Williams v. McDonough et al
Filing
82
MEMORANDUM OPINION AND ORDER. The Opposed Motion for Leave to Amend Complaint to Substitute Defendants (Dkt. 43 ) is GRANTED in its entirety. Signed by Magistrate Judge Kimberly C Priest Johnson on 3/10/2020. (rpc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
MELVIN EARL WILLIAMS, JR.,
Plaintiff,
v.
THE CITY OF DENTON, TEXAS, APRIL
DAWN MCDONOUGH, KEITH D.
MARTIN, and DENTON COUNTY, TEXAS,
Defendants.
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§ Civil Action No.: 4:17-cv-00811-ALM-KPJ
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MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Melvin Earl Williams, Jr.’s (“Plaintiff”) Opposed Motion for
Leave to Amend Complaint to Substitute Defendants (the “Motion for Leave”) (Dkt. 43). The
Motion for Leave seeks to make three significant changes: (1) remove Defendant Keith D. Martin
(“Martin”) from the suit; (2) amend allegations previously made against April Dawn McDonough
(“McDonough”); and (3) add Officer M. McGuire (Badge #173) (“McGuire”) as a defendant. See
Dkt. 43 at 2. The Motion for Leave is agreed in part and opposed in part by Defendants
McDonough, Martin, and City of Denton, Texas (collectively, “Defendants”). See Dkt. 47.
Defendants do not oppose amendments to the Complaint (Dkt. 1) which dismiss all claims against
Martin and amend allegations against McDonough. See Dkt. 47 at 3. However, Defendants oppose
adding McGuire as a defendant. See Dkt. 47 at 1–3.
I.
BACKGROUND
On May 23, 2020, the Court issued a Memorandum Opinion and Order (Dkt. 60) allowing
Plaintiff the opportunity to conduct limited discovery regarding what notice, if any, McGuire
received regarding this suit. Following a limited deposition of McGuire, Plaintiff filed a
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Supplemental Brief Regarding Actual Notice to Malcolm McGuire (Dkt. 80). Defendants filed a
Response (Dkt. 81).
As stated in the Court’s May 23, 2019, Memorandum Opinion and Order, the statute of
limitations has run against McGuire. See Dkt. 60 at 2. The Court highlights, however, the
circumstances surrounding the running of the statute of limitations. According to the allegations
in this case, on November 21, 2015, in the course of arresting Plaintiff, an officer struck Plaintiff
with a taser, first in the chest, and second in his left eye (the “Incident”). See Dkt. 1 at 5. Plaintiff
alleges that after multiple major surgeries and allegedly delayed medical treatment, he is now blind
in his left eye. See id. at 7.
The Denton Police Department incident report (the “Incident Report”) on which Plaintiff
relied in filing the Complaint identifies only McDonough and Martin as officers involved in the
Incident; however, it inaccurately states the role of Officer McDonough, and inaccurately includes
Officer Martin (identifying McDonough as the “Reporting Officer” and Martin as the “Approving
Supervisor”).1 See Dkt. 43 at 4; Dkt. 43-2 at 1–2. Moreover, the Incident Report fails to identify
Officer McGuire at all. See id. Plaintiff asserts that he relied on the Incident Report when filing
suit and had no reason to know that one identified officer was inaccurately named, another officer’s
role was inaccurately described, and another officer was not identified. See Dkt. 43 at 3–5. Plaintiff
contends that he attempted to obtain Denton PD’s documentation of the Incident for more than a
year prior to filing suit. See Dkt. 50 at 2. Indeed, Plaintiff’s counsel filed an Open Records Request
on March 1, 2016. See Dkt. 50-1.
The Court notes that on page two of the Incident Report, the responding officer is named simply as “an Officer.” See
Dkt. 43-2 at 2.
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2
Due to Plaintiff’s reliance on the Incident Report, Plaintiff did not name the unidentified
officer, McGuire, in the Complaint filed on November 19, 2017. See Dkt. 1.2 Instead, in addition
to the City of Denton, Texas, and Denton County, Texas, Plaintiff named April Dawn McDonough
and Keith D. Martin individually and in their official capacity as Denton police officers. See id.
at 1.
Five months after the Incident, McGuire resigned from the Denton Police Department on
August 26, 2016. See Dkt. 47-2. Thus, McGuire was not employed by the City of Denton, Texas,
when the Complaint was filed on November 19, 2017. See Dkt. 1. Though Defendants were aware
of Plaintiff’s errors in misidentifying the officer who fired the taser and the supervising officer, as
well as Plaintiff’s failure to name McGuire, Defendants did not call attention to this fact, not even
in any of its pre-answer motions to dismiss.
The timeline of discovery and motions practice is highly significant in this matter because
the Federal Rule of Civil Procedure 4(m) deadline to perfect service on McGuire was February 20,
2018. If Plaintiff had named and affected service on McGuire prior to February 20, 2018, the
amended complaint would relate back to the date of Plaintiff’s original filing, which was within
the statute of limitations period for claims Plaintiff seeks to bring against McGuire in his proposed
Amended Complaint that is the subject of the Motion for Leave.
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Defendants argue the identities of the arresting officers were known, or should have been known, by Plaintiff,
because they were identified in Plaintiff’s plea papers in the underlying criminal case, and Plaintiff confirmed that he
had an opportunity to inspect the affidavit of probable cause, the offense report, and body camera video in a Discovery
Stipulation signed on April 20, 2016. See Dkt. 47 at 4–5; Dkt. 47-1 at 4. Plaintiff argues that the Incident Report was
provided by Denton PD, giving him no reason to suspect it was inaccurate. See Dkt. 50 at 2. Moreover, Plaintiff
contends that only Plaintiff’s criminal defense counsel, who is not representing Plaintiff in this suit, signed the
Discovery Stipulation (Dkt. 47-1) in the underlying criminal case—not Plaintiff himself. Finally, Plaintiff argues that
he has never read the plea papers, was never given a copy of the plea papers, and has never seen a video recording of
his arrest in the underlying criminal case. See id. at 3. Plaintiff testifies that his counsel in this suit sought discovery,
such as the referenced video recording, from the City of Denton; however, the City of Denton refused to provide any
discovery. See Dkt. 43 at 2; Dkt. 50-2 at 3.
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On January 10, 2019, the Court issued an Order and Report and Recommendation
regarding Defendants’ Motions to Dismiss. See Dkt. 40. Addressing the issue of failure to plead
with specificity levied by Defendants, the Court noted that “[t]he failure of specificity is no fault
of Plaintiff’s, however, because he has not yet had the benefit of discovery.” Id. at 19. The Court
ordered that Plaintiff conduct limited discovery and amend his complaint no later than fourteen
days after adoption of the Report and Recommendation by the District Judge. See id. at 25. No
objections were filed, and the District Judge adopted the Report and Recommendation on
February 4, 2019. See Dkt. 41. Thus, the deadline for Plaintiff to amend his complaint was
February 18, 2019.
On February 17, 2019, pursuant to the Courts order for limited discovery and almost
exactly one year after the expiration of the Rule 4(m) deadline, nearly three years after Plaintiff’s
counsel filed the Open Records Request, and one day before Plaintiff’s deadline to amend the
Complaint, Defendants provided a November 28, 2015, arrest report (the “Arrest Report”) to
Plaintiff which recites a very different set of crucial and relevant facts regarding the Incident as
compared to the Incident Report. See Dkt. 43-3. First, the Arrest Report does not identify Martin
at all. See id. at 2. As previously noted, though a motion to dismiss Martin was filed and briefed
on his behalf, no mention was made in the motion or the reply that Martin was not present at the
Incident. See Dkts. 11, 30. Therefore, February 17, 2019, more than one year after Plaintiff filed
suit on November 19, 2017, appears to be the first date Plaintiff became aware that he had
mistakenly sued an officer who was not present at the Incident.
Second, the Arrest Report confirms that McDonough was involved in the Incident, noting
that McDonough drew her weapon on Plaintiff and was involved in the arrest. See Dkt. 43-3 at 2.
Though a motion to dismiss McDonough was filed and briefed on her behalf, no mention was
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made in the motion or the reply to the motion that McDonough did not fire the taser that struck
Plaintiff in his eye, as alleged in the Complaint. See Dkts. 16, 29.
Third, the Arrest Report explains that another officer not mentioned in the Incident Report,
McGuire, was the officer who actually fired the taser that struck Plaintiff. McGuire allegedly fired
his taser twice, with the second shot hitting Plaintiff in his left eye. See Dkt. 43-3 at 2–3. As the
Arrest Report was the first time Defendants identified McGuire, Plaintiff timely filed the present
Motion for Leave the very next day, February 18, 2019.
Defendants opposed the Motion for Leave and the Court set a hearing for April 12, 2019.
See Dkts. 47, 51. Counsel for Defendants McDonough and Martin failed to appear on April 12,
2019, and the hearing was reset for April 25, 2019. See Dkt. 54. Following the hearing, the Court
ordered limited discovery. See Dkt. 56. On May 23, 2019, the Court ordered additional discovery
specifically regarding what notice McGuire had received, if any, regarding this suit. See Dkt. 60.
Plaintiff’s counsel reportedly encountered difficulty in locating McGuire for months following the
Court’s discovery order, finally making contact by phone on October 31, 2019. See Dkt. 74-1 at
1. Plaintiff’s counsel testified that McGuire agreed to appear at counsel’s office on November 4,
2019, to sign an affidavit stating the facts surrounding his knowledge of the lawsuit. See id. at 2.
Plaintiff’s counsel further testified that McGuire did not ultimately appear as agreed on November
4, 2019, and did not respond to Plaintiff’s counsel’s efforts to reach him. See id. On December 9,
2019, the Court granted Plaintiff leave to take McGuire’s deposition on or before January 6, 2020.
See Dkt. 77. After McGuire’s deposition was taken on January 6, 2020, the parties filed final
briefing on the issues related to the Motion for Leave. See Dkts. 80, 81.
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II.
LEGAL STANDARD
Rule 15(a) instructs the court to “freely give leave when justice so requires.” FED. R. CIV.
P. 15(a). The rule “evinces a bias in favor of granting leave to amend.” Jones v. Robinson Prop.
Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005) (quoting Lyn-Lea Travel Corp. v. Am. Airlines, Inc.,
283 F.3d 282, 286 (5th Cir. 2002)). But leave to amend “is not automatic.” Matagorda Ventures,
Inc. v. Travelers Lloyds Ins. Co., 203 F. Supp. 2d 704, 718 (S.D. Tex. 2000) (citing Dussouy v.
Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981)). Whether to allow amendment “lies
within the sound discretion of the district court.” Little v. Liquid Air Corp., 952 F.2d 841, 845–46
(5th Cir. 1992). A district court reviewing a motion to amend pleadings under Rule 15(a) considers
five factors: (1) undue delay; (2) bad faith or dilatory motive; (3) repeated failure to cure
deficiencies by previous amendments; (4) undue prejudice to the opposing party; and (5) futility
of amendment. Smith v. EMC, 393 F.3d 590, 595 (5th Cir. 2004) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)).
III.
ANALYSIS
Nearly all factors for consideration under Rule 15(a) clearly support allowing Plaintiff to
amend the Complaint. First, there was no undue delay; the facts indicate that Plaintiff moved to
amend at the first opportunity to do so given the challenges of this case, namely, Defendants’
asserted motions to dismiss and qualified immunity such that discovery did not move forward until
the Court ordered limited discovery. Additionally, Plaintiff, upon receiving a crucial piece of
clarifying discovery, moved for leave to amend the very next day, within the deadline set by the
Court to request such leave. See Dkt. 43.
Second, there is no evidence of bad faith or dilatory motive on Plaintiff’s part. The present
Motion is Plaintiff’s first request to amend and, therefore, the third factor, repeated failure to cure
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deficiencies by previous amendments, does not weigh against allowing amendment. The Court,
herein, addresses at greater length the two remaining factors: futility of amendment and possible
prejudice to Defendants.
As an issue of overarching concern, however, the Court first highlights that it is
exceedingly likely that Plaintiff’s mistake in identifying the wrong officer and failure to name or
serve McGuire in a timely fashion was a direct result of Defendants’ failure to disclose the Arrest
Report to Plaintiff’s counsel, despite counsel’s requests, and Defendants’ decision not to notify
Plaintiff that he had named the wrong officers and failed to name one officer entirely, even in
Defendants’ Motions to Dismiss, until well after the Rule 4(m) deadline had passed. Additionally,
the Court notes that difficulty in obtaining proof of actual notice of the lawsuit to McGuire was
exacerbated by Defendants’ delay tactics. Namely, McGuire claimed in his deposition that he
could not confirm important details regarding notice from events that occurred nearly two years
ago. See Dkt. 80-1 at 18, 25 [17:18–20, 24:18–20]. Two years before the deposition, the crucial
time frame for inquiry regarding McGuire’s notice, approximately coincides with Defendants
filing motions to dismiss, which requested that discovery be halted and did not explain that Plaintiff
had mistakenly sued the wrong officers.
Rule 15(a)(2) states that “the court should freely give leave [to amend] when justice so
requires.” On these facts alone, the Court would be justified in granting leave to amend. However,
additional facts and case law support the finding that Plaintiff has sufficiently demonstrated actual
notice supporting leave to amend.
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A. Futility of Amendment - Notice
Defendants argue amendment is futile because the statute of limitations has run against
McGuire and Plaintiff cannot demonstrate that McGuire had notice of the suit before the expiration
of the Rule 4(m) service deadline. See Dkt. 47 at 6.
Rule 15(c)(1) states:
An amendment of a pleading relates back to the date of the original pleading when:
(A) the law that 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 (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 would have been brought
against it, but for a mistake concerning the proper party’s identity.
Where a defendant did not receive actual notice, a plaintiff may be able to satisfy the
requirements of Rules 15(c) and 4(m) by establishing that the defendant had constructive notice.
See for example, Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998) (citing Moore v. Long,
924 F.2d 586, 587 (5th Cir. 1991); Kirk v. Cronvich, 629 F.2d 404, 407–08 (5th Cir. 1980)). As
the Court explained in a previous order, Plaintiff has not been able to demonstrate that McGuire
had constructive notice of the suit. See Dkt. 60 at 3. Plaintiff argued in the Motion that McGuire
received constructive notice because McGuire shared an “identity of interest” (see Jacobsen v.
Osborne, 133 F.3d at 320–21) with the currently named Defendants. See Dkt. 43 at 5–7. The Court
found, however, that McGuire did not satisfy the standard for identity of interest because he did
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not share counsel with Defendants (though, he was represented by Defendants’ counsel at his
recent deposition in the case), has not made an appearance in this matter, and was not employed
by the City at the time suit was filed. Notably, McGuire had not been employed by the City for
over a year at the time suit was filed. Accordingly, the awareness of the Defendants and their
counsel of the suit did not allow the Court to infer constructive notice as to McGuire. See Dkt. 60
at 2–3.
As Plaintiff was not able to demonstrate that McGuire had constructive notice of the suit,
it falls on Plaintiff to demonstrate that McGuire had actual notice. In his deposition, McGuire
admitted that he had knowledge of the lawsuit as a result of reading an article online, which was
about the lawsuit, when it appeared on his Facebook news feed. See Dkt. 80-1 at 25–27 [24:14–
26:1]. Though McGuire could not recall the exact date on which he read the article, he confirmed
that, in general, updates and news feeds appear on Facebook’s news feed when the news is
breaking (as opposed to a delay in time). See id. at 27 [26:2–19]. Though McGuire could not
identify the specific article he viewed, McGuire conceded that he could have read a specific article
Plaintiff’s counsel showed to McGuire at the deposition, on its date of publishing, January 18,
2018. See id. at 18 [17:13–17]; Dkt. 80-3. The article shown to McGuire by Plaintiff (Dkt. 80-3),
at the very least, communicates the same substantive information about which McGuire testified
that he learned from reading the article. See Dkt 80-1 at 25–27 [24:10–19, 25:19–26:1];
Dkt. 80-3.
The Rule 4(m) deadline expired on February 20, 2018. Therefore, if McGuire read the
article published on January 18, 2018, or an article communicating the same information within
the next month, McGuire had actual notice such that Plaintiff’s claims against McGuire can relate
back to the time suit was filed, before the statute of limitations expired.
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Plaintiff identified the January 18, 2018, article as the only known article that ran covering
this lawsuit. See Dkt. 80 at 4. Defendants have not presented any additional articles published
during the relevant timeframe, but merely contend that a link to an article “can be clicked years
later, after being reposted years later.” Dkt. 81 at 2–3. McGuire, however, testified that he did not
search for the article he read, and did not see it from a reposting; rather, he came across the article
while scrolling through his live Facebook news feed. See Dkt. 80-1 at 25–26 [24:10–25:1].
It is clear Plaintiff has presented some evidence of actual notice. The only remaining
question is whether the evidence is sufficient to permit leave to amend. In Dodson v. Hillcrest Sec.
Corp., the Fifth Circuit considered whether a defendant added in an amended complaint received
notice within the appropriate period such that the claim could relate back pursuant to Rule 15(c).
95 F.3d 52, at *10 (5th Cir. 1996). Notably, the Fifth Circuit analyzed the issue on a statute of
limitations summary judgment argument, as opposed to whether amendment to a complaint should
be permitted. See id. In commenting on the plaintiff’s burden to establish notice, the Fifth Circuit
stated that the plaintiff had not “met his burden of presenting some evidence that [the defendant]
received notice within the necessary period.” See id. at *11 (emphasis added).
In a similar case in which the Third Circuit considered whether to allow amendment to
correct an error in naming a misidentified police officer after the deadline for notice had expired,
the court ruled that the plaintiff failed to make a showing of notice because the record was “bereft
of any facts suggesting that [the officer] had actual or imputed notice” of the suit within the
relevant time frame. Walters v. Muglenburg Tp. Police Dept., 536 Fed. Appx. 213, 216 (3d Cir.
2013) (emphasis added).
Unlike in Dodson and Walters, Plaintiff has demonstrated some evidence of actual notice,
and in fact, such evidence is substantial enough that if McGuire was to assert the statute of
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limitations as an affirmative defense based on a lack of actual notice, absent additional
developments in the case, the issue would present a question of fact for a jury to decide. Thus, the
Court finds that Plaintiff has met his evidentiary burden as to notice on this record.
B. Prejudice
Finally, the Court considers the potential prejudice to McGuire in being added as a
defendant in this case. As the Third Circuit has elucidated:
Prejudice and notice are closely intertwined in the context of Rule 15(c)(3), as the
amount of prejudice a defendant suffers under 15(c)(3) is a direct effect of the type
of notice he receives. See 6A Charles A. Wright et al., Federal Practice And
Procedure § 1498, at 123 (2d ed. 1990) (“A finding that notice, although informal,
is sufficient ... frequently [depends] upon determining whether the party to be added
would be prejudiced by allowing relation back under the circumstances of the
particular case.”). That is, once it is established that the newly named defendant
received some sort of notice within the relevant time period, the issue becomes
whether that notice was sufficient to allay any prejudice the defendant might have
suffered by not being named in the original complaint.
Singletary v. Pennsylvania Dep't of Corr., 266 F.3d 186, 194 n.3 (3d Cir. 2001).
Though pending for a great deal of time, in part caused by delays due specifically to the
difficulty experienced by Plaintiff in obtaining discovery and the deposition of McGuire, this case
is still in its procedural infancy.
McGuire would experience practically no prejudice in being added to this suit. The
evidence presented by Plaintiff supports the conclusion that McGuire has long had notice of the
suit, regardless of the specific day on which he became aware of it. McGuire, upon addition as a
defendant, would even be capable of asserting the specific issue of notice as part of an affirmative
defense of statute of limitations should he choose to do so, and will therefore experience no
limitation on his opportunity to present his case. Additionally, McGuire testified that the City of
Denton conducted an internal investigation and he had substantive discussions with McDonough
regarding the Incident shortly after it occurred. See Dkt. 80-1 at 12–13 [11:14–12:17]. Finally,
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McGuire is now represented by Defendants’ counsel, allowing for continuity and accelerated
understanding to the proceedings of this case amongst all Defendants.
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IV.
CONCLUSION
All factors considered by the Court support allowing Plaintiff leave to amend its complaint.
Upon consideration, therefore, the Opposed Motion for Leave to Amend Complaint to Substitute
Defendants (Dkt. 43) is GRANTED in its entirety.
So ORDERED and SIGNED this 10th day of March, 2020.
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KIMBERLY C. PRIEST JOHNSON
UNITED STATES MAGISTRATE JUDGE
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