Ortiz v. Singer et al

Filing 34

MEMORANDUM AND OPINION entered GRANTING 31 MOTION to Dismiss with Brief in Support. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BARBARA ORTIZ,
Plaintiff,
v.
ALFRED SINGER, et al.,
Defendants.

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June 09, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-3708

MEMORANDUM AND OPINION
Barbara Ortiz was the passenger in a car that fled from the police in what became a highspeed car chase. During the chase, Paul Kohleffel, a Texas Department of Public Safety Trooper,
allegedly fired 13 gunshots into the vehicle, hitting Ms. Ortiz. Ms. Ortiz sued in December 2016,
but she did not name Trooper Kohleffel as a defendant. She amended her complaint in February
2017 and then asserted claims against him.
Trooper Kohleffel has moved to dismiss the claims against him, arguing that the statute of
limitations bars the claims. (Docket Entry No. 31). Ms. Ortiz responded. (Docket Entry No. 32).
Based on the pleadings, the motion and response, the record, and the applicable law, the court grants
the motion to dismiss. Because further amendment would be futile, the dismissal is with prejudice
and without leave to amend.
The reasons for this ruling are set out below.
I.

Background
In 2014, Barbara Ortiz was a passenger in a car driven by the defendant, Alfred Singer.

(Docket Entry No. 28 at ¶ 9). Mr. Singer failed to stop at a stop sign and fled when a San Felipe
Police Department officer initiated a traffic stop. (Id. at ¶¶ 10–11). A high-speed car chase
followed. Texas Department of Public Safety Trooper Paul Kohleffel allegedly fired 13 gunshots

at the fleeing vehicle, hitting the passenger-side door. (Id. at ¶¶ 13–18). Bullets hit Ms. Ortiz, who
was pregnant with twins, in the head and back. One of the twins died in utero. (Id. at ¶¶ 17, 22–24).
On December 1, 2016, Ms. Ortiz sued Mr. Singer, the State of Texas, the Texas Department
of Public Safety, and the five cities and counties and their police and sheriff’s departments involved
in the car chase. (Docket Entry No. 1-2). The defendants moved to dismiss, (Docket Entry Nos. 2,
4, 5, 7, 11), and Ms. Ortiz amended her complaint. In the amended complaint, Ms. Ortiz dropped
all the defendants except Mr. Singer and added Trooper Kohleffel. (Docket Entry No. 28). Trooper
Kohleffel now moves to dismiss on the basis of limitations.
II.

The Legal Standard Under Rule 12(b)(6)
A pleading is deficient and may be dismissed under Rule 12(b)(6) if a plaintiff fails “to state

a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) is read in
conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A complaint must contain “enough facts
to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). Rule 8 “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).
When a plaintiff’s complaint fails to state a claim, the court should generally give the
plaintiff a chance to amend under Rule 15(a) before dismissing the action with prejudice, unless it
is clear that to do so would be futile. See Great Plains Trust Co. v. Morgan Stanley Dean Witter &
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Co., 313 F.3d 305, 329 (5th Cir. 2002). A plaintiff should be denied leave to amend a complaint if
the court determines that “the proposed change clearly is frivolous or advances a claim or defense
that is legally insufficient on its face.” 6 CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY
KANE, FEDERAL PRACTICE AND PROCEDURE § 1487 (2d ed. 1990); see also Ayers v. Johnson, 247
F. App’x 534, 535 (5th Cir. 2007) (“‘[A] district court acts within its discretion when dismissing a
motion to amend that is frivolous or futile.’” (quoting Martin’s Herend Imports, Inc. v. Diamond
& Gem Trading U.S. of Am. Co., 195 F.3d 765, 771 (5th Cir. 1999))).
III.

Analysis
Ms. Ortiz was injured on December 7, 2014. The Texas personal injury limitations period

is two years. See Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). Ms. Ortiz filed her original
petition within that two-year period on December 21, 2016, (Docket Entry No. 1-2), but filed the
amended complaint on February 23, 2017, after limitations expired. (Docket Entry No. 28). Ms.
Ortiz concedes that she added Trooper Kohleffel after the limitations period had expired. She argues
that the amended complaint relates back to the original complaint.
Rule 15(c)(1) states that a claim may relate back to an earlier filed complaint 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 15(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.
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FED. R. CIV. P. 15(c)(1).
Rule 15(c)(1)(A) is not met here because “[t]he Texas personal injury statute of limitations
does not provide for relation back when new parties are added.” Saldivar v. Texas Dep’t of Assistive
& Rehab. Servs., Civ. No. H-08-1820, 2009 WL 3386889, at *10 n.4 (S.D. Tex. Oct. 13, 2009)
(citing TEX. CIV. PRAC. & REM. CODE § 16.068; Alexander v. Turtur & Assoc., Inc., 146 S.W.3d 113,
121 (Tex. 2004) (“Ordinarily, an amended pleading adding a new party does not relate back to the
original pleading.”)). Rule 15(c)(1)(B) does not apply because Ms. Ortiz seeks to add a new party.
See id.; Chessmore v. Wal-Mart Stores Texas, L.P., Civ. No. H-08-1642, 2009 WL 3245413, at *5
(S.D. Tex. Oct. 5, 2009) (Rule 15(c)(1)(B) did not apply because the amended complaint added a
new defendant who was not named in the original complaint).
Rule 15(c)(1)(C) applies only when an amendment concerns the conduct, transaction, or
occurrence set out in the original pleading and when “[w]ithin 120 days of filing the original
complaint—the period provided by Rule 4(m)—the party sought to be added . . . had notice of the
action and either kn[ew] or should have known that the action would have been brought against it
absent a mistake as to identity.” Saldivar, 2009 WL 3386889, at *10 n.4. “The Fifth Circuit has
interpreted Rule 15(c)(1)(C) to refer ‘only to substituting or changing a defendant rather than adding
a new defendant,’ except in instances involving misnomer of a defendant.” Mitts v. Sikorsky
Aircraft Corp., No. Civ. A. H-10-5164, 2013 WL 12138546, at *3 (S.D. Tex. Mar. 5, 2013) (quoting
Tapp v. Shaw Envtl., Inc., 401 F. App’x 930, 932 (5th Cir. 2010) (per curiam)). Rule 15(c)(1)(C)
does not apply if a plaintiff knows when the complaint was first filed who the added defendants were
and what their involvement in the case was. Saldivar, 2009 WL 3386889, at *10 n.4 (citing Garvin
v. City of Philadelphia, 354 F.3d 215, 222 (3d Cir. 2003) (“Of course, an amended complaint will
not relate back if the plaintiff had been aware of the identity of the newly named parties when she
filed her original complaint and simply chose not to sue them at that time.”)).
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Ms. Ortiz argues that Trooper Kohleffel was on notice of the claims later asserted against
him because he is closely related to the parties named in the original complaint and shares counsel
with them. She argues that suing those parties put Trooper Kohleffel on notice that he too could be
sued. This argument is legally insufficient. First, Ms. Ortiz clearly knew about Trooper Kohleffel
and his involvement in the shooting when she filed her complaint against other defendants on
December 21, 2016. Her original complaint is full of references to Trooper Kohleffel’s conduct,
including the same conduct that forms the basis of her amended complaint. (See Docket Entry Nos.
1-2, 28). And second, she does not allege or identify mistake in identity. Relation back is not
appropriate.
Alternatively, Ms. Ortiz argues that equitable tolling applies to allow her claims against
Trooper Kohleffel to proceed. Equitable tolling “preserves a plaintiff’s claims when strict
application of the statute of limitations would be inequitable.” Quintanilla v. A & R Demolition Inc.,
No. Civ. A. H-04-1965, 2006 WL 1663739, at *1 (S.D. Tex. June 13, 2006) (citing Coleman v.
Johnson, 184 F.3d 398, 402 (5th Cir. 1999)). Equitable tolling “applies only in rare and exceptional
circumstances.” Id. (quoting Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002) (internal
quotation marks omitted). It principally applies “where the plaintiff is actively misled by the
defendant about the cause of action or is prevented in some extraordinary way from asserting his
rights.” Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002) (quoting Coleman, 184 F.3d at 402).
Neither “excusable neglect nor ignorance of the law is sufficient to justify equitable tolling.” Id.
(citation and internal quotation marks omitted); see also Sandoz v. Cingular Wireless, L.L.C., No.
15-30576, 2017 WL 150486, at *3 (5th Cir. Jan. 13, 2017) (citing Menominee Indian Tribe of Wis.
v. United States, 136 S. Ct. 750, 756 (2016) (self-inflicted delay is not sufficient to warrant equitable
tolling). A plaintiff asserting equitable tolling must show that the facts justify applying it, Clarke
v. Rader, 721 F.3d 339, 344 (5th Cir. 2013), because “(1) . . . he has been pursuing his rights
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diligently, and (2) . . . some extraordinary circumstance stood in his way and prevented timely
filing.” Sandoz, 2017 WL 150486, at *3 (citing Menominee, 136 S. Ct. at 755).
Ms. Ortiz has not pleaded any facts showing that rare or exceptional circumstances prevented
her from suing Trooper Kohleffel within the statute of limitations. Ms. Ortiz knew Trooper Ortiz’s
identity and knew that he had fired the shots that caused her injuries. She has not explained why she
did not name him in the original petition or add him within the limitations period. Equitable tolling
is not appropriate.
Though leave to amend should generally be granted under Federal Rule of Civil Procedure
15(a), Ms. Ortiz’s claims against Trooper Kohleffel are barred by the statute of limitations as a
matter of law, and any amendment would be futile. The dismissal is with prejudice.
IV.

Conclusion
The motion to dismiss is granted with prejudice and without leave to amend. (Docket Entry

No. 31).
SIGNED on June 9, 2017, at Houston, Texas.

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Lee H. Rosenthal
Chief United States District Judge

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