Morales et al v. County of Suffolk et al
Filing
36
MEMORANDUM OF DECISION AND ORDER - Although the claims against Manual would otherwise be time-barred by the applicable statutes of limitation, the Court grants the motion to amend and the Plaintiffs are directed to file an amended complaint reflecting the revised caption within 30 days of the date of this order. So Ordered by Judge Arthur D. Spatt on 7/6/2013. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
HENRY MORALES, PEDRO SANTOS, and
JOEL ESCOBAR,
Plaintiffs,
MEMORANDUM AND
ORDER
10-CV-03686 (ADS)(ARL)
-againstCOUNTY OF SUFFOLK, SUFFOLK
COUNTY POLICE DEPARTMENT,
SUFFOLK COUNTY POLICE OFFICERS
JOHN DOE I – VII,
Defendants.
---------------------------------------------------------X
APPEARANCES:
Sullivan Papain BMC P.C.
Attorneys for the Plaintiffs
55 Mineola Boulevard
Mineola, NY 11501
By: Matthew J. Jones, Esq., of Counsel
Purcell & Ingrao, P.C.
Attorneys for the Plaintiffs
204 Willis Avenue
Mineola, NY 11501
By: Terrance Joseph Ingrao
Denis M. Brown
Suffolk County Attorney
Attorney for the Defendants County of Suffolk and Suffolk County Police Department
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, New York 11788-0099
By: Arlene S. Zwilling
Assistant County Attorney
NO APPEARANCES:
John Doe I - VIII
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SPATT, District Judge.
On August 12, 2010, the Plaintiffs commenced this action. The case centers around an
incident on January 11, 2010 during which the Plaintiff Henry Morales was shot by Suffolk
County Police Officer Luis Mangual. Presently before the Court is a motion by the Plaintiffs
Morales, Pedro Santos, and Joel Escobar seeking leave to amend the complaint pursuant to
Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) 15(a)(2) and (c)(1) to substitute the name of
Luis Mangual for one of the “John Doe” defendants. The Defendants oppose the motion,
contending that (1) the Plaintiffs have not made a showing of “good cause” to amend the
complaint as is required by Fed. R. Civ. P. 16(b) and, alternatively, (2) the proposed amendment
does not relate back to the original complaint and therefore the motion is futile. For the
following reasons, the Court grants the motion to amend.
By order dated November 9, 2011, United States Magistrate Judge A. Kathleen
Tomlinson established a discovery schedule that required any motions to amend the pleadings to
be made by January 24, 2012. No such motions were made, nor did either party seek an
extension of that deadline. By motion dated April 16, 2013, approximately fifteen months after
the deadline to amend the pleadings, the Plaintiffs filed the instant motion to amend the
complaint.
Although not recognized by the Plaintiffs, the instant motion is governed by Fed. R. Civ.
P. 16. “Where, as here, a scheduling order governs amendments to the complaint, ‘the lenient
standard under Rule 15(a), which provides leave to amend shall be freely given, must be
balanced against the requirement under Rule 16(b) that the Court's scheduling order shall not be
modified except upon a showing of good cause.’” Holmes v. Grubman, 568 F.3d 329, 334-35 (2d
Cir. 2009) (citations omitted) (quoting Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir.
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2003) (internal quotation marks omitted)). Whether good cause exists turns on the “diligence of
the moving party.” Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000).
“[T]he movant must show that the deadlines [could] not be reasonably met despite its diligence.”
Fahmy v. Duane Reade, Inc., 04 Civ. 1798(DLC)(GWG), 2005 U.S. Dist. LEXIS 20929, at *10,
2005 WL 2338711 (S.D.N.Y. Sept. 26, 2005) (quoting Rent–A–Center, Inc. v. 47 Mamaroneck
Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003)). While diligence is the primary
consideration, it is not the only one. The Court in exercising its discretion may consider other
factors including prejudice. See Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 244 (2d
Cir. 2007).
The Plaintiffs assert that they could not ascertain Manual’s identity as the officer who
discharged his weapon until he testified, corrected, and signed his deposition transcript in March
2013. The Plaintiffs also observe that the Defendant’s counsel adjourned Manual’s deposition
for many months because Manual had taken medical leave for unrelated reasons. The Court also
notes that, after the Plaintiffs ascertained the identity of Manual, they moved within about one
month to amend the complaint to substitute him as a named party. Under these circumstances,
the Plaintiffs have demonstrated good cause under Rule 16(b) to modify the scheduling order to
substitute Manual as a named party.
Even though plaintiffs show good cause to amend the scheduling order as to Manual, the
Court must also evaluate whether amendment is proper under Fed. R. Civ. P. 15(a). Moore v.
Publicis Groupe SA, 11 Civ. 1279(ALC)(AJP), 2012 U.S. Dist. LEXIS 92675, at *15 (S.D.N.Y.
June 28, 2012) (“After the moving party demonstrates diligence under Rule 16, the court applies
the standard set forth in Rule 15 to determine whether the amendment is proper.”). The Court
may deny a motion to amend for reasons such as “undue delay, bad faith or dilatory motive on
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the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, futility of
amendment, etc.” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting
Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)).
As discussed above, the Plaintiffs' motion for leave to file an amended complaint about
one month after they learned of Manual's role; therefore, there was no undue delay. “Plaintiffs
are not guilty of repeated failure to cure deficiencies by previous amendments, since the
information on which the present motion is based came into their possession only after” the time
within which they could amend the complaint as of right expired. Sullivan v. W. N.Y.
Residential, Inc., 01–CV–7847 (ILG), 2003 U.S. Dist. LEXIS 6498, at *4 (E.D.N.Y. Mar. 4,
2003); see also McLean v. CVS Pharm., Inc., No. 3:09 cv 345 (VLB), 2010 U.S. Dist. LEXIS
99934, at *9, 2010 WL 3827940 (D.Conn. Sept. 21, 2010) (“Nor has [defendant] shown that
Plaintiff repeatedly failed to cure deficiencies by amendments previously allowed to identify the
proper [parties] to this action after having had a sufficient opportunity to conduct discovery.”).
The Defendants make no assertion of bad faith or dilatory motive on the part of the Plaintiffs and
the Court finds none.
Furthermore, the amendment to substitute Manual would not unduly prejudice the
Defendants. Manual plainly knew that he was the officer who discharged his weapon and it is
fair to say that the Defendants, as Manual’s employers, likely knew this fact soon after the
underlying incident as well. Also, even if additional discovery is necessary, “the need to conduct
additional discovery is not, in itself, sufficient to constitute prejudice. . . . The fact that discovery
has ended does not alter this conclusion.” Nycomed US, Inc. v. Glenmark Generics, Ltd., No.
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08–CV–5023 (CBA)(RLM), 2010 U.S. Dist. LEXIS 29267, at *38, 2010 WL 1257803
(E.D.N.Y. Mar. 26, 2010) (citations omitted) (internal quotation marks omitted).
The Defendants maintain that the claims against Manual would fall outside the applicable
statutes of limitation under 42 U.S.C. §§ 1981, 1983, and 1985. The statute of limitations for
claims brought pursuant to 42 U.S.C. § 1983 depends on the law of the state in which the claims
are brought. For cases brought in New York, the statute of limitations is three years. See
Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004); Rodriguez v. City of New York,
No. 10-CV-1849, 2011 WL 4344057, at *2 (S.D.N.Y. Sept.7, 2011). The statute of limitations
for claims brought pursuant to 42 U.S.C. § 1981 is also three years unless the claims arise out of
a post-1990 Act of Congress such as the 1991 Amendments to § 1981 (pertaining to
discrimination in contractual relationships), in which case the statute of limitations is four years.
See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 124 S. Ct. 1836 (2004); Ortiz v.
City of New York, 755 F. Supp. 2d 399, 404–05 (E.D.N.Y. 2010); Fernandez v. M & L Milevoi
Mgmt., Inc., 357 F. Supp. 2d 644, 649 (E.D.N.Y. 2005). Since the § 1981 claim in this case is
not brought under the 1991 Amendments, the three-year statute of limitations applies here. See
Patterson, 375 F.3d at 225. In addition, the applicable statute of limitations period governing
§ 1985 actions is three years from the time the claim accrued. Pressley v. City of New York,
2013 WL 145747, *8 (E.D.N.Y. 2013), quoting Paige v. Police Dept. of Schenectady, 264 F.3d
197, 199 n. 2 (2d Cir. 2001) (“[t]he statute of limitations for actions brought pursuant to §§ 1983
and 1985 is three years.”). The state law claims are governed by the one year ninety-day statute
of limitations set forth in New York General Municipal Law § 50-i. Because the underlying
incident occurred on January 11, 2010, more than three years ago, the Court finds that these
claims fall outside the applicable statutes of limitation.
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Further, it is well-settled that “‘John Doe’ pleadings cannot be used to circumvent
statutes of limitations because replacing a ‘John Doe’ with a named party in effect constitutes a
change in the party sued.”” Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468 (2d Cir.
1996); Archibald v. City of Hartford, 264 F.R.D. 371, 372 (D.Conn. 2011). Thus, in order to
amend a pleading to replace a John Doe Defendant with a named Defendant where the statute of
limitations has run, the claims must relate back as provided by Rule 15(c). “Both parties assume
that all of the claims against the Proposed Defendant[] must relate back in order for them to go
forward.” Feliciano v. Cnty. of Suffolk, CV 04-5321 JS AKT, 2013 WL 1310399, at *6
(E.D.N.Y. Mar. 28, 2013). When an amended pleading changes a party or a party's name and the
statute of limitations has run, the party seeking the amendment must also comply with Rule
15(c). Rule 15(c)(1) provides in pertinent part that an amendment relates back to the date of the
original pleading when “(1) the new claims ‘arose out of the conduct, transaction, or occurrence’
set forth in the original pleading, and (2) ‘within the period provided for by Rule 4(m) for
serving the summons and complaint,’ the new party ‘received such notice of the action that it
will not be prejudiced in defending on the merits,’ and (3) during the Rule 4(m) service period
the new party ‘knew or should have known that the action would have been brought against it,
but for a mistake concerning the proper party's identity.’” Curry v. Campbell, No. 06-CV-2841,
2012 WL 1004894, at *3 (E.D.N.Y. Mar. 23, 2012) (quoting Fed. R. Civ. P. 15(c)(1)(C)).
The Defendants do not dispute that the Plaintiffs satisfy the first and second elements of
the relation back test – that is, that the claims against Manual arise out of the same transactions
as the claims asserted in the original Complaint and that, in this case, Manual had constructive
notice of the claims the Plaintiffs asserted against them such that they would not be prejudiced
by the untimely amendment. Rather, relying on Barrow, the Defendants contend that the
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Plaintiffs cannot satisfy the third element of the relation back test because a plaintiff’s lack of
knowledge of the identity of a John Doe Defendant does not constitute a “mistake” for purposes
of Fed. R. Civ. 15(c).
The Second Circuit addressed the issue of mistaken identity as it relates to John Doe
defendants in Barrow and ruled that:
Rule 15(c) does not allow an amended complaint adding new defendants to relate
back if the newly-added defendants were not named originally because the
plaintiff did not know their identities. Rule 15(c) explicitly allows the relation
back of an amendment due to a ‘mistake’ concerning the identity of the parties
(under certain circumstances), but the failure to identify individual defendants
when the plaintiff knows that such defendants must be named cannot be
characterized as a mistake.
66 F.3d at 470. Although not cited by the Plaintiffs, other plaintiffs seeking application of the
relation back doctrine have argued that Barrow is no longer good law in light of the Supreme
Court's decision in Krupski, __ U.S. __, 130 S. Ct. 2485, 177 L. Ed. 2d 48 (2012).
In Krupski, the plaintiff tripped over a cable and fractured her femur while on board the
cruise ship Costa Magica. Id. at 2490. Based on information on her ticket, Krupski's attorney
sued Costa Cruise Lines notwithstanding the fact that the ticket identified the carrier as Costa
Crociere S.p.A., an Italian corporation. Id. The plaintiff's attorney did not seek to add the
correct entity until after the statute of limitations expired. Id. at 2487. The Eleventh Circuit
ruled that the proposed amendment did not relate back because the plaintiff was made aware of
the existence of the correct entity prior to the expiration of the statute of limitations. Id. The
Supreme Court reversed and, in doing so, made clear that “[t]he question under Rule 15(c)
(1)(C)(ii) is not whether [the plaintiff] knew or should have known the identity of [the proper
defendant], but whether [the proper defendant] knew or should have known that it would have
been named as a defendant but for an error.” Id. at 2493.
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However, in Krupski, the Supreme Court did not address the central holding of Barrow
which is also the key issue in this case: whether a plaintiff's lack of knowledge as to the identity
of “John Doe” Defendants can be considered a “mistake” or “error.” “Because Krupski does not
address this isolated issue, the Court concurs with the other courts in this Circuit which have
concluded that Barrow remains good law even after Krupski.” Feliciano, 2013 WL 1310399 at
*9; see Martinez v. City of New York, No. 12–CV–3806, 2012 WL 4447589, at *2 n. 3
(E.D.N.Y. Sept.25, 2012); Felmine v. City of New York, No. 09–CV–3768, 2012 WL 1999863,
at *4 (E.D.N.Y. June 4, 2012); Bogle v. Melamed, No. 09–CV–1017, 2012 WL 1117411, at *2
(E.D.N.Y. March 30, 2012); Urena v. Wolfson, No. 09–CV–1107, 2011 WL 7439005, at *4
(E.D.N.Y. Aug. 24, 2011); Rodriguez, 2011 WL 4344057, at *8; Dominguez v. City of New
York, No. 10–CV–2620, 2010 WL 3419677, at *3 (E.D.N.Y. Aug. 27, 2010); c.f. Abdell v. City
of New York, 759 F. Supp. 2d 450, 457 (S.D.N.Y.2010). Notably, without explicitly discussing
the effect of Krupski, the Second Circuit has cited Barrow with respect to the relation back
doctrine in other cases decided after Krupski, further demonstrating Barrow's continued viability.
Southerland v. City of New York, 680 F.3d 127, 139 n. 12 (2d Cir. 2012). Applying Barrow, the
Court concludes that Plaintiffs have not satisfied the third prong of the Rule 15(c) test because
the Plaintiffs' lack of knowledge as to the identity of Manual is not a “mistake” within the
meaning of the Rule 15(c). Feliciano, 2013 WL 1310399 at *9.
However, “[a]lthough not yet endorsed by the Second Circuit, some district courts have
found an exception to the ruling in Barrow in situations where the defendants withheld
identifying information or unreasonably delayed in producing such information.” Id.; see
Byrd v. Abate, 964 F. Supp. 140, 145-46 (S.D.N.Y. 1997) (granting leave to amend where
plaintiff requested identifying information prior to expiration of limitations period, but defendant
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failed to provide it until period expired); Archibald, 274 F.R.D. at 381–82 (granting leave to
amend where defendant's counsel “completely rebuffed or substantially delayed” plaintiff's
efforts to discover the identities of officers with whom he interacted); see also Peralta v.
Donnelly, No. 04–CV–6559 (CJS), 2009 WL 2160776, at *4, 2009 U.S. Dist. LEXIS 60601, at
*10 (W.D.N.Y. July 16, 2009) (noting with approval the approach taken in Byrd, but relying
instead on New York's relation back standard); Howard v. City of New York, No. 02 cv 1731
(KMK), 2006 WL 2597857, at *5, 2006 U.S. Dist. LEXIS 63426, at *16 (S.D.N.Y. Sept. 6,
2006) (recognizing the Byrd exception but finding it only “partially appli[cable]” to the
plaintiff's case); Covington v. Warden of C–95 Det. Ctr., No. 93cv1958 (FB), 2004 WL
1753284, at *3–*4, 2004 U.S. Dist. LEXIS 15104, at *9 (E.D.N.Y. Jan. 21, 2004) (stating that “it
is permissible for a plaintiff who is unaware of the names of putative defendants to name them as
John Doe defendants” but that the plaintiff “must thereafter be diligent in ascertaining their
names within the applicable limitation period”) (citing Garvin v. City of Philadelphia, 354 F.3d
215, 220 n. 6 (3d Cir. 2003))).
The Court concludes that application of the exception to the relation back doctrine
outlined in Byrd and Archibald is appropriate where, as here, the Defendants do not refute the
Plaintiffs’ assertions that Manual’s deposition was repeatedly adjourned. In this regard, the
Plaintiffs should not be penalized “for [d]efendants' obstruction of [plaintiff's] counsel's diligent
efforts to determine the identities of the ‘Doe’ officers.” Archibald, 247 F.R.D. at 382. Indeed,
“the Plaintiff[s] should not be barred from naming a new defendant on the basis that the statute
of limitations has already run, since to hold otherwise would allow defense counsel “to eliminate
claims against any John Doe defendant merely by resisting discovery requests until the statute of
limitations has ended.’” Id. at 381-82 (quoting Byrd, 964 F. Supp. at 146). “Defense counsel is
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not entitled to transform discovery of the names of police officers who engaged the Plaintiff into
a game of hide-and-seek.” Id. at 382. Although the claims against Manual would otherwise be
time-barred by the applicable statutes of limitation, the Court grants the motion to amend and the
Plaintiffs are directed to file an amended complaint reflecting the revised caption within 30 days
of the date of this order.
SO ORDERED.
Dated: Central Islip, New York
July 6, 2013
_ /s/ Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge
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