CHISLER v. JOHNSTON et al
Filing
165
MEMORANDUM OPINION indicating that, for reasons more fully stated within, Plaintiff's Motion for Leave to File Second Amended Complaint is granted. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 7/28/11. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHARLES CHISLER,
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Plaintiff,
vs.
SGT. EDWARD P. JOHNSTON, et al.,
Defendants.
Civil Action No. 09-1282
Judge Nora Barry Fischer
MEMORANDUM OPINION
Pending before the Court is the Plaintiff‟s “Motion for Leave to File Seconded [sic]
Amended Complaint.” (Docket No. 146). Defendants Donald Hockenberry, Daniel Lynch,
Joseph Palanchar, and Howard Sutton responded. (Docket No. 156). Plaintiff replied on June 23,
2011. (Docket No. 162). A hearing on the motion was held on June 30, 2011. (See Docket No.
164). The motion is now ripe for disposition. For the following reasons, Plaintiff‟s motion [146]
is GRANTED.
I.
BACKGROUND
a. FACTUAL BACKGROUND
Because the factual background of this case is presented elsewhere, (see Docket Nos. 58,
160), and the facts have little bearing on this motion, they are not presented again here.
b. PROCEDURAL BACKGROUND
This case was originally filed on September 21, 2009. (Docket No. 1). On November 24,
2009, Defendants filed a motion to dismiss. (Docket No. 16). In response, Plaintiff filed an
Amended Complaint, (Docket No. 21), rendering moot the initial motion to dismiss. (Docket No.
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24). Subsequently, Defendant Timothy Wentroble filed a motion to dismiss the Amended
Complaint. (Docket No. 28).
A short time thereafter, on January 7, 2010, Defendants Hockenberry, Lynch, Palanchar,
and Sutton also filed a motion to dismiss the Amended Complaint. (Docket No. 35). Defendants
Clayton Stoner and Edward Johnston filed another motion to dismiss on January 11, 2010, and
two days later, Defendant Erik Keller likewise filed a motion to dismiss. (Docket Nos. 39, 42).
Plaintiff filed his response to all the pending motions to dismiss on February 5, 2010. (Docket
Nos. 50, 52, 54, 56). The Court denied all motions to dismiss on March 29, 2010. (Docket No.
58-59).
On May 17, 2010, the Court entered a Case Management Order indicating that any
motions to amend the pleadings or to add new parties were to be filed by October 13, 2010.
(Docket No. 76). Subsequently, on October 7, 2010 and again on February 16, 2011, the Court
amended the Case Management Order by, among other things, extending the deadline for
motions to amend the pleadings or add parties. (Docket Nos. 109, 135). The deadline set by the
February 2011 Order was April 30, 2011. (Docket No. 135).
April 30, 2011 was a Saturday. The following Monday, May 2, 2011, Plaintiff timely
filed the instant motion. (Docket No. 146). Attached to the motion was Plaintiff‟s proposed
Second Amended Complaint. (Docket No. 146-13).
c. THE PARTIES’ ARGUMENTS
Plaintiff argues that he should be granted leave to file a Second Amended Complaint, and
that the new complaint should relate back to the date of filing of the original complaint. (Docket
No. 147 at 4). The first basis Plaintiff puts forth is that Federal Rule of Civil Procedure 15(a)(2)
broadly requires that leave to amend a Complaint “shall be freely given when justice so
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requires.” (Id. at 5). Accordingly, Plaintiff argues that the amended allegations “arose out of the
same conduct attributed to the original Defendants in the original pleading.” (Id. at 6). Further,
he asserts that the prospective Defendants had constructive notice of the lawsuit under either of
the “shared attorney” or the “identity of interest” standards. (Id. at 7-8). Therefore, says Plaintiff,
the prospective Defendants either knew or should have known that they would have been named,
but for Plaintiff‟s excusable “mistake.” (Docket No. 147 at 13).
After arguably establishing that he has satisfied the requirements for leave to amend,
Plaintiff next argues that the late motion to amend was not “unduly delayed.” (Id. at 14). There
was no delay according to Plaintiff because he had to review documents and take depositions in
order to “draft a Second Amended Complaint that would be able to withstand a Rule 12(b)(6)
motion to dismiss.” (Id. at 14). Plaintiff then argues that Defendants must show that prejudice
would inure if the motion to amend is granted. (Id. at 15).
The Defendants argue that Plaintiff is not merely seeking to amend the complaint to add
new parties and rectify clerical errors. (Docket No. 156 at ¶ 1). Defendants claim that the
proposed Second Amended Complaint “change[s Plaintiff‟s] entire theory of the case for the
third time…” (Id. at ¶ 2). As the Defendants paint the case, Plaintiff‟s original complaint was
based on a theory of hazing and cover-up – at worst, state torts and not constitutional violations.
(Id. at ¶ 3). In light of Defendants‟ motion to dismiss, Plaintiff simply re-characterized the events
in question from “hazing” to instances of “violence” for which the “supervisory defendants”
were liable. (Id. at ¶ 6). These changes, say the Defendants, were made strictly as an attempt to
overcome the Defendants‟ motion to dismiss. (Id. at ¶ 7).1
1
Here, it is worth noting that Plaintiff, in his reply, states that he “will not address any arguments
based upon the factual allegations in the Original Complaint” due to the “rule of law that the
Amended Complaint supersedes the original and renders it of no legal effect.” (Docket No. 162
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As to the proposed Second Amendment, Defendants argue that Plaintiff is again engaging
in the same efforts to “overcome the fact that he has no case whatsoever…” (Docket No. 156 at ¶
8). According to the Defendants‟ reading of the Amended Complaint, Plaintiff was alleging a
“custom, pattern [or] practice” of violence in the workplace. (Id. at ¶ 10). The Defendants quote
multiple depositions which support the conclusion that there is no custom, pattern, or practice of
violence at the DOC. (See id. at ¶¶ 11-19). Accordingly, the Defendants paint Plaintiff‟s new
theory as arguing that the DOC‟s workplace violence policy is inadequate because, “in order to
have a policy…to effectively eliminate „workplace violence,‟ DOC must also have an effective
policy that prohibits „horseplay.‟ The lack of that policy can lead to „workplace violence‟ and,
serious injury.” (Id. at ¶ 22 (quoting Docket No. 146 at 2 n.1)). Thus, because Plaintiff is
attempting to make the complaint a “moving target,” he should not be allowed to amend the
complaint again. (Id. at ¶ 23). Finally, the Defendants argue that amendment is futile. (Id. at ¶
30). They argue that there are two theories of supervisory liability under Santiago v. Warminster
Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010), and Plaintiff has not sufficiently pled either theory.
(Docket No. 156 at ¶¶ 31-32).
In his reply, Plaintiff states that “„horseplay‟…is permissible under a well-established
custom, practice and policy [at the DOC], [and] often leads to „workplace violence.‟” (Docket
No. 162 at ¶ 8). He claims that his reason for filing the Second Amended Complaint is not
related to the original supervisory defendants; “rather it was to substitute named defendants for
the John/Jane Doe‟s in the First Amended Complaint.” (Id. at ¶ 16). Plaintiff also claims that
amendment is not futile. (Id. at ¶¶ 32-41).
at ¶ 6). The Court agrees with Plaintiff‟s argument. See Burkes v. Tranquilli, 2008 U.S. Dist.
LEXIS 51403, *2 (W.D.Pa. July 2, 2008) (quoting New Rock Asset Partners, L.P. v. Preferred
Entity Advancements, Inc., 101 F.3d 1492, 1504 (3d Cir. 1996) (the amended complaint
“supersedes the original and renders it of no legal effect…”).
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II.
LEGAL STANDARD
A party may file a Second Amended Complaint “only with the opposing party‟s written
consent or the court‟s leave. The court should freely give leave when justice so requires.”
FED.R.CIV.P. 15(a)(2). “[T]his mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182
(1962). The question here is whether justice requires this Court to grant Plaintiff leave to amend
his Amended Complaint.2
The “grant or denial of an opportunity to amend is within the discretion of the District
Court.” Foman, 371 U.S. at 182. “Among the grounds that could justify a denial of leave to
amend are undue delay, bad faith, dilatory motive, prejudice, and futility.” Shane v. Fauver, 213
F.3d 113, 115 (3d Cir. 2000) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1434 (3d Cir. 1997)). There appears to be no concern of bad faith or dilatory motive here, 3 so the
Court need only address undue delay, prejudice, and futility.
Delay alone is insufficient to justify denial of leave to amend. Adams v. Gould Inc., 739
F.2d 858, 868 (3d Cir. 1984). “[H]owever, at some point,…delay will become „undue,‟ placing
an unwarranted burden on the court … [and] an unfair burden on the opposing party.” Cureton v.
Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir. 2001) (quoting Adams, 739 F.2d at
868). There is no presumptive period at which an amendment is deemed “timely” or in which
delay becomes “undue.” Arthur v. Maersk, Inc., 434 F.3d 196, 205 (3d Cir. 2006). Typically, a
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Plaintiff expressly argues that the Second Amended Complaint relates back to the date of filing
of the original complaint. (See Docket No. 147 at 4). Defendants do not challenge relation back
in their response, so the Court presumes that relation back is appropriate here and will, therefore,
not address the issue.
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Defendants make intermittent reference to bad faith and dilatory motive, but little is said to
support these claims beyond conclusory statements. (See Docket No. 156 at ¶¶ 2, 23, 26, 27).
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finding of undue delay will be rooted in the movant‟s failure to take advantage of previous
opportunities to amend. Cureton, 252 F.3d at 273; Adams, 739 F.2d at 868.
Additionally, the non-moving party should not be prejudiced by an amendment. Indeed,
“prejudice to the non-moving party is the touchstone for the denial of an amendment.” Cornell &
Co., Inc. v. Occupational Safety and Health Review Commission, 573 F.2d 820, 823 (3d Cir.
1978). Under Rule 15, prejudice means “undue difficulty in prosecuting a lawsuit as a result of a
change of tactics or theories on the part of the other party.” Deakyne v. Commissioners of Lewes,
416 F.2d 290, 299 (3d Cir. 1969). A court may inquire into the hardship to the non-moving party
in order to evaluate the extent of the prejudice. Cornell, 573 F.2d at 824.
“Futility” means that the amended complaint would fail to state a claim upon which relief
could be granted. Shane, 213 F.3d at 115; Burlington, 114 F.3d at 1434. A district court must
apply the same standard of legal sufficiency as would apply under Rule 12(b)(6). Shane, 213
F.3d at 115. Accordingly, if a claim is vulnerable to dismissal under Rule 12(b)(6), but the
plaintiff moves to amend, leave to amend must be granted unless the amendment would not cure
the deficiency. Id.
III.
ANALYSIS
a. UNDUE DELAY
Again, a finding of undue delay is typically rooted in the movant‟s failure to take
advantage of previous opportunities to amend. See Cureton, 252 F.3d at 273. In Cureton, for
example, the Court of Appeals found undue delay based on several factors. The most important,
under this Court‟s reading, was that the plaintiffs had been aware of the factual information
underlying the amended complaint for almost two-and-a-half years before they sought leave to
amend. Cureton, 252 F.3d at 273-74.
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Likewise, in Lorenz v. CSX Corp., the Court of Appeals relied upon the plaintiff‟s failure
to amend despite having the opportunity to do so. There, the plaintiff “had numerous
opportunities to correct any deficiencies in her RICO claim but failed to take advantage of them.
Her delay was unreasonable.” Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993).
Here, Plaintiff claims that he was only recently made aware of new, relevant factual
information. (Docket No. 147 at 14). If this allegation is true, and Defendants do not claim
otherwise,4 then Plaintiff has not had an earlier opportunity to file the appropriate amendment.
Therefore, this Court concludes that there has not been undue delay in Plaintiff‟s filing of the
instant motion.
b. PREJUDICE
The gist of the Defendants‟ prejudice argument seems to be that Plaintiff is changing the
theory of the case, or in other words, making the complaint a “moving target.” (See Docket No.
156 at ¶¶ 3-26). Despite “aiming at a moving target,” Defendants admit that they will not seek
further discovery. (Id. at ¶ 28). Instead, they claim that the prejudice arises because, had they
been aware of Plaintiff‟s new theory, their deposition strategies would have been entirely
different. (Id.). Moreover, Defendants will have to prepare and produce new declarations in
support of their summary judgment motion. (Id.).
Although “the issue of prejudice requires [a court to] focus on the hardship to the
defendants if the amendment were permitted,” Cureton, 252 F.3d at 273, mere inconvenience to
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Nor does it appear that the Defendants could reasonably claim otherwise. This case has been
subject to extensive discovery, which involved a third party (the DOC) that possessed relevant
documents. Indeed, this Court only recently addressed a discovery dispute between Plaintiff and
the DOC. See Chisler v. Johnston, --- F.Supp.2d ---, 2011 WL 2457907 (W.D.Pa. 2011 June 16,
2011). Moreover, Plaintiff‟s Counsel was in an accident during this litigation. (See Docket No.
159 at 64 lns 12-16). These complications certainly limited Plaintiff‟s opportunities to quickly
review the pertinent documents and file a Second Amended Complaint.
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a defendant is not sufficiently prejudicial to bar an amendment which justice would otherwise
require. Hardship may be shown where a proposed amendment would result in additional
discovery, cost, and preparation to defend against new facts or new theories. Id. Put another way,
prejudice arises where a new complaint would “(i) require the opponent to expend significant
additional resources to conduct discovery and prepare for trial; (ii) significantly delay the
resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another
jurisdiction.” Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004).
In Cornell, the United States Court of Appeals for the Third Circuit held that it was abuse
of discretion to allow an amendment in an employment case. Cornell, 573 F.2d at 821. The
Cornell decision was premised upon the fact that the employer-defendant would have been
burdened with “guessing what violations the [plaintiff] might charge and preparing a number of
defenses accordingly.” Id. at 825. Because different claims would result in disputes over a
different set of facts, the Court found amendment to be prejudicial. See id. at 825-26.
In U.S. ex rel. Brown v. Merant Inc., Civ. No. 99-6481, 2002 WL 487160, *7 (E.D. Pa.
March 29, 2002), the court held that allowing a third amended complaint was prejudicial. The
amendment came at the summary judgment stage and would “forc[e the defendant] to defend
another claim of fraud not within the Second Amended Complaint and embark anew on
voluminous discovery.” Id. The court‟s concern was that allowing the amendment “would
essentially deny [the defendant] summary judgment because the evidence proves no allegation
against it but might show something else.” Id.
Conversely, amendment has been allowed where a defendant failed to articulate specific
prejudice. See Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transp.
Authority, Civ. No. 03-1577, 2005 WL 387587, at *2-3 (E.D. Pa. February 15, 2005) (allowing
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amendment where the defendant “did not articulate anything more particular than the „moving
target‟ refrain.”). In Disabled in Action, the defendant was already aware of the plaintiff‟s
arguments under the Americans with Disabilities Act (ADA) and the plaintiff was simply
attempting to add an additional claim under the Americans with Disabilities Act (ADA). Id. at
*3.
The Court is of the opinion that this case most closely resembles Disabled in Action.
Plaintiff has not presented a broad swath of unrelated potential theories as in Cornell. Nor has
Plaintiff filed a motion that will require “voluminous discovery” at the summary judgment stage.
Instead, Plaintiff has amended a claim under the same operative statute as the claim in the earlier
complaints. Moreover, the Defendants admit that they will not seek further discovery. (Docket
No. 156 at ¶ 28). They have access to those whom they believe will need to provide declarations.
The case is not at the summary judgment stage and is still far from the trial stage. Any prejudice
to the Defendants appears to this Court to be de minimis. Under these circumstances, this Court
finds no reason to conclude that Defendants will be prejudiced by a decision allowing Plaintiff to
amend, based on the record before this Court.
c. FUTILITY
As to the question of futility, the Court acknowledges the Defendants‟ arguments that
Plaintiff cannot prove either form of supervisory liability. (See Docket No. 156 at ¶ 30-32).
However, the Court is not persuaded by Defendants‟ arguments because the pleadings in the
Second Amended Complaint, accepted as true, are sufficient to make supervisory liability
plausible. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)) (“To survive a motion to dismiss, a complaint must contain
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sufficient factual matter, accepted as true, to „state a claim to relief that is plausible on its
face.‟”).
As to the first form of supervisory liability, under which supervisors can be held liable if
they “established and maintained a policy, practice or custom which directly caused [the]
constitutional harm,” see Santiago, 629 F.3d at 129 n.5, Defendants argue that “Plaintiff is
saying that a custom, policy, and practice of one thing directly led to an entirely different thing.”
(Id. at ¶ 31). This is certainly correct. However, as highlighted repeatedly in Plaintiff‟s proposed
Second Amended Complaint, statements by multiple members of the DOC seem to support
Plaintiff‟s assertion that horseplay can lead directly to workplace violence. (See, e.g., Docket No.
146-13 at ¶¶ 66-69, 75, 95; see also Docket No. 162 at ¶¶ 8-11). Plaintiff‟s claims thus are
plausible as pled. The proposed Second Amended Complaint is, therefore, not futile under the
asserted theory of liability.
The second theory of supervisory liability requires a showing that supervisors
“participated in violating plaintiff‟s rights, directed others to violate them, or, as person[s] in
charge, had knowledge of and acquiesced in [their] subordinates‟ violations.” Santiago, 629 F.3d
at 129 n. 5. Again, Plaintiff‟s allegations of a custom, policy or practice – encouraged by the
acquiescence of the new supervisory defendants – could plausibly support a claim for violation
of Plaintiff‟s constitutional rights. The proposed Second Amended Complaint is, therefore, not
futile under this alternate theory of supervisory liability.
Finally, the Court notes that the Amended Complaint has already survived multiple
motions to dismiss. As referenced above, the theory of the Second Amended Complaint is not
overwhelmingly different from the theory of the Amended Complaint, and is indeed premised
upon the same operative statute. Because the proposed Second Amended Complaint does not
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dramatically change the theory of the case, but adds significant factual averments, the Court
finds no basis for Defendants‟ claim of futility.
IV.
CONCLUSION
For the foregoing reasons, Plaintiff‟s Motion for Leave to File Second Amended
Complaint is GRANTED. An appropriate Order follows.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
cc/ecf: All counsel of record
Date: July 28, 2011
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