Opinion
CIVIL ACTION NO. 02-435, SECTION "I" (2)
October 2, 2003
ORDER AND REASONS
Plaintiff filed a Motion to Review Magistrate Judge's Ruling. Record Doc. No. 62. The motion seeks reconsideration of my denial, Record Doc. No. 61, of plaintiff s Motion for Leave of Court to File First Supplemental and Amending Complaint. Record Doc. No. 60. In that motion, plaintiff, Rock Tufaro, seeks to add four new defendants and two new claims in this action in which all other defendants have settled and the case has been dismissed.
After the motion to review was filed, the presiding district judge "ORDERED that the plaintiffs motion to amend the complaint is referred [to me] for further proceedings," Record Doc. No. 63 at p. 2, because plaintiff raised a new argument in his motion to review that he did not raise in his memorandum accompanying his original motion to amend. Record Doc. No. 63. Specifically, Tufaro argues for the first time that his proposed amended complaint has not prescribed and is therefore not futile because the new defendants whom he seeks to name are solidary obligors with the defendants named in the original complaint and, under Louisiana law, prescription is interrupted against all solidary obligors by the timely filing of suit against one such obligor. Thus, I am directed to again address the motion to amend.
Having considered the complaint, the record, and the applicable law, IT IS ORDERED that the motion to amend is again DENIED. It is unnecessary to address plaintiffs new argument concerning interruption of the prescriptive period because the argument has no effect on the outcome of this motion. Tufaro's attempt to amendthis lawsuit is both untimely and pointless for the following reasons.
ANALYSIS
A. Procedural Background
On February 15, 2002, about one week before his claims would have prescribed, plaintiff, Rock Tufaro, sued the Board of Commissioners of the Orleans Levee District ("the Levee Board"), Levee Board Officer Thaddeus Petit and Levee Board Officer Craig Robinson. Tufaro alleged causes of action for excessive force, false arrest and conspiracy to violate his constitutional rights under 42 U.S.C. § 1983 and 1985, and for assault, battery, intentional infliction of emotional distress, negligence and false arrest under state law, arising out of plaintiffs detention and arrest by those officers during a Mardi Gras parade on February 23, 2001. Complaint, Record Doc. No. 1. Neither the City of New Orleans nor any of its officers were named in the original complaint.
The court entered a scheduling order on June 25, 2002, which established a deadline of July 25, 2002 to amend pleadings and set a jury trial date of April 7, 2003. Record Doc. No. 10.
On February 19, 2003, more than one year after the original complaint was filed and about two years after the incident upon which this case is based, plaintiff filed his first motion for leave to amend his complaint to add the City of New Orleans, the New Orleans Police Department ("NOPD") and two NOPD officers, Justin Crespo and Kevin Johnson, as defendants on all of the same claims as in the original complaint. Record Doc. No. 42. On March 19, 2003, I denied that motion as untimely, unduly delayed and unduly prejudicial to both the original and the proposed new defendants because it was filed seven months after expiration of the deadline to amend pleadings and because the final pretrial conference was scheduled for March 20, 2003 and trial was set for April 7, 2003. Record Doc. No. 47.
On April 4, 2003, three days before the scheduled trial date, having been advised that plaintiff had settled his claims with all defendants, Judge Africk signed an order dismissing the entire case, without prejudice to the right of any party to reopen the case or move to enforce the compromise if the settlement was not consummated within a reasonable time. Record Doc. No. 58.
On May 9, 2003, more than a month after the case had been dismissed, plaintiff filed the instant motion for leave to amend, again seeking to add the City of New Orleans, the NOPD and Officers Crespo and Johnson as defendants on all of the same claims as in the original complaint. Tufaro also sought to add claims that these defendants failed to intervene when the original defendants committed their violations of law and that the NOPD is vicariously liable for the actions of its employees Crespo and Johnson. Plaintiff alleges in his motion papers that he first learned that NOPD officers were involved in his detention and restraint and that they used excessive force against him during depositions taken on February 5, 2003. The motion was set for hearing on May 28, 2003. Record Doc. No. 60.
On May 20, 2003, more than a week before the noticed hearing date on his motion to amend, Tufaro filed a new lawsuit, Civil Action No. 03-1429, in this court against the City of New Orleans, the NOPD, former New Orleans Mayor Marc Morial, Officers Crespo and Johnson, the Levee Board and Levee Board Officers Petit and Robinson. In that new lawsuit, he makes the same factual allegations and asserts the same legal theories of relief against all of the same defendants as he made in his original complaint and proposed amended complaint in the instant case. C.A. No. 03-1429, Record Doc. No. 1.
I denied plaintiffs motion to amend in the instant case by minute entry entered on June 2, 2003. I found that the amendment does not relate back to the date of the original complaint under Fed.R.Civ.P. 15(c)(3) and that permitting the amendment would be futile because the claims against the proposed new defendants had prescribed without such relation back. Record Doc. No. 61.
On June 12, 2003, Tufaro moved for reconsideration of my order. The motion for reconsideration was set for hearing on August 6, 2003. Record Doc. No. 62. By minute entry entered on August 4, 2003, Judge Africk directed that I again consider the motion to amend. Record Doc. No. 63.
B. Plaintiff Must Demonstrate Good Cause to Amend his Complaint After the Court-Ordered Deadline to Amend Has Passed
Leave to amend "shall be freely given when justice so requires," Fed.R.Civ.P. 15(a), but "is by no means automatic." Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993) (quotation omitted). Relevant factors to consider include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment."Id.
However, where-as here-the court has entered a scheduling order setting a deadline for the amendment of pleadings, Record Doc. No. 10, the schedule "shall not be modified except upon a showing of good cause." Fed.R.Civ.P. 16(b). The Fifth Circuit recently clarified "that Rule 16(b) governs amendment of pleadings after a scheduling order deadline has expired. Only upon the movant's demonstration of good cause to modify the scheduling order will the more liberal standard of Rule 15(a) apply to the district court's decision to grant or deny leave." S W Enters., L.L.C. v. SouthTrust Bank of Ala., NA. 315 F.3d 533, 536 (5th Cir. 2003). Thus, "the presence of a scheduling order renders the Rule 15 inquiry secondary." Id. at 536 n. 4.
"The good cause standard requires the party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension." Id. at 535 (quotation omitted). In the context of untimely motions to amend pleadings, the court should consider four factors: "(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 quotations and brackets omitted).
I find that Tufaro has failed to show good cause to amend the instant complaint to add the City, the NOPD and Officers Crespo and Johnson as defendants many weeks after his lawsuit was dismissed. The factors established by the Fifth Circuit in S W Enterprises weigh heavily against a finding of good cause in this case.
First, Tufaro has not demonstrated that he exercised diligence in seeking discovery but still could not reasonably meet the deadline to amend pleadings. Plaintiffs explanation for his failure to move timely for leave to amend is that he only discovered the role that NOPD officers allegedly played in the incident during depositions taken on February 5, 2003.
This lawsuit was filed on February 15, 2002. The deadline for amending pleadings was July 25, 2002. The written status report filed by plaintiff on August 22, 2002 included factual allegations by defendants that the Levee Board officers had been detailed to the NOPD on the date of the incident, that NOPD officers had been involved in plaintiffs detention and arrest and that defendants had advised plaintiff that he might need to add the NOPD as a defendant. Record Doc. No. 15 at pp. 3-4. Defendants' witness list, filed on January 10, 2003, identified three NOPD officers, including proposed defendants Crespo and Johnson, as potential witnesses regarding the incident, Record Doc. No. 29, and plaintiffs own witness list, filed a week later, identified "representatives of the New Orleans Police Department" as possible fact witnesses. Record Doc. No. 34.
Thus, Tufaro had notice as early as August 22, 2002 and well before February 5, 2003 that NOPD officers may have been involved in the incident. He could have investigated and sought leave to amend much sooner than he did. He did not try to amend his complaint for the first time until seven months after the court's deadline for amendments had passed, and did not try to amend the second time until more than nine months after the deadline had passed and the case had been dismissed. His explanation for the delay is not adequate. This factor weighs strongly against permitting the amendment. See S W Enters., 315 F.3d at 536 (plaintiff effectively offers no explanation for three-month delay beyond deadline for amending pleadings when it knew the same facts at time of original complaint as it knew at time of proposed amendment);Roval Ins. Co. v. Schubert Marine Sales. No. 02-0916, 2003 WL 21664701, at *2-3 (E.D. La. July 11, 2003) (Engelhardt, J.) (explanation of defendant, seeking to amend answer to add affirmative defense five weeks after deadline expired, that new evidence emerged during expert's inspection of vessel is not adequate; no justifiable reason for not obtaining the information earlier when incident had occurred more than three years earlier and expert report deadline had been extended twice over more than one-year span of litigation); Standard Servs. Co. v. Witex USA. Inc., No. 02-0357, 2003 WL 1873087, at *1 (E.D. La. Apr. 8, 2003) (Shushan, M.J.) (explanation of defendant, seeking to amend answer to add affirmative defense nine months after deadline expired, that new evidence emerged during discovery is not adequate when defendant could have pled affirmative defenses in the alternative); Mott v. PFPC Inc., No. 3:02-CV-1366, 2003 WL 21222678, at *2 (N.D. Tex. Mar. 28, 2003) (Fish, CJ.) (plaintiff, seeking to amend to add new cause of action three months after deadline expired, whose explanation for failure to amend earlier was that counsel recognized new cause of action during discovery, "`is tantamount to no explanation at all'") (quoting S W Enters., 315 F.3d at 536).
The second factor, the importance of the amendment, also weighs strongly against plaintiff. I previously addressed plaintiffs relation back argument under Fed.R.Civ.P. 15(c)(3) and found that the amendment does not relate back and would be futile under that rule. Record Doc. No. 61. I now note that, because relation-back analysis is the same under Louisiana law as under federal law, the amendment still does not relate back under Fed.R.Civ.P. 15(c)(1). Joseph v. Port of New Orleans, No. 99-1622, 2002 WL 342424, at * 14 (E.D. La. March 4, 2002) (Engelhardt, J.) (citing La. Civ. Code art. 1153; Ray v. Alexandria Mall, 434 So.2d 1083 (La. 1983)), affd, No. 02-30297, 2002 WL 31933280 (5th Cir. Dec. 27, 2002); Harris v. Advance Transformer Co., No. 98-2312, 2000 WL 762889, at *4 (E.D. La. June 6, 2000) (Vance, J.) (citing La. Civ. Code art. 1153; Ray, 434 So.2d at 1085-87). Without relation back, plaintiff gains no particular advantage from obtaining leave to file this amendment in connection with the statute of limitations issue plaintiff must now address.
Furthermore, this case was dismissed on April 4, 2003, one month before the instant motion was brought. On May 20, 2003, Tufaro filed a new lawsuit in this court, Civil Action No. 03-1429, that includes the proposed new defendants in this case and concerns the identical incident and causes of action as he proposed to add in this case. This second lawsuit is duplicative of the amended complaint plaintiff seeks to file in the instant lawsuit. The court does not find it important to re-open a closed lawsuit when plaintiff has already filed a new lawsuit asserting the same claims and would obtain no "relation back" advantage in connection with the statute of limitations defense. Under these circumstances, it would be pointless to permit the amendment. The court need not address plaintiffs argument that prescription was interrupted by the filing of the first lawsuit against solidary obligors because he can make that argument in the pending, second lawsuit.
The third factor is potential prejudice in allowing the amendment. This factor is neutral. There would be no prejudice to the settling, dismissed defendants. The prejudice to the proposed new defendants from the staleness of the evidence and the need to defend a lawsuit is the same whether the amendment is permitted in this action or the new lawsuit already filed against them proceeds.
Finally, a "continuance" per se is not available to cure such prejudice because no trial date exists. This case was dismissed. A new trial date would have to be set if the amendment were allowed. This is the only factor in plaintiffs favor but the court does not consider it significant in light of the similar, second lawsuit that is already pending in this court.
Thus, plaintiff has not demonstrated good cause to modify the court's Fed.R.Civ.P. 16(b) scheduling order and permit the amendment. Because good cause does not exist to modify the deadline, the court need not address whether the more liberal standards of Fed.R.Civ.P. 15(a) apply.