Strada v. New York City Police Department et al
Filing
43
MEMORANDUM & ORDER granting 37 Motion for Summary Judgment and denying Plaintiff leave to amend.For the reasons set forth in the attached memorandum and order, the Court grants Defendants' motion for summary judgment and denies Plaintiff leave to amend the Complaint. The Clerk of Court is directed to close this case. Ordered by Judge Margo K. Brodie on 7/11/2014. (Ramos, Christopher)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------JOSE A. STRADA,
Plaintiff,
MEMORANDUM & ORDER
11-CV-5735 (MKB)
v.
CITY OF NEW YORK and NEW YORK CITY
JOHN DOE POLICE OFFICERS,
Defendants.
---------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On November 22, 2011, Plaintiff Jose A. Strada commenced the above-captioned action
against Defendants the New York City Police Department (“NYPD”), the New York City
Department of Correction (“DOC”), the City of New York (“City”), and New York City John
Doe Police Officers, alleging claims of excessive force, false arrest and imprisonment, “delay
and denial of medical treatment and failure to protect while in custody,” failure to intercede,
conspiracy, and municipal liability pursuant to 42 U.S.C. § 1983 for claims arising out of his
November 7, 2009 arrest. Plaintiff also asserts state law claims of gross negligence and
negligence, assault and battery, false arrest and false imprisonment, malicious prosecution, abuse
of process, negligent hiring and retention, and negligence for failure to care, protect, and obtain
medical treatment for Plaintiff. Plaintiff seeks ten million dollars in damages, punitive damages,
costs, and any other relief deemed appropriate by the Court. Only the City and the New York
City John Doe Police Officers remain as Defendants. Before the Court are (1) Plaintiff’s motion
to amend the Complaint and (2) the City’s motion for summary judgment. For the reasons set
forth below, the Court grants the City’s motion for summary judgment and denies Plaintiff’s
motion to amend the Complaint.
I.
Background
a.
Facts
The following facts are taken from the Complaint. 1 On or about November 7, 2009, at
approximately 8:00 p.m., Plaintiff was in the vicinity of 172nd Street and 109th Avenue in
Jamaica, Queens. (Compl. ¶ 14.) Plaintiff was approached, stopped and arrested by two New
York City John Doe Police Officers. (Id. ¶ 15.) Plaintiff was forcefully knocked to the ground,
pounced upon, held down, surrounded, and detained by said officers. (Id.) While “in the process
of purportedly taking . . . [P]laintiff into custody,” the officers punched, kicked and beat
Plaintiff’s body and head with their fists and firearms. (Id.) They continued punching, kicking,
“attacking and brutalizing” Plaintiff while he was on the ground. (Id.) Plaintiff did not resist.
(Id.) While he was on the ground, Plaintiff was handcuffed. (Id.) Two more John Doe Police
Officers arrived on the scene, and all of the officers continued punching and kicking Plaintiff.
(Id.) Plaintiff became unconscious and lay bleeding on the ground. (Id.) Plaintiff was
subsequently arrested and imprisoned. (Id.)
Plaintiff was taken to the 103rd Precinct. (Id. ¶ 16.) While in custody, Plaintiff
repeatedly requested medical attention and assistance. (Id.) He was eventually taken to the
Queens Hospital Center, where he was treated for a nasal bone fracture. (Id.) Plaintiff also
suffered from facial trauma, lacerations, permanent neurological damage, dizzy spells, hearing
loss, repeated nightmares, slow-slurred speech and blurred vision as a result of this incident.
1
Neither party submitted a statement of facts concerning the underlying events that gave
rise to the instant action. The Court draws from the Complaint to provide context for the
resolution of the instant motions.
2
(Id.) On November 9, 2009, Plaintiff appeared before a state court judge and was released from
custody on his own recognizance. (Id.)
b.
Procedural history
Discovery in this action closed on February 28, 2013. (Minute Entry dated Dec. 10,
2012.) Plaintiff requested an extension of the discovery deadline which was denied by
Magistrate Judge Cheryl Pollak. (Docket Entry No. 20.) On March 5, 2013, Plaintiff requested
that Judge Pollak reconsider her decision and also expressed his intent to seek leave to amend the
Complaint to name previously unnamed police officers. (Docket Entry No. 23.) By Order dated
March 25, 2013, Judge Pollak denied Plaintiff’s request for reconsideration and denied Plaintiff’s
request to amend the Complaint without prejudice to re-file pending the outcome of the City’s
motion for summary judgment. (Docket Entry No. 26.)
On April 16, 2013, Plaintiff moved to vacate Judge Pollak’s March 25, 2013 Order.
(Docket Entry No. 28.) By Memorandum and Order dated May 21, 2013, the Court affirmed
Judge Pollak’s March 25, 2013 Order in its entirety. (Docket Entry No. 31) At a hearing on
May 21, 2013, the Court (1) dismissed all claims against the NYPD and DOC, 2 (2) dismissed
Plaintiff’s state law claims, 3 (3) granted the parties leave to brief whether Plaintiff had presented
sufficient evidence to sustain his municipal liability claim and whether he should be allowed to
amend the Complaint to name the individual officers. (Minute Entry dated May 21, 2013.)
2
The NYPD and DOC are non-suable entities. See N.Y.C. Charter § 396 (“All actions
and proceedings for the recovery of penalties for the violation of any law shall be brought in the
name of the city of New York and not in that of any agency, except where otherwise provided by
law.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) (NYPD is not a suable
entity); Vatansever v. New York City, 210 F. App’x 26, 26 (2d Cir. 2006) (DOC is not a suable
entity); Maier v. New York City Police Dep’t, No. 08-CV-5104, 2009 WL 2915211, at *2
(E.D.N.Y. Sept. 1, 2009) (dismissing all claims against NYPD and DOC because they are not
suable entities).
3
Plaintiff’s state law claims were dismissed as time barred.
3
II. Discussion
a.
Standards of Review
i.
Summary Judgment
Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, “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); see also Bronzini v. Classic
Sec., L.L.C., --- F. App’x ---, ---, 2014 WL 943933, at *1 (2d Cir. Mar. 12, 2014); Kwan v.
Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013); Kwong v. Bloomberg, 723 F.3d 160, 164–
65 (2d Cir. 2013); Redd v. N.Y. Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012). The role of the
court is not “to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ.,
444 F.3d 158, 162 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986)). A genuine issue of fact exists when there is sufficient “evidence on which the jury
could reasonably find for the plaintiff.” Liberty Lobby, 477 U.S. at 252. The “mere existence of
a scintilla of evidence” is not sufficient to defeat summary judgment; “there must be evidence on
which the jury could reasonably find for the plaintiff.” Id. The court’s function is to decide
“whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving
party, a rational juror could find in favor of that party.” Pinto v. Allstate Ins. Co., 221 F.3d 394,
398 (2d Cir. 2000). Even when a motion for summary judgment proceeds unopposed, a court
“may not grant the motion without first examining the moving party’s submission to determine if
it has met its burden of demonstrating that no material issue of fact remains for trial.” Vermont
Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citation and
internal quotation marks omitted).
4
ii.
Amendment of a complaint
The Federal Rules of Civil Procedure provide that courts “should freely give leave” to
amend a complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Second Circuit has
stated that “[t]his permissive standard is consistent with our strong preference for resolving
disputes on the merits.” Williams v. Citigroup Inc., 659 F.3d 208, 212–13 (2d Cir. 2011)
(citation omitted). Leave to amend should be given “absent evidence of undue delay, bad faith
or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility.”
Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 283 (2d Cir. 2000); see also Couloute v.
Ryncarz, No. 11-CV-5986, 2012 WL 541089, at *3 (S.D.N.Y. Feb. 17, 2012) (quoting Monahan,
214 F.3d at 283). However, motions to amend “should generally be denied in instances of
futility, undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, or undue prejudice to the non-moving party.” Burch v. Pioneer
Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008); Monahan, 214 F.3d at 283. An
amendment is futile if the proposed claim could not survive a motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Lucente v. Int’l Bus. Machines Corp., 310 F.3d
243, 258 (2d Cir. 2002) (citing Dougherty v. North Hempstead Bd. of Zoning Appeals, 282 F.3d
83, 88 (2d Cir. 2002)).
b.
Motion for Summary Judgment
Defendants argue that Plaintiff has failed to identify any municipal policy or custom and
consequently, cannot establish a causal connection between any such policy or custom and
Plaintiff’s alleged constitutional violations. (Def. Mem. 5.) Plaintiff failed to respond to
Defendant’s summary judgment motion.
In order to sustain a claim for relief pursuant to § 1983 against a municipal defendant, a
plaintiff must show the existence of an official policy or custom that caused injury and a direct
5
causal connection between that policy or custom and the deprivation of a constitutional right.
Monell v. Dep’t of Social Servs. of City of N.Y., 436 U.S. 658, 694–95 (1978) (“[A] local
government may not be sued under § 1983 for an injury inflicted solely by its employees or
agents. Instead, it is when execution of a government’s policy or custom . . . inflicts the injury
that the government as an entity is responsible under § 1983.”); see Torraco v. Port Auth. of N.Y.
& N.J., 615 F.3d 129, 140 (2d Cir. 2010) (“[T]o hold a city liable under § 1983 for the
unconstitutional actions of its employees, a plaintiff is required to plead and prove three
elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right.” (alteration in original) (quoting Wray v. City of New York, 490
F.3d 189, 195 (2d Cir. 2007))). A policy or custom may be established by any of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions or decisions made by
municipal officials with decision-making authority; (3) a practice so persistent and widespread
that it constitutes a custom through which constructive notice is imposed upon policymakers; or
(4) a failure by policymakers to properly train or supervise their subordinates, such that the
policymakers exercised “deliberate indifference” to the rights of the plaintiff. See Parker v. City
of Long Beach, --- F. App’x ---, 2014 WL 1507707 (2d Cir. Apr. 18, 2014), as amended, (Apr.
21, 2014) (failure to train); Matusick v. Erie Cnty. Water Auth., --- F.3d ---, 2014 WL 700718 (2d
Cir. Feb. 25, 2014) (widespread and persistent practice); Hines v. Albany Police Dep’t, 520 F.
App’x 5, 7 (2d Cir. 2013) (actions of policymakers); Schnitter v. City of Rochester, --- F.
App’x ---, 2014 WL 494893 (2d Cir. Feb. 7, 2014) (failure to train or supervise); Missel v. Cnty.
of Monroe, 351 F. App’x 543, 545 (2d Cir. 2009) (formal policy and act of a person with
policymaking authority for the municipality).
Here, based on the allegations in the Complaint, Plaintiff bases his municipal liability
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claim on the actions of “supervisory personnel” at the 103rd Precinct who had “oversight
responsibility for the more junior New York City Police Officers.” (Compl. ¶ 36.) These
supervisory officers were responsible for the training, instruction, supervision and discipline of
the junior officers who “brutalized” Plaintiff. (Id.) Plaintiff alleges that these supervisory police
officers knew or should have known that the “conduct of the junior officers against . . . [P]lainitff
would likely occur and would be brutal and unlawful.” (Id. ¶ 37.) Plaintiff also alleges that it
was the City’s custom, policy and practice that “permitted, condoned and contributed” to the
John Doe Police Officers’ “brazen acts of brutality.” (Id. ¶ 10.) Plaintiff further alleges that the
City was negligent in training, hiring and supervising the John Doe Officers. (Id. ¶ 62.) As
discussed below, these allegations are insufficient to create a material issue of fact to defeat
summary judgment.
Although unclear, Plaintiff appears to allege that the John Doe “supervisory police
officers” are policymakers for purposes of municipal liability. To the extent that Plaintiff is
attempting to make such a claim, it fails due to Plaintiff’s failure to provide any evidence that the
“supervisory police officers” had “final policymaking authority in the particular area involved.”
Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000); see also Cobbs v. City of Newburgh-City
Council, 546 F. App’x 34, 36 (2d Cir. 2013) (finding that the defendant-officers were not
“policymakers with final authority to establish municipal policy with respect to the action
ordered” (citation and internal quotation marks omitted)); Vasquez v. City of New York, No. 11CV-3024, 2013 WL 5519981, at *12 (E.D.N.Y. Sept. 30, 2013) (finding that the plaintiff failed
to show that an NYPD sergeant qualified as a policymaker “simply because he ha[d] authority to
verify arrests”).
Similarly, absent any corroborative evidence, circumstantial or otherwise, no reasonable
7
jury could conclude that Plaintiff’s arrest and “brutalization” resulted from a formal “custom,
policy or practice,” nor could a jury conclude that any policymaker was deliberately indifferent
to the risk of constitutional harm when the City hired, trained and supervised the John Doe
Officers. See Cucuta v. New York City, No. 13-CV-558, 2014 WL 1876529, at *13 (S.D.N.Y.
May 9, 2014) (granting summary judgment where the plaintiff fail to “present any evidence from
which to infer the existence of [a] municipal polic[y] or practice[]”); Farrow v. City of Syracuse,
No. 12-CV-1401, 2014 WL 1311903, at *8 (N.D.N.Y. Mar. 31, 2014) (“While circumstantial
evidence as to training policies is sufficient to withstand a motion to dismiss, at summary
judgment ‘a plaintiff is expected to proffer evidence from which a reasonable factfinder could
conclude that the training program was actually inadequate, and that the inadequacy was closely
related to the violation.’” (citation omitted) (quoting Amnesty Am. v. Town of W. Hartford, 361
F.3d 113, 130 n.8 (2d Cir. 2004))); DiGennaro v. Town of Gates Police Dep’t, No. 07-CV-6426,
2013 WL 3097066, at *14 (W.D.N.Y. June 18, 2013) (dismissing a municipal liability claim
based on a single unproven allegation of excessive force). Therefore, the City’s motion for
summary judgment is granted and all claims against it are dismissed.
c.
Motion to amend Complaint
Plaintiff seeks to amend the Complaint to plead claims of excessive force and unlawful
arrest against Officer Jason Barr, Sergeant John Toal and Sergeant Hugh Black. Defendant
argues that any amendment to the Complaint would be futile because the statute of limitations
bars all claims against any individual defendant. (Def. Mem. 8.) Plaintiff argues that his claims
against the proposed defendants will relate back to the date of the original Complaint pursuant to
New York’s relation back doctrine and Rule 15(c) of the Federal Rules of Civil Procedure. (Pl.
Mem. 7.) As explained below, Plaintiff’s claims against the proposed individual defendants
8
would not be timely under New York or federal law and the Court therefore denies Plaintiff’s
motion to amend the Complaint.
There is no dispute that the statute of limitations on Plaintiff’s excessive force and false
arrest claims expired on November 7, 2012, three years after the date of Plaintiff’s arrest. See
Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009) (“The statute of limitations for
claims brought under Section 1983 is governed by state law, and in this case is the three-year
period for personal injury actions under New York State law.”) Therefore, whether Plaintiff’s
claims against the proposed defendants are time-barred will depend on whether Plaintiff’s
proposed amendment can relate back to the filing of the original Complaint.
i.
Applicable law
Rule 15(c)(1)(A) of the Federal Rules of Civil Procedure allows an amendment to a
pleading to relate back to the date of the original pleading when the law that provides the
applicable statute of limitations allows relation back. Fed. R. Civ. P. 15(c)(1)(A). Courts must
examine the “controlling body of limitations law,” and apply state law if it provides “a more
forgiving principle of relation back than the one provided” by Rule 15(c). Hogan v. Fischer, 738
F.3d 509, 518 (2d Cir. 2013) (quoting Fed. R. Civ. P. 15, Advisory Comm. Notes 1991). Since
the parties fully briefed this motion, the Second Circuit has made clear that New York law
provides a more forgiving principle of relation back in the John Doe context, compared to the
federal relation back doctrine under Rule 15(c). Hogan, 738 F.3d at 518. As a result, the Court
first examines whether Plaintiff’s proposed claims against the individual officers would be made
timely through application of New York’s John Doe procedural rule, § 1024 of the New York
Civil Practice Law and Rules (“CPLR”).
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1.
Section 1024 of the CPLR
Under § 1024 of the CPLR, a plaintiff may commence a lawsuit against John Doe
defendants and toll the statute of limitations as to the unnamed defendants provided that the
plaintiff meets two requirements: (1) the plaintiff “exercise[d] due diligence, prior to the running
of the statute of limitations, to identify the defendant by name;” and (2) the plaintiff “describe[d]
the John Doe party in such form as will fairly apprise the party that he is the intended
defendant.” 4 Hogan, 738 F.3d at 519 (alteration, citation and internal quotation marks omitted).
Due diligence in this context requires that a plaintiff “show that he or she made timely efforts to
identify the correct party before the statute of limitations expired.” Justin v. Orshan, 788
N.Y.S.2d 407, 408 (App. Div. 2005) (citation and internal quotation marks omitted); see also
Luckern v. Lyonsdale Energy Ltd. P’ship, 654 N.Y.S.2d 543, 545 (App. Div. 1997) (“In order to
employ the procedural mechanism made available by CPLR 1024, the plaintiff must show that
he made genuine efforts to ascertain the defendants’ identities prior to the running of the Statute
of Limitations.” (alteration, citation, and internal quotation marks omitted)). If these conditions
are satisfied, the statute of limitations is tolled for up to 120 days during which the plaintiff must
identify the unknown defendants and serve process upon them. See JCG v. Ercole, No. 11-CV6844, 2014 WL 1630815, at *13 (S.D.N.Y. Apr. 24, 2014) (“If a plaintiff fulfills these
conditions, he ‘must then ascertain the identity of unknown [John] Doe parties, and . . . serve
process upon them, within 120 days from filing [the original complaint].’” (alterations in
original) (quoting Williams v. United States, No. 07-CV-3018, 2010 WL 963474, at *12
4
The text of the CPLR only provides for an extension of the period in which service of
process must be made, however, New York courts, and district courts interpreting the CPLR,
understand § 1024 to also toll the statute of limitations. See Wilson v. City of New York, No. 03CV-2495, 2006 WL 2528468, at *3 n.11 (S.D.N.Y. Aug. 31, 2006) (discussing this point);
Herbert v. Gabel Equip. Corp., 507 N.Y.S.2d 214 (App. Div. 1986).
10
(S.D.N.Y. Feb. 25, 2010))); Drake v. Lab. Corp. of Am. Holdings, No. 02-CV-1924, 2009 WL
2867901, at *6 (E.D.N.Y. Sept. 3, 2009) (noting that § 1024 “would indeed have stopped the
three-year clock, but only if Drake were able to identify Northwest and Kuntz, and effect service
on them within 120 days”), reconsideration denied, No. 02-CV-1924, 2010 WL 743056
(E.D.N.Y. Mar. 4, 2010), aff’d, 417 F. App’x 84 (2d Cir. 2011); Wilson v. City of New York,
No. 03-CV-2495, 2006 WL 2528468, at *3 n.11 (S.D.N.Y. Aug. 31, 2006) (noting that the
CPLR “rule provides only for a 120-day extension” of the statute of limitations); Bumpus v. New
York City Transit Auth., 883 N.Y.S.2d 99, 105 (App. Div. 2009) (noting that plaintiffs
commencing suit by filing, pursuant to § 1024, are in the “unenviable position” of having to
identify John Doe defendants and serve process upon them within 120 days of filing); Tucker v.
Lorieo, 738 N.Y.S.2d 33, 35 (App. Div. 2002) (“Once commenced by filing, [pursuant to
§ 1024,] the statute was tolled for 120 days pursuant to CPLR 306-b.”).
Here, Defendants provided Plaintiff with the names of the officers involved in Plaintiff’s
arrest prior to the expiration of the statute of limitations and close of discovery, (Declaration of
Carolyn K. Depoian dated June 21, 2012 (“Depoian Decl.”) ¶ 26), yet Plaintiff did not attempt to
amend the Complaint to add any individual officers prior to the expiration of the statute of
limitations. Magistrate Judge Pollak ordered the parties to proceed with depositions on June 8,
2012, September 20, 2012, and on December 10, 2012. (Docket Entries Nos. 11–13.) Plaintiff
never served the City with any notices of deposition nor did Plaintiff attempt in any way to
conduct deposition discovery. (Depoian Decl. ¶ 8.) Not until March 5, 2013, did Plaintiff seek
leave to amend the Complaint, nearly four months after the statute of limitations expired and
after the close of discovery. (Docket Entry No. 23.) While Plaintiff contends that he did not
learn the identity of “ALL” of the relevant officers until on or about October 3, 2012, Plaintiff
11
still had over a month from that date to amend the Complaint before the statute of limitations
expired. In support of his motion, Plaintiff states that defense counsel “absolutely knew that
these defendants would be added to the [C]omplaint on February 16, 2012 and on October 3,
2012.” (Pl. Mem. 6.) Despite this apparent shared knowledge concerning the parties to be added
to this action, Plaintiff did not actually act to amend the Complaint. Based on this record,
Plaintiff cannot rely on § 1024 to toll the statute of limitations since he learned the true identities
of the John Doe defendants prior to the expiration of the statute of limitations. Section 1024
provides no recourse in such an instance. See Bumpus, 883 N.Y.S.2d at 104 (“The use of CPLR
1024 presents many pitfalls. One pitfall is that parties are not to resort to the ‘Jane Doe’
procedure unless they exercise due diligence, prior to the running of the statute of limitations, to
identify the defendant by name and, despite such efforts, are unable to do so.” (emphasis added)
(citations omitted)); cf. Opiela v. May Indus. Corp., 781 N.Y.S.2d 353, 354 (App. Div. 2004)
(finding § 1024 inapplicable where the plaintiff “could have obtained the [defendants’] names
before expiration of the three-year limitations period”).
2.
Relation back
A.
Section 203 of the CPLR
Under New York law, in addition to § 1024 allowing for a nunc pro tunc John Doe
substitution, a party seeking relation back as to a previously unknown defendant may also utilize
§ 203 of the CPLR, New York’s general relation back statute. 5 See Bumpus, 883 N.Y.S.2d at
5
In Hogan v. Fischer, the Second Circuit held that § 1024 of the CPLR, which only
concerns John Doe substitutions, is more forgiving than Rule 15(c)(1)(C). Hogan, 738 F.3d 509,
518 (2d Cir. 2013). The Second Circuit has not decided whether Rule 15(c)(1)(C) is more or less
forgiving than New York’s general relation back law, § 203 of the CPLR. Courts in this Circuit
have either found § 203 to be more forgiving or assessed both laws and applied the more
forgiving of the two. See Fisher v. County of Nassau, No. 10-CV-0677, 2011 WL 4899920,
at *4 (E.D.N.Y. Oct. 13, 2011) (applying both the federal and New York law, and finding them
12
106 (noting that the CPLR provides other methods, beyond a “good cause” or “interest of
justice” extension by which a party can gain additional time to serve process upon John Doe
defendants).
Under § 203, New York courts allow claims against a new defendant to “relate back to
timely filed pleadings when (1) the new claim arose out of the same conduct, transaction or
occurrence as the original allegations; (2) the new party is united in interest with the original
defendant, and by reason of that relationship can be charged with such notice of the institution of
the action that he will not be prejudiced in maintaining his defense on the merits; and (3) the new
party knew or should have known that, but for a mistake as to the identity of the proper parties,
the action would have been brought against him as well.” JCG, 2014 WL 1630815, at *15
(quoting Fisher v. County of Nassau, No. 10-CV-0677, 2011 WL 4899920, at *5 (E.D.N.Y. Oct.
13, 2011)); see also Hunter v. Deutsche Lufthansa AG, No. 09-CV-3166, 2013 WL 752193,
at *5 (E.D.N.Y. Feb. 27, 2013) (listing these prongs); Maccharulo v. Gould, 643 F. Supp. 2d
587, 597 (S.D.N.Y. 2009) (same) (quoting Amaya v. Garden City Irrigation, Inc., 645 F. Supp.
both unavailing); Thomas v. Cassleberry, No. 03-CV-6394L, 2010 WL 1492300, at *3
(W.D.N.Y. Jan. 22, 2010) (“New York State law, by contrast, construes the issue of mistake
more liberally than federal law.”), report and recommendation adopted, No. 03-CV-6394L, 2010
WL 1492313 (W.D.N.Y. Apr. 13, 2010); Dooley v. Columbia Presbyterian Med. Ctr., No. 06CV-5644, 2009 WL 129941, at *4 (S.D.N.Y. Jan. 16, 2009) (noting that although the federal and
New York relation back tests are similarly worded, the third element under New York law is
“more flexible”); Abdell v. City of New York, No. 05-CV-8453, 2006 WL 2620927, at *5
(S.D.N.Y. Sept. 12, 2006) (“New York relation back doctrine, however, is more generous than
federal relation back doctrine.”); Sloane v. Town of Greenburgh, No. 01-CV-11551, 2005 WL
1837441, at *3 (S.D.N.Y. July 27, 2005) (finding that the two laws are similar but noting that the
“requirement in the second prong of the New York rule . . . is arguably more lenient than the
parallel federal provision”). The Court will apply both rules and give Plaintiff the benefit of
whichever is more forgiving. See Laureano v. Goord, No. 06-CV-7845, 2007 WL 2826649,
at *5 (S.D.N.Y. Aug. 31, 2007) (“Whether a claim relates back should be analyzed under both
federal and state law, and whichever law that affords a more forgiving principle of relation back
should be utilized.”), report and recommendation adopted, No. 06-CV-7845, 2007 WL 2852770
(S.D.N.Y. Sept. 28, 2007).
13
2d 116, 121 (E.D.N.Y. July 13, 2009)). “The ‘linchpin’ of the relation back doctrine is notice to
the defendant within the applicable limitations period.” Kirk ex rel. Kirk v. Univ. OB-GYN
Associates, Inc., 960 N.Y.S.2d 793, 795 (App. Div. 2013) (quoting Buran v. Coupal, 87 N.Y.2d
173, 180 (1995)); Stevens v. Winthrop S. Nassau Univ. Health Sys., Inc., 932 N.Y.S.2d 514, 516
(App. Div. 2011) (quoting Alvarado v. Beth Israel Med. Ctr., 876 N.Y.S.2d 147, 149 (App. Div.
2009)).
Here, there is no question that the new claims, excessive force and false arrest, arise from
the same conduct set forth in the original Complaint. Therefore, Plaintiff satisfies the first prong
of New York’s relation back test. Plaintiff’s ability to satisfy the second prong is less clear.
“[T]he question of unity of interest is to be determined from an examination of (1) the jural
relationship of the parties whose interests are said to be united and (2) the nature of the claim
asserted against them by the plaintiff.” Amaya, 645 F. Supp. 2d at 122 (citing Connell v.
Hayden, 443 N.Y.S.2d 383, 393 (App. Div. 1981)). “In other words, when because of some
legal relationship between the defendants they necessarily have the same defenses to the
plaintiff’s claim, they will stand or fall together and are therefore united in interest.” Connell,
443 N.Y.S.2d at 393. There is sparse caselaw concerning the relationship of a municipality and
employee-officers with respect to New York’s relation back doctrine, and the Court is aware of
only one case holding that an officer is united in interest with a municipality in the § 1983
context. See Llerando-Phipps v. City of New York, 390 F. Supp. 2d 372, 385 (S.D.N.Y. 2005)
(finding that the City and individual officers were united in interest by virtue of their employeremployee relationship).
Plaintiff argues that the City and the individual officers are united in interest because of
the City’s statutory obligation under § 50-k of the General Municipal law to defend and
14
indemnify the officers. (Pl. Mem. 17–18.) Assuming § 50-k applies, the Court agrees that such
a statutory obligation suffices to create the requisite unity of interest. Under New York General
Municipal Law, the City is required to defend and indemnify its employees for alleged tortious
conduct, so long as such conduct (1) occurred while the employee was acting within the scope of
her employment, and (2) did not violate any rule or regulation of her agency at the time the
alleged damages were sustained. N.Y. Gen. Mun. Law § 50-k(2)–(3). Although vicarious
liability is “[t]he most frequently cited relationship creating a unity of interest,” Amaya, 645 F.
Supp. 2d at 122 (citing Connell, 443 N.Y.S.2d at 393), New York courts have also found that the
duty to indemnify creates a unity of interest between parties, see Austin v. Interfaith Med. Ctr.,
694 N.Y.S.2d 730, 733 (App. Div. 1999) (finding that a party contractually bound to indemnify a
hospital to be united in interest with the hospital); see also Quiroz v. Beitia, 893 N.Y.S.2d 70, 73
(App. Div. 2009) (citing Austin with approval). But as Defendants point out, (Def. Reply Mem.
4), after an investigation into the individual officers’ conduct, the City may be required to decline
representation. In such an instance, neither indemnification nor vicarious liability would apply
and consequently, the officers and the City would not be united in interest.
However, assuming the allegations in the Complaint to be true, Plaintiff has raised an
issue of fact as to whether the officers were acting within the scope of their employment and in
accordance with agency rules and regulations such that they would be entitled to representation
and indemnification by the City. Therefore, the Court cannot find that, as a matter of law, the
officers and the City are not united in interest. See Assad v. City of New York, 656 N.Y.S.2d 669,
670 (App. Div. 1997) (finding that issues of fact precluded a determination that the individual
officer was not acting within the scope of his employment and therefore, the court could not
determine whether the officer was united in interest with the City); Vazquez v. City of New York,
15
629 N.Y.S.2d 475, 476 (App. Div. 1995) (finding that the City’s Corporation Counsel’s refusal
to represent an officer did not, as a matter of law, require a finding that the officer and the City
were not united in interest); Sargent v. City of New York, 513 N.Y.S.2d 194, 195 (App. Div.
1987) (“The affidavits submitted at Special Term raise a question of fact as to whether the
appellant . . . was at that time acting outside the scope of his employment as a New York City
police officer. Accordingly, whether the appellant is united in interest with his employer, the
defendant City of New York (which was timely served with process) for Statute of Limitations
purposes (CPLR 203[b]) cannot be determined at this juncture.” (citations omitted)). 6
With respect to the final prong of New York’s general relation back doctrine, the Plaintiff
argues that New York courts inquire as to whether a plaintiff’s failure to add defendants was
done in order to seek tactical advantage or in bad faith. (Pl. Mem. 18–19.) The City argues that
notice to the defendant rather than bad faith on the plaintiff’s part is the focus of this prong of
New York’s relation back doctrine. (Def. Reply Mem. 10–11.) The Court agrees with the City
that the focus of this prong does not solely concern Plaintiff’s conduct. See Hunter, 2013 WL
752193, at *6 (rejecting the plaintiff’s argument that this prong of New York’s relation back test
6
The Court is aware of only one case in which a duty to indemnify did not create a unity
of interest. In Hilliard v. Roc-Newark Associates, 732 N.Y.S.2d 421 (App. Div. 2001), the
plaintiff commenced a negligence action against a licensor and later, after the statute of
limitations had expired, attempted to add the licensee and actual owner and operator of the hotel
where the plaintiff was injured. Id. at 422. The claims against the licensor were dismissed for
lack of any factual basis for a finding of liability as the licensor did not own, occupy or operate
the licensee’s premises. Id. at 424. The licensee moved to dismiss the claims against it for
untimeliness, and despite the licensee’s duty to indemnify the licensor, the court held that the
parties were not united in interest absent vicarious liability. Id. Hilliard is factually
distinguishable from the instant action primarily because here, the City — the originally named
party — has the duty to represent and indemnify the untimely-added officers whereas in Hilliard,
the originally named party — the licensor — did not have a duty to indemnify the
untimely-added defendant-licensee. In the instant case, the statutory duty of the City to
indemnify its officers, even absent vicarious liability, is sufficient to create a unity of interest
between the parties.
16
is satisfied “because he did not act in bad faith ‘to gain some advantage over’”); Amaya, 645 F.
Supp. 2d at 124 (“In the Court’s opinion, the cases holding that the propriety of relation back
hinges solely on bad faith read Buran too broadly.”). In Buran, relied on by Plaintiff, the New
York Court of Appeals explained the final prong of New York’s relation back test, holding that
the law only required that “the new party knew or should have known that, but for a mistake by
plaintiff as to the identity of the proper parties, the action would have been brought against him
as well.” Buran, 87 N.Y.2d at 178. To the extent the Buran court discussed a plaintiff’s bad
faith, it suggested that a plaintiff may seek to obtain a tactical advantage “[w]hen a plaintiff
intentionally decides not to assert a claim against a party known to be potentially liable,” and
under such a circumstance, “there has been no mistake and the plaintiff should not be given a
second opportunity to assert that claim after the limitations period has expired.” Id. at 181
(citation omitted). The City does not argue any such effort to obtain tactical advantage or bad
faith on Plaintiff’s part. Thus, the only remaining question is whether the City, and thus the
individual officers, knew or should have known that the action would have been brought against
the individuals officers but for a mistake as to the identity of the proper parties.
Plaintiff’s failure to amend the Complaint, or request an extension of time to do so, is not
the type of “mistake” contemplated by New York’s relation back doctrine. Plaintiff offers no
explanation for his failure to timely amend the Complaint to add the proposed defendants despite
having knowledge of the individual defendants’ potential liability by, at least, October 3, 2012.
Instead, Plaintiff only argues that because he did not “learn the identity of ALL of these officers
until on or about October 3, 2012 -- eleven months after plaintiff[] filed the complaint . . .
plaintiff[] clearly [was] not acting intentionally or in bad faith . . . .” (Pl. Mem. 19.) Plaintiff’s
argument completely reads “mistake” out of the relation back doctrine. Here, by Plaintiff’s own
17
representation, he knew of all of the proposed defendants over a month before the statute of
limitations expired on November 7, 2012. Absent any argument that there was a mistake as to
the proper parties, Plaintiff fails to satisfy this final prong of New York’s relation back test. See
Hunter, 2013 WL 752193, at *6 (“[I]f indeed United’s potential liability was brought to
plaintiff’s attention within the limitations period, his failure to timely amend his complaint
cannot be considered a mistake . . . .”); Abdell v. City of New York, No. 05-CV-8453, 2006 WL
2620927, at *7 (S.D.N.Y. Sept. 12, 2012) (“Where a plaintiff fails to timely sue a potentially
liable party despite incriminating disclosures made within the statute of limitations, the Court
cannot find that a mistake was made for relation back purposes.”); Sloane v. Town of
Greenburgh, No. 01-CV-11551, 2005 WL 1837441, at *4 (S.D.N.Y. July 27, 2005) (holding that
a pro se plaintiff’s failure to timely substitute John Doe defendants with named defendants
before the statute of limitations was not a mistake under New York or federal law); Goldberg v.
Boatmax://, Inc., 840 N.Y.S.2d 570, 571 (App. Div. 2007) (“[P]laintiff knew the identities of the
intended defendants and their role in the alleged wrongful disposition of property nearly one year
before he sought to add them to the action, and, accordingly, his failure to name them earlier
cannot be characterized as a mistake for relation-back purposes.”); Tucker, 738 N.Y.S.2d at 36
(“In this case, however, the failure to identify Lorieo in the original summons and complaint and
make timely service on him was not due to a mistake on the part of plaintiff in identifying the
proper parties. Rather, it was due to plaintiff’s failure to timely request the hospital record and
ascertain Lorieo’s identity.”). Therefore, Plaintiff’s proposed claims against the individual
officers would not relate back to the date of the original Complaint under § 203 of the CPLR.
B.
Rule 15(c)(1)(C) of the Federal Rules of Civil Procedure
Plaintiff’s argument that his claims relate back pursuant to Rule 15(c)(1)(C) of the
Federal Rules of Civil Procedure is also unavailing. “Rule 15(c) of the Federal Rules of Civil
18
Procedure governs when an amended pleading ‘relates back’ to the date of a timely filed original
pleading and is thus itself timely even though it was filed outside an applicable statute of
limitations.” Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 541 (2010). Under Rule
15(c)(1)(C), an amendment to a pleading to change the party against whom a claim is asserted
will relate back if (1) “the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out--or attempted to be set out--in the original pleading,” (2) the
parties to be brought in “received such notice of the action that it will not be prejudiced in
defending on the merits,” (3) those parties “knew or should have known that the action would
have been brought against it, but for a mistake concerning the proper party’s identity,” and (4)
elements (2) and (3) were satisfied within 120 days of the filing of the original Complaint. See
Fed. R. Civ. P. 15(c)(1)(C)(i)–(ii); Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 468–69 (2d
Cir. 1995).
In Barrow, the Second Circuit held that “the failure to identify individual defendants
when the plaintiff knows that such defendants must be named cannot be characterized as a
mistake.” 7 Barrow, 66 F.3d at 470. Barrow remains good law, see Hogan, 738 F.3d at 518
7
Courts in this Circuit have questioned whether Barrow remains good law in light of the
Supreme Court’s decisions in Krupski. See, e.g., Askins v.. City of New York, No. 09-CV-10315,
2011 WL 1334838, at *1 n.3 (S.D.N.Y. Mar. 25, 2011) (“[T]he Supreme Court’s decision in
Krupski . . . has engendered a split in the district courts as to whether Barrow remains good
law.”). In Krupski, the Supreme Court held that “Rule 15(c)(1)(C)(ii) asks what the prospective
defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew
or should have known at the time of filing her original complaint.” Krupski, 560 U.S. at 548. In
Hogan, decided post-Krupski, the Second Circuit reaffirmed Barrow and held that “the lack of
knowledge of a John Doe defendant’s name does not constitute a ‘mistake of identity’” satisfying
Rule 15(c). Hogan, 738 F.3d at 518; see also In re Vitamin C Antitrust Litig., --- F. Supp.
2d ---, ---, 2014 WL 351896, at *4 (E.D.N.Y. Jan. 31, 2014) (“The Second Circuit has recently
reaffirmed Barrow . . . .”). To the extent that Krupski seemingly undermines Barrow, this Court
is required to follow Second Circuit precedent and therefore understands that a “mistake” as
19
(citing Barrow affirmatively), and precludes this Court from finding that Plaintiff’s failure to
amend the Complaint to name the individual officers was a mistake contemplated by Rule 15(c).
See Anderson v. City of Mount Vernon, No. 09-CV-7082, 2014 WL 1877092, at *4 (S.D.N.Y.
Mar. 28, 2014) (“[Plaintiff’s] proposed amendment naming Sergeant Marcucilli as a defendant
after the statute of limitations had run does ‘not correct a mistake in the original complaint, but
instead supplie[s] information [Plaintiff] lacked at the outset.’” (second and third alterations in
original) (citing Barrow, 66 F.3d at 470)); Ulloa v. City of New York, No. 13-CV-5795, 2014 WL
1100226, at *2 (S.D.N.Y. Jan. 6, 2014) (“Under the Second Circuit’s decision in Barrow v.
Wethersfield Police Dep’t, a plaintiff who has named Jo[hn] Doe defendants, cannot take
advantage of Rule 15(c)(1)(C), because a plaintiff’s lack of knowledge as to the identity of John
Doe defendants cannot be considered a ‘mistake.’” (citation omitted)). Therefore, Plaintiff’s
proposed claims against the individual officers would not relate back to the date of the original
Complaint under federal law. Accordingly, the Court denies Plaintiff’s motion to amend the
Complaint to substitute the names of the individual officers as such an amendment would be
futile.
described in Rule 15(c) does not cover instances where a party fails to timely name a John Doe
defendant.
20
III. Conclusion
For the foregoing reasons, the Court grants Defendant’s motion for summary judgment
and denies Plaintiff’s motion to amend the Complaint. The Clerk of Court is directed to close
this case.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: July 11, 2014
Brooklyn, New York
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