Opinion
CIVIL ACTION NO. 02-435, SECTION "I" (2).
June 2, 2003.
ORDER AND REASONS
Plaintiff has filed a Motion for Leave of Court to File First Supplemental and Amending Complaint, Record Doc. No. 60, in which he seeks to add four new defendants in this action in which all other defendants have settled and the case has been conditionally dismissed. Having considered the record and the applicable law, IT IS ORDERED that the motion is DENIED for the following reasons.
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. In addition, where — as here — the court has entered a scheduling order setting a deadline for the amendment of pleadings, the schedule "shall not be modified except upon a showing of good cause." Fed.R.Civ.P. 16(b).
"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." SW Enters., L.L.C. v. SouthTrust Bank of Ala. NA, 315 F.3d 533, 536 (5th Cir. 2003).
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, 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 plaintiff's detention and arrest by those officers during a Mardi Gras parade on February 23, 2001. Complaint, Record Doc. No. 1.
On April 4, 2003, having been advised that plaintiff had settled his claims with all defendants, the presiding district judge signed an order dismissing the 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. No final order of dismissal has yet been entered.
On May 9, 2003, plaintiff filed the instant motion for leave to amend to add the City of New Orleans, the New Orleans Police Department ("NOPD") and two NOPD officers as defendants. Tufaro had previously sought leave in February 2003, almost two years after the subject incident, to amend his complaint to add these entities, shortly after he discovered during depositions the identities of the NOPD officers and their roles in his alleged injuries. Record Doc. No. 42. That motion was denied as untimely and unduly prejudicial because it was filed seven months after the expiration of the deadline to amend pleadings and five weeks before the scheduled trial date. Record Doc. No. 47.
The issue posed by plaintiff's current attempt to amend his complaint, more than two years after the subject incident occurred on February 23, 2001, is whether the amended complaint relates back to the filing date of his original complaint. If it does not relate back, then his claims against the City and the NOPD officers are time-barred and his proposed amendment is futile.
Magistrate Judge Shushan of this court recently summarized the law in the Fifth Circuit concerning relation back in circumstances like those in the instant case.
In a Section 1983 action, the court looks to the forum state's personal-injury limitations period. In Louisiana, that period is one year. Federal law determines when a § 1983 action accrues. For a claim for excessive use of force and wrongful arrest, it is [plaintiff's] knowledge of these events that triggers the limitations period. [Plaintiff's] claims accrued on February 23, 2001 and the limitations period ran a year later. [Plaintiff] did not present his proposed amendment identifying the four police officers until May 22, 2002. [Plaintiff's] proposed amendment is futile unless it relates back to the date of the original filing.
Under Rule 15(c), an amendment of a pleading will relate back to the date of the original pleading when:
1. The amendment changes the party or the naming of the party against whom the claim is asserted;
2. The claim asserted in the amended pleading arose out of the conduct set forth in the original claim;
3. Within the period provided by Rule 4(m) for service, the party to be brought in has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits; and
4. Said party knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against that party.Doss v. Morris, No. 01-2208, 2002 WL 1359641, at *2-3 (E.D. La. June 20, 2002) (Shushan, M.J.) (citing Fed.R.Civ.P. 15(c)(3) (emphasis added); Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998)). Thus, for an amendment to relate back, Rule 15(c) requires both "notice" to the proposed defendant and "mistake" in having previously failed to identify that defendant.Jacobsen, 133 F.3d at 320.
Louisiana law provides for a one-year prescriptive period from the date of injury or damage. La. Civ. Code art. 3492;Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir. 1988). The same prescriptive period applies to Tufaro's state law tort claims.
In a case very similar to the instant case, District Judge Engelhardt of this court recently held that Rule 15(c) andJacobsen precluded amendment to add new defendants.
The time period provided by Rule 4(m) for service of summons and complaint is 120 days. Even assuming arguendo that plaintiff's second supplemental and amended claims against [Orleans Parish Criminal] Sheriff Foti and Dr. Riley [director of the Orleans Parish Criminal Sheriffs Office] arose out of the same transaction as set forth in the original petition (i.e., Corporal Stuntz's [a Port of Orleans Harbor Police officer] arrest of the plaintiff on August 5, 1998), Rule 15(c)(3) does not apply because the defendants, Sheriff Foti and Dr. Riley, did not receive notice until after January 3, 2001, when service of the summons and complaint was effected. Sheriff Foti and Dr. Riley are not related to nor do they share the same counsel with either the dismissed municipal defendants [the Board of Commissioners of the Port of Orleans and its Superintendent] or with Stuntz. . . .
The record is devoid of evidence which would suggest that Sheriff Foti or Dr. Riley knew or should have known that, but for an error in identifying the correct defendant, the action would have been brought against them. To the contrary, the record rather admits but one conclusion (i.e., that early on in the proceedings, plaintiff made a conscious decision not to sue Sheriff Foti and Dr. Riley). Accordingly, because the "notice" and "mistake" provisions in Rule 15(c)(3) have not been satisfied, the second supplemental and amended complaint against Sheriff Foti and Dr. Riley does not relate back to plaintiff's original petition for damages.
. . . . The [Jacobsen] court explained that the stated purpose of Rule 15(c) is "to allow amendment changing the name of the party to relate back to the original complaint only if the change is the result of error, such as a misnomer or misidentification."
Failing to identify individual defendants Sheriff Foti and Dr. Riley cannot be characterized as a mistake which can be cured by Rule 15(c). It is clear on the face of the record that the plaintiff meant to sue Corporal Stuntz, and that naming as a party defendant was no mistake. Relation back under Rule 15(c) is not permitted when the plaintiff simply lacks knowledge of the proper party.Joseph v. Port of New Orleans, No. 99-1622, 2002 WL 342424, at *13-14 (E.D. La. Mar. 4, 2002) (Engelhardt, J.) (footnotes omitted) (citing and quoting Jacobsen, 133 F.3d at 320-21) (internal quotation omitted), aff'd, No. 02-30297, 2002 WL 31933280 (5th Cir. Dec. 27, 2002).
Tufaro speculates in his memorandum in support of his motion to amend that the Levee Board probably advised the City or the NOPD when the Levee Board and its officers were sued. However, Tufaro has provided no evidence that the City and the NOPD officers knew or should have known within 120 days of filing the original complaint that, but for an error in identifying the correct defendant, the action would have been brought against them or that plaintiff named the Levee Board and its officers by mistake. Tufaro clearly intended to name the Levee Board and its officers, and merely lacked knowledge that NOPD officers were also allegedly involved in the incident. "In other words, [plaintiff] fully intended to sue [a particular party], he did so, and [that party] turned out to be the wrong party. We have no doubt that Rule 15(c) is not designed to remedy such mistakes.'" Jacobsen, 133 F.3d at 321 (internal quotation omitted); see also id. ("`Because [plaintiff's] failure to name the correct officers was due to a lack of knowledge as to their identity, and not a mistake in their names, [plaintiff] was prevented from availing himself of the relation back doctrine of Rule 15(c).'") (internal quotation omitted).
This record does not support a finding that there was a mistake in identifying the correct defendants that would allow relation back. Thus, Tufaro's attempt to add the City of New Orleans, the NOPD and the two police officers is futile because his claims against them have prescribed.