m) Fed.R.Civ.P. requires this Court to grant Plaintiff an extension upon a
showing of good cause for the failure to serve within 120 days and gives the Court
broad discretion to extend the period for service where Plaintiff cannot show good
cause. Efaw v. Williams, 473 F.3d 1038, 1040-41 9th Cir. 2007). In exercising
discretion under Rule 4(m), courts may consider factors such as the statute of
limitations, prejudice to the defendant, actual notice of the lawsuit, and eventual
service. Efaw, 473 F.3d at 1041.
Plaintiff agrees to the dismissal of Officer Chapman and the two John Doe
Defendants, but maintains he should be granted leave to serve Officer Minkoff
more than five years after the case was filed and more than two years since the
case was removed to this Court. Doc. 44, p. 2. In support, Plaintiff cites no case
authority and merely argues that his former counsel did not serve Officer Minkoff
because it was removed to this Court and he did not get a federal summons issued.
The procedural history of this case reveals no good cause for failure to serve
Officer Minkoff and no reason to give Plaintiff more time. The acts giving rise to

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this lawsuit occurred in August of 2005, but the case was not filed in state court
until almost two years later. The City of Billings was not served until almost three
years later, on August 10, 2010. Within 30 days of service, the City properly
removed to this Court, specifically noting that the two individually named
Defendants had not been served and that the City had no authority to accept
service on their behalf. Doc. 1, pp. 2-3. Yet no service had been effected by the
time Plaintiff’s prior counsel moved to withdraw in June of 2011.
Further, Plaintiff’s current counsel entered his appearance over a year ago.
And even after the City filed its motion to dismiss the individual Defendants in
August of 2012, Plaintiff still did not follow the Federal Rules of Civil Procedure
and seek a summons from the Clerk of Court, but rather moved the Court for
issuance of a summons. Doc. 43. Under Rule 4(b) Fed.R.Civ.P. if Plaintiff had
provided the Clerk with a properly completed summons for signature and seal, the
Clerk would have been required to issue a summons. The numerous delays and
failure to follow the rules indicates this matter is not being taken seriously.
Moreover, Plaintiff does not even attempt to explain why Officer Minkoff
has not been served in the year since current counsel entered his appearance.
Plaintiff further argues in conclusory fashion that allowing Officer Minkoff to be
served now would not cause hardship because the City would be liable for any
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judgments entered against him. While that may be true if the City agrees Officer
Minkoff was acting within the course and scope of his employment, that has not
been established. See Mont. Code Ann. § 2-9-305(5). It is further argued that the
City is fully informed about the case and if the City provided separate counsel for
Officer Minkoff, counsel could be quickly brought up to speed. But not only has
the discovery deadline already expired, the motions deadline has passed with
dispositive motions filed by both sides, and the case has been referred to a
magistrate judge for a settlement conference. Allowing Plaintiff to bring Officer
Minkoff into the suit now would further delay this delayed lawsuit.
In sum, Plaintiff has failed to show good cause as to why he should be
allowed to serve Defendant Minkoff over five years after the case was initially
filed, over two years since the case was removed to this Court, and over one year
since current counsel for Plaintiff entered his appearance.
Moreover, there is no basis for this Court to exercise its discretion to allow
late service despite the lack of good cause. First, Officer Minkoff allegedly
committed the tortious acts in 2005 and the statute of limitations has long expired
on any actions against him. Second, Officer Minkoff is entitled to rely on the
statute of limitations and he would be prejudiced if he were joined in an old
lawsuit that has advanced as far as this one. Third, while it appears Officer
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Minkoff may have actual knowledge of the lawsuit since Plaintiff represents he
was noticed for a deposition before Minkoff moved out of state, this factor is
outweighed by the others. Finally, and most importantly, despite the statement in
the Notice of Removal that individual Defendants had not been served and the
instant motion, Plaintiff has still not acquired a summons from the Clerk of Court
and properly served Officer Minkoff.
Having concluded that the individual Defendants must be dismissed, the
Court must also conclude that Counts I and III must also be dismissed. Plaintiff,
in fact, concedes that these claims must be dismissed if the officers are dismissed
as Defendants. Doc. 44, p. 4. Plaintiff, however, objects to the dismissal of Count
VII1, which alleges the City is liable for the tortious actions of its officers, noting
that Defendants’ briefs did not provide a basis in the law for the dismissal of
Count VII. Accordingly, although the viability of Count VII is questionable in
light of the dismissal of the Defendant police officers, the City has not shown it is
entitled to dismissal at this time.
For those reasons, IT IS ORDERED that Plaintiff’s Motion to Issue
Summons (doc. 43) is DENIED and the City’s motion to dismiss (doc. 38) is
GRANTED IN PART as follows:
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The Complaint alleges five causes of action, I, II, III, IV, and VII.
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(1)

(2)
II.

Officers Minkoff and Chapman, as well as Does 1 and 2, are
DISMISSED from this action and the caption is amended
accordingly; and
Counts I and III of the Complaint are DISMISSED.

The City’s Motion To Exclude Deposition of Officer Misti Robertson
(doc. 53)
On October 23, 2012, Plaintiff took the deposition of Billings Police Officer

Misti Robertson. The City has moved to exclude the deposition pursuant to Rule
28(c) Fed.R.Civ.P. because Plaintiff’s counsel administered the oath to the
deponent. Although a party’s attorney is disqualified from administering such
oaths, Rule 32(d)(2) Fed.R.Civ.P. provides that objections to the qualification of
the officer before whom a deposition is taken are waived if not made “promptly
after the basis for disqualification becomes known or, with reasonable diligence
could have been known.” Here, the City knew of the basis for disqualification
when Plaintiff’s counsel administered the oath, yet it does not appear from the
transcript that any such objection was made. Doc. 68, ex. 1. Nor does the City
claim in its briefing that it promptly lodged an objection. It appears from the
record before the Court that the objection was not lodged until the instant motion
was filed more than one month after the deposition. In the Court’s view, that is
not a prompt objection.

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Accordingly, IT IS FURTHER ORDERED that the City’s Motion to
Exclude the Deposition of Misti Robertson (doc. 53) is DENIED.
III.

The City’s Motion to Require Payment of Deposition Costs (doc. 55)
On October 25, 2012, counsel for the parties convened at Plaintiff’s request

for the deposition of the City’s liability expert, Mark Tymrak. Plaintiff’s counsel
brought audio recording equipment to record the deposition, presumably for later
transcription, but did not arrange for a court report or other person to serve as the
officer before whom the deposition was to be taken. See doc. 56-1. Moreover, as
with the Roberton deposition discussed above, Plaintiff did not serve a notice of
deposition stating how the deposition would be recorded, as required Rule 30
Fed.R.Civ.P. Id. Not wanting to delay the deposition, counsel for Defendant
arranged for a court reporter to preside over and transcribe the deposition, at a cost
of $226.25. The City now asks the Court to Order Plaintiff to pay those costs.
Rule 30(b)(3)(A) requires the party seeking the deposition to provide a
deposition notice stating the method for recording the testimony. It also requires
the noticing party to bear the costs of recording the deposition. Moreover, as
discussed above, Rule 28(c) Fed.R.Civ.P. precludes any party’s attorney from
administering the oath to the deponent, although this requirement is waived
pursuant to Rule 32 (d)(2) if no prompt objection is made.
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Here, Plaintiff obviously did not comply with the deposition notice
requirements of Rule 30(b)(3). Rather, consistent with the procedure employed
two days prior at the Robertson deposition, it appears Plaintiff’s counsel did not
hire a court reporter because he planned to administer the oath himself and to
make an audio recording of the deposition for later transcription. While counsel is
not authorized to administer the oath, the Rules do not prohibit counsel from
recording the deposition for later transcription. Further, counsel’s administration
of the oath does not render the deposition inadmissible without a prompt
objection. Since there does not appear to have been a contemporaneous objection
to this process during the Robertson deposition, Plaintiff’s counsel must have
reasonably believed there would be no objection to the process during the
Tymrack deposition two days later. While Counsel is advised to follow the Rules
in the future, the Court declines to order the payment of the deposition costs under
these circumstances.
IT IS FURTHER ORDERED that the City’s Motion to Require Payment
of Deposition Costs (doc. 55) is DENIED.
Dated this 3rd day of January, 2013.
/s/ Richard F. Cebull_______
Richard F. Cebull
United States District Judge
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