Montanez v. York City, Pennsylvania et al
Filing
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MEMORANDUM (Order to follow as separate docket entry) re 37 MOTION to Amend/Correct 35 Amended Complaint filed by Alfredo Montanez. For the foregoing reasons, finding that the requirements prescribed by Rule 15(c) are met, the palintiff's motion to amend the complaint will be granted. Signed by Magistrate Judge Martin C. Carlson on 2/20/14. (pw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALFREDO MONTANEZ,
:
:
Plaintiff
:
:
v.
:
:
YORK CITY, PENNSYLVANIA, :
et al.,
:
:
Defendants
:
Civil No. 1:12-CV-1530
(Magistrate Judge Carlson)
MEMORANDUM OPINION
I.
Statement of Facts and of the Case
Plaintiff initiated this action by filing a complaint on August 7, 2012. (Doc.
1) In the complaint, plaintiff, a resident of the City of York, claimed that he was
arrested by unidentified York City Police Officers on August 6, 2010. (Id. at ¶ 14.)
Plaintiff alleged that after he was handcuffed, he was struck in the chest by an
unnamed individual officer. (Id. at ¶ 16.) Plaintiff claimed that when he was struck
by the officer, he was not resisting arrest, or otherwise failing to comply with the
officer’s instructions. (Id. at ¶ 17.) Plaintiff alleged that the assaulting officer was
an officer with the York City Police Department, and that this officer had “received
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extensive training in the proper arrest of an individual who appears to have
committed a crime.” (Id. at ¶ 13.) In addition to these allegations, plaintiff claimed
that the York City Police Department is the police department for the City of York,
and that the department employed the officer alleged to have assaulted plaintiff
during the course of his arrest. (Id. at ¶¶ 9-11.) Plaintiff claimed that following his
assault and arrest, he was charged with a number of crimes, including multiple
firearms and drug offenses, and receiving stolen property. Plaintiff alleged that he
has experienced physical and psychological injuries as a direct and proximate cause
of the assault – an assault that plaintiff claims was “video recorded by a citizen of
York City, Pennsylvania and placed on You-Tube.” (Id. at ¶¶ 22-25.) The plaintiff
initially brought claims against an unnamed police officer, the City of York, and the
York City Police Department under 42 U.S.C. § 1983 for alleged violations of the
United States Constitution; a claim for money damages for unspecified violations of
the Pennsylvania Constitution, and a claim for assault and battery under Pennsylvania
common law.
Following the filing of this complaint, counsel entered appearances for the
defendants. While Attorney Gonzales limited his notice of appearance to the City of
York, and the York Police Department, (Doc. 5), Attorney Hoyt, the York City
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solicitor, entered an appearance on behalf of all defendants, including the unnamed
police officer described in Montanez’s complaint. (Doc. 3)
On October 19, 2012, approximately 70 days after the filing of the complaint,
the parties submitted a join case management plan in this case. (Doc. 6) For the
defendants, that case management plan clearly suggested that counsel had
communicated with the officers who participated in Montanez’s arrest, since the
report decsribed the arrest from the perspective of these unnamed officers, stating:
On August 6, 2010, officers from the York City Police Department were
dispatched to the 700 block of East Market St. for a report of a man with
a gun. Officers observed the plaintiff who matched the description of
the suspect, exited their unmarked vehicle and ordered plaintiff to the
ground. Plaintiff ignored these commands, and ran away. Plaintiff
tripped and fell on the curb where he was tackled by one of the officers.
At that time, a gun fell from plaintiff's pants. Plaintiff attempted to
escape the grasp of the officer and began to actively resist. Another
officer drive-stunned plaintiff with his tazer to gain control of plaintiff
and to stop him from fighting with the officers. It took several officers
to gain control of plaintiff and place him in handcuffs. As officers were
walking plaintiff to a waiting vehicle for transportation back to
headquarters, plaintiff stepped into the right side of an officer and wiped
his bloody forehead onto the officer's uniform. That officer pushed
plaintiff away from him using his elbow and forearm in a rapid
movement and in reaction to plaintiff's attempt to wipe blood and bodily
fluids onto the officer.
(Doc. 6, p. 3)
On November 2, 2012, the City of York and the York City Police Department
moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of
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Civil Procedure. (Doc. 10) We granted this motion, dismissing the complaint with
respect to the City of York, without prejudice to the filing of an amended complaint
by the plaintiff. (Docs. 18, 24.) On June 11, 2013, we also clarified this ruling on a
motion for reconsideration, stating that the plaintiff was still permitted to pursue
claims against the still unidentified York police officers who allegedly assaulted him.
(Doc. 24)
In the meanwhile plaintiff’s counsel made what he described as “numerous
request[s]” for the identity of this police officer from defense counsel, requests which
were unavailing, as defense counsel declined to provide the name of this officer.
(Doc. 25) Indeed, defense counsel acknowledged that plaintiff’s counsel sought this
information regarding the identity of the police officer involved in this incident in late
2012, while a motion to dismiss was pending in this case, and again requested this
information informally in April, 2013. (Doc. 39) Notably, in these communications
defense counsel did not claim confusion regarding the identity of the unnamed
officer; instead counsel indicated that they knew the identity of the officer but simply
declined to disclose this information to plaintiff’s counsel. Despite receiving these
repeated informal requests from the plaintiff’s attorney, defense counsel had
concluded as a tactical matter that they would not comply with these requests until
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they receive a formal discovery demand from the plaintiff. (Id.) It is uncertain if this
position was clearly communicated and understood by plaintiff’s counsel.
After several months of stalemate on this issue, in order to resolve the simple
issue of identifying this defendant the Court then convened a conference with
counsel. (Doc. 27) At this conference it became apparent to the Court that defense
counsel knew the identity of the officer but had made a tactical decision not to
provide that information, except in response to a specific discovery demand
compelling this disclosure. Accordingly, on September 11, 2013, we issued an order
directed the plaintiff to propound discovery demands identifying the officer allegedly
involved in this incident, and further instructing defense counsel to promptly identify
this unnamed officer for the plaintiff. (Doc. 28)
Following this exchange of discovery the plaintiff filed a motion to amend his
complaint to specifically identify the police officer that he alleged assaulted him,
Sergeant Roger Nestor. (Docs. 35 and 37) The defendant has opposed this motion
for leave to amend, (Doc. 39), arguing that the amendment is untimely and improper.
The defendant makes this argument, even though it has been represented without
contradiction that plaintiff informally requested this information regarding the
identity of the officer involved in this incident on a number of occasions from defense
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counsel, who declined to respond to these informal requests for a period of months,
contributing to the delays experienced here.
This motion is fully briefed by the parties, (Docs. 39 and 40), and is, therefore,
ripe for resolution.
For the reasons set forth below, the motion to amend will be granted.
II.
Discussion
Rule 15(a) of the Federal Rules of Civil Procedure provides that “leave to
amend shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a).
However, because the plaintiff’s proposed amendment adds claims against Sergeant
Nestor that would be filed approximately three years after the events giving rise to
those claims, and beyond the period of the statute of limitations, see Wilson v. Garcia,
471 U.S. 261, 280 (1985); Garvin v. University of Pittsburgh, 354 F.3d 215, 220 (3d
Cir. 2003), Montanez may only amend his complaint pursuant to Rule 15(c), which
permits a plaintiff, in specific circumstances, to amend a complaint “as if it had been
filed at the time of the original complaint.” Singletary v. Pa. Dept. of Corr., 266 F.3d
186, 189 (3d Cir. 2001).
Pursuant to its terms, Rule 15(c)(1) applies in three situations:
(1)
When an Amendment Relates Back. An amendment to a pleading
relates back to the date of the original pleading when:
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(A)
the law the 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 against it, but
for a mistake concerning the proper party’s identity.
Fed. R. Civ. P. 15(c).
The United States Court of Appeals for the Third Circuit has explained the
application of the rule as follows:
The Rule is written in the conjunctive, and courts interpret [15(c)(1)(C)]
as imposing three conditions, all of which must be met for a successful
relation back of an amended complaint that seeks to substitute newly
named defendants. [First, the claim against the newly named defendants
must have arisen out of the conduct, transaction, or occurrence set forth
or attempted to be set forth in the original pleading]. The second and
third conditions are set out in [15(c)(1)(C)(i) and (ii)], respectively, and
must be met “within the period provided by Rule 4(m) for service of the
summons and complaint,” Fed. R. Civ. P. [15(c)(1)(C)], which is “120
days after the filing of the complaint,” Fed. R. Civ. P. 4(m). The second
condition is that the newly named party must have “received such notice
of the institution of the action [within the 120 day period] that the party
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will not be prejudiced in maintaining a defense on the merits.” Fed. R.
Civ. P. [15(c)(1)(C)(i)]. Urrutia [v. Harrisburg County Police Dept., 91
F.3d 451, 458 (3d Cir. 1996)] states that this condition “has two
requirements, notice and the absence of prejudice, each of which must
be satisfied.” 91 F.3d at 458. The third condition is that the newly
named party must have known, or should have known, (again, within the
120 day period) that “but for a mistake” made by the plaintiff
concerning the newly named party’s identity, “the action would have
been brought against” the newly named party in the first place. Fed. R.
Civ. P. [15(c)(1)(C)(ii)].
Singletary, 266 F.3d at 194 (some citations omitted).
Applying these benchmarks, we find at the outset that the first requisite of Rule
15(c) is met here since the amendment asserts a claim against Sergeant Nestor that
arose out of the conduct, transaction, or occurrence set out – or attempted to be set
out – in the original pleading, as required by Rule 15(c).
We note that there are two other conditions which also must be met under Rule
15(c) before an amended complaint can relate-back to the date of the initial filing.
First, the newly named party must have “received such notice of the institution of the
action [within the 120 day period prescribed for service of the original complaint] that
the party will not be prejudiced in maintaining a defense on the merits.” Fed. R. Civ.
P., Rule15(c)(1)(C)(i). In addition there is yet another condition prescribed by Rule
15(c), that the newly named party must have known, or should have known, that “but
for a mistake” made by the plaintiff concerning the newly named party’s identity, “the
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action would have been brought against” the newly named party in the first place.
Fed. R. Civ. P. Rule 15(c)(1)(C)(ii).
Turning to Rule 15(c)(1)(C)(ii)’s requirement that the newly named party must
have known, or should have known, that “but for a mistake” made by the plaintiff
concerning the newly named party’s identity, “the action would have been brought
against” the newly named party in the first place, we conclude that it is clear that
Sergeant Nestor would have been named in the plaintiff’s original complaint but for
persistent and profound confusion on the part of the plaintiff regarding the true
identity of the officer that he alleged assaulted him. Therefore, this element of the
relation-back doctrine is satisfied here. See Singletary v. Pennsylvania Dep't of Corr.,
266 F.3d 186, 200–01 (3d Cir.2001) (noting that a “mistake” can be when a plaintiff
lacked knowledge of the identity of a John Doe defendant when the original
complaint was filed); Moreno v. City of Pittsburgh, CIV.A. 12-615, 2013 WL
3816666 (W.D. Pa. July 22, 2013).
The sole remaining issue then is whether the newly named party, Sergeant
Nestor, “received such notice of the institution of the action [within the 120 day
period prescribed for service of the original complaint] that the party will not be
prejudiced in maintaining a defense on the merits,” as required by Rule15(c)(1)(C)(i).
In this regard, “Rule 15(c)(3) notice does not require actual service of process on the
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party sought to be added; notice may be deemed to have occurred when a party who
has some reason to expect his potential involvement as a defendant hears of the
commencement of litigation through some informal means. See Varlack v. SWC
Caribbean, Inc., 550 F.2d 171, 175 (3d Cir.1977) (holding that a person who the
plaintiff sought to add as a defendant had adequate notice under 15(c)(3) when,
within the relevant period, the person by happenstance saw a copy of the complaint
naming both the place where he worked and an ‘unknown employee’ as a defendant,
which he knew referred to him); see also Berndt v. Tennessee, 796 F.2d 879, 884 (6th
Cir.1986) (notice need not be formal); Eakins v. Reed, 710 F.2d 184, 187–88 (4th
Cir.1983) (same); Kirk v. Cronvich, 629 F.2d 404, 407–08 (5th Cir.1980) (same). At
the same time, the notice received must be more than notice of the event that gave rise
to the cause of action; it must be notice that the plaintiff has instituted the action. See
Bechtel v. Robinson, 886 F.2d 644, 652 n. 12 (3d Cir.1989).” Singletary v.
Pennsylvania Dep't of Corr., 266 F.3d 186, 195 (3d Cir. 2001).
In practice:
[T]here are two possible methods by which the district courts could
impute notice under Rule 15(c)(3). The first is the “shared attorney”
method, which is based on the notion that when the originally named
party and the parties sought to be added are represented by the same
attorney, “the attorney is likely to have communicated to the latter party
that he may very well be joined in the action.” Singletary, 266 F.3d at
196. The second is the “identity of interest” method, and is related to
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the shared attorney method. “Identity of interest generally means that the
parties are so closely related in their business operations or other
activities that the institution of an action against one serves to provide
notice of the litigation to the other.” Id. at 197 (quoting 6A Charles
Alan Wright et al., Federal Practice & Procedure § 1499, at 146 (2d
ed.1990)).
Garvin v. City of Philadelphia, 354 F.3d 215, 222-23 (3d Cir. 2003).
“The ‘shared attorney’ method of imputing Rule [15(c)(1)(C)] notice is based
on the notion that, when an originally named party and the party who is sought to be
added are represented by the same attorney, the attorney is likely to have
communicated to the latter party that he may very well be joined in the action.”
Singletary, 266 F.3d at 196. The “fundamental issue” is whether the attorney’s “later
relationship with the newly named defendant gives rise to the inference that the
attorney, within the 120 day period, had some communication or relationship with,
and thus gave notice of the action to, the newly named defendant.” Id.
Here we find that Sergeant Nestor can be imputed to have had notice of this
lawsuit through his shared counsel, City Solicitor Hoyt, who entered his appearance
on behalf of both the City of York, and the unnamed police officer identified in the
plaintiff’s initial complaint, on August 15, 2013, eight days after the filing of the
complaint. This imputed notice through shared counsel is further bolstered by the
detailed factual narrative of this incident, written from the perspective of Sergeant
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Nestor, and provided by defense counsel in the case management plan submitted to
the Court on October 17, 2012, some 70 days after the complaint was filed. That
factual narrative, which describes from the police officers’ perspective both what
Sergeant Nestor did, and his subjective impressions of the plaintiff’s conduct, (“That
officer pushed plaintiff away from him using his elbow and forearm in a rapid
movement and in reaction to plaintiff's attempt to wipe blood and bodily fluids onto
the officer”), in our view “gives rise to the inference that the attorney, within the 120
day period, had some communication or relationship with, and thus gave notice of the
action to, the newly named defendant.” Id. Indeed, in a case such as this it has been
held that notice may be imputed where shared counsel files pleadings which make
factual averments that reflected matters known by the previously unnamed defendant;
counsel’s representations relating to factual matters that are peculiarly within the
knowledge of the unnamed party permit an inference of communications between
counsel and the previously unnamed party. See Moreno v. City of Pittsburgh, CIV.A.
12-615, 2013 WL 3816666 (W.D. Pa. July 22, 2013). Furthermore, we note that
defense counsel’s response to the plaintiff’s initial awkward efforts to identify the
officer are, in our view, also instructive. Counsel did not deny knowing who the
officer was or dispute having communications with the officer regarding what the
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officer was alleged to have done; instead, counsel simply declined to voluntarily
identify the officer.
We also conclude on the unique facts of this case that notice can be imputed
to Sergeant Nestor through the “identity of interest” method. In this context:
“ ‘Identity of interest generally means that the parties are so closely related in their
business operations or other activities that the institution of an action against one
serves to provide notice of the litigation to the other.’ Id. at 197 (quoting 6A Charles
Alan Wright et al., Federal Practice & Procedure § 1499, at 146 (2d ed.1990)).”
Garvin v. City of Philadelphia, 354 F.3d 215, 222-23 (3d Cir. 2003). While it has
been held that “absent other circumstances that permit the inference that notice was
actually received, a non-management employee . . . does not share a sufficient nexus
of interests with his or her employer so that notice given to the employer can be
imputed to the employee for Rule [15(c)(1)(C)] purposes.”
Singletary v.
Pennsylvania Dep't of Corr., 266 F.3d at 200, in this case we find that other
circumstances exist which permit an inference that notice was actually received.
These other circumstances include: (1) the shared legal representation through
Attorney Hoyt’s entry of an appearance on behalf of both the City and the unnamed
officer; (2) Sergeant Nestor’s supervisory status as a police sergeant, a supervisory
position which suggests a closer identity of interests between the parties than a mere
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employer-employee relationship; and (3) the fact that the case management plan
submitted by the city appeared to adopt the sergeant’s personal perspective on this
incident, signifying a commonality of interests in this litigation. Finally, we note that
the parties’ shared interest in this litigation is, in our view, reflected in the tactical
choices of counsel for the city to refuse repeated informal requests by plaintiff’s
counsel to voluntarily identify the unnamed officer. While defense counsel was
certainly entitled to make this tactical choice, the litigative choice suggests that
defense counsel were acting in the common interests of both the city, and the
unnamed defendant, and underscore the identity of interests held by these parties.
Further, we find that plaintiff’s counsel timely pursued the issue of identifying
this unnamed officer, albeit in an ineffectual fashion, making numerous informal
requests for this information before belatedly turning at our direction to formal
discovery processes. Thus, in our view, the instant case is not like those cases relied
upon by the defendant in his opposition to this motion to amend, which frequently
noted a complete failure by counsel to timely attempt to discover the identity of the
previously unnamed defendants. See generally, Garvin v. City of Philadelphia, 354
F.3d 215, 222-23 (3d Cir. 2003) Given what are acknowledged as the efforts of
plaintiff’s counsel to obtain this information we decline the defendant’s invitation to
find that plaintiff’s counsel was dilatory. We also decline any suggestion that defense
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counsel acted in bad faith in failing to disclose the identity of the police officer.
Instead, we ascribe the delay in obtaining the identity of the officer to a mutual
misunderstanding between counsel: Plaintiff’s counsel sincerely believed that
defense counsel would informally provide him this information. Defense counsel,
however, had resolved not to release this information absent the compulsion of formal
discovery.
Finally, we note that “Rule 15(c) (1)(C)(i) also requires the Court to determine
whether the newly named defendants have been prejudiced. Brever v. Federated
Equity Mgmt. Co. of Pa., 233 F.R.D. 429, 435 (W.D.Pa.2005) (Cercone, J.) (‘the
notice inquiry is designed to eliminate prejudice that would result from having to
assemble evidence and construct a defense after a claim has become stale’).” Moreno
v. City of Pittsburgh, CIV.A. 12-615, 2013 WL 3816666 (W.D. Pa. July 22, 2013).
When we consider this bedrock animating principle under Rule 15(c), we find that
Sergeant Nestor would not be unfairly prejudiced by being identified as the
previously unnamed police officer in this action. In this regard, we note what is
apparently an undisputed fact in this litigation: This police encounter was videotaped
and publicly displayed on You Tube. (Doc. 1, ¶25) In this setting, where the
disputed events are captured on video and can be revealed through a cursory Internet
search, the prejudice that could result from having to assemble evidence and construct
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a defense after a claim has become stale, Brever v. Federated Equity Mgmt. Co. of
Pa., 233 F.R.D. 429, 435 (W.D.Pa.2005), seems minimal.
Accordingly, for the foregoing reasons, finding that the requirements
prescribed by Rule 15(c) are met here, the plaintiff’s motion to amend the complaint,
(Doc. 37), will be GRANTED.
An appropriate order will issue.
/S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Date: February 20, 2014
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