MAKS, Inc et al v. EODT General Security Company et al

Filing 111

MEMORANDUM OPINION AND ORDER denying 103 Motion for Reconsideration of Plaintiffs' Motion to Add Thomas Dwyer, Loren Hughes, Susan Davis, Les Lunceford, Floyd Weed, Matt Knetche, and James Pearson as Defendants. Signed by District Judge Thomas A Varlan on 3/12/12. (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION
MAKS, INC., et al.,
Plaintiffs,
v.
EODT GENERAL SECURITY CO., et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No.:

3:10-CV-443
(VARLAN/GUYTON)

MEMORANDUM OPINION AND ORDER
This civil action is before the Court on Plaintiffs’ Motion for Reconsideration of
Plaintiffs’ Motion to Add Thomas Dwyer, Loren Hughes, Susan Davis, Les Lunceford, Floyd
Weed, Matt Knetche, and James Pearson as Defendants in the Above Captioned Action [Doc.
103]. EOD Technology, Inc. (“EODT Technology”), EODT General Security Company
(“EODT General Security”), and Matt Kaye responded in opposition [Doc. 105], and
plaintiffs replied [Doc. 107]. For the following reasons, the Court will deny the motion.
I.

Background
In a prior memorandum opinion and order [Doc. 102], the Court considered plaintiffs’

motion to amend the complaint, which sought to, among other things, replace the three “Jack
Doe” defendants with named defendants, whose identities had been learned through the
discovery process. Defendants argued that it would be futile to add the seven defendants in
place of the three “Jack Doe” defendants because they would have statute of limitations
defenses. The Court agreed with defendants and denied plaintiffs’ request for leave to amend

the complaint to assert the seven named defendants in place of the “Jack Doe” defendants.1
Plaintiffs now ask the Court to reconsider this decision [Doc. 104]. They assert three reasons
why the Court should do so: (1) a statute of limitations attack is an affirmative defense that
must be pled by a party; (2) the Court may not raise an affirmative defense sua sponte; and
(3) the Court cannot decide a counter-argument where plaintiffs have not raised such [Id.].
Defendants argue that plaintiffs’ motion “does not raise any new argument against
futility vis-à-vis relation back” [Doc. 105]. They further argue that the seven individuals
plaintiffs seek to name as defendants are not the same persons identified in the complaint
because only three “Jack Doe” defendants were named in the complaint, not seven, and one
of the seven individuals is a female [Id.]. Also, they state plaintiffs’ assertion that what was
unknown at the time of the filing of the complaint was the legal or given names of the seven
individuals confirms the Court’s distinction of the facts of this case from Krupski v. Costa
Crociere, S. p. A., — U.S. —, 130 S. Ct. 2485 (2010) [Id.].
II.

Standard of Review
Plaintiffs’ request for reconsideration is not made pursuant to any certain rule of the

Federal Rules of Civil Procedure. Although the Federal Rules of Civil Procedure do not
explicitly authorize motions for reconsideration, they are commonly treated as either a Rule
59(e) motion or a Rule 60(b) motion. Hood v. Hood, 59 F.3d 40, 43 n.1 (6th Cir. 1995).
Because the instant motion was filed within twenty-eight days after the entry of the order

1

The Court assumes familiarity with this decision [See Doc. 102].
2

granting in part and denying in part plaintiffs’ motion to amend, it will be considered under
Rule 59(e). Id. (“[W]hen a post-judgment motion is ambiguous as to whether it is filed
pursuant to Rule 59 or Rule 60, if filed within [twenty-eight] days of judgment, the appellate
courts have construed it as a Rule 59 motion.”).
“A district court may grant a Rule 59(e) motion to alter or amend judgment only if
there is: ‘(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change
in controlling law; or (4) a need to prevent manifest injustice.’” Henderson v. Walled Lake
Consol. Schs., 469 F.3d 479, 496 (6th Cir. 2006) (quoting Intera Corp. v. Henderson, 428
F.3d 605, 620 (6th Cir. 2005)). Rule 59 motions are not “intended as a vehicle to re-litigate
previously considered issues; should not be utilized to submit evidence which could have
been previously submitted in the exercise of reasonable diligence; and are not the proper
vehicle to attempt to obtain a reversal of a judgment by offering the same arguments
previously presented.” Kenneth Henes Special Projects Procurement v. Cont’l Biomass
Indus., Inc., 86 F. Supp. 2d 721, 726 (E.D. Mich. 2000) (emphasis and citation omitted).
III.

Analysis
Plaintiffs’ first and second arguments for reconsideration are intertwined. Plaintiffs

assert that the Court “overstep[ed] its authority when it raise[d]” the affirmative defense of
the statute of limitations [Doc. 104]. They also assert that, even if “inspired by the arguments
of [c]ounsel for EODT [Technology] and EODT [General] Security,” it was improper for the
Court to consider the statute of limitations with respect to plaintiffs’ motion to amend
because counsel for these defendants do not represent the seven individuals and the statute
3

of limitations is an affirmative defense that can be raised “only by the person who has its
benefit, or that person’s legal counsel” [Id. (emphasis omitted)].
The Court does not find that it committed a clear error of law in addressing
defendants’ futility argument in response to plaintiffs’ motion to amend the complaint, nor
does it find any basis to alter its ruling to prevent manifest injustice.2 First, the Court did not
sua sponte address whether the proposed amended complaint would be futile because of a
statute of limitations defense as defendants raised this point in opposition to the proposed
amended complaint. Moreover, futility is a valid objection to a motion to amend, Miller v.
Calhoun Cnty., 408 F.3d 803, 817 (6th Cir. 2005), and plaintiffs never provided, and still do
not provide, the Court with any authority that it could not consider a futility argument related
to parties not yet before the Court but raised by those presently in the case. Second, while
plaintiffs may be correct that the statute of limitations is an affirmative defense that is
designed for the benefit of a person against whom a claim may be made, see Hayden v. Ford
Motor Co., 498 F.2d 1292, 1294 (6th Cir. 1974), such rule does not necessarily preclude the
Court from considering whether it would be futile to allow an amendment to a complaint that
adds new defendants because that amendment would not survive a motion to dismiss based
upon a statute of limitations defense asserted by those new defendants.

2

Plaintiffs do not note any newly discovered evidence or intervening change in controlling
law, and so the Court does not consider such in determining whether Rule 59(e) relief is warranted.
4

Plaintiffs’ third argument is that the Court erred in anticipating “[p]laintiffs [sic]
counterarguments for why a statute of limitations defense would fail” [Doc. 104]. They state
there was “not a complete lack of knowledge about who the [d]efendant[s] might be” because
they have asserted from the outset of this litigation that defendants’ employees assaulted
them on October 23, 2009; use of “Jack Doe” merely substituted for the “specific persons
who participated in the assault” [Id.].
The Court finds that it did not “anticipate” any counter-argument of plaintiffs. Rather,
the Court addressed defendants’ argument that the proposal to name the seven individuals
as defendants would be futile because of the statute of limitations, which involved an analysis
of whether the proposed amendment would relate back to the date of the original pleading.
Pursuant to Sixth Circuit law, the Court found that it would not relate back because a suit
against a Doe defendant “is not equivalent to a ‘mistake’ concerning the actual defendant’s
identity” [Doc. 102 (citations omitted)]. Plaintiffs cite the Court to no law or facts that
undermines this conclusion; indeed, as defendants assert, plaintiffs’ assertion that what was
unknown at the time of the filing of the complaint was the legal or given names of the seven
individuals supports the Court’s distinction of the facts of this case from Krupski v. Costa
Crociere, S. p. A., — U.S. —, 130 S. Ct. 2485 (2010).
Plaintiffs further argue that plaintiffs were going to rely upon the doctrine of equitable
tolling, but have been precluded from doing so as a result of the Court’s decision [Doc. 104].
The Court points out that plaintiffs expressly declined to address defendants’ futility
argument:
5

There might be a time and a debate on the applicable statute of
limitations on the assault claims. Yet, Plaintiffs should not have to
dedicate the time, energy, and resources in debating such points with
attorneys who do not represent the individuals who might or might not
have objections to the filing of assault and other tort claims.
[Doc. 99]. Plaintiffs cannot use their Rule 59(e) motion to re-litigate an issue plaintiffs
previously had an opportunity to argue and the Court has already considered.
Further, although plaintiffs seemingly cite Keenan v. Bagley, 400 F.3d 417, 421 (6th
Cir. 2005), for the proposition that the Court was required to consider equitable tolling, the
Court has reviewed Keenan and does not find that the case stands for the proposition so
asserted by plaintiffs. The language quoted by plaintiffs from Keenan—“every court must
consider an equitable tolling claim on a case-by-case basis”—is taken from the Sixth
Circuit’s instruction in Keenan that a court must consider various factors in analyzing
equitable-tolling claims and that such factors “are not necessarily comprehensive or always
relevant; ultimately every court must consider an equitable tolling claim on a case-by-case
basis.” 400 F.3d at 421 (citation omitted). Thus, the language quoted by plaintiff merely
refers to the fact that a court must consider whether an equitable-tolling claim is meritorious
on a case-by-case basis; not that the Court must consider an equitable-tolling claim whenever
the statute of limitations is raised.

6

IV.

Conclusion
For the reasons explained herein, the Court hereby DENIES Plaintiffs’ Motion for

Reconsideration of Plaintiffs’ Motion to Add Thomas Dwyer, Loren Hughes, Susan Davis,
Les Lunceford, Floyd Weed, Matt Knetche, and James Pearson as Defendants in the Above
Captioned Action [Doc. 103].
IT IS SO ORDERED.

s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE

7