Soto-Torres v. Mueller et al
Filing
115
OPINION AND ORDER noting 111 MOTION for Order to Show Cause as to John Doe filed by German A. Soto-Torres; denying 102 MOTION requesting Order. Judgment shall be entered accordingly. Signed by Judge Jay A Garcia-Gregory on 8/20/2012.(RJC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
GERMÁN A. SOTO-TORRES,
Plaintiff,
v.
CIVIL NO. 06-1961 (JAG)
ROBERT MUELLER, et al.,
Defendant.
OPINION AND ORDER
Garcia-Gregory, D.J.
Pending
(“Plaintiff”)
before
the
Motion
to
Court
is
re-issue
Germán
the
A.
Court’s
Soto-Torres’s
Case
Management
Order to govern the proceedings against the ten unknown Federal
Bureau of Investigation (“FBI”) Agents. (Docket No. 102). More
than five years after the complaint in this case was filed,
Plaintiff
purports
to
defendants
in
case.
this
incorporate
For
the
those
reasons
Agents
set
as
named
forth
below,
Plaintiff’s Motion is hereby DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
On
September
23,
2005,
federal
agents
attempted,
and
failed, to arrest Mr. Filiberto Ojeda-Rios (“Ojeda”). Plaintiff
alleges that the FBI determined that Ojeda most probably lived
Civil No. 06-1961
2
in a house contiguous to Plaintiff’s parents’ home, located in
the Plan Bonito sector of Hormigueros. Plaintiff states that
agents
had
been
surveilling
his
neighbor’s
residence
since
September 19, 2005. (Docket No. 70).
Around 3:45 p.m. that same day, Plaintiff arrived at his
parents’ home. He proceeded to feed his mare and work on the
fences around the property. Plaintiff argues that at some point
between 4:10 p.m. and 4:15 p.m. two unidentified helicopters
flew over the location of his parents’ residence. At the same
time,
several
Plaintiff’s
vehicles
parents’
full
of
property.
federal
agents
Plaintiff
arrived
at
that
the
alleges
federal agents proceeded to handcuff and detain him for over
four hours, at which point he was released. (Docket No. 70).
On
October
2,
2009,
Plaintiff
filed
a
second
amended
complaint against Mueller in his official capacity as Director
of the FBI, Fraticelli as Special Agent in Charge (“SAC”), and
ten
FBI
Agents
capacities-
and
-each
on
individually
behalf
of
and
their
in
their
official
respective
conjugal
partnerships (hereinafter, “Defendants”). Plaintiff alleged that
the Agents violated his rights pursuant to the Fourth Amendment
and accordingly sought relief under Bivens v. Six Unknown Agents
of the Bureau of Narcotics, 403 U.S. 388 (1971). (Docket No.
70).
Civil No. 06-1961
On
November
3
13,
2009,
Defendants
filed
a
Motion
for
Judgment on the Pleadings. Defendants argued that 1) this Court
must
dismiss
Plaintiff’s
claims
against
Fraticelli
in
his
individual capacity for failure to meet the pleading standard
established in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); and 2)
this Court should dismiss all official capacity claims against
Defendants under the doctrine of sovereign immunity. (Docket No.
73). On
February
23,
2010,
this
Court
granted
in
part
Defendants’ Motion to Dismiss, and dismissed with prejudice all
claims against Defendants in their official capacity on grounds
of
qualified
immunity.
The
Court
had
set
the
deadline
for
discovery by April 23, 2010. Plaintiff filed informative motions
claiming that Fraticelli was not complying with the judicially
ordered discovery. (Docket Nos. 61, 81).
On April 22, 2010, Fraticelli appealed the denial of his
Motion to Dismiss in his individual capacity. On August 19,
2011, the First Circuit held that Fraticelli was entitled to
qualified immunity on the individual capacity as well. The Court
stated that: “unless there is an affirmative link between the
behavior of a subordinate and the action or inaction of his
supervisor
.
.
.
such
that
the
supervisor’s
conduct
led
inexorably to the constitutional violation” a supervisor cannot
be held liable for the actions of his subordinates. Soto-Torres
v. Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011). Therefore, the
Civil No. 06-1961
4
First Circuit ordered Plaintiff’s claims against Fraticelli in
their individual capacity dismissed.
On December 2, 2011, Plaintiff filed a Motion requesting
this Court to re-issue the Case Management Order to continue the
proceedings against the ten FBI Agents. Before ruling on that
motion, the Court ordered Plaintiff to show cause as to why the
case should be continued at all with regards to the as-of-yet
unnamed defendants.1 Plaintiff timely complied. (Docket No. 103).
DISCUSSION
1
On appeal, the First Circuit stated that "[o]nly the Bivens
claim against Fraticelli remains and is before us." Soto-Torres
v. Fraticelli, 654 F.3d 153, 155 (1st Cir. 2011). This statement
brought some confusion to the Court and the parties, because it
may fairly be read as recognizing that, out of all the claims in
the case (including those against the unnamed defendants), only
the ones against Fraticelli remained. This would imply that
Plaintiff's
claims
against
the
unnamed
defendants
were
dismissed. But this Court issued no such ruling. Alternatively,
the Circuit could have noted that only Plaintiff's individualcapacity Bivens claim against Fraticelli remained. This latter
interpretation is more reasonable given its comparatively
limited scope, and the fact that this Court never ruled upon
Plaintiff's Bivens claims against the unnamed Agents. Of course,
this interpretation would imply that Plaintiff's claims against
the unnamed Agents were still alive. However, the Circuit
followed its statement with a curious footnote, noting that
"plaintiff has never identified the John Doe unnamed FBI agent
defendants." Soto-Torres, 654 F.3d at 155 n.1. Against this
backdrop, and in an abundance of caution, the Court found it
proper to order Plaintiff to show cause as to why he should be
allowed to continue this case against the unidentified Agents.
Civil No. 06-1961
5
Plaintiff asks this Court to re-issue the Case Management
Order in order to continue his Bivens claims against the unnamed
Agents.2 However it would appear that Plaintiff is putting the
cart before the horse. As the First Circuit noted, Plaintiff has
not identified any of the Agents as defendants in this case.
Soto-Torres, 654 F.3d at 155 n.1. Only after those defendants
are properly identified may this case be continued against them.3
The Federal Rules of Civil Procedure allow a plaintiff to
do just that. See Fed.R.Civ.P. 15(a) & (c)(1)(C). But in this
case, Rule 15(a)(2) requires Plaintiff to seek leave of court
prior
to
filing
his
amendment.
Thus,
the
threshold
question
2
“Bivens actions, like actions under § 1983, are considered as
personal injury claims and are governed by the personal injury
statute of limitations and tolling laws in the state where the
alleged injury occurred.” Molina-Acosta v. Martinez, 392 F.
Supp. 2d 210, 215 (D.P.R. 2005) (citing Garrett v. Fleming, 362
F.3d 692, 697 (10th Cir.2004)); see also, King v. One Unknown
Federal Correctional Officer, 201 F.3d 910, 913 (7th Cir. 2000).
Accordingly, the Court will use Puerto Rico law in conducting
its analysis.
3
As anticipated by the Court’s Order to Show Cause, any such
amendment
must
also
satisfy
Rule
15(c)’s
relation-back
provision. See Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1075
(2d Cir. 1993)(“‘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. Such an amendment may only be accomplished when all
of the specifications of Fed.R.Civ.P. 15(c) are met.”); accord
Bufalino v. Michigan Bell Telephone Co., 404 F.2d 1023, 1028
(6th Cir.1968), cert. denied, 394 U.S. 987 (1969) (action not
commenced against “John Doe” defendants named in original
complaint until Does identified and served with process).
Civil No. 06-1961
6
raised by Plaintiff’s request is whether an amendment to the
complaint is appropriate in this case. The Court finds it is
not, and accordingly denies Plaintiff’s motion.
As the Rule itself states, “leave shall be freely given
when
justice
so
requires”.
Fed.R.Civ.P.
15(a)(2).
However,
courts may deny leave to amend where an “undue delay in filing
the motion, bad faith or dilatory motive, repeated failure to
cure deficiencies, undue prejudice to the opposing party, and
futility of amendment” is apparent or present. U.S. ex rel.
Gagne v. City of Worcester, 565 F.3d 40, 48 (1st Cir. 2009)
(citing Forman v. Davis, 371 U.S. 178, 182 (1962)); see also
Tiernan v. Blyth, Eastman, Dilon & Co., 719 F.2d 1, 4 (1st Cir.
1983). A court may not deny an amendment solely on plaintiff’s
delay in bringing that motion. See Hayes v. New England Millwork
Distributors, Inc., 602 F.2d 15, 20 (1st Cir. 1979) (citing
Mercantile Trust Company National Association v. Inland Marine
Products, 542 F.2d 1010, 1012 (8th Cir. 1976)). Only where that
delay is undue may the Court reject the amendment. Id. In this
situation, the burden is placed on the movant to show some valid
reason
for
his
neglect
and
delay.
See
Grant
v.
News
Group
Boston, Inc., 55 F.3d 1, 6 (1st Cir. 1995) (citing Stepanischen
v. Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.
1983)).
This
defendants
are
requirement
not
exists
unfairly
in
order
prejudiced
by
to
ensure
these
“that
late-coming
Civil No. 06-1961
7
plaintiffs and that plaintiffs have not slept on their rights.”
Young v. Lepone, 305 F.3d 1, 17 (1st Cir. 2002).
Undue Delay
Here, more than five years have passed since the filing of
the
original
complaint.4
(Docket
No.
1).
Though
Plaintiff
managed to amend his complaint twice during the course of this
litigation, he never replaced his John Doe pleadings with the
names of the FBI Agents. (Docket Nos. 22, 70).
Plaintiff seeks to continue the case as to the unnamed
Agents,
but
fails
to
specify
what
“reasonable
efforts”
were
taken to discover the exact identity of the Agents. Corey-Lanuza
v. Medic Emergency Specialties, Inc., 229 F. Supp. 2d 92, 99
(D.P.R. 2002). The Court notes that “the record is devoid of any
measures having been utilized-either judicial or extrajudicialin this direction.” Id. Throughout these proceedings, Plaintiff
relied
on
judicial
discovery
to
ascertain
the
names
of
the
Agents rather than pursue the identities of his tortfeasors by
other means.
Moreover, Plaintiff himself admitted that he possessed the
business card of one of the Agents that was present at the scene
4
The First Circuit has affirmed the denial of a motion to relate
back an amendment when a plaintiff has stood idle for more than
two years without any valid reason explaining his neglect and
delay. See Hayes v. New England Millwork Distributors, Inc., 602
F.2d 15, 20 (1st Cir. 1979).
Civil No. 06-1961
of
the
8
events.
(Docket
card
contained
business
information
of
the
No.
23-2
the
Agent,
at
name
7-8).
as
Plaintiff
Even
well
as
though
the
inexplicably
the
contact
failed
to
include him in the original complaint, or in the subsequent
amendments to the same. (Docket Nos. 1, 22, 70). It is plainly
clear that Plaintiff had additional avenues -not just through
judicial
discovery-
identities
of
the
through
rest
of
which
the
he
Agents
could
present
uncover
that
the
day.
By
exercising a minimal level of diligence, Plaintiff could have
attempted to discover the identities of the rest of the Agents
via extra-judicial inquiries with the Agent whose identity and
contact information was known to Plaintiff. If such thing was
not
possible,
then
other
remedies
were
still
available
to
Plaintiff. For instance, Plaintiff could have filed a formal
request of information to the FBI office pursuant to the Freedom
of Information Act (“FIOA”). See King v. One Unknown Federal
Correctional
Officer,
201
F.3d
910,
912
(7th
Cir.
2000)(Plaintiff made requests to the United States Bureau of
Prisons pursuant to the FIOA in order to uncover the identity of
the correctional officer whom allegedly was indifferent to his
safety in prison.). And, of course, Plaintiff could have sought
a
judicial
subpoena
in
order
to
compel
the
known
Agent
to
disclose the identity of the rest of the Agents.5
5
A subpoena may be requested in order to uncover the identity of
Civil No. 06-1961
After
9
carefully
analyzing
the
extensive
record
of
this
case, the Court concludes that Plaintiff was not diligent in
discovering the identities of the rest of the Agents. This does
not mean that Plaintiff had to “take heroic measures to enforce
his
rights
against
the
recalcitrant
opponent.”
Carmona
v.
Toledo, 215 F.3d 124, 135 (1st Cir. 2000). Rather, Plaintiff
relied
exclusively
defendants
and
on
judicial
overlooked
discovery
other
methods
through
for
the
named
uncovering
the
information that existed. Plaintiff has not given a valid reason
for his lack of diligence in employing those other methods. See
Grant v. News Group Boston, Inc., 55 F.3d 1, 6 (1st Cir. 1995).
As of today, the delay in amending the complaint is excessive,
and most importantly, undue.
While Plaintiff’s motion could be denied on this ground
alone,
further
examination
serves
to
buttress
our
denial
of
Plaintiff’s request.
Prejudice
Given the extent of Plaintiff’s delay here, any amendment
bringing
new
defendants
would
be
prejudicial
to
those
new
defendants. And that prejudice “is obvious: it is the prejudice
unknown defendants. See Ayala-Serrano v. Collazo-Torres, 650 F.
Supp. 722, 727 (D.P.R. 1986).
Civil No. 06-1961
10
suffered by one who, for lack of timely notice that a suit has
been
instituted,
must
set
about
assembling
evidence
and
constructing a defense when the case is already stale.” Young,
305 F.3d at 17 (citing Nelson v. County of Allegheny, 60 F.3d
1010,
1014-15
(3rd
Cir.
1995)).
At
this
stage,
the
new
defendants will face the daunting prospect of building their
defense
on
evidence
that,
because
of
the
delay,
may
be
unavailable or incomplete. See Nelson, 60 F.3d at 1015. The
evidence
can
spoil
and
the
witnesses’
memories
may
fade;
accordingly, as time goes on, the proposed defendants’ ability
to defend themselves effectively is prejudiced.
Given that the facts in this case occurred almost seven
years ago, the Court finds that new defendants here would be
prejudiced by plaintiff’s undue delay in incorporating them into
the complaint.
Futility
As
a
final
matter,
the
Court
finds
that
the
amendment
required here to continue the case against the unnamed Agents
would be futile if granted. As shown below, the Bivens claims
against the Agents are time-barred under the one-year statute of
limitations provided by the local tort statute, Article 1802 of
the
Puerto
Rico
Civil
Code.
P.R.
Laws
Ann.
tit.
31
§
5141
Civil No. 06-1961
11
(1930); see Kaiser v. Armstrong World Indus., Inc., 872 F.2d
512, 515 (1st Cir. 1989).
Rule 15(c) of the Federal Rules of Civil Procedure allows a
plaintiff
to
change
“the
party
or
the
naming
of
the
party
against whom a claim is asserted” if certain conditions are met.
Namely, the proposed amendment must assert a “claim that arose
out of the occurrence set out in the original pleading.” Id.
Also, the party to be brought in by the amendment must have 1)
“received
such
notice
of
the
action
that
it
will
not
be
prejudiced in defending on the merits”; and 2) “knew or should
have known that the action would have been brought against it,
but for a mistake concerning the proper party's identity.” Id.
If these conditions are met, the proposed amendment “relates
back” to the date of the original pleading.
Federal Courts have uniformly held that a plaintiff’s lack
of information regarding the identity of the unknown defendant
is not a “mistake” within the meaning of Rule 15(c)(3). See
Wilson, 23 F.3d at 563; see also Smith v. City of Akron, No. 104418, 2012 WL 1139003, at *2 (6th Cir. Apr. 6, 2012)(collecting
cases and noting agreement among all Circuit Courts); accord
Singletary v. Pennsylvania Dept. of Corrections, 266 F.3d 186,
200 (3rd Cir. 2001). Rather, Rule 15’s purpose is to remedy the
mistake that occurs when a plaintiff knows who to sue, but ends
up
suing
the
wrong
person.
Wilson,
23
F.3d
at
563.
Here,
Civil No. 06-1961
12
Plaintiff
argues
necessary
information
(Docket
No.
persons
he
111).
that
for
to
various
identify
Consequently,
intended
to
sue;
reasons,
the
Agents
Plaintiff
rather,
he
he
lacked
in
this
never
just
the
case.
mistook
did
not
the
know
specifically who to sue. Since Plaintiff never knew who to sue,
he could not commit a “mistake” under Rule 15(c). Therefore, any
amendment incorporating the unnamed Agents in this case would
not relate back to the date of the original filing. With this in
mind, the Court will assess whether Plaintiff’s amendment is
time-barred by local law.
“The statute of limitations governing a civil negligence
action
in
Puerto
Rico
is
one
year
...
from
the
time
the
aggrieved person has knowledge of the injury.” Kaiser, 872 F.2d
at 515. “The one-year period does not begin to run until the
plaintiff
possesses,
information
sufficient
or
with
to
due
permit
diligence
suit.”
would
Corey-Lanuza,
possess,
229
F.
Supp. 2d at 98 (citing Villarini-Garcia v. Hospital Del Maestro,
Inc.,
8
Supreme
F.3d
81,
Court
of
84
(1st
Puerto
Cir.
Rico
1993))(emphasis
has
defined
added).
knowledge
as
“The
both
notice of the injury and notice of the person who caused it.”
Kaiser, 872 F.2d at 515-16 (citing Colon-Prieto v. Geigel, 15
P.R. Offic. Trans. 313, 330-31 (1984)).
In making this assessment, a Court must inquire if the
plaintiff’s unawareness of the injury or author of it is due to
Civil No. 06-1961
13
the plaintiff’s own negligence. If it does, then the clock will
continue to tick with regards to the one-year limitation period.
See
Fragoso
v.
Lopez,
991
F.2d
878,
886-87
(1st
Cir.
1993)
(citing Santiago-Hodge v. Parke Davis & Co, 883 F.2d 6, 8 (1st
Cir. 1987)). As discussed above, Plaintiff did not engage in
bonafide efforts to attain the information necessary to sue the
unnamed Agents. As to those defendants, then, the statute of
limitations
was
never
tolled.
Accordingly,
Plaintiffs
cannot
now, almost six years after the complaint was filed in this
case, amend the complaint to bring the unnamed Agents into this
case. Any such amendment would be futile.
CONCLUSION
In view of the foregoing, this Court DENIES Plaintiff’s
Motion (Docket No. 102) to re-issue the Case Management Order to
govern
the
Furthermore,
hereby
proceedings
for
DISMISSED
the
WITH
against
reasons
the
stated
PREJUDICE.
unknown
above,
Judgment
FBI
Agents.
these
claims
shall
be
are
entered
accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 20th day of August, 2012.
S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge
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