Sherman v. Doe et al
MEMORANDUM & ORDER, For the foregoing reasons, Defendants' 37 Motion to Dismiss for Failure to State a Claim is GRANTED. The amended complaint is therefore DISMISSED and the Clerk of Court is respectfully directed to close the case. So Ordered by Judge Nicholas G. Garaufis on 3/8/2018. (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
KEARSE,JOHN DOE 1 A/K/A UNKNOWN
TSA AGENT 1, JOHN DOE 2 A/K/A
UNKNOWN TSA AGENT 2, and JOHN DOE 3
A/K/A UNKNOWN TSA AGENT 3,
NICHOLAS G. GARAUFIS,United States District Judge.
Plaintiff Ruth Sherman initiated this suit on November 25,2014, against five "John Doe"
agents employed by the Transportation Security Administration (the "TSA"), alleging that they
violated her Fourth Amendment rights nearly three years prior during a pre-flight screening at
John F. Kennedy Intemational Airport("JFK Airport"). (Compl.(Dkt. 1).) On September 25,
2015,Plaintifffiled an amended complaint naming two individual TSA agents, Terry-Ann
Thomas Brown and Tamika Kearse, as defendants. (Am. Compl.(Dkt. 14).) The filing ofthe
amended complaint occurred nearly four years after the incident and one year after the relevant
limitations period had run. Contending that the amended complaint does not relate back to the
complaint. Defendants now move for dismissal under Federal Rule of Civil Procedure 12(b)(6).
(Mot. to Dismiss("Mot.")(Dkt. 37); Mem.in Supp. of Mot.("Mem.")(Dkt. 37-1).) Plaintiff
opposes dismissal, claiming that her efforts to identify the TSA agents establish the due diligence
required for relation back under these circumstances. (PI. Opp'n to Mot.("PI. Opp'n")(Dkt. 37-
2).) Because Plaintiff did not exhibit due diligence in attempting to identify the unnamed TSA .
agents before the expiration ofthe statute of limitations, Defendants' motion to dismiss is
GRANTED and the case is hereby DISMISSED.
Plaintiff asserts a cause of action under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics. 403 U.S. 388(1971). Her allegations stem from an alleged incident
during security screening at JFK Airport on November 29,2011. (Am. Compl.12.) Plaintiff
travels in a wheelchair and has a colostomy bag attached to her body, something which required
her to opt for an altemate screening process at the TSA security checkpoint. (Id 117.) She
alleges that, during that screening process, TSA agents detained her in a private room,"stripsearched" her, and closely inspected her colostomy bag,thereby violating both TSA policy and
her Fourth Amendment right to be free from unreasonable search and seizure. (Id.
Nearly three years later, on November 25,2014,Plaintiff initiated the instant suit against
five unnamed "John Doe" defendants. As Plaintiff concedes, her Bivens claims have a three-
year statute oflimitations that expired four days later, on November 29,2014. (PI. Opp'n ^4("It
is uncontroverted that the apphcable statute oflimitation...is three years.").) The following
week,the Clerk of Court signed and issued Plaintiffs proposed summons form addressed to
"Unknown TSA Agent 1 through 5: C/0 the U.S. Attorney for the Eastern District ofN.Y.,"
which was thereafter served on the U.S. Attorney's Office for the Eastern District. (Summons
(Dkt. 2); Proof of Service (Dkt. 5).) The docket then remained dormant for several months imtil
March 20,2015, when Magistrate Judge Orenstein issued an order noting the inactivity and
directing that by April 17, 2015,an answer be filed, the parties stipulate to an extension
extending the time to answer, or Plaintiff file a request for a certificate of default. (Mar. 20,
In response, the U.S. Attorney's Office("USAO")filed a two-page "Letter Motion to
Dismiss" asserting that no party had been served under Rule 4 ofthe Federal Rules of Civil
Procedure and noting that, while it had received the summons addressed to "John Doe"
defendants, it did not represent any named party in the action. (Defs. Apr. 15, 2015, Letter Mot.
to Dismiss("Ltr.")(Dkt. 6).) The letter also stated that on February 3,2015,the USAO had
advised Plaintiffs counsel ofits position that, because no named defendant had been identified
or served,there existed no defendant with an obligation to answer the complaint. (Id at 1.)
Plaintiffs counsel apparently never responded to that letter. (Id. at 2.) Plaintiff did, however,
promptly oppose the Letter Motion to Dismiss, admitting that she had not effected service under
Rule 4, but claiming that despite
having exercised due diligence by requesting the identity of the
[unknown defendants] in a prior [Freedom of Information Act
("FOIA")] request... made to the United States via the Department
ofHomeland Security and the Transportation Safety Administration,
same was not responded to, and the Plaintiff has, therefore, been
unable to ascertain the identities of these presently unknown
(Apr. 15,2015,PI. Letter(Dkt. 7)at 1.) In the same filing. Plaintiffrequested an extension of
time to serve the individual TSA agents and make an "additional FOIA request relative to these
parties." (Id.) The following month, on May 14, 2015, Judge Orenstein held a conference with
both Plaintiff and the government in attendance, during which he noted an unresolved factual
dispute concerning whether Plaintiff acted with diligence in seeking to identify the uimamed
defendants, as required by Hoean v. Fischer. 738 F.3d 590(2d Cir. 2013), and granted Plaintiff
an additional 60 days to serve process "v^dthout prejudice to the right ofany defendant to contest
the timeliness of[PjlaintifFs claims." (May 14, 2015, Min. Entry(Dkt. 10).)
Upon expiration ofthat additional 60 days. Plaintifffiled a second motion to extend time
for service, contending that on April 30,2015,she had submitted a second FOIA request to the
TSA but had not yet received a response despite various attempts by her counsel to follow up.
(PL Mot. for Extension ofTime to File (Dkt. 11).) Plaintiff attached the April 30 FOIA request
to her motion, which in turn attached her previous, January 23,2012, FOIA request(the "2012
FOIA Request") and related correspondence.^ (Id. at 3-22). Notably,the 2012 FOIA Request
was the only request for information made within the limitations period. (See PI. Opp'n
Judge Orenstein granted Plaintiffs second motion to extend time to serve process and
scheduled a status conference for the following week. (See July 16, 2015, Order.) During that
conference. Judge Orenstein ordered the USAO to provide Plaintiff vrith the names ofthe TSA
agents in question by the end ofthe following week, apparently upon confirming that the TSA
had already identified the agents in question. (See July 23,2015, Min. Entry (Dkt. 12).) The
government complied and later provided the individuals' addresses and the operating hours
during which the individuals could be served.^ (See Status Report(Dkt. 17).) Finally, on
September 28,2015,Plaintifffiled the amended complaint, naming the two TSA officers, TenyAnn Thomas-Brown and Tamika Kearse, as defendants. (See Am. Compl.)
' related correspondence is not ultimately necessary for the court's determination of Defendants' motion to
dismiss. See infra note 3.
^ There is no indication on the docket that the individual defendants were actually served, although summons forms
did issue as to each. (See Am.Summons(Dkt. 20).)
Thomas-Brown and Kearse promptly sought and received leave to file a motion to
dismiss the amended complaint on the grounds that the amendment adding them as defendants
did not relate back to the original pleading and was therefore untimely. (Defs. Nov. 24,2015,
Letter(Dkt. 21); Dec. 29,2015, Order (Dkt. 24).) All parties subsequently sought and received
lengthy extensions oftime for serving and filing their briefs on the matter. Ultimately, on July
20, 2016, Thomas-Brown and Kearse filed a fully briefed motion to dismiss, which is currently
before the court. (Mot.)
The purpose of a motion to dismiss for failure to state a claim under Rule 12(b)(6)is to
test the legal sufficiency of a plaintiff's claims for relief. Patane v. Clark. 508 F.3d 106,112-13
(2d Cir. 2007). A complaint will survive a motion to dismiss if it contains "sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v.
Iqbal. 556 U.S. 662,678(2009)fquoting Bell Atl. Corp. v. Twomblv. 550 U.S. 544,570(2007)).
"Threadbare recitals ofthe elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id.
When considering a motion to dismiss for failure to state a claim,the court must accept
as true all allegations offact in the complaint and draw all reasonable inferences in favor ofthe
plaintiff. ATSI Commc'ns.Inc. v. Shaar Fund. Ltd.. 493 F.3d 87, 98(2d Cir. 2007). "In
determining the adequacy ofthe complaint,the court may consider any written instrument
attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as
documents upon which the complaint relies and which are integral to the complaint." Subaru
Distribs. Corp. v. Subaru of Am..Inc.. 425 F.3d 119,122(2d Cir. 2005).
When considering a Rule 12(b)(6) motion to dismiss, the court may consider only limited
materials, including "the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable
L.L.C.,622 F.3d 104,111 (2d Cir. 2010). When a party introduces extrinsic materials on a
motion to dismiss, the court must either exclude those materials and decide the motion on the
basis ofthe pleadings before it or convert the motion into one for summary judgment and
provide all parties with the opportunity to present additional evidence. Fonte v. Bd. of Managers
of ConFl Towers Condo.,848 F.2d 24,25(2d Cir. 1988). "[W]hen a plaintiff chooses not to
attach to the complaint or incorporate by reference a document upon which she relies and which
is integral to the complaint, the court may nevertheless take that document into consideration in
deciding a defendant's motion to dismiss, without converting the motion into one for summary
judgment." Potente v. Citibank N.A.. — F. Supp. 3d —,2017 WL 4736735, at *3(E.D.N.Y.
2017). Documents are "integral" to the complaint ifthe complaint "relies heavily upon [their]
terms and effect," so long as these documents are undisputedly authentic and accurate. DiFolco.
622 F.3d at 104(quoting Mangiafico v. Blumenthal. 471 F.3d 391, 398(2d Cir. 2006)).
Plaintiff did not attach any documentation to the complaint. Following the filing ofthe
complaint, however. Plaintiffrequested additional time to serve the then-unknown defendants,
stating that Plaintiff still did not know their identities "despite Plaintiff having exercised due
diligence by requesting the identity ofthese individuals in a prior FOIA request." (Apr. 15,
2015,PI. Letter at 1.) Plaintiff reiterated this contention in a subsequent letter. (May 12, 2015,
PI. Letter(Dkt. 9)at 2-3.) Following these letters. Judge Orenstein stated that he would permit
an amended complaint with the TSA agents' identities "ifthe plaintiff can demonstrate diligence
in seeking to identify those officers within the limitations period." (May 14, 2015, Min. Entry
(Dkt. 10).) In response. Plaintiff submitted a copy of a April 30,2015,FOIA request to the TSA,
which included a copy ofthe 2012 FOIA Request.^ (July 15, 2015,PI. Letter(Dkt. 11 at EOF
p.l); Apr. 30, 2015, PI. FOIA Req.(Dkt. 11 at EOF p.3); Jan. 23,2012,PI. FOIA Req.(Dkt. 11
at EOF p.5).) Judge Orenstein subsequently ordered the government to produce the names ofthe
defendants and permitted Plaintiffto submit an amended complaint. (July 23,2015, Min. Entry.)
This information was plainly integral to Plaintiffs amended complaint. Judge Orenstein
did not grant Plaintiffs motion to amend the complaint until after she produced evidence
purporting to show her diligence and difficulty in ascertaining Defendants' identities. While the
amended complaint does not explicitly mention Plaintiffs asserted diligence, the fact that the
amended complaint was filed at all, and that it features the identities ofthe TSA agents in the
caption, shows that Plaintiff"relied upon those documents in framing the [amended] complaint."
See Chambers v. Time Warner,Inc., 282 F.3d 147,153(2d Cir. 2002). There is also "no dispute
regarding the authenticity or accuracy ofthe document," DiFolco. 622 F.3d at 111, as indicated
by Defendants' reference to the 2012 FOIA Request in their motion to dismiss. (See Mem. at 8.)
Finally, while the parties dispute whether the 2012 FOIA Request allows Plaintiff to relate back
the amended complaint to the filing of her complaint,there are "no material disputed issues of
fact regarding the relevance ofthe document." S^ Faulkner v. Beer. 463 F.3d 130, 134(2d Cir.
Plaintiff also submitted further documentation related to her April 30, 2015,FOIA request. (See May 6,2015,
Emails(Dkt. 11 at EOF p.9); Receipt of Apr. 30,2015, FOIA Req.(Did. 11 at EOF p.12); Release ofInformation
Authorization(Dkt. 11 at EOF p.l6); May 7, 2015,Emails(Dkt. 11 at EOF p.l9).) As this information is not
necessary for the consideration of Defendants' motion to dismiss, the court is not compelled to decide whether this
extrinsic evidence is integral to the amended complaint.
2006). Consequently,the court may consider Plaintiffs 2012 FOIA Request without converting
Defendants' motion to dismiss into a motion for summary judgment.
The parties agree that in order for Plaintiffs claims against the named TSA agents to be
timely,they must relate back to Plaintiffs initial pleading under Federal Rule of Civil Procedure
15. Both sides acknowledge that Plaintiffs initial pleading fell within the limitations period and
that her amended complaint fell after the period's expiration.
"Rule 15(c)(1)(C) provides the federal standard for relation back." Hogan. 738 F.3d
at 517. Under this rule, a plaintiff who wishes to relate back a complaint that has been amended
to add a new party must demonstrate, among other things, that the party "should have known
that, but for a mistake ofidentity, the original action would have been brought against it." Id.
(emphasis added). That provision is irrelevant here, however, because "failure to identify
individual defendants when the plaintiff knows that such defendants must be named cannot be
characterized as a mistake." Id at 517-18 (emphasis added)(citing Barrow v. Wethersfield
Police Dep't 66 F.3d 466,468-69(2d Cir. 1995)). Accordingly, Plaintiff may not rely on Rule
15(c)(1)(C)for the relation back of her amended complaint.
Rule 15(c)(1)(A), however, allows for the relation back of an amendment if it is
permitted under "the entire bodv oflimitations law that provides the applicable statute of
limitations." Id at 518. Bivens suits, like § 1983 actions, borrow their limitations period from
New York State's three-year limitations period applicable to physical injury suits, set Gonzalez
V. Hastv. 802 F.3d 212,219-20(2d Cir. 2015), so the court turns to state law to answer the
question of whether relation back is permissible in this context. The New York Civil Practice
Law and Rules("CPLR")provides:
A party who is ignorant,in whole or in part, ofthe name or identity ofa person who
may properly be made a party, may proceed against such person as an unknown
party by designating so much of his name and identity as is known. If the name or
remainder of the name becomes known all subsequent proceedings shall be taken
under the true name and all prior proceedings shall be deemed amended
CPLR 1024. "New York courts have interpreted this section to permit John Doe substitutions
nunc pro tune." Hoean. 738 F.3d at 518-19.
To take advantage of CPLR 1024, a party must:(1)"exercise due diligence, prior to the
running ofthe statute oflimitations, to identify the defendant by name," and(2)"describe the
John Doe party 'in such form as will fairly apprise the party that he is the intended defendant.'"
Id at 519(alteration adopted)(quoting Bumnus v. N.Y.C. Transit Auth.. 883 N.Y.S.2d 99, 104
(App. Div. 2009)). As discussed below. Plaintiff does not meet the due-diligence requirement.
Thus, her amended complaint cannot relate back and, accordingly, it is time-barred by the statute
"Section 1024's 'due diligence' requirement is not forgiving." Barrett v. Citv of
Newburgh. — F. App'x —,2017 WL 6540497, at *3(2d Cir. 2017)(summary order). Under
this requirement, a plaintiff must"show that he or she made timely efforts to identify the correct
party before the statute oflimitations expired." Strada v. Citv ofNew York. No. 1 l-CV-5735
(MKB),2014 WL 3490306, at *5(E.D.N.Y. July 11, 2014)(internal quotation marks omitted).
"A plaintiff exercising due diligence will take concrete and timely steps to ascertain an officer
defendant['s] identity, for example by submitting multiple discovery demands,requests under
state or federal Freedom ofInformation laws, or requests to the Attorney General's office."
Barrett. — F. App'x —,2017 WL 6540497, at *3. Diligence after the limitations period has
ended cannot compensate for a prior lack of diligence. Galberth v. Washington. No. 14-CV-691
(KPF),2016 WL 1255738, at *11 (S.D.N.Y. Mar. 29,2016).
A party generally cannot satisfy the due-diligence requirement by making a single
unsuccessful request for information. See Colson v. Haber. No. 13-CV-5394(JG),2016 WL
236220, at *4 n.3 (E.D.N.Y. Jan. 20,2016)("The mere making of discovery requests does not,
by itself, satisfy the due diligence requirement."); JOG v. Ercole. No. 1 l-CV-6844(CM)
2014 WL 1630815, at *14(S.D.N.Y. Apr. 24,2014)(finding no due diligence where the plaintiff
submitted one unanswered fi eedom-of-information request), report and rec. adopted. 2014 WL
2769120(June 18, 2014); Temple v. N.Y. Cmtv. Hosd.. 933 N.Y.S.2d 321,323(App. Div. 2011)
("[W]hen the responses received were less than adequate, the plaintifffailed to promptly seek
further discovery."). Courts are more likely to find due diligence where the moving party has
made numerous attempts to ascertain the identity of unknown defendants, even ifthese attempts
are fimstrated until after the limitations period has expired. See, e.g.. Hogan. 738 F.3d at 519
(finding due diligence where the plaintiff"submitted multiple discovery requests" to which the
defendants did not respond); Colson. 2016 WL 236220, at *4 (finding due diligence after the
plaintiff submitted several requests for information, some of which were unanswered); Wilson v.
CitvofNewYork. No.03-CV-2495(RLC),2006 WL 2528468, at *3(S.D.N.Y. Aug. 31,2006)
(finding due diligence in light of"several unanswered discovery requests"). The fact that a party
waited until the "eleventh hour"to file a lawsuit may weigh against their claim ofdue diligence.
See Olivo v. Citv ofNew York. No. 14-CV-4966(ERK),2015 WL 4645271, at *5(E.D.N.Y.
In between the accrual ofPlaintiffs claim on November 29, 2011, and the expiration of
the limitations period three years later. Plaintiff appears to have made only one attempt to
discover Thomas-Brown and Kearse's identities: a "comprehensive FOIA request" submitted to
the United States Department of Homeland Security and the ISA on January 23,2012. (PL
6,18.) Plaintiff never heard back from these agencies and took no further action over
the following thirty-four months to ascertain these defendants' identities before filing her lawsuit
four days prior to the expiration ofthe limitations period. (See id. ^ 18.) The court concludes
that Plaintiffs course of action does not show that she exhibited the required due diligence.
Under Plaintiffs reading ofthe law, the mere fact that she submitted the 2012 FOIA
Request "most certainly" establishes her due diligence. (Id.121.) But this view is incorrect.
When faced with a lack ofresponse from the agencies to which Plaintiff submitted the 2012
FOIA Request,Plaintiff should have done more than sit on her hands until filing suit almost
three years later. Plaintiff says that she was constrained in her ability to take further action due
to the government's purported sovereign immunity(id 122), but this claim is irrelevant to the
question of whether there was anything else Plaintiff could have done to attempt to ascertain the
TSA agents' identities. She could have submitted another freedom-of-information request,
followed up with the agencies to which she submitted the 2012 FOIA Request, or commenced
this lawsuit sooner. See Temple.933 N.Y.S.2d at 323(finding no due diligence because,
following "less than adequate" responses to the plaintiffs requests for information,"the plaintiff
failed to promptly seek further discovery, neglected to submit a properly executed authorization
to the disclosing party, and failed to properly and promptly seek assistance from the Supreme
Court");^Morales v. Citv ofNew York. No. 155438/15,2017 N.Y. Misc. LEXIS 586, at *3-4
(Sup, Ct. Feb. 14, 2017)(finding due diligence where plaintiff made continuous phone calls to
agency over a year-long period and sent a follow-up email inquiring into the status of her request
after receiving no response to her initial fireedom-of-information request). The court is unsure
whether these efforts would have yielded the sought identities within the limitations period but,
at the very least, they might have established Plaintiffs diligence as required under the law.
To the extent Plaintiff suggests that filing suit sooner would have been fruitless, she
ignores an obvious counterexample from the present case. Plaintiffimplies that initiating suit
would not have adduced due diligence because the TSA and other governmental entities are
immune from her Bivens claims. On that basis she asserts that she could only propound
discovery requests after "at least one ofthe John Doe defendant's identities was revealed." fSee
PI. Opp'n H 22.) To the contrary, initiating suit earlier would have allowed the Court to assist her
without a formal discovery request and despite the government's immunity, which is exactly
what happened here when Judge Orenstein ordered disclosure ofThomas-Brown and Kearse's
identities. (See July 23, 2015, Min. Entry.) Similarly, Plaintiffs passing reference to a
previously dismissed "federal tort claim action ... emanating from the same set offacts" against
the government, presumably in the Court of Federal Claims, does not weigh towards a finding of
due diligence. (PI. Opp'n ^ 26.) Suing Defendants' employer, without more, does not contribute
to diligent efforts to discover their identities.
Because Plaintifffailed to exercise any efforts to identify the TSA agents beyond the
2012 FOIA Request, waited until the "eleventh hour" to file her complaint, and was not impeded
by any extraordinary circumstances, she has not satisfied the due-diligence requirement of
CPLR 1024. Her amendment naming Thomas-Brown and Kearse is therefore time-barred and
the court need not discuss the second prong ofthe CPLR 1024 analysis,
at 519. Any amendment seeking to replace the remaining Doe defendants would be futile for the
For the foregoing reasons. Defendants' motion to dismiss for failure to state a claim
(Dkt. 37)is GRANTED. The amended complaint is therefore DISMISSED and the Clerk of
Court is respectfully directed to close the case.
s/Nicholas G. Garaufis
Dated: Brooklyn,New York
NICHOLAS G. GARAUF
March ^ ,2018
United States District Judge
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