Henry et al v. County of Niagara et al

Filing 34

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 17 Scheduling Order, 24 MOTION to Amend/Correct Complaint filed by Thaddeus Rogier, Beverly HenryPlaintiffs' motion for leave to ame nd the Complaint is granted. Plaintiffs' motion to extend time to serve defendants (Docket No. 24) is granted. Motions terminated: 24 MOTION to Amend/Correct Complaint filed by Thaddeus Rogier, Beverly Henry.AMENDED SCHEDULING ORDER, Serve Amended Complaint by 7/18/2011; defendants to respond to amended pleading within fourteen (14) days after service; Plaintiffs' expert disclosure due by 8/30/2011, defendants' expert disclosure due 10/14/2011, Discovery completed by 11/28/2011, Motions due by 2/27/2012. Mediation To End by 3/30/2012.So Ordered. Signed by Hon. Hugh B. Scott on 7/5/2011. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BEVERLY HENRY,
THADDEUS ROGIER,
Plaintiffs,
Hon. Hugh B. Scott
10CV800A
v.
Order

COUNTY OF NIAGARA, et al.,
Defendants.

Before the Court is plaintiffs’ motions (a) for leave to amend the Complaint and (b) for an
extension of time to serve John Doe defendants (Docket No. 241). Responses to this motion were
due by June 10, 2011, with any reply due by June 21, 2011 (Docket No. 25). After granting
defendants’ request to submit a sur-reply, that paper was due by July 8, 2011, and the motion was
then deemed submitted, without oral argument (Docket No. 31). Defendants filed their sur-reply
on June 24, 2011 (Docket No. 32), and the motion was thus deemed submitted as of that date.
BACKGROUND
This is a civil rights action where plaintiffs allege unreasonable seizure, racial profiling,
and infringement on their right to travel by being stopped and seized by Niagara County Sheriff’s

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In support of their motion, plaintiffs submit the declaration of their counsel; the proposed
Amended Complaint (in redline/strikeout format); Memorandum of Law, Docket No. 24; Reply
Declaration of their attorney, Docket No. 30; Reply Memorandum of Law, Docket No. 30.
In opposition, defendants submit their attorney’s affidavit (with exhibit), Docket No. 27;
Memorandum of Law, Docket No. 28; Sur-Reply Affidavit (with exhibit), Docket No. 32. The
Sur-Reply was pursuant to leave granted by this Court, Docket No. 31.

deputies when plaintiffs were approaching the Lewiston-Queenston Bridge, Lewiston, New York
(see Docket No. 1, Compl.). Plaintiffs name the County of Niagara, its Sheriff’s Department,
and two named employees of that department (Ray Tracy and C.S. Page) as defendants (id. ¶¶ 37). Plaintiffs also are suing fifteen John Doe defendants, employees of the Niagara County
Sheriff’s Department allegedly involved in this incident (id. ¶¶ 8-9).
On April 28, 2009, plaintiffs were driving to Canada when they were stopped by Niagara
County Sheriff’s deputy Tracy within a half mile of the Lewiston-Queenston Bridge (id. ¶¶ 1617). During this stop, another deputy brought a police dog to plaintiffs’ vehicle to sniff it (id.
¶¶ 22-24). Plaintiff driver Thaddeus Rougier2 then exited the vehicle, took out a camera to take
pictures of this incident, when a deputy approached Rougier and took his camera (id. ¶¶ 25-26).
Another deputy arrived and asked plaintiff Beverly Henry to step out of the vehicle. She asked to
retrieve her jacket but was told officers would get it; when they did, they searched the jacket
before handing it to her. (Id. ¶¶ 27-28.) Rougier then walked behind the vehicle when he was
told by a deputy to not move and then was thrown upon the trunk of the deputy’s vehicle with his
hands pulled behind him, as if to handcuff him (id. ¶¶ 30-31), but then placed him (uncuffed)
into the deputy’s vehicle (id. ¶ 32). Henry then joined Rougier in the deputy’s vehicle and both
were detained (id. ¶ 33). More deputies arrived and then plaintiffs’ luggage was removed from
the trunk and searched on the side of the road (id. ¶ 37). Plaintiffs’ vehicle was taken to the
United States-Canadian border where an x-ray truck was used to examine the vehicle, as well as
a second physical and canine inspection of the car’s contents, not finding any drugs during this
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One part of plaintiffs’ motion for leave to amend the Complaint is to correct the spelling
of this plaintiff’s name in the pleading. His last name is spelled with and without a “u.”
Consistent with the decision in this Order, plaintiff’s name will be spelt “Rougier.”
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search (id. ¶¶ 41-43). Then defendants called over immigration officials to check plaintiffs’
passports (id. ¶¶ 43-44). Defendants then issued plaintiffs traffic citations after detaining them
for over three hours (id. ¶ 45), with these citations later dismissed (id. ¶ 53).
Plaintiffs allege that defendants violated plaintiffs’ civil rights by unreasonably seizing
and detaining them without due process of law (id., First Claim). Plaintiffs claim that defendants
applied racial profiling based upon the race (African American) and national origin (Henry was
born in Jamaica, Rougier in Grenada) of the plaintiffs (id., Second Claim, ¶¶ 1-2). Finally, they
allege that defendants interfered with their right to travel (id., Third Claim).
Niagara County, its Sheriff’s Department, Tracy and Page answered (Docket No. 5), and
plaintiffs served a Reply to the counterclaim asserted in the Answer (Docket No. 9). Defendants
filed their Rule 26(a)(1) disclosure on January 14, 2011 (Docket No. 11; see Docket No. 32, SurReply Ex. A). In that notice, defendants named three deputy witnesses3 aside from defendant
Tracy and produced the incident report for the events in question (Docket No. 11, Def. Rule
26(a)(1) Disclosure at 2, Ex. A). This Court then entered a Scheduling Order (Docket No. 17),
after extending plaintiffs’ time to serve the John Doe defendants (Docket No. 15). Plaintiffs
again moved for a “reasonable extension of time” to serve the John Doe defendants (Docket
No. 22), which was granted in part, allowing service until May 20, 2011 (Docket No. 23).
Plaintiffs’ Present Motions
On May 12, 2011, plaintiffs now move for leave to file an Amended Complaint and for a
further extension of time to serve the John Doe defendants (Docket No. 24). The amendments
correct the spelling of Rougier’s name and other minor spelling errors in the pleading; it names
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Deputy Sheriffs Raymond Needle, Craig Beiter, and Daniel Douglas.
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Deputy Raymond Needle instead of Deputy Page as a defendant; it identifies two other deputies
as defendants, Craig Beiter and Daniel Douglas, and deletes references to John Doe defendants
(see generally Docket No. 24, Redline/Strikeout Proposed Am. Compl.). The amendment seeks
to clarify that plaintiffs were suing the deputies in their individual capacities and set out more
fully their claims against Niagara County (Docket No. 24, Pls. Memo. at 3), namely that the
County had a policy and practice of racially profiling drivers traveling in the County and
applying facially neutral traffic laws in an intentionally discriminatory manner (id.,
Redline/Strikeout Proposed Am. Compl. newly inserted ¶¶ 18-19, Second Claim newly inserted
¶¶ 68-71). They argue that there was no undue delay in seeking this amendment and that
defendants would not be prejudiced by it (Docket No. 24, Pls. Memo. at 2, 3-4). Given this
motion for leave to amend, plaintiffs also seek an extension of the May 20, 2011, deadline to
serve the (now identified) John Doe defendants (id. at 4).
Defendants object to the timing of plaintiffs’ motion, since plaintiffs were provided initial
disclosure on January 14, 2011, which gave them information (listing of witnesses, many of
whom plaintiffs now seek to name as defendants, and producing an incident report) that could
enable them to name these new defendants (Docket No. 27, Defs. Atty. Aff. ¶¶ 4-6, 8-11).
Defendants contend that plaintiffs had a deadline as late as March 7, 2011 (Docket No. 17), in
which to amend pleadings or move to add parties but instead waited until May 12, 2011, to do so
(Docket No. 27, Defs. Atty. Aff. ¶¶ 8-11). They dispute that their subsequent discovery was
necessary to reveal these parties to plaintiffs because they could have learned of them earlier in
the initial disclosure (id. ¶¶ 12-13). Defendants argue that the substantive amendments add new
allegations that now allege a § 1983 claim that the original Complaint failed to do, despite
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plaintiffs’ contention that they are not seeking to add new causes of action with this amendment
(id. ¶¶ 15-17). Finally, defendants refute plaintiffs’ claim that the amendment would sue the
deputies only in the individual capacity; comparing the original and proposed amended
pleadings, defendants find no difference in that both allege claims against the deputies in their
official and individual capacities (id. ¶ 18; compare Docket No. 1, Compl. ¶ 7 with Docket
No. 24, Redline/Strikeout Proposed Am. Compl. newly renumbered ¶ 9). The proposed
Amended Complaint does not remove the official capacity aspect of their suit against the
deputies. Finally, defendants argue that this amendment would extend discovery beyond the July
7, 2011, Scheduling Order deadline (Docket No. 28, Defs. Memo. at 5), and no one has sought to
extend the Scheduling Order either generally or to conduct additional discovery regarding these
new defendants and claims.
Plaintiffs reply that they needed discovery beyond the defense’s initial disclosure in order
to identify the John Doe defendants and required additional time to serve them, hence their
requests for extension of the 120 days in which to serve defendants under Rule 4(m) (Docket
No. 30, Pls. Reply Memo. at 2-3). This initial disclosure only provided the names of witnesses
and did not reveal their roles, nor did this disclosure discount Page’s involvement in the incident
(Docket No. 30, Pls. Atty. Reply Decl. ¶¶ 5-8, Exs. A, B (ticket issued by Page to plaintiffs)).
They argue that they did not obtain definitive identification of these John Does until April 19,
2011, when defendants responded to their document requests (Docket No. 30, Pls. Reply Memo.
at 3-4). Even if the request is outside of the Scheduling Order deadline, plaintiffs argue that
leave may still be granted if the opponent cannot show that it was prejudiced by the timing of the

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motion (id. at 5). They deny seeking a new claim, instead, plaintiffs assert that they are clarifying
or amplifying their existing claims (id. at 6).
Defendants, in their sur-reply, refute that the initial disclosure provided limited
information, pointing to the attached incident report which identified the participants (Docket
No. 32, Defs. Atty. Sur-Reply Aff. ¶¶ 3-5, Ex. A).
In setting the briefing for this motion, the Court held in abeyance the May 20, 2011,
deadline for service of the John Doe defendants until after resolution of this motion (Docket
No. 25).
DISCUSSION
I.

Applicable Standards
A.

Leave to Amend Standard

Given the timing of plaintiffs’ motion, there is a confluence of two rules here.
Under Federal Rule of Civil Procedure 15(a) amendment of pleadings after the time to do
so as of right requires either consent of all parties (apparently not present here) or by leave of the
Court. Under Rule 15(a) motions for leave to amend the complaint are to be freely given when
justice requires. Granting such leave is within the sound discretion of the Court. Foman v.
Davis, 371 U.S. 178, 182 (1962); Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,
330 (1971). “In the absence of any apparent or declared reason–such as undue delay, bad faith or
dilatory motive on 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.–the leave sought should, as the rules require, be ‘freely
given.’” Foman, supra, 371 U.S. at 182 (quoting Fed. R. Civ. P. 15(a)) (emphasis added).
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“Although Rule 15(a) governs the amendment of pleadings, Rule 16(b) also may limit the
ability of a party to amend a pleading if the deadline specified in the scheduling order for
amendment of the pleadings has passed,” Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229,
243 (2d Cir. 2007). When a Scheduling Order has been entered setting forth deadlines for
amending pleadings or adding parties, see Fed. R. Civ. P. 16(b)(3)(A), the freely given leave to
amend under Rule 15 must be balanced against the Rule 16 requirements that a Scheduling Order
“may be modified only for good cause and with the judge’s consent,” Fed. R. Civ. P. 16(b)(4)
(effective Dec. 2009); see Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003) (one
year delay in seeking to amend Complaint with summary judgment motion pending); Holmes v.
Grubman, 568 F.3d 329, 334-35 (2d Cir. 2009) (Docket No. 28, Defs. Memo. at 2). Whether
good cause exists is for the movant to establish, Grochowski, supra, 318 F.3d at 86; Holmes,
supra, 568 F.3d at 334-35 (id.), with a finding of good cause dependent upon “the diligence of
the moving party,” Grochowski, supra, 318 F.3d at 86; Parker v. Columbia Pictures Indus.,
204 F.3d 326, 340 (2d Cir. 2000). In this district, good cause has been defined in this context to
mean that scheduling deadlines cannot be met despite the party’s diligence, Carnrite v. Granada
Hosp. Group, Inc., 175 F.R.D. 439, 446 (W.D.N.Y. 1997) (Foschio, Mag. J.) (R&R, denying
motion for leave to amend pleading due to delay from November 1995 scheduling order deadline
to September 1996 proposal to stipulate to amendment and November 1996 cross-motion for
leave to amend), adopted, 175 F.R.D. 439 (W.D.N.Y. 1997) (Arcara, J.).
B.

Extension of Time to Serve Defendants

Federal Rule of Civil Procedure 6(b)(1) allows this Court to extend the time to perform
an act, for good cause shown, if the request is made before the expiration of the original date.
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II.

Amending the Complaint
Plaintiffs propose two different types of amendments. One set of amendments are

stylistic corrections, while the others add parties and change substantive claims. First, they seek
to correct the spelling of one plaintiff’s name (“Rougier” for “Rogier”) in the caption of the
original Complaint and elsewhere in the pleading, as well as correct spelling of defendant Tracy
consistently in the document; second, they seek to delete reference to C.S. Page as a defendant;
third, they seek to name some of the John Doe defendants, including a new defendant instead of
Page. As for the first amendments, they are uncontroversial (and not controverted) and therefore
are granted.
Regarding the second proposed amendment, defendants do not oppose the amendment
dropping Page as a defendant (Docket No. 27, Defs. Atty. Aff. ¶ 2 n.1). Thus, plaintiffs’ motion
to drop references to C.S. Page as a defendant is also granted.
The remaining amendments (including naming Needle for Page), however, are
controversial. The issue is whether plaintiffs unduly delayed seeking them. Defendants oppose
these amendments (naming three heretofore John Does as defendants, fleshing out the municipal
liability against Niagara County) as being unduly delayed, since plaintiffs were aware of the
parties and these claims since January 2011. While leave to amend would be freely given had
plaintiffs made a timely application, their motion now essentially seeks to modify the Scheduling
Order to allow an untimely amendment and they need to show good cause for such a
modification.
Defendants point to cases of undue delay similar to plaintiffs’ delay here where courts
have denied leave to modify the Scheduling Order or to amend the pleadings upon untimely
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applications (Docket No. 28, Defs. Memo. at 5), see John Hancock Mut. Life Ins. Co. v.
Amerford Int’l Corp., 22 F.3d 458, 462 (2d Cir. 1994). In Grochowski, supra, 318 F.3d at 86,
plaintiffs delayed for a year before seeking leave to amend the Complaint, see also Carnrite,
supra, 175 F.R.D. at 446 (one-year delay), while in John Hancock, supra, 22 F.3d at 462, movant
was over four months late with its amendment, the district court was held not to have abused its
discretion in denying leave to amend.
Here, the delay from the deadline for motions for leave to amend was over two months,
from March 7, 2011, the Scheduling Order deadline for motions for leave to amend pleadings
and to add parties, to May 12, 2011, and the filing of this motion. Defendants point to when
plaintiffs first learned of the names of the defendants they intend to add back in January but
plaintiffs needed to confirm their understanding of who was (or who else were) the John Doe
officers at the scene during this incident. Thus, the Court will use the Scheduling Order deadline
as the starting point to determine whether an undue delay occurred here. Applying the precedents
within and from this Circuit cited above, two months past the Scheduling Order deadline was not
an “undue delay” under either Rule 16 or 15 to justify denying leave to amend (as well as
modification of the Scheduling Order to allow for that leave).
As plaintiffs note (see Docket No. 30, Pls. Reply Memo. at 3), good cause (including the
absence of undue delay) is but one factor for this Court to consider in deciding whether to grant
leave to amend (albeit out of time). Another factor is whether the opponent would be prejudiced
by the amendment, Kassner, supra, 496 F.3d at 244 (id.). Plaintiffs omit to consider that the
Second Circuit makes the primary consideration whether the movant has shown diligence, id.;
Parker, supra, 204 F.3d at 339-40. Defendants only argue prejudice from the additional
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discovery adding these new parties and claims given the July 7, 2011, discovery deadline; they
do not argue any prejudice from the delay itself. Since these amendments identify the John Doe
defendants and add omitted allegations to state a municipal liability claim against Niagara
County, there is no prejudice to defendants in granting leave to amend or modifying the
Scheduling Order to allow this amendment.
Thus, plaintiffs’ motion for leave to amend (and, in effect, to modify the Scheduling
Order to allow that motion) is granted.
III.

Extension of Time to Serve Defendants
Twice plaintiffs have sought to extend the 120 days they had to serve defendants,

including the John Does (Docket No. 22; see Docket Nos. 15, 23). Plaintiffs made a timely third
application with this motion for leave to amend the Complaint. With the amendment of the
Complaint naming three new defendants, plaintiffs now can serve these parties. The
identification of these defendants is the good cause for granting an extension of time to serve
them. Plaintiffs’ motion for extension of time (Docket No. 24) is amended pursuant to the
schedule set forth below.
IV.

Amended Scheduling Order
Defendants argued that the Amended Complaint would extend discovery beyond the

deadline of July 7, 2011 (Docket No. 28, Defs. Memo. at 5). Recognizing this, the Court enters
the following Amended Schedule Order. The previous Scheduling Order (Docket No. 17) is
hereby modified as follows (unless otherwise changed below, the remaining dates in the previous
Scheduling Order continue in effect):

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1.

Plaintiffs shall have until July 18, 2011, to serve the Amended Complaint upon
all defendants. Pursuant to Rule 15(a)(3), defendants shall respond to the
Amended Complaint within fourteen (14) days after service of the amended
pleading.

2.

The referral to mediation shall terminate on March 30, 2012. In the event that
settlement is not reached, the case will progress toward trial, as scheduled below.
As previously ordered, the referral of this case to mediation will not delay or defer
other dates contained in this Scheduling Order and has no effect on the progress of
the case toward trial.

3.

All discovery in this case shall conclude on November 28, 2011. All motions to
compel shall be due at least 30 days prior to that discovery cutoff date.

4.

The parties shall identify any expert witnesses through interrogatories pursuant to
Fed. R. Civ. P. 26(b)(4) as follows: (1) plaintiffs shall identify any expert
witnesses by August 30, 2011; (2) defendants shall identify any expert witnesses
by October 14, 2011.

5.

Dispositive motions, if any, shall be filed no later than February 27, 2012. Such
motions shall be made returnable before the Magistrate Judge.

6.

No extension of the above cutoff dates will be granted except upon written
application, filed prior to the cutoff date, showing good cause for the extension.
Moreover, if counsel are of the belief that an intermediate conference with Judge
Arcara or Magistrate Judge Scott would be of assistance in the prompt disposition
of the case, such a conference will be scheduled upon application of any party.

7.

8.

A final pretrial conference pursuant to Fed. R. Civ. P. 16(e) and Local Civil
Rule 16(e) will be scheduled by Judge Arcara.

Counsel’s attention again is directed to Fed. R. Civ. P. 16(f) calling for sanctions in the
event of failure to comply with any direction of this Court.

CONCLUSION
For the reasons stated above, plaintiffs’ motion (Docket No. 24) for leave to amend the
Complaint is granted. As for their motion for extension of time to serve defendants (id.) is
granted.
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An Amended Scheduling Order, as set forth above, is entered.
So Ordered.

/s/ Hugh B. Scott
Honorable Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
July 5, 2011

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