Cantino v. The Metropolitan Government of Nashville and Davidson County, Tennessee et al

Filing 15

MEMORANDUM OPINION AND ORDER OF DISMISSAL. Signed by District Judge Aleta A. Trauger on 4/26/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (gb)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JUSTIN S. CANTINO
v.
RICHARD ROE and JOHN DOE

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NO. 3:17-cv-0499

MEMORANDUM OPINION AND ORDER OF DISMISSAL
This action, brought by the plaintiff under 42 U.S.C. § 1983, was timely removed to this
court by the Metropolitan Government of Nashville and Davidson County (“Metro”), which
originally named as a defendant. See Docket No. 1. Metro and defendant Officer Douglas
Smith filed motions to dismiss, which were granted by order entered on April 18, 2017, upon the
plaintiff’s failure to respond, and all claims against Metro and defendant Smith were dismissed
with prejudice. See Order at Docket No. 9.
Following dismissal of these defendants, no other action was taken by the plaintiff to
prosecute this case, including service of process upon the unnamed defendants, referred to as
Police Officer John Doe and Police Officer Richard Roe (see Docket No. 1 at 4).
Counsel for the plaintiff was suspended from practicing law by the Tennessee Supreme
Court, effective as of March 16, 2019. By order entered on February 14, 2019 (Docket No. 11),
the court required the plaintiff to file a notice, by no later than February 28, 2019, explaining
why the case should not be dismissed for the plaintiff’s failure to have taken any action to
prosecute the claims against the unnamed defendants. The February 14 order also provided that
the case would be dismissed if no such filing was made. No filing was made by the deadline of
February 28, 2019.

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By order entered on March 1, 2019, the court referred this case to the magistrate judge to
confirm that “[Plaintiff] has been notified of this Court’s Order of February 14, 2019 (Docket
No. 11) and does not wish to further pursue this case.” Docket No. 12 at 1. Without any known
address for Plaintiff and there being no other known defendants remaining, the magistrate judge
set the case for a status conference on March 14, 2019, with the plaintiff and his counsel ordered
to appear (given that counsel’s suspension was not effective until March 16). See Order at
Docket No. 13. A copy of the Order was mailed to the plaintiff’s attorney, as well as by
electronic service through the Court’s CM/ECF system. Id. The Order also provided that failure
to appear by either the plaintiff or his attorney would be an additional basis for dismissal of this
case. Id.
Neither the plaintiff nor his attorney appeared on March 14. The court knows of no other
means by which to confirm the plaintiff’s intentions in this case, given the lack of response by
the plaintiff’s counsel of record during the time he was obligated under the Tennessee Rules of
Professional Conduct and disciplinary proceeding enforcement rules to wind down his
representation of existing clients. See Tenn. Sup. Ct. R. 9, § 12.3(c) (an order of temporary
suspension does not preclude the attorney from continuing to represent existing clients during
the first 30 days after the effective date of the order of temporary suspension). However, the
failure of the plaintiff and his attorney to comply with the court’s scheduling orders and to
appear for the status conference on March 14 each independently provides grounds for dismissal
under Rule 16(f), particularly given the repeated warnings that this case would be dismissed.
Fed. R. Civ. P. 16(f)(A) and (C) (court may issue “any just order,” including dismissal, if a party
or its attorney fails to appear at a scheduling or other pretrial conference or fails to obey a
scheduling or other pretrial order).

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Additionally, any amendment by the plaintiff to name the unnamed defendants is now
time-barred. The plaintiff’s claims are brought under 42 U.S.C. § 1983 for incidents that
occurred on February 14, 2016. See Memorandum Opinion, Docket No. 7 at 1-2. For § 1983
claims, the governing statute of limitations is provided by the law of the state in which the suit is
brought. Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005); see also Wilson v. Garcia,
471 U.S. 261, 275-76 (1985). Tennessee law provides a one-year statute of limitations for civil
actions brought under federal civil rights statutes.

Tenn.

Code Ann.

§ 28-3-104(a)(3);

Roberson, 399 F.3d at 794; see also Hughes v. Vanderbilt Univ., 215 F.3d 543, 547 (6th Cir.
2000); Berndt v. Tennessee, 796 F.2d 879, 883 (6th Cir. 1986).
The plaintiff’s claims against the unnamed police officers, John Doe and Richard Roe,
cannot now be pursued against named parties as the statute of limitations expired on February
14, 2017. Sixth Circuit precedent clearly holds that “replacing a John Doe with a named party in
effect constitutes a change in the party sued,” in other words adds a party, which cannot be done
after the statute of limitations has run. Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996)
(internal citation omitted) (internal quotation marks and citation omitted). Because any
amendment by plaintiff to add named parties in place of the unnamed defendants is barred by the
statute of limitations that has long since expired, those remaining claims do not survive.
For all these reasons, this case is DISMISSED.
It is SO ORDERED.

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ALETA A. TRAUGER
United States District Judge

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