Summary
finding due diligence in light of "several unanswered discovery requests"
Summary of this case from Sherman v. Thomas-BrownOpinion
03 CV 2495 (RLC).
August 31, 2006
STEVEN MICHELSTEIN MICHELSTEIN GREENBERG, LLP New York, NY, RICHARD A. ASHMAN IRENE GREENBERG Of Counsel, Attorney for the Plaintiff.
MICHAEL A. CARDOZO CORPORATION COUNSEL OF THE CITY OF NEW YORK New York, NY, PRATHYUSHA REDDY Of Counsel, Attorneys for the Defendants.
OPINION
Plaintiff Omar Wilson ("Wilson") brings this action against the City of New York, the New York Police Department (the "NYPD") and Police Officers initially identified as John Does #1-4 (collectively, the "defendants"). Plaintiff brings multiple tort claims under New York law, alleging false arrest, malicious prosecution, assault, battery, false imprisonment, and intentional infliction of emotional distress, and a federal claim of civil rights violations brought under 42 U.S.C. § 1983 (the "Civil Rights Act".) In addition, plaintiff alleges a theory of municipal liability on the part of the City of New York. The defendants move for a judgment on the pleadings dismissing all of these claims.
BACKGROUND
For the purpose of this motion to dismiss on the pleadings, the following allegations of the plaintiff are accepted as true. On January 13, 2002, Wilson was detained by the defendants outside of 133 W. 135th Street, in Manhattan. Ashman Declaration, Ex. E, 5-6. After being handcuffed by John Doe #1, Wilson was beaten by John Doe #2. John Doe #4 observed the beating but failed to intervene. John Doe #3 drove Wilson and John Doe #1 to the police station via a circuitous route, so that John Doe #1 would have additional time to beat Wilson before their arrival. Id.
Rule 12(c), F.R. Civ. P. incorporates by reference the standard of proof for a motion to dismiss brought pursuant to Rule 12(b) (6), F.R. Civ. P.
Wilson suffered injuries that include cheekbone fractures and a broken jaw. While in the defendants' custody, Wilson was refused adequate medical attention for over five hours. When he finally received medical treatment, his jaw was wired shut. Later, Wilson underwent several surgeries to insert steel plates into his face and to treat injuries to his nose and nasal passages. Id. at 7. After Wilson was released from custody, he appeared in court repeatedly, but ultimately all the charges brought pursuant to his arrest were dismissed. Id. at 30.
Wilson filed suit against the defendants on April 9, 2003. On March 1, 2006, a joint scheduling order was entered. See Docket Entry #6. The parties were ordered to complete discovery by June 30, 2006, and to make their substantive motions no later than forty-five days after that date. Id. The plaintiff served multiple discovery requests upon the defendants. In part, these requests were made in order to ascertain the identities of the John Doe defendants.
the first of these discovery requests was dated September 19, 2003.
To date, no responsive documents have been produced by the defendants. The plaintiff has taken other steps to learn the identity of the John Doe defendants, including filing Freedom of Information Law ("FOIL") requests. Subsequently, Wilson learned the identity of John Doe #1.
Pl's Mem. in Opp. To Mot. to Dismiss, 1.
Pl's Mem. in Opp. To Mot. to Dismiss, 21.
Before the conclusion of the stipulated discovery period, the defendants filed a motion for judgment on the pleadings. The defendants argue that Wilson's causes of action are time barred because of his failure to substitute the proper names of the "John Doe" defendants before the statute of limitations expired, and because of his failure to file a notice of claim against the City of New York alleging all of his state law claims, with the exception of assault and battery. Furthermore, in the absence of timely federal claims, they argue the court should decline to exercise jurisdiction over the plaintiff's remaining state law claims. Finally, the defendants claim that Wilson has not alleged facts that would support a claim for municipal liability.
Wilson does not dispute that his notice of claim failed to raise his claims of false arrest, malicious prosecution, false imprisonment, and intentional infliction of emotional distress. Accordingly, these claims are dismissed. However, he contends that his complaint did raise a claim that his federal civil rights were violated and that he was subjected to assault and battery. Additionally, Wilson cross-moves for an amendment substituting the name of Police Officer Elliot Campbell ("Campell") in place of John Doe #1, arguing that the applicable statute of limitations has been tolled.
DICUSSION
Wilson argues that his federal claim against the John Doe defendants and the pendent state law claims of assault and battery are not untimely, as they are saved from being time barred by the application of New York's "relation back" doctrine, which he argues would allow his amendment of the complaint after the statute of limitations would ordinarily have run against the defendants he failed to name in the original complaint. Unless he is permitted to amend the complaint, the federal claims against the "John Doe" defendants will be time-barred, since the claims accrued on January 13, 2002, and the statutes of limitations expired three years later. Since the claims against the NYPD and the City of New York depend on the doctrine of respondeat superior, and the state law claims are pendent to the federal claim, dismissal of the claims against the John Doe defendants would end the lawsuit.
Wilson does not dispute that his claims of false arrest, malicious prosecution, false imprisonment, and intentional infliction of emotional distress are time-barred.
The applicable statute of limitations rule (for the amendment of complaints to name formerly anonymous parties) in this action could be provided by New York law, since Rule 15(c) (1) "direct[s] courts to apply [either] the law, state or federal, that affords a more forgiving principle of relating back." Blakeslee v. Royal Insurance Company of America, No. 93-CV-1633, 1998 U.S. Dist. LEXIS 5977, *9 (S.D.N.Y. April 28, 1998) (Mukasey, J.).
While the Court of Appeals for the Second Circuit has not specified whether Rule 15(c) (1) applies to cases brought under the Civil Rights Act, the district courts of this circuit have consistently applied the rule in these actions. See Sepulveda v. The City of New York, No. 01-CV-3117, 2003 U.S. Dist. LEXIS 151782, at *9 n. 4 (S.D.N.Y. Sept. 2, 2003) (Daniels, J.); Bass v. World Wrestling Fed'n Entm't, Inc., 129 F. Supp. 2d 491, 508 n. 13 (E.D.N.Y. 2001); Corcoran v. New York Power Auth., 935 F. Supp. 376, 393 (S.D.N.Y. 1996) (Cote, J.); Morse/Diesel v. Fidelity and Deposit Co., No. 86-CV-1494, 1995 U.S. Dist. LEXIS 8264, at *10 n. 5 (S.D.N.Y. June 15, 1995) (Cote, J.).
Accordingly, the New York state statute of limitations rules will be applicable if they are more forgiving when plaintiffs seek to amend the complaint to name a John Doe defendant. However, the courts of this district have not reached a consistent result when deciding whether the federal or New York state rules of relation back are more forgiving in this circumstance. There are cases that have held the two tests for deciding whether an amended complaint relates back to the original are identical, while in others, this court has concluded that the New York state rule would allow for amendment where the federal rule would not.
When considering the two tests in the abstract, this court has concluded that the federal and New York relation back doctrines are indistinguishable, following the decision of the New York Court of Appeals in Buran v. Coupal, 87 N.Y.2d 173, 179, 638 N.Y.S.2d 405, 409 (1995). However, this court later found that when taking into account the circumstances of a case involving an anonymous defendant, New York law can provide a more forgiving principle of relation back. Blakeslee v. Royal Insurance Company of America, No. 93-CV-1633, 1998 U.S. Dist. LEXIS 5977 (S.D.N.Y. April 28, 1998) (Mukasey, J.).
See, e.g. Sepulveda, 2003 U.S. Dist. LEXIS 151782.
See, e.g. Sloane v. Town of Greenburgh, No. 010-CV-01551, 2005 U.S. Dist. LEXIS 16107 at *9 (S.D.N.Y. 2005) (Mukasey, J.) ("courts in this district have applied the "unity of interest" requirement in the second prong of the New York rule because it is arguably more lenient than the parallel federal provision.")
In this case, the court need not resolve this issue, since the advisory committee's commentary to rule Rule 15(c) (1) directs the court to compare not only the tests for whether an amendment should relate back, but rather to consider the differences between the "controlling bod[ies] of limitations law," which in this case includes all the tolling provisions in the New York Civil Practice Law and Rules ("CPLR") and the interpretations of these statutes found in New York case law. When the entire body of New York statute of limitations laws pertaining to the amendment of complaints naming "John Doe" defendants is examined, it is clear that an amendment in this case is permissible in circumstances such as those found in the instant case.
See the advisory committee notes to Rule 15(c) (1), which state that "the rule does not apply to preclude any relation back that may be permitted under the applicable limitations law."
Had this case been filed in a New York court, the statute of limitations could have been tolled before the anonymous defendant's identity had been learned. The CPLR contains provisions that allow a plaintiff to toll the statute of limitations in the event that they cannot identify a defendant previously named as John Doe, if they can demonstrate that they have made diligent efforts to do so. See CPLR §§ 203(b)-(c), 306-b, 1024. The comparable federal law does not, and only provides for an extension of service of process deadlines.See Rule 4(m), F.R. Civ. P. As such, it is clear that the body of statute of limitations law in New York is more forgiving than its federal equivalent.
While these rules explicitly extend only the period in which service of process must be made, New York courts indicate that these rules also toll the statute of limitations. Herbert v. Gabel Equip. Corp., 123 A.D.2d 741, 507 N.Y.S.2d 214 (2d Dep't 1986) While the rule provides only for a 120-day extension, this can be extended in the event that the interests of justice so require, as is clearly the case here. See Leader v. Maroney, Ponzini Spencer, 97 N.Y.2d 95 (N.Y. 2001).
The cases cited by the defendant that purportedly show that an amended complaint is not timely when the statute of limitations has already run against a John Doe defendant involve applications of the federal rule, which is less forgiving in this context and therefore inapposite, given the application of Rule 15(c) (1). The defendants fail to note that New York rule creates a special procedure for John Doe cases that focuses on notice to possible defendants rather than whether the failure to name the defendant was an excusable mistake. See Yaniv v. Taub, 256 A.D.2d 273; 683 N.Y.S.2d 35 (1st Dep't App. Div. 1998). Under these rules, an amended complaint relates back to the original complaint because the statute of limitations has not yet run, and accordingly Buran v. Coupal does not govern this action.
Since the plaintiff in the case at bar made diligent efforts to determine the identities of the John Doe defendants, including several unanswered discovery requests made before the entry of the joint scheduling order, and had not been negligent in failing to develop other leads that would have uncovered the police officer's identities (including the FOIL request), New York statute of limitations law would have allowed the filing of a lawsuit that would have tolled the statute of limitations against the anonymous defendant.12 Since the New York statute of limitations law is more forgiving, F.R. Civ. 15(c)(1) requires this court to apply it in this case, and accordingly, its tolling provisions save the plaintiffs' case from being time-barred.
87 N.Y.2d 173; 638 N.Y.S.2d 405 (1995).
The plaintiff in the case at bar made diligent efforts to determine the identities of the John Doe defendants, including several unanswered discovery requests made before the entry of the joint scheduling order, and has not been negligent in failing to develop other leads that would have uncovered the police officer's identities (including the FOIL request). As such, New York statute of limitations law would have allowed the filing of a lawsuit that would have tolled the statute of limitations against the anonymous defendant. Since the New York statute of limitations law is more forgiving, Rule 15(c)(1), F.R. Civ. P. requires this court to apply it in this case, and accordingly, its tolling provisions save the plaintiffs' case from being time-barred.
See Redmond v. Jamaica Hosp. Med. Ctr., 816 N.Y.S.2d 137 (N.Y.App.Div. 2d Dep't 2006); cf. Sloane v. Town of Greenburgh, No. 01 Civ. 11551, 2005 U.S. Dist. LEXIS 16107 (S.D.N.Y. Aug. 3, 2005) (Mukasey, J.); Fountain v. Ocean View II Assoc., 266 A.D.2d 339, 340; 701 N.Y.S.2d 68 (1999); Porter v. Kingsbrook OB/GYN Assoc., 209 A.D.2d 497; 618 N.Y.S.2d 837 (1994).
Should the plaintiff demonstrate a diligent attempt to have identified the John Doe defendant before the statute of limitation had run in a case filed pursuant to CPLR § 1024, the only question that remains is whether the description of the John Doe defendant in the original complaint provided the defendant with sufficient notice and opportunity to defend the lawsuit.See, e.g. Maurro v. Lederman, 7 Misc. 3d 863 (N.Y.Sup.Ct. 2005).
The description of John Doe #1 (Campbell) as the police officer who handcuffed Wilson in front of 133 W. 135th St. at approximately 12:30 a.m. on January 13, 2002 is a sufficient description under New York law, as Campbell would have known from this description that he was the intended defendant. See Lebowitz v. Fieldston Travel Bureau, Inc., 181 A.D.2d 481; 581 N.Y.S.2d 302 (1st Dep't. App. Div. 1992).
Additionally, it is evident that Campbell was not prejudiced by being included in the complaint under the name of "John Doe #1, because he was the subject of a Civilian Complaint Review Board complaint related to Wilson's arrest.
The City of New York (the "City") also argues that Wilson has not stated a claim that would allow for municipal liability. Wilson has pointed to the City's failure to properly train or supervise Campbell and the other officers involved in his arrest. The City argues that since Wilson has only alleged that single act of violence occurred, he cannot demonstrate that the failure to properly train or supervise the officers created a custom among the police officers that brought about the violation of his civil rights.
This argument is without merit. A custom or practice may be established by reference to a single incident, if plaintiff is able to show that (i) the policy itself is unconstitutional and (ii) it was the direct cause of the constitutional violation.City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). At this point in the proceedings, the court is not prepared to conclude that the plaintiff will not be able to make a claim under Tuttle. Consequently, the plaintiff should be allowed to pursue discovery to determine whether the defendants deliberately ignored the activities of Campbell and other officers, since this could amount to a pattern of misconduct that would give rise to municipal liability.
Despite the fact that Wilson has not expressly alleged that Campbell's behavior had previously generated complaints (to which the NYPD had remained deliberately indifferent to his disciplinary record, to the point that their failure to train or supervise his activities renders them liable), he should be allowed to pursue discovery to determine whether this was the case. Walker v. New York, 974 F.2d 293, 300 (2d Cir. 1992). Since discovery may reveal these facts, it is not beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. As such, the motion to dismiss cannot be granted. See Ricciuti v. New York City Transit Authority, 941 F.2d 119 (2d Cir. 1991).