Triplett-Fazzone v. City of Columbus Division of Police, et al.,
Filing
68
Opinion and Order motion to extend the time for service to defendant Josh Wycuff and newly discovered defendant Officer J.P. Burns, doc. No. 57 , and Plaintiffs motion to extend the time for service to defendant Josh Wycuff and newly dscovered defendant Officer J.P. Burns, Doc. No. 58 , are DENIED as moot as to defendant Josh Wycuff and DENIED as to Officer J.P. Burns. Signed by Magistrate Judge Norah McCann King on 3/05/13. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RAGNA TRIPLETT-FAZZONE,
Case No. 2:12-cv-331
Judge Sargus
Magistrate Judge King
Plaintiff,
v.
CITY OF COLUMBUS DIVISION
OF POLICE, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Extend
the Time for Service to Defendant Josh Wycuff and Newly Discovered
Defendant Officer J.P. Burns, Doc. No. 57, and Plaintiff’s Motion to
Extend the Time for Service to Defendant Josh Wycuff and Newly
Discovered Defendant Officer J.P. Burns, Doc. No. 58 (“Motion to
Extend”).1
I.
BACKGROUND
On April 13, 2012, plaintiff, who is proceeding without the
assistance of counsel, filed the original Complaint, Doc. No. 2, which
names as defendants the “City of Columbus Division of Police,”
“Franklin County Sheriff’s Department,” “The Sugar Bar” and “Unknown
Defendants.”
Id.
Thereafter, certain defendants filed answers to the
1
Although the motions reflect the same title, the earlier motion, Doc. No. 57,
filed on December 31, 2012, contains two handwritten pages and explains that
plaintiff had difficulty printing a typed motion, which appears to be Doc.
No. 58, filed on January 2, 2013. In light of this, and because both motions
contain the same Exhibit 1, the Court will regard both filings as a single
motion filed on December 31, 2012.
1
Complaint.
See Doc. Nos. 4, 6.
On August 30, 2012, plaintiff filed
an amended complaint, Doc. No. 10 (the “Amended Complaint”), naming
the same entities as defendants, i.e., the “City of Columbus Division
of Police,” “Franklin County Sheriff’s Department,” “The Sugar Bar”
and “Unknown Defendants,” as well as several individuals, including
Chris Corso, Michael Gallicchio, Brian Swanson, Josh Wycuff, “Officer
(Detective) Brian Keefe” and Officer Daniel Hargus.
Id.
Asserting
claims under 42 U.S.C. § 1983, plaintiff alleges that, on April 15 and
16, 2010, defendants violated plaintiff’s rights under the 4th, 5th,
8th and 14th Amendments when she was arrested, subjected to excessive
force during the course of her arrest and physical abuse while
detained in the workhouse.
Id. at 2-8.
Plaintiff also asserts state
law claims of emotional distress, defamation and battery.
Id. at 6.
This Court established a deadline of September 28, 2012 for
filing motions or stipulations for leave to amend the pleadings.
Preliminary Pretrial Order, Doc. No. 12, p. 2.
The deadline for
discovery is April 15, 2013 and motions for summary judgment may be
filed no later than May 15, 2013.
Id.
The Court also advised
plaintiff that “the claims against any defendant not served with
process within 120 days of the filing of the pleading asserting the
relevant claim (i.e., the Complaint or Amended Complaint) must be
dismissed unless plaintiff seeks an extension of time in which to
effect service of process.”
Id. at 1-2.
On August 30, 2012, a summons was issued to, inter alios, Josh
Wycuff, Doc. No. 9.
13.
That summons was returned unexecuted,
Nevertheless, on October 2, 2012, defendant Wycuff filed a motion
2
Doc. No.
to dismiss plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(6),
Doc. No. 22, and later filed a supporting reply memorandum, Doc. No.
36.
Defendant Wycuff has also moved to strike one of plaintiff’s
motions, Doc. No. 48, and has responded to her motion for leave to
file a sur-reply, Doc. Nos. 54, 55.
On February 21, 2013, another summons was issued to defendant
Wycuff.
Doc. No. 63.
At the same time, plaintiff sought the issuance
of a summons for service directed to J.P. Burns, which the Court
rejected.
Notice of Non-Issuance of Summons, Doc. No. 64, p. 1
(advising plaintiff that the summons is not directed to a named
defendant and asking that plaintiff “resubmit a summons in proper form
for issuance”).
On March 1, 2013, plaintiff filed documents reflecting her
attempts to effect service on defendant Wycuff and Officer J.P. Burns.
Doc. Nos. 66, 67.
Both documents indicate that plaintiff attempted a
FedEx shipment to each individual.
signature of either individual.
The filings do not reflect the
These filings do not reflect
effective service of process on either defendant Wycuff or Officer
J.P. Burns.
A plaintiff may not personally effect service of process.
See Fed. R. Civ. P. 4(c)(2)(“Any person who is at least 18 years old
and not a party may serve a summons and complaint.”)
Moreover, the
filings do not indicate that a copy of either the original Complaint
or the Amended Complaint accompanied the summons.
See Fed. R. Civ. P.
4(c)(1)(“A summons must be served with a copy of the complaint.”)
Finally, service by FedEx shipment is not authorized by either federal
or state law.
See Fed. R. Civ. P. 4(e).
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Under these circumstances, the Court will consider the substance
of plaintiff’s motion.
II.
JOSH WYCUFF
The docket reflects that defendant Wycuff has actively
participated in this litigation since the filing of the Amended
Complaint.
See, e.g., Doc. Nos. 22, 36, 48, 54, 55.
Indeed, even in
the motion to dismiss, Doc. No. 22, defendant Wycuff does not assert a
defense based on any defect in service of process on him. Based on the
present record, defendant Wycuff has waived any deficiency in service
of process on him.
See Fed. R. Civ. P. 12(h)(1).
III. OFFICER J.P. BURNS
Neither the original Complaint nor the Amended Complaint names
Officer J.P. Burns as a defendant.
Instead, plaintiff apparently
seeks to replace one of the “Unknown Defendants” referred to in those
pleadings with Officer J.P. Burns.
Motion to Extend, p. 4 (explaining
that plaintiff recently learned through discovery that Officer Burns
is “the previously unknown individual” who committed certain alleged
acts against plaintiff).
Although plaintiff cites to various rules to
support her motion for additional time in which to serve Officer
Burns, i.e., Fed. R. Civ. P. 6, 21 and 60, it is Rule 15(c) that
actually governs her request to amend the complaint to add Officer
J.P. Burns as a defendant in place of one of the “Unknown Defendants.”
See, e.g., Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996)
(“Substituting a named defendant for a ‘John Doe’ defendant is
considered a change in parties, not a mere substitution of parties”
that must meet the requirements or Rule 15(c) “in order for the
4
amendment adding the named defendant to relate back to the filing of
the original complaint.”).
Rule 15(c) provides, in pertinent part, the following:
(1) When an Amendment Relates Back. An amendment to a
pleading relates back to the date of the original pleading
when:
(A) the law that provides the applicable statute of
limitations allows relation back;
(B) 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;
or
(C) the amendment changes the party or the naming of
the party against whom a claim is asserted, if Rule
15(c)(1)(B) is satisfied and if, within the period provided
by Rule 4(m) for serving the summons and complaint, the
party to be brought in by amendment:
(i) received such notice of the action that it
will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action
would have been brought against it, but for a mistake
concerning the proper party's identity.
The United States Court of Appeals for the Sixth Circuit has held
that “new parties may not be added after the statute of limitations
has run, and that such amendments do not satisfy the ‘mistaken
identity’ requirement of” this rule.
Cox, 75 F.3d at 240.
Therefore,
a court must deny a motion for leave to amend where the proposed
amendment would be futile because it is untimely or barred by the
applicable statute of limitations.
See, e.g., Beatty v. Sunbeam
Corp., Nos. 03-1969/1970, 110 Fed. Appx. 677, at *677 (6th Cir. Oct.
6, 2004) (affirming denial of leave to amend where the statute of
limitations had run and where the amendments could not relate back
under Rule 15(c)); Shaw v. Pfeiffer, No. 2:05-CV-00176, 2006 U.S.
5
Dist. LEXIS 63932, at *20-21 (S.D. Ohio Sept. 7, 2006) (denying leave
to amend where the requested amendment would be futile because the
statute of limitations for the plaintiff’s § 1983 claims had passed).
Here, plaintiff alleges that the events underlying her claims
occurred on April 15 and 16, 2010.
Plaintiff’s claims are governed by
either a one- or two-year statute of limitations.
See, e.g., Banks v.
City of Whitehall, 344 F.3d 550, 553 (6th Cir. 2003) (stating that the
statute of limitations for § 1983 claims is two years); O.R.C. §§
2305.11(A) (providing a one-year statute of limitations for defamation
claims), 2305.111(B) (providing a one-year statute of limitations for
claims of battery); Ruckman v. Riebel, No. 2:11-cv-874, 2012 U.S.
Dist. LEXIS 131238, at *11 (S.D. Ohio Sept. 14, 2012) (“Plaintiff's
claim for intentional infliction of emotional distress is also limited
by the one year statute of limitations applicable to assault, pursuant
to Ohio Revised Code § 2305.111(B), because the acts underlying this
claim would support another tort.”) (citing Freeman v. City of
Lyndhurst, No. 1:09 CV 2006, 2010 U.S. Dist. LEXIS 23238, at *9-12
(N.D. Ohio Mar. 12, 2010)).
The statute of limitations applicable to
plaintiff’s claims expired on April 16, 2011 or April 16, 2012, which
is well before her December 31, 2012 motion seeking leave to join
Officer J.P. Burns as a defendant.
In short, plaintiff’s attempt to
amend the complaint to add Officer J.P. Burns as a defendant is timebarred and would therefore be futile.
Moreover, the fact that
plaintiff previously referred to “Unknown Defendants” does not change
this analysis because naming “Doe” defendants will not save
plaintiff’s untimely amendment.
See, e.g., Cox, 75 F.3d at 240 (“It
6
is familiar law 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.”).
WHEREUPON, Plaintiff’s Motion to Extend the Time for Service to
Defendant Josh Wycuff and Newly Discovered Defendant Officer J.P.
Burns, Doc. No. 57, and Plaintiff’s Motion to Extend the Time for
Service to Defendant Josh Wycuff and Newly Discovered Defendant
Officer J.P. Burns, Doc. No. 58, are DENIED as moot as to defendant
Josh Wycuff and DENIED as to Officer J.P. Burns.
March 5, 2013
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
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