Amin-Akbari v. City of Austin et al

Filing 96

ORDER GRANTING IN PART AND DENYING IN PART 56 Motion for Judgment on the Pleadings; GRANTING IN PART AND DENYING IN PART 71 Motion to Amend Complaint; GRANTING 46 Motion to Exclude Expert Testimony; GRANTING 59 Motion to Exclude Expert Te stimony; MOOTING 80 Motion for Summary Judgment; MOOTING 81 Motion for Summary Judgment; MOOTING 86 Motion to Strike Motion for Summary Judgment; MOOTING 89 Motion to Supplement its Motion for Summary Judgment. Discovery will now close on 11/17/2014; Motions for Summary Judgment due by 12/16/2014; Responses due by 12/31/2014; Replies due by 1/7/2015. Signed by Judge David A. Ezra. (kkc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
AKBAR AMIN-AKBARI,

§
§
Plaintiff,
§
§
vs.
§
§
THE CITY OF AUSTIN, TEXAS, and §
MICHAEL BARGER, HENRY
§
AGUILAR, RICHARD BOZELLI, and §
PHILLIP KELLY, in their individual §
capacities,
§
§
Defendants.
§

No. 1: 13-CV-472-DAE

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR JUDGMENT ON THE PLEADINGS; (2) GRANTING IN PART
AND DENYING IN PART PLAINTIFF’S MOTION TO AMEND COMPLAINT;
(3) GRANTING PLAINTIFF’S MOTION TO EXCLUDE EXPERT
TESTIMONY; (4) GRANTING DEFENDANTS’ MOTION TO EXCLUDE
EXPERT TESTIMONY OF ROGER CLARK
On September 26, 2014, the Court heard argument on (1) Plaintiff’s
Motion to Exclude Expert Testimony (Dkt. # 46); (2) Defendants’ Motion to
Exclude Expert Testimony (Dkt. # 59); (3) Defendants’ Motion for Judgment on
the Pleadings (Dkt. # 56); and (4) Plaintiff’s Motion to Amend the Complaint (Dkt.
# 71). Abigail Frank, Esq., and Wayne Krause-Yang, Esq., appeared on behalf of
Plaintiff. Jaclyn Gerban, Esq., and Meghan Riley, Esq., represented Defendants.
After careful consideration of the arguments at the hearing and in the supporting
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and opposing memoranda, the Court GRANTS IN PART AND DENIES IN
PART Defendants’ Motion for Judgment on the Pleadings (Dkt. # 56); GRANTS
IN PART AND DENIES IN PART Plaintiff’s Motion to Amend (Dkt. # 71);
GRANTS Plaintiff’s Motion to Exclude Expert Testimony (Dkt. # 46); and
GRANTS Defendants’ Motion to Exclude Expert Testimony (Dkt. # 59).
BACKGROUND
Around midnight on the morning of June 10, 2011, Austin Police
Department (“APD”) officers allegedly commandeered Plaintiff Akbar AminAkbari’s taxicab and forced him to transport an intoxicated individual. (“FAC,”
Dkt. # 32 ¶ 1.)
Plaintiff has earned a living as a taxicab driver for the past thirty years
in Austin. (Id. ¶ 8.) On the evening of the incident, APD officers hailed Plaintiff’s
cab and proceeded to force a large intoxicated individual, Dustin Christopher
Rowden (“Rowden”), towards the cab. (Id. ¶ 9.) Plaintiff attempted to refuse to
transport Rowden because of his intoxication and combativeness. (Id. ¶ 10.)
Nonetheless, officers ordered Plaintiff to transport Rowden. (Id.) According to
Plaintiff, it took four officers to force Rowden into the taxicab; Rowden then tried
to escape, but officers forced him back in. (Id.) Plaintiff again tried to refuse to
transport Rowden, arguing that Rowden would not be able to pay for the ride. (Id.
¶ 11.) In response, officers ordered Plaintiff to drive Rowden to his home. (Id.)
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Plaintiff began driving Rowden home via Interstate 35. (Id. ¶ 12.) On
the drive, Rowden yelled racial slurs at Plaintiff on account of his Iranian heritage.
(Id. ¶ 12.) Plaintiff states that he feared the larger and belligerent Rowden and
asked Rowden to allow him to drive safely. (Id.)
Despite Plaintiff’s request, Rowden began hitting Plaintiff over the
head and ordered Plaintiff to get out of the cab. (Id. ¶ 13.) Rowden grabbed
Plaintiff’s hair and jerked his head back, so that he could no longer see the road.
(Id.) Rowden then proceeded to reach into the front seat and take the steering
wheel, threatening that he was going to kill Plaintiff. (Id. ¶ 14.) Plaintiff states
Rowden then tried to crawl into the front seat. (Id. ¶ 15.) This gave Plaintiff
enough time to retake control of the steering wheel, exit the interstate, and drive
into a nearby gas station parking lot. (Id. ¶ 15.) Plaintiff left the car and went to
call the police. (Id.) However, Rowden followed him out of the car, hit Plaintiff
on the head again, and knocked the phone from his hand. (Id.) Rowden kicked
Plaintiff in the knee, forcing Plaintiff onto the ground where Rowden continued his
attack. (Id. ¶¶ 15–16.)
Two men witnessed the attack and ran to help Plaintiff by pulling Rowden
off him. (Id. ¶ 16.) Police officers soon arrived and charged Rowden with “felony
aggravated assault and injury to a disabled person.” (Id.) Plaintiff states that as a
result of the attack, he suffered severe head injuries and was unable to work for a
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significant time period after the attack, both due to his physical injuries and the
accompanying psychological trauma. (Id.)
Plaintiff filed suit on June 7, 2013. (Dkt. # 1.) On December 18, 2013,
Plaintiff filed his First Amended Complaint (“FAC”). On April 21, 2014, Plaintiff
moved to exclude portions of the expert testimony of Albert Rodriguez, an expert
for Defendants. (Dkt. # 46.) On May 1, 2014, Defendants Henry Aguilar, Michael
Barger, Richard Bozelli, and the City of Austin (the “City”) moved for a judgment
on the pleadings with respect to all of Plaintiff’s claims except those for Monell
liability against the City. (Dkt. # 56.) On May 3, 2014, Defendants Aguilar,
Barger, Bozelli, Kelly, and the City moved to exclude the testimony of Roger
Clark, an expert for Plaintiff. (Dkt. # 59.) On May 16, 2014, Plaintiff filed a
Motion to Amend Complaint in Response to Motion for Judgment on the
Pleadings. (Dkt. # 71.)
LEGAL STANDARDS
I.

Judgment on the Pleadings
A motion made pursuant to Rule 12(c) of the Federal Rules of Civil

Procedure for a judgment on the pleadings is governed by the same standards as a
motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to
state a claim. Morris v. PLIVA, Inc., 713 F.3d 774, 776 (5th Cir. 2013).

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Therefore, a Court must address whether the complaint states a claim for which
relief may be granted. See Fed. R. Evid. 12(b)(6).
A proper pleading under the Federal Rules of Civil Procedure must
contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8
announces does not require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must contain more
than mere “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,
550 U.S. at 555).
In reviewing a motion to dismiss, a court accepts as true all of the
well-pleaded factual allegations in the complaint. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). In order to survive a motion to dismiss, a claim must allege
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 547. “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.” Iqbal, 556 U.S. at 677.
In adjudicating a motion to dismiss, the Court considers only the
pleadings and those matters of which it may take judicial notice under Rule 201 of
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the Federal Rules of Evidence. Lovelace v. Software Spectrum Inc., 78 F.3d 1015,
1018–19 (5th Cir. 1996) (adopting a rule that a court in a securities fraud action
may take judicial notice of relevant public disclosure documents required to be
filed with the SEC); Hurd v. BAC Home Loans Servicing, LP, 880 F. Supp. 2d
747, 758 (N.D. Tex. 2012) (taking judicial notice of matters of public record and
considering documents attached to a motion to dismiss as part of the pleadings
because they were central to the claims in the complaint).
II.

Motion to Amend
Under Rule 15(a) of the Federal Rules of Civil Procedure, “if the

pleading is one to which a responsive pleading is required, [a party may amend
within] 21 days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ.
P. 15(a)(1)(B). “In all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court should freely give
leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).
In considering whether to grant or deny leave to amend, the court
“may consider such factors as undue delay, bad faith or dilatory motive on the part
of the movant, . . . undue prejudice to the opposing party, and futility of
amendment.” In re Southmark Corp., 88 F.3d 311, 314–15 (5th Cir. 1996); see
also Jones v. Robinson Prop. Grp. L.P., 427 F.3d 987, 994 (5th Cir. 2005).
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A trial court may properly deny leave to amend “where the proposed
amendment would be futile because it could not survive a motion to dismiss.” Rio
Grande Royalty Co., Inc. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468 (5th
Cir. 2010). An amendment is futile when “the amended complaint would fail to
state a claim upon which relief could be granted.” Stripling v. Jordan Prod. Co.,
234 F.3d 863, 873 (5th Cir. 2000). Frequently, a determination of whether a
proposed amended complaint would be subject to dismissal would require “a
detailed analysis of the proposed pleading” in relation to the causes of action
asserted. Moore v. Dallas Indep. Sch. Dist., 557 F. Supp. 2d 755, 759 (N.D. Tex.
2008). To avoid this premature determination of the merits, the standard for
denying an amendment based on futility is that “[i]f a proposed amendment is not
clearly futile, then denial of leave to amend is improper.” Id. (quoting Charles
Alan Wright, et al., Federal Practice and Procedure, § 1487, at 637, 642 (2d ed.
1990)).
However, it is Rule 16(b) of the Federal Rules of Civil Procedure that
“governs the amendment of pleadings ‘after a scheduling order’s deadline to
amend has expired.’” Filgueira v. U.S. Bank Nat. Ass’n, 734 F.3d 420, 422 (5th
Cir. 2013). Rule 16(b)(4) provides that “[a] schedule may be modified only for
good cause and with the judge’s consent.” The Fifth Circuit maintains that for a
“post-deadline amendment, a party must show good cause for not meeting the
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deadline . . . .” Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir.
2008) (internal citations and quotation marks omitted). In determining whether
good cause exists, a court looks to “(1) the explanation for the failure to timely
move for leave to amend; (2) the importance of the amendment; (3) potential
prejudice in allowing the amendment; and (4) the availability of a continuance to
cure such prejudice.” Id. (internal quotation marks omitted).
III.

Motion to Exclude Expert Testimony
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
a. the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
b. the testimony is based on sufficient facts or data;
c. the testimony is the product of reliable principles and
methods;
d. the expert has reliably applied the principles and methods to
the facts of the case.

Fed. R. Evid. 702. This rule lays responsibility on the court to “ensure that any
and all scientific testimony or evidence admitted is not only relevant, but reliable.”
Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579, 589 (1993).
“In rulings on the admissibility of expert opinion evidence the trial
court has broad discretion . . . .” Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d
867, 881 (5th Cir. 2013) (internal citations and quotation marks omitted). The
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Fifth Circuit maintains that district courts must “function as gatekeepers and permit
only reliable and relevant expert testimony to be presented to the jury.” Wilson v.
Woods, 163 F.3d 935, 937 (5th Cir. 1999). It is the role of the district court to
assure “that the proffered witness is qualified to testify by virtue of his
‘knowledge, skill, experience, training, or education.’” Id. (quoting Fed. R. Evid.
702). A court “should refuse to allow an expert witness to testify if the witness is
not qualified to testify in a particular field or on a given subject.” Id. However, if
an expert’s testimony constitutes shaky, but admissible evidence, the court should
rely on “vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof” to mitigate the shakiness of the testimony. Id.
(quoting Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002)). “Courts
act as gatekeepers of expert testimony ‘to make certain that an expert, whether
basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.’” Recursion Software, Inc. v. Double-Take Software,
Inc., No. 4:10-CV-403, 2012 WL 1576252,*2 (E.D. Tex. May 4, 2012) (quoting
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).
To be reliable and therefore admissible under Rule 702 of the Federal
Rules of Evidence, expert testimony as to a scientific, technical, or
other specialized area must: (1) assist the trier of fact to understand
the evidence or to determine a fact in issue; (2) be based upon
sufficient facts or data; (3) be the product of reliable principles and
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methods; (4) and have reliably apply the principles and methods to the
facts.
Padre Enterprises, Inc. v. Rhea, No. 4:11CV674, 2013 WL 4284925, at *1 (E.D.
Tex. Aug. 13, 2013). In determining whether testimony is reliable, the court
considers numerous factors including, “(1) whether the expert’s theory or
technique can be or has been tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) the known or potential rate of error of
the challenged method; and (4) whether the theory or technique is generally
accepted in the relevant scientific community.” Daubert, 509 U.S. at 593–94. In
evaluating these factors, the court must focus on the expert’s “principles and
methodology, not on the conclusions” generated. Id. at 594. “[I]n a jury trial
setting, the Court’s role under Daubert is not to weigh the expert testimony to the
point of supplanting the jury’s fact-finding role; instead, the Court’s role is limited
to that of a gatekeeper, ensuring that the evidence in dispute is at least sufficiently
reliable and relevant to the issue before the jury that it is appropriate for the jury’s
consideration.” Retractable Tech., Inc. v. Becton, Dickinson and Co., No. 2:08CV-16-LED-RSP, 2013 WL 4574258, at *1 (E.D. Tex. Aug. 27, 2013).
“In addition to being reliable, expert testimony must ‘help the trier of
fact to understand the evidence or to determine a fact in issue.’” Roman v.
Western Mfg., Inc., 691 F.3d 686, 694 (5th Cir. 2012) (citing Fed. R. Evid.
702(a)). Under Rule 702, this means that the proffered expert testimony must be
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relevant. Id. “Expert testimony which does not relate to any issue in the case is
not relevant, and ergo, non-helpful.” Id. (quoting Daubert, 509 U.S. at 591
(internal quotation marks and citations omitted)). “Expert testimony is admissible
only if the proponent demonstrates that: (1) the expert is qualified; (2) the evidence
is relevant to the case; and (3) the evidence is reliable.” Watkins v. Telsmith, Inc.,
121 F.3d 984, 988–89 (5th Cir. 1997).
“The burden to demonstrate that the expert’s findings and conclusions
are based on valid scientific method, and are therefore reliable, is placed on the
party seeking its admission.” Castellow v. Chevron USA, 97 F. Supp. 2d 780, 783
(S.D. Tex. 2000).
DISCUSSION
I.

Judgment on the Pleadings
Defendants have moved for judgment on the pleadings for all claims,

except Plaintiff’s Monell claim, which alleges that the City has a pattern, custom,
or policy of commandeering taxicabs. (Dkt. # 56.) Plaintiff’s First Amended
Complaint (Dkt. # 32) alleges claims for (1) state-created danger against all
Defendants; (2) unreasonable search and seizure against all Defendants;
(3) deprivation of liberty and property without due process against all Defendants;
and (4) a practice and custom of commandeering taxicabs against only the City of
Austin. (Dkt. # 32.)
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First, Defendants contend that all claims against the individual
officers should be dismissed because they are barred by the statute of limitations.
(Dkt. # 56 at 3–4.) Plaintiff argues that his claims are not barred by the statute of
limitations because they relate back to the date of his original Complaint. (Dkt.
# 70 at 4–5.)
Second, Defendants argue that Plaintiff’s claim predicated on a theory
of a state-created danger must be dismissed because this theory has not been
recognized in the Fifth Circuit. (Dkt. # 56 at 5–6.) In response, Plaintiff argues
that although the Fifth Circuit has not yet explicitly recognized a state-created
danger theory of liability, it has outlined what the necessary elements for that cause
of action would be, and therefore, this Court should entertain his claim. (Dkt. # 70
at 8.)
Third, Defendants argue that Plaintiff’s claims for unreasonable
seizure, due process, and state-created danger are premised on respondeat superior
liability and therefore cannot be brought against the City. (Dkt. # 56 at 6–7.)
Plaintiff contends that these claims are not predicated on respondeat superior
liability, but rather that the constitutional violations of which he complains arose
from the City’s policy and custom of commandeering taxicabs. (Dkt. # 70 at 9.)

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A.

Statute of Limitations as a Bar
All of Plaintiff’s claims against the named officers are pled pursuant

to 42 U.S.C. § 1983. The statute of limitations for § 1983 claims is found by
looking to the state statute of limitations governing personal injury claims.
Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001). In Texas, the
statute of limitations for personal injury claims is two years. Id. Therefore,
because the incident of which Plaintiff complains occurred on June 10, 2011, any
claim brought after June 10, 2013 is barred by the statute of limitations.
On June 7, 2013, Plaintiff filed suit against the City, Craig Smith,
Joseph Brown, Russell Smith, Noel Guerin, Brandon Bullock, and John Doe
officers. (Dkt. # 1.) On December 17, 2013, Plaintiff sought leave to amend his
complaint stating, “[t]hrough discovery in this case, he has now identified the
officers: Michael Barger, Henry Aguilar, Richard Bozelli, and Phillip Kelly.”
(Dkt. # 30 at 1.) Plaintiff stated he wished “to amend his complaint to name
Officers Barger, Aguilar, Bozelli, and Kelly as Defendants and remove references
to ‘John Doe Officers.’” (Id.) Plaintiff also sought permission “to remove the
state law claims he maintained against John Doe Officers, in order to simplify the
lawsuit and avoid redundancy.” (Id.) The Court granted Plaintiff leave to amend.

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The issue now before the Court is whether the claims against these
now-named officers, Michael Barger, Henry Aguilar, Richard Bozelli, and Phillip
Kelly, relate back to the date of the original complaint.
Rule 15(c) of the Federal Rules of Civil Procedure provides that if an
amendment to a complaint names a different defendant, it will only relate back
if the claim asserted arose out of the same conduct set forth in the
original pleading and the new defendant, within the time provided by
Federal Rule of Civil Procedure 4(m), received notice of the filing of
the original action so that he would not be prejudiced in presenting a
defense on the merits, and the new defendant “knew or should have
known that but for a mistake concerning the identity of the proper
party, the action would have been brought against the new party.”
Green v. Doe, 260 F. App’x 717, 719 (5th Cir. 2007) (quoting Fed. R. Civ. P.
15(c)(3)).
In order to satisfy Rule 15(c) and for an amendment to relate back, a
party must show that, within 120 days, the new defendant received notice (either
actual or constructive) that but for a mistake by the plaintiff, the action would have
been brought against him. Therefore, Rule 15 lays out a three-part test that must
be met before an amendment will relate back: (1) the plaintiff must have made a
mistake regarding the identity of a party; (2) the plaintiff must show a defendant
had actual or constructive notice of the plaintiff’s claims; and (3) the plaintiff must
show that defendant had actual or constructive notice within 120 days.

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1.

Notice

The Fifth Circuit states that notice may be inferred “if there is an
identity of interest between the original defendant and the defendant sought to be
added or substituted.” Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998).
The court elaborated stating, “[i]dentity of interest generally means that the parties
are so closely related in their business operations or other activities that the
institution of an action against one serves to provide notice of the litigation to the
other. In this regard, notice may be imputed to the new party through shared
counsel.” Id. (internal citations and quotation marks omitted).
2.

Mistake

The Jacobsen court made clear that in the Fifth Circuit, a party’s
choice to use John Doe and later to substitute a named defendant does not
constitute a mistake in identifying the defendant. 133 F.3d at 320–21. The Fifth
Circuit maintains that “for a ‘John Doe’ defendant, there [is] no ‘mistake’ in
identifying the correct defendant; rather, the problem [is] not being able to identify
that defendant.” Id. at 321. Therefore, a party’s amendment changing a defendant
from a ‘John Doe’ to a named individual does not qualify as a mistake allowing the
amendment to relate back to the original complaint.1 Id. at 321–22.

1

In contrast, the Fifth Circuit has found that an amendment to a complaint changing
the statement that a named officer was sued in his official capacity to the statement
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“Rule 15(c) does not apply when John Doe defendants are named
after the statute of limitations has run.” Myers v. Nash, 464 F. App’x 348, 349
(5th Cir. 2012) (citing Whitt v. Stephens Cnty., 529 F.3d 278, 282–83 (5th Cir.
2008)). A district court may properly deny leave to amend a complaint to name
parties previously identified as ‘John Doe” because “an amendment to substitute a
named party for a John Doe does not relate back under rule 15(c).” Whitt, 529
F.3d at 283; see also Rutledge v. United States, 161 F.3d 7 (5th Cir. 1998)
(“[R]elation back is inapplicable because under our precedents Rule 15(c) does not
permit substitution of named defendants for ‘John Doe’ defendants.”). Rule 15(c)
“is meant to allow an amendment changing the name of a party to relate back to
the original complaint only if the change is the result of an error, such as a
misnomer or misidentification.” Jacobsen, 133 F.3d at 320.
In Green v. Doe, 260 F. App’x 717 (5th Cir. 2007), Green, a prison
inmate sued a John Doe correctional officer. Id. at 718. The district court denied
Green’s request to conduct discovery to identify the officer before the limitations
period had run. Id. The district court then later dismissed Green’s case when, after
discovering the name of the officer, he amended his complaint accordingly. The
district court found that the claims did not relate back under Federal Rule of Civil

that he was sued in his individual capacity does relate back to the initial complaint.
Sanders-Burns v. City of Plano, 594 F.3d 366, 373 (5th Cir. 2010).

16

Procedure 15(c). Id. On appeal, the Fifth Circuit found that because the
information to identify John Doe should have been relatively easily discovered, the
District Court erred in denying Green the opportunity to conduct discovery, and the
statute of limitations was equitably tolled. Id. The Fifth Circuit found there was
no need for the claim to relate back because the statute of limitations had been
equitably tolled. Id. The Fifth Circuit recognized that the use of the “John Doe” is
appropriate when a party needs to “conduct discovery backed by the authority of
the court. . . . [I]t serves the legitimate function of giving a plaintiff the opportunity
to identify, through discovery, unknown defendants.” Id. The Fifth Circuit
distinguished this case from Jacobson because the delays in Jacobson were due
entirely to the actions of the Plaintiff:
Plaintiff had the assistance of discovery [in Jacobson] but failed to
take advantage of that power and depose witnesses in a timely manner
that would have allowed him to identify the ‘John Doe’ and amend his
complaint. Green, in contrast, sued almost eleven months before the
running of the statute and, given the specificity of knowledge he had,
if he had not been denied discovery he would have had sufficient time
to identify the officer and amend his complaint under rule 15(a)
without need to relate back under rule 15(c).
Green, 260 F. App’x at 719–20 (internal citations omitted).
Plaintiff here argues that he indeed was mistaken regarding the named
officers identities, and therefore his claims should relate back. However, it is clear
from Plaintiff’s request to amend his complaint, that he sued the “John Doe”
officers because he had not yet uncovered their identities. Once he learned the
17

appropriate names, he replaced the John Does with the named Defendants. The
Fifth Circuit is clear that the later discovery of the identity of a defendant
previously named as “John Doe” does not constitute a mistake under Rule 15(c), as
required to allow relation back of claims.
The Court does not disagree that Plaintiff has met the notice
requirement of Rule 15(c); however, the Fifth Circuit requires that before an
amended complaint can relate back, Plaintiff must show that there was a mistake in
the identification of Defendants. Because the later discovery of the actual name of
a John Doe defendant does not constitute a mistake, Plaintiff’s claims against the
now-named defendants do not relate back to the filing of his initial complaint.
Although the Fifth Circuit is clear that Plaintiff’s amendment naming
the John Does does not relate back to the filing of the Original Complaint, the
Court turns to examine whether there may be grounds for equitably tolling the
statute of limitations, as in Green.
As stated above, the applicable statute of limitations for § 1983 claims
is borrowed from Texas state law. Rotella v. Penderson, 144 F.3d 892, 897 (5th
Cir. 1998). “Because the Texas statute of limitations is borrowed in § 1983 cases,
Texas’ equitable tolling principles also control.” Id. “The federal court may
disregard the state tolling rule only if it is inconsistent with federal policy.”
Spencer v. Doe, No. 3:10–CV–1801–N–BH, 2011 WL 3444336, at *3 (N.D. Tex.
18

June 2, 2011). “[F]ederal law requires that litigants diligently pursue their actions
before equitable tolling becomes available.” Id.
“Texas courts sparingly apply equitable tolling and look, inter alia, to
whether a plaintiff diligently pursued his rights; litigants may not use the doctrine
to avoid the consequences of their own negligence.” Myers, 464 F. App’x at 349
(internal quotation marks omitted). The Green court found that a statute of
limitations was equitably tolled when Plaintiff, through numerous motions for
discovery, diligently attempted to ascertain the identities of the parties. The Fifth
Circuit found that it was the district court’s decision denying discovery that
prevented Plaintiff from identifying the correct party before the statute of
limitations expired. 260 F. App’x at 719.
In contrast, in Spencer, the court found that because the plaintiff had
filed suit against John Doe defendants only two weeks before the expiration of the
limitations period, he had failed to diligently pursue his claims. Spencer, 2011 WL
3444336, at *3. The Spencer court found that the fact plaintiff, a prisoner, did not
have access to the law library during much of the limitations period was not
enough to excuse his lack of diligence. Id. In finding that the plaintiff was not
entitled to equitable tolling of the statute of limitations, the court reasoned that
“[w]hile the Fifth Circuit has held that a plaintiff should be given a reasonable time
to conduct discovery, [the plaintiff] did not allow any time for discovery [of the
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‘John Doe’ defendants’] identities before the statute of limitations elapsed . . . .”
Id.
Similarly, in Nazerzadeh v. Harris Cnty., the court found that
equitably tolling the statute of limitations was not warranted because the plaintiff
“filed suit so late [that] he could not conduct discovery into the . . . officers’
identities before the limitations had run.” No. H–08–0499, 2010 WL 3817149
(S.D. Tex. Sept. 27, 2010).
Here, Plaintiff has provided no explanation for his decision to file his
complaint on June 7, 2013, only days before the expiration of the statute of
limitations period. (See Dkt. # 1.) Because Plaintiff’s own actions precluded his
ability to identify the proper names of the John Doe defendants by not allowing
himself time to conduct discovery, Plaintiff has not demonstrated that the Court
should equitably toll the limitations period.
Therefore, because Plaintiff’s claims against the individual officers
were filed on December 18, 2013, after the limitations period expired, and because
Plaintiff is not entitled to equitable tolling of the limitations period, the claims
against the individual officers are dismissed as time-barred.
Plaintiff’s remaining claims are (1) a claim for state-created danger
against the City; (2) a claim for unreasonable seizure against the City; (3) a claim

20

for deprivation of property without due process against the City; and (4) a claim
that the City has a practice of commandeering taxicabs. (See dkt. # 32.)
B.

State-Created Danger Theory of Liability
Plaintiff asserts a claim that the City created a dangerous situation that

violated Plaintiff’s Fourteenth Amendment right to bodily integrity. (Dkt. # 32
¶¶ 19–20.) Specifically, Plaintiff avers that “[b]y forcing [him], against his will, to
transport an aggressive, intoxicated man who was behaving violently, Defendants
deliberately and affirmatively created a dangerous situation that proximately
caused his severe injuries and could easily [have] caused his death.” (Id. ¶ 20.)
Defendants argue that this “state-created danger” theory of liability is
not recognized in the Fifth Circuit. (Dkt. # 56 at 5.)
The Fifth Circuit has yet to adopt a “state-created danger” theory of
liability. See Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 1001
(5th Cir. 2014) (recognizing that the Fifth Circuit has never adopted the statecreated danger theory of liability); Whitley v. Hanna, 726 F.3d 631, 639 n.5 (5th
Cir. 2013) (same); Doe ex rel. Magee v. Covington Cnty. Sch. Dist. Ex rel. Keys,
675 F.3d 849, 864 (5ht Cir. 2012) (same). However, the Fifth Circuit has stated
that if state-created danger were a viable theory of liability, it would require a
plaintiff to prove “(1) that defendants used their authority to create a dangerous
environment for the plaintiff and (2) that the defendants acted with deliberate
21

indifference to the plight of the plaintiff.” Id. (internal citations and quotation
marks omitted). The Fifth Circuit continued:
The second element is then subdivided into three prongs, which
combine to subsume the first original element, specifically, a plaintiff
would have to show that (1) the environment created by the state actor
is dangerous, (2) the state actor must know it is dangerous (deliberate
indifference), and (3) the state actor must have used its authority to
create an opportunity that would not otherwise have existed for the
third party’s crime to occur.
Id. (internal citations and quotation marks omitted).
Plaintiff’s proposed amended complaint asserts that the City’s policy
of commandeering taxicabs was the moving force that caused his injuries under the
state-created danger theory. (Dkt. # 71-1).
However, because the Fifth Circuit has not recognized this cause of
action as viable, the Court declines to do so here. Therefore, there is no need to
address whether Plaintiff has adequately pled the elements of the proposed statecreated danger theory. Plaintiff’s claims under a state-created danger theory of
liability are DISMISSED.
C.

Plaintiff’s Theory of Liability Underlying the Alleged Constitutional
Violations
The remaining claims that Defendants challenge are Plaintiff’s claims

for (1) unreasonable search and seizure against the City and (2) deprivation of
liberty without due process against the City. (Dkt. # 32.)

22

Defendants argue that both of these claims are premised only on
respondeat superior liability. In contrast, Plaintiff argues that these claims are not
based in respondeat superior liability, but rather in Monell liability because the
City’s policy of commandeering taxicabs was the moving force behind the
constitutional violations. (Dkt. # 70 at 9.) In Plaintiff’s proposed amended
complaint, he makes clear that in forcing Rowden into his taxicab, the officers
were acting in accordance with the City’s custom, policy, or practice of
commandeering taxicabs, and it was that policy that led to his injuries.
Section 1983 was not intended to be used to hold municipalities liable
“unless action pursuant to official municipal policy of some nature caused a
constitutional tort.” Monell v. Dep’t of Social Services of City of New York, 436
U.S. 658, 691. The Supreme Court maintains that “a municipality cannot be held
liable solely because it employs a tortfeasor—or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior theory.” Id.
Therefore, the issue this Court must address is whether Plaintiff’s
Fourth and Fourteenth Amendment claims are predicated on respondeat superior
liability or on Monell liability.
Plaintiff’s First Amended Complaint implicitly, and his Proposed
Second Amended Complaint explicitly, indicates that his claims arise from the
officer’s actions pursuant to the City’s custom or policy of commandeering
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taxicabs. Plaintiff does not argue that the City should be held liable merely
because it employed the defendant officers, but rather because it had a policy,
which the officers followed that led to Plaintiff’s injuries.
Because the Court finds that Plaintiff’s claims are premised on Monell
liability rather than respondeat superior liability, the Court DENIES Defendants’
Motion for Judgment on the Pleadings with respect to these claims against the
City.
II.

Second Motion to Amend
In response to Defendant’s Motion for Judgment on the Pleadings,

Plaintiff moved seeking leave to amend his complaint. (Dkt. # 71.) First, Plaintiff
requests leave to amend his complaint to clarify that his claims against the named
officers relate back to his original Complaint. (Id.) Second, Plaintiff seeks to add a
claim against the City and Barger for failure to train and supervise its officers.
(Id.)
Specifically, Plaintiff seeks to clarify his claims that each of the
constitutional violations he alleges (state-created danger, unreasonable seizure, and
deprivation of liberty and property without due process) was the result of the
custom, practice, and policy of the City to commandeer taxicabs. (Id. at 4.) As to
the failure to train claim, Plaintiff asserts that the Court should permit him to add
this claim because he discovered the basis for it during discovery. (Id.) Plaintiff
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alleges that the City did not properly train the officers regarding Austin City Code
§ 13-2-346 that permits taxicab drivers to refuse service to individuals. (Id.)
As a preliminary matter, the Court has already found that the claims
against the officers do not relate back to the filing of the original complaint, and
are therefore, time barred. Plaintiff’s request to amend these claims in a new
complaint would be futile—there are no facts or allegations that could be pled that
would overcome the statute of limitations. Therefore, Plaintiff’s request to amend
these claims is DENIED.
Defendants argue that Plaintiff should not be permitted to amend his
state created danger claim, his unreasonable seizure claim, or his due process claim
because these are still essentially claims predicated on respondeat superior liability.
(Dkt. # 77 at 2.) Defendants argue that adding the phrase that the City’s policy
was the moving force behind these violations does not alter the fact that these are
respondeat superior claims and also are superfluous because the only policy
Plaintiff identifies is that of commandeering taxicabs. (Id.)
The Court finds that Plaintiff’s request to clarify that these claims are
premised on Monell liability, rather than respondeat superior liability, should be
granted. This amendment merely clarifies the claims, is not a truly substantive
amendment, and will not prejudice the defendants in any way. Therefore,
Plaintiff’s motion to amend his complaint on this point is GRANTED.
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Finally, Plaintiff seeks to amend his complaint to include a claim
against the City and Barger for failure to train and supervise APD officers. (Dkt.
# 71 at 4.) Defendants argue that to add a failure to train claim, Plaintiff must
demonstrate good cause, and he has not done so. (Dkt. # 77 at 2–3.)
The deadline to amend pleadings passed on January 3, 2014, therefore
Plaintiff’s request to amend his complaint to add an additional claim is governed
by Rule 16 of the Federal Rules of Civil Procedure that requires Plaintiff to
demonstrate good cause.
In seeking leave to amend his complaint to include a claim for failure
to train, Plaintiff asserts that he seeks to plead this claim now because of
“information gleaned in discovery.” (Dkt. # 71 at 4.) Plaintiff provides no other
explanation for his tardiness in asserting this claim. Plaintiff has not even made an
argument that he can show his delay was due to good cause. Therefore, the Court
finds that Plaintiff has not shown good cause to amend his complaint to add a
claim for failure to train and supervise. The Court DENIES Plaintiff’s motion to
amend his complaint to include this claim against the City and Barger.
III.

Motion to Exclude Expert Testimony
A.

Plaintiff’s Motion to Exclude Expert Testimony of Albert Rodriguez
Plaintiff moved to exclude portions of Albert Rodriguez’s expert

report because (1) his testimony contains “non-expert opinions weighing evidence
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and evaluating . . . credibility”; and (2) to the extent his testimony shall be used in
rebuttal, it is improper because Defendants did not timely designate him as a
rebuttal witness. (Dkt. # 46.) Predicated on these arguments, Plaintiff requests
that the Court exclude Rodriguez’s testimony found in paragraphs 26, 27, 46–54,
and 56–60 of his expert report. (Id. at 6.)
In response, Defendants argue that Plaintiff’s assertion that Rodriguez
was not designated as a rebuttal expert witness is a misreading of the scheduling
order. (Dkt. # 53.) Additionally, Defendants argue that none of the contested
testimony should be excluded because it is all within Rodriguez’s ken. (Id. at 10.)
Defendants state, “[Rodriguez] is qualified, as shown by his resume and Affidavit,
as a law enforcement investigator and expert to testify as to police procedure and
training due to his education, training, experience, current practice, and expertise in
evaluating police conduct.” Id. Similarly, Rodriguez’s expert report states,
My education, training, and experience provides me with technical,
professional, and other specialized knowledge that will assist a lay
person in understanding how law enforcement officers are trained and
why they are trained as they are. This knowledge is the key to
reaching a reliable evaluation of law enforcement officers’ conduct.
(“Rodriguez Report,” Dkt. # 46-1 ¶ 6.)
As a preliminary matter, the Court finds that Rodriguez is qualified to
testify as an expert in how and why law enforcement officers are trained as they
are. Rodriguez’s Report details his more than thirty years of experience as a law

27

enforcement officer, and lists the many training academies at both the state and
federal level that he has attended and taught at. (Rodriguez Report ¶¶ 1–6.)
However, Plaintiff argues that the testimony to which he objects falls outside of
this expertise and should be excluded pursuant to Federal Rule of Civil Procedure
702. The Court will evaluate each piece of challenged Testimony.
1.

Paragraphs 26, 27

Plaintiff challenges these paragraphs that only comment that
Plaintiff’s expert, Roger Clark, has improperly made credibility determinations.
(Dkt. # 46 at 5.) Plaintiff argues that although Rodriguez was timely designated as
an expert, he was not designated as a rebuttal expert as required by the Scheduling
Order.
Because the Court finds that Rodriguez’s testimony in these two
paragraphs is irrelevant, the Court declines to address whether Rodriguez was
timely designated; these paragraphs will be excluded pursuant to Rule 702.
In these paragraphs, Rodriguez states first that he does not make
credibility determinations and second that Clark has improperly made credibility
determinations. Rodriguez does not challenge Clark’s methodology, only that his
opinion is based on a biased set of facts. It is unnecessary to have expert testimony
regarding whether another expert has made a credibility determination. Therefore,
the Court GRANTS Plaintiff’s motion with respect to these paragraphs.
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2.

Paragraphs 46–50

Plaintiff next challenges Rodriguez’s testimony that Plaintiff provided
statements to law enforcement officers that did not allege that Rowden was
combative or dangerous prior to entering into the taxicab, and that Plaintiff only
alleged Rowden was being combative in this lawsuit.
The Court finds that in these paragraphs, Rodriguez is merely quoting
from documentary evidence and pointing out that some evidence is contradictory.
This opinion is not of a type that will assist a trier of fact to understand the issues
of this case. A jury is just as competent as Rodriguez to recognize that there are
inconsistent pieces of evidence in this case. Additionally, pointing out that
Plaintiff may have characterized his encounter with Defendants differently before
and after the filing of the lawsuit is well outside of Defendant’s stated expertise in
how and why law enforcement officers are trained as they are.
Therefore, because Rodriguez’s opinions in these paragraphs are not
within his field of expertise and would not be helpful to a trier of fact, Plaintiff’s
motion to exclude Rodriguez’s testimony contained in these paragraphs is
GRANTED.

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3.

Paragraphs 51–54, 56, 60

Plaintiff challenges these paragraphs arguing that Rodriguez is doing
nothing more than commenting on discrepancies in the witness statements Plaintiff
has obtained and the credibility and relevance of those witness statements.
The Court agrees that these paragraphs are not the proper subject of
expert testimony. As stated above, these opinions are not helpful to the trier of
fact: it is the province of the jury to evaluate the credibility of witnesses and weigh
the (occasionally conflicting) evidence before it. There is no need for an expert in
law enforcement training to offer his opinion as to which witnesses should be
believed. Therefore, because these opinions are not within Rodriguez’s expertise
and would not be helpful to a jury, the Court GRANTS Plaintiff’s motion
regarding this testimony.
4.

Paragraph 57

Here, Plaintiff argues that Rodriguez’s testimony does nothing other
than comment that Plaintiff had the option to stop driving and call for the police if
he did not want to give Rowden a ride. (Dkt. # 46-1 ¶ 57.) The Court finds that
this opinion is outside Rodriguez’s expertise in law enforcement training, and
additionally would not be helpful to a trier of fact because it does no more than
comment on whether Plaintiff’s story is credible. Therefore, Plaintiff’s Motion is
GRANTED as to this testimony.
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5.

Reliability Challenges: Paragraphs 46–54, 56–60

The Court has already excluded paragraphs 46–54, 56, 57, 60.
Therefore, the Court will address only the remaining paragraphs: 58 and 59.
Plaintiff argues that Rodriguez has no specialized analysis or basis for his opinions
in these paragraphs. (Dkt. # 46 at 5.)
All Rodriguez does in these paragraphs is relate Plaintiff’s testimony
from a previous lawsuit and state that it contradicts other statements Plaintiff has
made. As discussed above, Rodriguez’s expertise is in law enforcement training
and procedures. The Court can find no basis for permitting him to testify about the
meaning of inconsistent statements. Additionally, also as discussed above, the jury
does not need an expert to point out inconsistencies in the evidence in this case.
Therefore, Plaintiff’s motion is GRANTED as to these paragraphs.
After a careful evaluation of Rodriguez’s Report, and Plaintiff’s
challenges to it, the Court finds that the challenged paragraphs include testimony
outside of Rodriguez’s expertise or testimony that would not be relevant or helpful
to a trier of fact. Therefore, Plaintiff’s Motion is GRANTED and the Court
STRIKES Rodriguez’s testimony contained in paragraphs 26, 27, 46–54, and
56–60 of his Report.

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B.

Defendants’ Motion to Exclude Expert Testimony of Roger Clark
Defendants moved to exclude the testimony of Roger Clark regarding

his opinions generally, and specifically on the issues of whether the City has a
policy or custom of commandeering taxicabs and whether the city did, in fact,
commandeer Plaintiff’s taxicab. (Dkt. # 59.) Defendants argue that Clark’s
testimony is unnecessary, unreliable, and even if relevant, is highly prejudicial and
excludable under Rule 403 of the Federal Rules of Civil Procedure. (Id. at 1.)
Defendants challenge each of Clark’s opinions.
In response, Plaintiff argues that Clark’s opinions are reliable, wellfounded, and supported by sufficient facts. (Dkt. # 63 at 2.) Further, Plaintiff
argues that the Court should not consider Defendant’s Motion to Exclude the
Expert Testimony of Roger Clark because it was filed without a certificate of
conference and although the motion was timely filed, it did not include one of the
exhibits. (Id. at 9.)
As a preliminary matter, the Court advises Defendants to include a
certificate of conference as required with future filings with this Court. (See W.D.
Tex. Loc. R. CV-7(i).) However, the Court will nonetheless address the merits of
Defendants’ motion. Daubert obligates this Court to perform as a gatekeeper, only
permitting expert testimony that meets the standards of Rule 702. Regardless of
whether Defendants timely filed a motion to exclude the testimony of Clark, this
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Court is obligated to ensure that his testimony is relevant, reliable, and helpful to
the trier of fact.
Clark offers three opinions:
Opinion 1: In forcing [Plaintiff] to transport Dustin Rowden, who
was obviously intoxicated, aggressive, and behaving violently,
Officers Barger, Aguilar, Bozelli, and Kelly were deliberately
indifferent to [Plaintiff’s] safety and knowingly created a dangerous
situation that proximately caused his injuries. Any reasonable officer
could have foreseen the obvious and likely danger to [Plaintiff].
Opinion 2: Sergeant Barger, and Officers Aguilar, Bozelli, and Kelly,
even as police officers, did not have any lawful right/foundation to
commandeer [Plaintiff] or his cab. Accordingly, no reasonable police
officer would have ordered [Plaintiff] to transport Dustin Rowden
against [Plaintiff’s] will.
Opinion 3: The record submitted thus far supports the opinion that the
Austin Police Department has a de facto policy and custom of
permitting officers to commandeer and order cab drivers to transport
dangerous and intoxicated people to their homes contrary to their right
(as codified) to refuse passengers—such as occurred in this set of
facts.
(“Clark Report,” Dkt. # 59-1 at 6.)
First, Defendants argue that Clark’s opinion regarding whether the
Defendant officers forced Plaintiff to provide taxicab service should be excluded
because the testimony will not assist the trier of fact. (Dkt. # 59 at 4.)
Second, Defendants argue that Clark’s opinions should be excluded as
unreliable because they are not based on sufficient facts or data and are not the
product of reliable principles or methods.

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As a preliminary note, Clark’s Report is woefully inadequate. It fails
to meet the requirement of Federal Rule of Civil Procedure 26(a)(2)(B) because it
does not express “the basis and reasons” for his opinions, and it lacks “the facts or
data considered by the witness in forming” his opinions.
The Court finds that Clark’s first opinion should be excluded for a
number of reasons. First, Clark offers legal conclusions such as the officers were
“deliberately indifferent,” and that the officers’ actions were the “proximate cause”
of Plaintiff’s injuries. These are not appropriate subjects for expert opinion
testimony. Second, the Court finds that Clark’s opinions are not reliable.
Although at the beginning of his report Clark lists the uncontested facts in this
case, he appears to base his opinion on his determination that Plaintiff’s story is the
most credible. It is for the jury to assess credibility, not an expert. Although, the
Court finds that Clark may have expertise in law enforcement practices. The Court
will exclude this testimony because Clark has failed to provide any basis for his
opinion, either in his Report or deposition testimony, of how a reasonable officer
would respond in this situation. The Court will not accept unsupported assertions
as expert testimony. Therefore, Clark’s first opinion, as outlined in this report, is
excluded; Defendants’ motion on this opinion is GRANTED.
As to Clark’s second opinion, the Court finds that Clark has not
provided any foundation for his expertise regarding when a law enforcement
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officer in Texas may or may not “commandeer” a cab. Additionally, Clark does
not provide any basis for his opinion of why it would be unreasonable for an
officer to place an intoxicated individual into a cab. Although Clark states that it is
conceivable that an intoxicated person would not be dangerous, he does not
provide any assessment of when an officer could or could not reasonably seek a
taxicab for an intoxicated person without jeopardizing the cab driver’s safety.
Q.
A.

Would you agree that just because a person is drunk does not
alone make that person a danger to themselves or others?
It’s hard to imagine, but I suppose it’s possible.

(“Clark Dep.,” Dkt. # 59-4 38:20–24.) Clark provides no basis for his opinion—he
does not cite to any law, training manual, or police procedure to justify his
conclusions. Therefore, because Clark’s second opinion is based on nothing more
than his unsupported assertions, the Court GRANTS Defendant’s motion to
exclude this opinion.
Finally, Defendant moves to exclude Clark’s opinion that the Austin
Police Department has a de facto policy of permitting officers to commandeer
taxicabs to transport intoxicated people. Clark’s report provides no evidence in
support of this conclusion. In his deposition, Clark states that he reached this
conclusion because of three affidavits—Plaintiff’s affidavit, and the affidavits of

35

two other individuals, Moss and Chiat2—and the fact that a sergeant was present
when Defendants flagged down Plaintiff’s cab. Clark did not state he used any
data to reach his conclusions, and no other support for his opinion has been
provided. The Court is not even aware of what timeframe the Moss and Chiat
statements cover. Concluding that there is a policy in effect in a police department
from three alleged statements, which the Court can only assume state the existence
of such a policy, is an inherently unreliable conclusion. Further, if all Clark did
was read these statements and infer that if it happened multiple times, there must
be a policy, there is no need for expert testimony; a jury could just as easily reach
that conclusion on its own.
Because Clark has provided no foundation for his opinion, and it
appears that his opinion would not be helpful to a jury, the Court GRANTS
Defendants’ motion on Clark’s third opinion.
Although the Court has GRANTED Defendants’ motion to strike
Clark’s expert testimony, the Court GRANTS LEAVE to Plaintiff to file a revised
expert report by November 21, 2014.

2

These affidavits have not been provided to the Court in connection with the
motion to exclude expert testimony.
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CONCLUSION
For the reasons stated above, the Court GRANTS IN PART AND
DENIES IN PART Defendant’s Motion for Judgment on the Pleadings (Dkt.
# 56); GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion to
Amend (Dkt. # 71); GRANTS Plaintiff’s Motion to Exclude Expert Testimony
(Dkt. # 46); and GRANTS Defendant’s Motion to Exclude Expert Testimony
(Dkt. # 59). However, the Court will permit Plaintiff to refile an expert report after
the close of discovery and by November 21, 2014.
Additionally, in light of this Order, the Court finds that the following
motions are now MOOT: (1) the City’s Motion for Summary Judgment (Dkt.
# 80); (2) Aguilar, Barger, Bozelli, and Kelly’s Motion for Summary Judgment
(Dkt. # 81); (3) Plaintiff’s Motion to Strike Motion for Summary Judgment
Evidence (Dkt. # 86); and (4) the City’s Motion to Supplement its Motion for
Summary Judgment (Dkt. # 89). The Court has found the above motions moot
because discovery has reopened in this case.
Discovery will now close on November 17, 2014. The Court
ORDERS that Plaintiff file a revised expert report by November 21, 2014.
Defendant shall have until November 28, 2014 to depose Plaintiff’s expert.
Motions for summary judgment shall be filed Tuesday, December 16, 2014.

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Responses shall be due Wednesday, December 31, 2014. Replies shall be filed
by Wednesday, January 7, 2015.
IT IS SO ORDERED.
DATED: October 1, 2014, Austin, Texas.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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