Mendoza v. United States Immigration and Customs Enforcement et al

Filing 91

MEMORANDUM AND ORDER - Defendants Jeff Davis's and Sarpy County's motion for leave to amend their answer (Filing No. 86 ) is denied. Defendants Jeff Davis's and Sarpy County's motion to dismiss (Filing No. 87 ) is denied. Ordered by Judge Joseph F. Bataillon. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RAMON MENDOZA,
Plaintiff,

8:13CV65

v.
MEMORANDUM AND ORDER
JUSTIN OSTERBERG, individually; JOHN
DOES #1-5, individually; SARPY COUNTY,
NEBRASKA; SHERIFF JEFF DAVIS, and
JOHN DOES #6–10,
Defendants.

This matter is before the court on a motion for leave to amend their answer filed
by defendants Jeff Davis and Sarpy County, Nebraska (collectively, “the County
Defendants” or “the County” and “Sheriff Davis”), Filing No. 86, and on a motion to
dismiss filed by Sarpy County and by Sheriff Davis, in his official capacity, Filing No. 87.
This is an action for deprivation of civil rights and conspiracy under 42 U.S.C.
§§ 1983 and 1985(3) against federal and state defendants. In his amended complaint,
the plaintiff generally alleges that he was unlawfully detained for three days based on an
improper immigration detainer issued on March 5, 2010, and withdrawn on March 8,
2010. The plaintiff also asserts state law tort claims.
The County Defendants seek leave to amend their answer to assert a statute of
limitations defense to the plaintiff’s civil rights claim, arguing that the plaintiff’s amended
complaint was filed outside the four-year statute of limitations.

They also move to

dismiss under Fed. R. Civ. P. 12(b)(2) (for lack of personal jurisdiction), 12(b)(4) (for
insufficient process) and 12(b)(5) (for insufficient service of process). In addition, they

move for dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), asserting
the plaintiff’s claims are barred by the statute of limitations.
I. FACTS
The record shows the plaintiff’s initial complaint was filed on February 28, 2013.
Filing No. 1. “Sarpy County, Nebraska” was included as a defendant in the caption of
the case, and was mentioned throughout the pleading.

Id.

The original complaint

relates that Sheriff Davis “is a duly elected official empowered by law to operate and
control the county jail for Sarpy County, Nebraska” and that “[e]very act or omission
attributed to him alleged in this complaint occurred in the course of his employment,
under color of state law.” Id. at 1-2. Sheriff Davis was personally served at the Sarpy
County Sheriff’s Office. Filing No. 12, Return of Service. A request for additional time
to answer was then filed on behalf of both the County and Sheriff Davis. Filing No. 14.
Later, an answer to the complaint was filed on behalf of both the County and Sheriff
Davis.

Filing No. 19.

In the answer, defendants alleged “that to the extent the

Complaint attempts to sue him in his official capacity, no summons has been properly
issued or served upon the County of Sarpy, Nebraska under applicable law, resulting in
insufficient process and service of process, and a lack of personal jurisdiction “ Id. at 9.
Sheriff Davis asserts he answered only in his individual capacity. Filing No. 88, Brief at
5-6; see Filing No. 19, Answer at 9; Filing No. 48, answer to amended complaint at 12.
The plaintiff later moved for leave to amend his complaint to: 1) withdraw the
claim of Laura Mendoza, 2) substitute Justin Osterberg for one of the John Doe
defendants, 3) add a civil rights conspiracy claim, 4) assert a Bivens claim against the
federal defendants, and 5) limit the 42 U.S.C. § 1983 claim to the state defendants.

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Filing No. 39; Amended Motion for Leave to Amend Complaint; see also Filing No. 42,
Amended Motion. The amended complaint addressed pleading defects that had been
raised in a motion to dismiss filed by the federal defendant.

See Filing No. 39,

Amended Motion for Leave to Amend Complaint at 2. The plaintiff was granted leave to
amend. See Filing No. 44, Order.
On September 18, 2013, the plaintiff filed his amended complaint. Filing No. 46,
Amended Complaint. The County was again listed in the caption and again mentioned
throughout the complaint. Id. Again, Sheriff Davis is alleged to be an official acting in
the course of his employment under color of law. Id. at 2. The amended complaint
states that John Does 6-10 are or were Sarpy County employees authorized to act on
behalf of Sarpy County under color of law, sued as individuals. Id. at 2. The complaint
also alleges that prior to filing the action, the plaintiff “administratively presented his
claims to appropriate governing bodies according to the Nebraska Political Subdivisions
Tort Claims Act, Neb. Rev. Stat. § 13-901 et seq. and the Federal Tort Claims Act, 28
U.S.C.A. § 2680 et seq.” Id. at 3.
The County Defendants contend that Sheriff Davis was served in his individual
capacity and he answered in his individual capacity only. Filing No. 88, Brief at 5-6. On
September 24, 2013, a summons was issued for the County in care of the Sarpy County
Attorney, L. Kenneth Polikov. Filing No. 47. That summons was served via certified
mail.1 Filing No. 71, Return of Service. The County and Sheriff Davis filed a joint
answer to the amended complaint on September 27, 2013. Filing No. 48. The County

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The proof of service indicates that a “Copy of Summons was forwarded by certified mail to
Sarpy County C/O Sarpy County Attorney, L. Kenneth Polikov at the following address: 1210 Golden
Gate Dr., Papillion, NE 68046-2889 on the 27th day of September, 2013 as required by Nebraska state
law.” Filing No. 71, Return of Service.

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raised the defense of insufficiency of service and asserted a statute of limitations
defense to the state law tort and contract claims. Id. at 9, 12.
II. LAW
A district court should freely give leave to a party to amend its pleadings when
justice so requires, Fed. R. Civ. P. 15(a). However, the court may properly deny a
party’s motion to amend its pleading when such amendment would unduly prejudice the
non-moving party or would be futile. McAninch v. Wintermute, 491 F.3d 759, 766 (8th
Cir. 2007). The Federal Rules provide for relation back of amendments to a pleading
when the amendment “asserts a claim that arose out of the same conduct, transaction,
or occurrence set out—or attempted to be set out—in the original pleading.” Fed. R.
Civ. P. 15(c)(1)(B); see Dodd v. United States, 614 F.3d 512, 515 (8th Cir. 2010). “To
arise out of the same conduct, transaction, or occurrence, the claims must be ‘tied to a
common core of operative facts.’“

Id. (quoting Mayle v. Felix, 545 U.S. 644, 664

(2005)).
An amended complaint may raise new legal theories only if the new claims relate
back to the original motion by arising out of the same set of facts as the original claims.
Dodd, 614 F.3d at 515 (noting that the facts alleged must be specific enough to put the
opposing party on notice of the factual basis for the claim). When “the amendment
changes the party or the naming of the party against whom a claim is asserted,” relation
back is permitted if, along with asserting a claim that arises out of the same facts as the
original pleading, “the party to be brought in by amendment: (i) received such notice of
the action that it will not be prejudiced in defending on the merits; and (ii) knew or

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should have known that the action would have been brought against it, but for a mistake
concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C) (i) & (ii).
Under the Federal Rules, “[a] state, a municipal corporation, or any other statecreated governmental organization that is subject to suit must be served by: (A)
delivering a copy of the summons and of the complaint to its chief executive officer; or
(B) serving a copy of each in the manner prescribed by that state’s law for serving a
summons or like process on such a defendant. Fed. R. Civ. P. 4(j)(2). Under Nebraska
law, “[t]he State of Nebraska, any state agency as defined in section 81-8,210, and any
employee of the state as defined in section 81-8,210 sued in an official capacity may be
served by leaving the summons at the office of the Attorney General with the Attorney
General, deputy attorney general, or someone designated in writing by the Attorney
General, or by certified mail service addressed to the office of the Attorney General.”2
Neb. Rev. Stat. § 25–510.02(1). Counties in Nebraska may be served by mail service
upon the chief executive officer or on the clerk. Neb. Rev. Stat. § 25-510.02(2) (“[a]ny
county, city, or village of this state may be served by personal, residence, certified mail,
or designated delivery service upon the chief executive officer or clerk.”). Individuals
may be served by personal, residence, or certified mail service.” Neb. Rev. Stat. § 25508.01(1). Certified mail service is made by “sending the summons to the defendant by
certified mail with a return receipt requested showing to whom and where delivered and
the date of delivery[.]” Neb. Rev. Stat. § 25-505.01(1)(c).
Evidence that service actually reached the intended person strongly supports a
conclusion that service is valid because due process has been afforded.
2

See

That statute provides that “[e]mployee of the state means any one or more officers or
employees of the state or any state agency and shall include duly appointed members of boards or
commissions when they are acting in their official capacity.” Neb. Rev. Stat. § 81-8,210(3).

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Minnesota Mining and Mfg. Co. v. Kirkevold, 87 F.R.D. 317, 324 (D. Minn. 1980)
(holding that where actual notice is received, the rules governing service should be
liberally construed to uphold the service). Service of process is intended to give notice
to a defendant, and due process requires that service of process must be reasonably
calculated to reach the defendant. See Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950) (stating “due process [requires] . . . notice reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections.”).
Although a defect in service may result in the dismissal of the improperly served
person, a court has broad remedial power to correct the service, especially where
justice demands and prejudice would not result to the improperly served parties. Haley
v. Simmons, 529 F.2d 78, 79 (8th Cir. 1976).

One of the remedial options is the

quashing of service but retention of the case so that service may be effected in accord
with the Rules. C & L Farms, Inc. v. Federal Crop Ins. Corp., 771 F.2d 407, 409 (8th
Cir. 1985); Haley, 529 F.2d at 79. Moreover, a motion to dismiss for insufficiency of
service may be denied where there has been substantial compliance with Rule 4, the
mistake was innocent, and the defendant was not prejudiced. See, e.g., Gray v. Allied
Waste Servs. of Washington, 2012 WL 2871422, *4 (D. Md. 2012) (“Because Plaintiff is
pro se and Defendant received actual notice, dismissal for ineffective service of process
is inappropriate at this stage.”); Myrtle v. Graham, 2011 WL 446397 (E.D. La. 2011)
(dismissal should not result when plaintiff made good faith attempt to comply with rules
for service and defendant did not demonstrate prejudice or lack of actual notice).

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A plaintiff may assert § 1983 claims against a public official acting in his
individual capacity and in his official capacity and the distinction is important, especially
with respect to individual damage liability and the State’s Eleventh Amendment
immunity.3 See Hafer v. Melo, 502 U.S. 21, 27 (1991). The general rule in the Eighth
Circuit is that “[i]f a plaintiff’s complaint is silent about the capacity in which [he] is suing
the defendant, [the court] interprets the complaint as including only official-capacity
claims.” Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995); Artis v.
Francis Howell N. Band Booster Ass’n, Inc., 161 F.3d 1178, 1182 (8th Cir. 1998)
(stating that “[i]f the complaint does not specifically name the defendant in his individual
capacity, it is presumed he is sued only in his official capacity.”).
III. DISCUSSION
The court first finds that the defendants’ motion to amend their answer to assert a
statute of limitations defense to the plaintiff’s civil rights claim should be denied by
reason of futility. The relation-back doctrine is dispositive on this issue. The court finds
that the claims asserted in the amended complaint relate back to the original complaint.
The claims asserted in the amended complaint arise from the same operative facts as
the original complaint.

Further, the record shows that the County Defendants had

sufficient notice of the action and will not be prejudiced in defending on the merits. The
County and Sheriff Davis, in his official capacity, knew or should have known that the

3

The County Defendants have not asserted Eleventh Amendment immunity or challenged the
propriety of a damages remedy in their motion to dismiss. The court notes, however, that the only
immunities available to the defendant in an official-capacity action are those that the governmental entity
possesses. Hafer, 502 U.S. at 30-31. Only states and arms of the state possess sovereign immunity
from suits authorized by federal law. Northern Ins. Co. of New York v. Chatham County, Ga., 547 U.S.
189, 193 (2006). The Supreme Court has repeatedly refused to extend sovereign immunity to counties.
Id. Further, the Eleventh Amendment does not erect a barrier against suits for injunctive relief or suits
that impose individual and personal liability for damages on state officials under § 1983. Hafer, 502 U.S.
at 30-31.

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action would have been brought against them, but for a mistake concerning the parties’
proper identities or capacities.
The County was listed in the caption and mentioned throughout both the original
and the amended complaints.

Both the original and amended complaints refer to

Sherriff Davis as a duly appointed official acting in his official capacity. The County
appeared and moved for an extension of time in which to file a responsive pleading and
later filed an answer on behalf of both Sheriff Davis and the County, albeit asserting
insufficiency of process and ostensibly limiting Sherriff Davis’s answer to claims against
him in his official capacity.

Though the County Defendants argue that the original

complaint was not clear as to whether Sheriff Davis was sued in his individual or official
capacity, the court finds that is not the case. The original complaint expressly asserts
an official-capacity claim and Eighth Circuit precedent would require the court to
assume it was an official-capacity suit if the complaint were silent on the issue. Sheriff
Davis acceded to claims against him in his individual capacity by appearing and
answering in that capacity. The County Defendants do not challenge the individual
capacity claims in this motion. At this juncture, there is no real dispute with respect to
whether Sheriff Davis was sued in his individual or his official capacity—he was sued in
both.
It is clear from the record that the County Defendants had actual notice of the
plaintiff’s lawsuit from the outset.

Though service may not have been in technical

compliance with Nebraska law, the County Defendants have not argued or shown that
they have been in any way prejudiced by the manner of service. 4

4

Under the

In fact, the plaintiff would be unduly prejudiced if the court were to dismiss for insufficiency of
process under the defendants’ theory. The County Defendants candidly admit in briefing that the statute

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circumstances, the court finds justice would not be served by dismissing the action
against the County or against Sheriff Davis in his official capacity for insufficiency of
service.

The court finds that the service of process on the County Defendants

substantially complied with Nebraska and federal law and provided actual notice to the
County and to Sheriff Davis in both his official and individual capacities. The remedy for
technical noncompliance would be to properly effect service under the Nebraska
statute, but that would be a meaningless exercise in view of the fact that the County
Defendants have actual notice and have entered their appearance.
Resolution of the relation-back and sufficiency of process issues is dispositive of
the County Defendants’ statute-of-limitations motion.

The claims in the amended

complaint relate back to the claims asserted in the original complaint. The events at
issue occurred in May 2010, and the plaintiff’s original complaint was filed on February
28, 2013, well within the statute of limitations on the civil rights claim. As for the statelaw claims, the court is bound to accept the pleadings alleged in the amended complaint
as true. The amended complaint alleges timely compliance with the Federal and State
Tort Claims Acts. Accordingly, the court finds the defendants’ motion to dismiss for
failure to state a claim should be denied.

of limitations defense to the plaintiff’s civil rights claim could not have been raised in their original answer
in September 2013 “as the statute had not yet expired at that time, and the defense did not arise and
become available until the statute later expired in March of 2014.” Filing No. 90, Brief at 4. The court
finds it disingenuous for a defendant with actual notice of a claim to effectively “lie in waiting” for a statute
of limitations to expire before challenging service of process.

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IT IS ORDERED:
1. Defendants Jeff Davis’s and Sarpy County’s motion for leave to amend their
answer (Filing No. 86) is denied.
2. Defendants Jeff Davis’s and Sarpy County’s motion to dismiss (Filing No. 87)
is denied.
DATED this 31st day of July, 2014.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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