Young v. County of Dawes, Nebraska et al

Filing 61

ORDER - IT IS ORDERED: The plaintiff's Motion for Leave to Identify Does 1-10 and to File a Second Amended Complaint (Filing No. 41 ) is granted, in part. The plaintiff shall have until January 22, 2014, to file a Second Amended Complaint eliminating the fourth and fifth causes of action. The plaintiff's motion is denied in all other respects. Ordered by Magistrate Judge Thomas D. Thalken. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JENNIFER YOUNG, Personal
Representative of the Estate of
LORI R. HEITING, Deceased,

7:13CV5002

Plaintiff,

ORDER

vs.
COUNTY OF DAWES, COUNTY OF
BOX BUTTE, and DOES 1-10,
Defendants.

This matter is before the court on the plaintiff’s Motion for Leave to Identify Does
1-10 and to File a Second Amended Complaint (Filing No. 41). The plaintiff filed a brief
(Filing No. 46) and an index of evidence (Filing No. 45) in support of the motion. The
named defendants filed a brief (Filing No. 54) and an index of evidence (Filing No. 53)
in opposition to the motion. The plaintiff filed a brief (Filing No. 59) in reply.

BACKGROUND
This case arises from Lori R. Heiting’s (Heiting) death while in the defendants’
custody following her arrest for suspicion of driving under the influence on December 3,
2010. See Filing No. 8 - Amended Complaint. Before the arresting officer transported
Heiting to jail, David Johnson, M.D. (Dr. Johnson), evaluated Heiting at Chadron
Community Hospital. Id. ¶ 6. Dr. Johnson diagnosed Heiting with hypertension and
chronic back pain and prescribed medication.

Id. at 7.

After Heiting’s evaluation,

Heiting was transported to Dawes County jail and then to Box Butte County jail. Id. at
8-9. While at Box Butte County jail, Heiting allegedly suffered chest pain and other
symptoms. Id. at 10-11. Heiting’s complaints regarding her chest pain were allegedly
ignored. Id. On December 4, 2010, after Box Butte County jail personnel found Heiting
unresponsive in her jail cell, Heiting was transported, by ambulance, to Box Butte
County General Hospital where she was treated for her symptoms but later died. Id. at
15. According to Heiting’s death certificate, Heiting died from cirrhosis and alcohol
abuse. See Filing No. 43-8 - Heiting’s Death Certificate. In the autopsy report, Heiting’s

final diagnosis was “macronodular and micronodular cirrhosis, mitral valve prolapse,
and cardiomegaly.” See id. - Autopsy Report.
The plaintiff originally filed the complaint in the District Court of Box Butte County,
Nebraska, on January 22, 2013, against Dawes County, Box Butte County, and Does 110.

See Filing No. 1 - Notice of Removal.

On February 1, 2013, the defendants

removed the action to this court. See id. Subsequently, the plaintiff filed an amended
complaint naming the same defendants, including the unidentified Does 1-10.

See

Filing No. 8 - Amended Complaint.
On March 18, 2013, the court entered an initial progression order setting the
deadline to amend pleadings as June 3, 2013, for the plaintiff. See Filing No. 14 ¶ 7. In
the March 18, 2013, Report of Parties’ Rule 26(f) Planning Conference, the plaintiff
noted before amending the complaint “specifically to identify names of Defendant Does”
discovery would be necessary. See Filing No. 13 p. 7 ¶ IV(C)(1). However, the plaintiff
suggested June 1, 2013, was a reasonable period of time to file a motion to add parties
or amend pleadings. Id. Although the parties sought and received an extension of time
related to the disclosure of expert witnesses (Filing Nos. 29-30), the plaintiff did not
seek to extend the deadline to add parties or amend the complaint.

The initial

progression order also set the deadline for summary judgment motions based on
qualified immunity for September 6, 2013. See Filing No. 14 ¶ 6.
After a conference with counsel on August 7, 2013, the court entered the Order
Setting Final Schedule for Progression of Case, setting a summary judgment deadline
for December 31, 2013, the discovery deadline for May 30, 2014, and the deadline for
discovery-related motions for November 20, 2013.

See Filing No. 32.

The final

progression order also set trial for August 18, 2014. Id. On December 30, 2013, the
plaintiff filed a motion for partial summary judgment (Filing No. 50) and the defendants
filed a motion for summary judgment (Filing No. 55) on all of the plaintiff’s claims.
On December 16, 2013, the plaintiff filed the instant motion seeking to amend the
complaint to identify Does and eliminate two causes of action.1 See Filing No. 46. The
plaintiff states the parties have engaged in only limited discovery and had not yet
1

The plaintiff seeks to eliminate two causes of action, one dismissed by the court on May 9, 2013, and
one for a writ of mandamus related to the autopsy report, which the defendants produced. See Filing No.
21.
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scheduled any depositions by the middle of December. See Filing No. 46 - Brief p. 1-2.
The plaintiff complains the defendants’ discovery responses “were less than
forthcoming or reasonable.” Id. at 2. The plaintiff further states certain documents
should have been produced by the defendants in May 2013, but were not delivered until
October 2013.

Id. at 3.

Nevertheless, the plaintiff states she now has sufficient

information to name the previously unidentified Doe defendants as Chief Jailer Monte
Hovik, Jami Appleyard, Chris Finkey, Jeanie Melton, and Sydney White, all in their
individual and official capacities. Id. The plaintiff argues the defendants will suffer no
prejudice by the amendment because, although the summary judgment deadline
expired within two weeks of the plaintiff’s motion, the plaintiff would consent to an
extension of the deadline for the defendants to file any necessary motions for summary
judgment based on qualified immunity. Id. at 4. Additionally, the plaintiff argues that
since the discovery deadline has not yet expired and the parties have yet to take any
depositions, identification of the Does will facilitate the discovery process. Id. at 4-5.
The defendants oppose the plaintiff’s motion to identify the Doe defendants
based on undue delay and prejudice. See Filing No. 54 - Response. The defendants
state they produced documents on April 18, 2013, containing information about the five
proposed defendants as well as Heiting’s jail file with activity logs identifying staff with
whom Heiting came into contact. Id. at 2-3. The defendants state additional discovery
provided more detailed information. Id. at 3. The defendants admit certain documents
were inadvertently omitted, however the plaintiff did not bring the omission to the
defendants’ attention until months later and the omitted documents were contained in
other discovery. Id. at 3, 6. In any event, the plaintiff had the Nebraska State Patrol’s
investigatory file in early June 2013. Id. at 3. The plaintiff’s own expert witness reports,
authored in October 2013, contain information about the proposed defendants. Id. at 6,
11 (citing Filing Nos. 43-5 and 43-6). In light of this discovery and based on the
plaintiff’s failure to seek an extension of the deadline to amend or identify additional
defendants, the defendants consulted expert witnesses and began preparing their
motion for summary judgment assuming the plaintiff had decided to forego identification
of the Does. Id. at 5. The defendants argue the plaintiff fails to show good cause for
the untimely amendment, which would prejudice the defendants by requiring a shift in
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strategy, additional discovery costs, and separate summary judgment motions. Id. at 6,
14-16. Additionally, the defendants contend the proposed amendments pose logistical
problems for representation because none of the proposed defendants continue to work
for the county and their whereabouts are unknown. Id. at 15. Similarly, the proposed
defendants, if added, would require time, discovery, and likely changes to the expert
witness reports.

Id. at 15-16.

Moreover, the defendants argue they would have

benefitted from more limited discovery while the plaintiff and the proposed defendants
resolved the issue of qualified immunity earlier in the case. Id. at 15.
The plaintiff denies the motion to amend to substitute the proposed defendants
for the previously unidentified Does is untimely. See Filing No. 59 - Reply p. 1. The
plaintiff argues no previous deadline was given for identification of the Does. Id. In any
event, the plaintiff justifies the timing of the motion by the receipt and analysis of
discovery, including the defendants’ expert witness reports served in November 2013.
Id. at 5. Additionally, the plaintiff contends the time was used for careful consideration
of the evidence prior to naming individuals, rather than acting with undue delay, bad
faith, or dilatory motives. Id.

ANALYSIS
Under Federal Rule of Civil Procedure 15, a court should grant leave to amend
freely “when justice so requires.” However, “[a] district court may deny leave to amend
if there are compelling reasons such as undue delay, bad faith, or dilatory motive,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the non-moving party, or futility of the amendment.

Duplicative and

frivolous claims are futile.” Reuter v. Jax Ltd., Inc., 711 F.3d 918, 922 (8th Cir. 2013)
(internal quotation and citation omitted). The party opposing the amendment has the
burden of demonstrating the amendment would be unfairly prejudicial. Roberson v.
Hayti Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001); see Hanks v. Prachar, 457 F.3d
774, 775 (8th Cir. 2006). There is no absolute right to amend. Hartis v. Chicago Title
Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012). Whether to grant a motion for leave to
amend is within the sound discretion of the district court.

Popoalii v. Corr. Med.

Servs., 512 F.3d 488, 497 (8th Cir. 2008). “If a party files for leave to amend outside of
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the court’s scheduling order, the party must show cause to modify the schedule.” Id.
(citing Fed. R. Civ. P. 16(b)); see Williams v. TESCO Servs., Inc., 719 F.3d 968, 97677 (8th Cir. 2013); Hartis, 694 F.3d at 948.
“If we considered only Rule 15(a) without regard to Rule 16(b), we would render
scheduling orders meaningless and effectively would read Rule 16(b) and its good
cause requirement out of the Federal Rules of Civil Procedure.” In re Milk Prods.
Antitrust Litig., 195 F.3d 430, 437-38 (8th Cir. 1999) (quoting Sosa v. Airprint Sys.,
Inc., 133 F.3d 1417, 1419 (11th Cir. 1998)). “In demonstrating good cause, the moving
party must establish that the ‘scheduling deadlines cannot be met despite a party’s
diligent efforts.’” Thorn v. Blue Cross & Blue Shield of Fla., Inc., 192 F.R.D. 308, 309
(M.D. Fla. 2000) (citations omitted) (paraphrasing Fed. R. Civ. P. 16 advisory committee
notes (1983 amendment)); see Williams, 719 F.3d at 976-77. Moreover, “if the reason
for seeking the amendment is apparent before the deadline and no offsetting factors
appear, the Rule 16 deadline must govern.” Financial Holding Corp. v. Garnac Grain
Co., 127 F.R.D. 165, 166 (W.D. Mo. 1989).

Additionally, the court may consider

whether the “late tendered amendments involve new theories of recovery and impose
additional discovery requirements.” Popoalii, 512 F.3d at 497; see Williams, 719 F.3d
at 976-77.
The plaintiff fails to demonstrate good cause or diligence in attempting to meet
the court’s deadline.

The plaintiff incredulously argues the deadline for amending

pleadings and adding parties does not apply to substituting named defendants for the
previously unidentified Doe defendants. The plaintiff also highlights her lack of diligence
in conducting discovery as if that is a valid excuse for her failure to meet court
deadlines. The record before the court shows the plaintiff had information about the
proposed defendants as early as April 18, 2013, and received more detailed information
early June 2013. To the extent the plaintiff required more discovery to consider naming
individual defendants, the plaintiff could have and should have done so significantly
earlier in the case. The initial progression order highlights the types of discovery, such
as discovery needed for summary judgment disposition, which should be conducted
early in the case. Id. ¶ 1. Accordingly, although the discovery period expires near the
time of trial, the parties may not avoid substantial discovery until the eve of that deadline
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as an excuse for noncompliance with the remaining deadlines. Rather than blatant
noncompliance with deadlines, even when diligently attempting to comply, the rules
contemplate seeking an extension of deadlines prior to their expiration. See Fed. R.
Civ. P. 6.

The plaintiff failed to seek an extension of the deadline to amend the

complaint in this case notwithstanding her suggestion in the planning report that she
could reasonably conduct discovery and amend the complaint “specifically” to identify
the Doe defendants by June 1, 2013. See Filing No. 13 p. 7 ¶ IV(C)(1). In reliance on
the plaintiff’s suggestion, the court scheduled a deadline for amending pleadings and
motions based on qualified immunity in anticipation there would be individually named
defendants added prior to that time. See Filing No. 14 - Initial Progression Order ¶ 6.
As noted by the defendants, the court explicitly imposed deadlines for amending
pleadings and adding parties and a separate, later deadline, for the anticipated
individual defendants to file motions for summary judgment based on qualified
immunity. See Filing No. 14. Allowing the plaintiff to amend the complaint now to
identify the Doe defendants does unduly prejudice both the current and proposed
defendants. Despite some overlapping of issues, discovery, and possibly legal counsel,
adding claims against individuals who no longer work for the county and whose
whereabouts are unknown will significantly delay and complicate these proceedings
with substantial discovery and legal issues. Upon consideration,

IT IS ORDERED:
The plaintiff’s Motion for Leave to Identify Does 1-10 and to File a Second
Amended Complaint (Filing No. 41) is granted, in part. The plaintiff shall have until
January 22, 2014, to file a Second Amended Complaint eliminating the fourth and fifth
causes of action. The plaintiff’s motion is denied in all other respects.
Dated this 15th day of January, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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