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denying leave to file an amended complaint as untimely where the proposed amendment was based on facts of which plaintiff was aware before the close of discovery a year and a half earlier
Summary of this case from CAPP, INC. v. DICKSON/UNIGAGE, INC.Opinion
Civil Action No. 01-3418.
June 10, 2004
MEMORANDUM
Presently before the Court is the Supplemental Motion for Summary Judgment of the Pennsylvania Board of Probation and Parole Agent David Knorr (Dkt. No. 36). For the reasons stated below, said Motion is GRANTED.
I. Background
The facts of this case are laid out in substantial detail in the Court's Memorandum and Order of October 28, 2003, and are only briefly summarized here. See Johnson v. Knorr, Civ. A. No. 01-3418, 2003 WL 22657125 (E.D. Pa. Oct. 28, 2003).Following an incident in the waiting room of the Philadelphia Office of the Pennsylvania Board of Probation and Parole in September 2000, Plaintiff Gamal Johnson ("Johnson") was arrested and charged with terroristic threats, simple assault, aggravated assault and recklessly endangering another person. Johnson subsequently filed the instant action against Defendants Agent David Knorr, Agent William Jones, the Pennsylvania Board of Probation and Parole, the City of Philadelphia and two unnamed police officers (collectively, "Defendants"), alleging violations of his civil rights under 42 U.S.C. § 1983, and various state law claims. The gravamen of the complaint is that Agents Knorr and Jones created the false impression that Johnson assaulted them, causing him to be arrested without probable cause in violation of the Fourth Amendment to the United States Constitution.
At the close of discovery, Defendants moved for summary judgment. The Court denied Defendants' Motion on the grounds that genuine issues of material fact existed. Shortly thereafter, Defendants sought reconsideration of the denial. After considering Defendants' Motion for Reconsideration, the Court granted summary judgment in favor of Agent William Jones, based on qualified immunity, but not for Agent Knorr. Johnson, 2003 WL 22657125, at *7-*8. The Court reasoned that, although Agent Knorr had probable cause to arrest Johnson for terroristic threats, he was not entitled to qualified immunity because there was a genuine issue of material fact as to whether he "fabricated the assault upon Agent Jones," which served as the basis for additional charges against Johnson. Id. at *6-*8.
In his Pretrial Memorandum, Agent Knorr asserted that no federal claims remained under Barna v. City of Perth Amboy, 42 F.3d 809 (3d Cir. 1994). In Barna, the Third Circuit held that probable cause need not exist for each and every charge, it "need only exist as to any offense that could be charged under the circumstances." Barna, 42 F.3d 809, 819 (3d Cir. 1994) (emphasis added). Accordingly, the Court ordered supplemental summary judgment briefing on the unresolved and discrete question of whether Barna and its progeny applied to the circumstances of this case.
II. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505 (1986). In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). The moving party bears the burden of showing that the record discloses no genuine issues as to any material fact and that he or she is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings to set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e);see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348 (1986). There is a genuine issue for trial "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 249. "Such affirmative evidence — regardless of whether it is direct or circumstantial — must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Williams v. Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir. 1989).
III. Analysis
Barna v. City of Perth Amboy involved a dispute between off-duty Police Officers Paul Otterbine ("Otterbine") and Richard Echevarria ("Echevarria") and Otterbine's sister, Theresa Barna ("Mrs. Barna"), and her husband, Louis Barna ("Mr. Barna") (collectively, the "Barnas"). 42 F.3d at 813-14. The relevant facts are as follows: After assaulting Mr. Barna, Otterbine and Echevarria left Mr. Barna and returned to their truck. They attempted to leave the scene, but Mrs. Barna prevented their departure by slapping Otterbine in the mouth and telling the officers to stay put. Fearing for his wife's safety, Mr. Barna retrieved an unloaded revolver from his house. When Otterbine and Echevarria again attempted to leave the scene, Mr. Barna pointed the revolver into the cab of their truck and told them not to go anywhere until police arrived.
At his wife's behest, Mr. Barna stopped pointing the revolver at the officers and walked over to see if she was okay. Otterbine and Echecarria then jumped out of the truck, drew their weapons against Mr. Barna, and ordered him to drop his revolver. Mr. Barna stepped back, tripped, and, as he fell, lost possession of the revolver. Once he regained his footing, Mr. Barna ran into his house and retrieved a twelve-gauge pump action shotgun. Mr. Barna emerged from the house with the shotgun, pumped it, and told Otterbine and Echevarria not to leave. He then ran back into the house, picked up the telephone and called his family.
After Mr. Barna went back into his house, Otterbine and Echecarria called for backup. When local police officers arrived, Otterbine and Echevarria told them that Mr. Barna had barricaded himself in his home with his children. Based on the representations of Otterbine and Echevarria, local police officers contacted the county prosecutor and informed him that a hostage situation was taking place in the Barnas' home. After the situation was diffused, Mr. Barna was arrested and charged with a number of criminal offenses stemming from his brandishing weapons and allegedly holding hostages.
The Barnas subsequently brought a § 1983 action against several defendants, including Officers Otterbine and Echevarria. Similar to Johnson, the plaintiff alleged that the officers maliciously created the false impression with other law enforcement personnel that he was holding his children in his house and ultimately caused him to be arrested without probable cause in violation of his constitutional rights. The Third Circuit concluded that the officers had probable cause to arrest once he brandished weapons — regardless of whether the guns were unloaded or Mr. Barna brandished them to protect his wife — and noted that the officers only needed probable cause "as to any offense that could be charged under the circumstances." Barna, 42 F.3d at 819-20. The Third Circuit also concluded that the Barnas' assertion that the officers created a false impression with other law enforcement that he was involved in a hostage situation lacked merit because "this was a reasonable view of the events following Mr. Barna's brandishing of firearms and withdrawal into his home." Id. at 820 n. 13.
Johnson intimates that Barna should not be applied here because of the "very large" disparity in degree between terroristic threats and aggravated assault. See Plaintiff's Response to Defendant's Supplemental Summary Judgment Motion ("Pl.'s Resp.") at 10. The Third Circuit, however, did not add to its holding the caveat that some nexus must exist between the charges supported by probable cause and the additional unsupported charges. Judge Stapleton unequivocally stated that probable cause for any charge — no matter how minor — bars a § 1983 unlawful arrest claim. Barna, 42 F.3d at 819. AlthoughBarna is not on all fours with this case, its rule is nonetheless applicable here. "As long as the officers had some reasonable basis to believe [the defendant] had committed a crime, the arrest is justified as being based on probable cause. Probable cause need only exist as to any offense that could be charged under the circumstances." Id. Agent Knorr, "faced with the circumstances presented in the waiting room on September 6, 2000, could have reasonably believed that [Johnson] committed the offense of terrorists threats . . . [t]hus, sufficient probable cause was present to justify [his] arrest." Accordingly, Agent Knorr is entitled to qualified immunity.
Although styled a "request for revisitation," Johnson seeks reconsideration of the Court's finding that Agent Knorr had probable cause to arrest him for terroristic threats. See Pl.'s Resp. at 14-19. Motions for reconsideration are governed by Federal Rule of Civil Procedure 59(e) and Local Rule of Civil Procedure 7.1(g). Both rules provide that a motion for reconsideration must be filed within ten days after entry of the judgment, order, or decree concerned. See Fed.R.Civ.P. 59(e); E.D. Pa. R. Civ. P. 7.1(g). Extending the ten-day limit is beyond the discretion of the court. See Welch v. Folsom, 925 F.2d 666, 669 (3d Cir. 1991) (The ten-day period "is jurisdictional and cannot be extended in the discretion of the court."). Johnson's motion was filed on April 13, 2004, 168 days after the entry of the Memorandum and Order which Johnson requests to revisit. The request is untimely.
Next, Johnson contends that summary judgment should be denied because he has stated a valid § 1983 claim of malicious prosecution. See Pl.'s Resp. at 5-13. Johnson neither alleged this theory in his complaint nor raised it in any subsequent filings over the last three years. Courts in this district routinely decline to consider claims not raised in the complaint or arguments not asserted in summary judgment and reconsideration briefing. See Scully v. US WATS, Inc., 238 F.3d 497, 515-16 (3d Cir. 2001) (The issue of alter ego liability was not properly before the court because plaintiffs never raised the issue in their initial pleadings or at any point during the pretrial proceedings); Giannone v. Ayne Inst., 290 F. Supp.2d 553, 567-68 (E.D. Pa. 2003) (refusing to consider a breach of contract claim never raised in the complaint); BP Amoco Chem. Co. v. Sun Oil Co., 200 F. Supp.2d 429, 438 (D. Del. 2002) (declining to consider a legal theory plaintiff failed to properly plead in its complaint); Computer Aid, Inc. v. Hewlett-Packard Co., 56 F. Supp.2d 526, 538 (E.D. Pa. 1999) (granting summary judgment against counterclaim-plaintiffs who failed to allege vicarious liability in their complaint); Travelers Indem. Co. v. Stedman, 925 F. Supp. 345, 348-49 (E.D. Pa. 1996) (considering untimely arguments not raised in briefs filed in connection with motions for summary judgment and reconsideration). Moreover, the parties were ordered to file supplemental summary judgment briefs for the limited purpose of determining whether Barna applied to this case, not to develop new arguments. Accordingly, the Court will not consider Johnson's malicious prosecution claim raised for the first time in his response to Agent Knorr's Supplemental Motion for Summary Judgment.
Johnson alternatively seeks to amend his complaint to add a § 1983 claim of malicious prosecution. See Pl.'s Resp. at 13-14. The Third Circuit has recognized that a motion to amend a complaint may be properly denied as unduly prejudicial to the defendants when it is made on the eve of trial or after the close of discovery. See Berger v. Edgewater Steel Co., 911 F.2d 911, 923-24 (3d Cir.) (denying motion to add additional claims made four months after new information became available and two months after close of extended discovery), cert. denied, 499 U.S. 920, 111 S.Ct. 1310, 113 L.Ed.2d 244 (1990); Clark v. Falls, 890 F.2d 611, 624 (3d Cir. 1989) (denying motion to include events occurring after filing of complaint because motion made one week after close of discovery and three weeks before trial); Averbach v. Rival Mfg. Co., 879 F.2d 1196, 1202 (3d Cir. 1989) (denying motion to add additional claim made four days before close of discovery and one month before trial which would unduly prejudice defendant on eve of trial), cert. denied, 493 U.S. 1023, 110 S.Ct. 726, 107 L.Ed.2d 745 (1990). Johnson's request for leave to file an amended complaint comes more than a year and a half after the close of discovery, after Defendants' Motion for Summary Judgment was fully briefed, after the parties submitted their pre-trial memoranda, and roughly three weeks after the scheduled trial of this lawsuit on March 17, 2004. Moreover, Johnson's malicious prosecution claim is based on facts of which he was well aware before the close of discovery. The Court finds that Johnson's request to amend is untimely and thus the amendment would be unduly prejudicial to Agent Knorr. Accordingly, Johnson's request for leave to amend is denied.