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George v. Beaver County

United States District Court, D. Utah

January 11, 2019

KATHY M. GEORGE, on behalf of the ESTATE OF TROY BRADSHAW, Plaintiff,
v.
BEAVER COUNTY, by and through the Beaver County Board of Commissioners; CAMERON M. NOEL, TYLER FAILS, and DOES 1-10, inclusive, Defendants.

          MEMORANDUM DECISION AND ORDER DENYING EXPEDITED MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT AND GRANTING MOTION, IN THE ALTERNATIVE, FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

          Ted Stewart United States District Judge

         This matter is before the Court on Plaintiff's Expedited Motion for Leave to File Second Amended Complaint (“Original Motion”) and Motion, in the Alternative, for Leave to File Second Amended Complaint (“Alternative Motion”). For the reasons discussed below, the Court will deny the Original Motion but grant the Alternative Motion.

         I. BACKGROUND

         This case arises out of the death of Troy D. Bradshaw (“Bradshaw”) at the Beaver County Correctional Facility (“BCCF” or “jail”). Mr. Bradshaw was arrested on the night of June 13, 2014. As part of the pre-booking process, an Initial Arrestee Assessment was completed. Mr. Bradshaw indicated that he had thought about suicide in the past, was not thinking about it currently but was “questionable, ” had a brother who committed or attempted suicide, and was intoxicated with either drugs or alcohol.[1] Based upon this assessment, Mr. Bradshaw was placed on suicide watch. Mr. Bradshaw was placed in a special “dry” cell designated for suicidal inmates (“Cell 2”) and was monitored by an officer all night. A shift-change report prepared on the morning of June 14, 2014, noted that Mr. Bradshaw was suicidal and in Cell 2.

         A second assessment was completed on June 14, 2014. That assessment also indicated that Mr. Bradshaw was suicidal. Typically, and in accordance with BCCF policy, a suicidal inmate is strip searched, placed in a suicide smock, placed in Cell 2, put on a 15-minute watch, and referred to medical personnel. Additionally, all potential implements of suicide, including bedding and clothing, are to be removed from the cell.[2]

         On June 14, 2014, Corporal Randie Rose transferred Mr. Bradshaw out of Cell 2. After the transfer, Mr. Bradshaw was provided with clothing and bedding. There appear to be no records that Mr. Bradshaw was monitored as set out in BCCF policy. Additionally, the shift-change reports prepared on the night of June 14, 2014, and morning of June 15, 2014, do not indicate that Mr. Bradshaw was suicidal. On June 15, 2014, Mr. Bradshaw was found dead in his cell, having apparently hanged himself with his bed sheet.

         Plaintiff brought suit against Beaver County, Cameron Noel, the Beaver County Sheriff, and Tyler Fails, a jail employee, blaming them for Mr. Bradshaw's death. Plaintiff also listed a series of Does who were “in some manner responsible for the acts and omissions alleged” in the Complaint.[3]

         Plaintiff filed a First Amended Complaint on May 30, 2017. The Court's Scheduling Order required motions to amend pleadings to be filed by October 18, 2017.

         On October 16, 2018, Plaintiff filed her Original Motion, seeking leave to file a Second Amended Complaint. In the Original Motion, Plaintiff seeks to substitute two Doe Defendants with Corporal Randie Rose and Officer Landon Mayer. In conjunction with her Reply to the Original Motion, Plaintiff filed her Alternative Motion. In her Alternative Motion, Plaintiff seeks to substitute Corporal Rose in the place of Defendant Fails. Both Motions are discussed below.

         II. DISCUSSION

         A. ORIGINAL MOTION

         In the Original Motion, Plaintiff seeks to add Corporal Rose and Officer Mayer in place of two Doe Defendants. In Garrett v. Fleming, [4] the Tenth Circuit held that “[a] plaintiff's designation of an unknown defendant as ‘John Doe' in the original complaint is not a formal defect of the type [the predecessor to Rule 15(c)(1)] was meant to address.”[5] As a result, the plaintiff in that case could not substitute named defendants for John Doe defendants.

         Plaintiff argues that Garrett is no longer good law in light of the Supreme Court's decision in Krupski v. Costa Crociere S.p.A.[6] Plaintiff points to a handful of out-of-district cases to support her contention. The Tenth Circuit has not revisited Garrett's holding after Krupski. However, those circuit courts that have addressed the “John Doe rule” post-Krupski continue to hold that lack of knowledge regarding the identity of a defendant is not a mistake under Rule 15(c).[7] Additionally, district courts within the Tenth Circuit continue to recognize the viability of Garrett even after Krupski.[8] Based upon this, Plaintiff's Original Motion does not identify a mistake under Rule 15(c)(1) and must be denied.[9]

         B. ALTERNATIVE MOTION

         Plaintiff's Alternative Motion seeks to substitute Corporal Rose with current Defendant Tyler Fails. The Alternative Motion does not seek to add Officer Mayer as a defendant.

         “After a scheduling order deadline, a party seeking leave to amend must demonstrate (1) good cause for seeking modification under Fed.R.Civ.P. 16(b)(4) and (2) satisfaction of the Rule 15(a) standard.”[10] Further, because the statute of limitations has expired, the Court must consider whether Plaintiff's request meets the standard set forth in Rule 15(c)(1).

         A. RULE 16(b)(4)

         Rule 16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge's consent.” “[T]his standard requires the movant to show the scheduling deadlines cannot be met despite [the movant's] diligent efforts.”[11] Thus, “Rule 16's good cause requirement may be satisfied . . . if a plaintiff learns new information through discovery . . . .”[12]

         Plaintiff argues that she has good cause to amend because she learned new information through discovery concerning the alleged role Corporal Rose played in the actions she contends led to Mr. Bradshaw's death. As summarized in her Original Motion, Plaintiff learned the following during depositions that occurred in September 2018:

Corp. Rose had decision-making authority regarding Mr. Bradshaw as the South side supervisor; Corp. Rose knew that Mr. Bradshaw was suicidal and on suicide watch; Corp. Rose nonetheless authorized his transfer to a holding cell where he knew that Mr. Bradshaw would be provided with clothing and bedding; Corp. Rose did not notify mental health professionals regarding Mr. Bradshaw; Corp. Rose did not place Mr. Bradshaw in a suicide smock; Corp. Rose did not ensure that Mr. Bradshaw received physical checks every fifteen (15) minutes; and Corp. Rose did not prepare a shift change report notifying the next shift that Mr. Bradshaw was suicidal.[13]

         Defendants argue that Plaintiff has not demonstrated good cause because she did not act diligently in litigating her suit. Defendants argue that Plaintiff knew of Corporal Rose since August 2017, but did not depose him and others until September 2018.

         Good cause is not shown when “the plaintiff knew of the underlying conduct but simply failed to raise tort claims.”[14] Here, however, Plaintiff's proposed amendment is based on new facts obtained through discovery. While Defendants argue that Plaintiff could have done more to expedite the discovery process, Plaintiff explains why discovery was delayed. Plaintiff states that her original counsel filed for bankruptcy, necessitating the engagement of current counsel. Counsel further explains that the delay in scheduling depositions was attributable to a number of facts, including heavy case-loads, searching for missing witnesses, and difficulties in scheduling the depositions, which included multiple attorneys and witnesses. In addition, counsel states that he spent significant time caring for his wife who was battling breast cancer. Based upon these factors, Plaintiff has adequately demonstrated good cause to modify the Scheduling Order. Thus, the Court must determine whether amendment is proper under Rule 15.

         B. RULE 15(a)(2)

         Generally, once a responsive pleading is filed, “a party may amend its pleading only with the opposing party's written consent or the court's leave.”[15] “The court should freely give leave when justice so requires.”[16]

In the absence of any apparent or declared reason-such as 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 by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be “freely given.”[17]

         Defendants argue that Plaintiff's amendment is both futile and untimely. Defendants' futility argument relates to Plaintiff's ability to meet the requirements of Rule 15(c)(1), which is discussed below. Thus, the Court turns to whether Plaintiff unduly delayed in seeking amendment.

         Undue delay is a potential reason to not permit amendment. However, “[l]ateness does not of itself justify the denial of the amendment.”[18] But “[a] party who delays in seeking an amendment is acting contrary to the spirit of the rule and runs the risk of the court denying permission because of the passage of time.”[19] The Tenth Circuit “focuses primarily on the reasons for the delay.”[20] Denial may be appropriate “when the party filing the motion has no adequate explanation for the delay.”[21] Further, “[t]he longer the delay, ‘the more likely the motion to amend will be denied, as protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient reason for the court to withhold permission to amend.'”[22]

         Here, Plaintiff sought leave to amend shortly after the depositions were conducted in September 2018, which revealed the information that forms the basis for Plaintiff's proposed amendment. The reasons for the delay in conducting the depositions are set forth above. Based upon this, the Court finds that Plaintiff has presented an adequate explanation for the delay in seeking amendment.

         Defendants argue that Plaintiff waited too long to seek amendment. Defendants rely on McKnight v. Kimberly Clark Corp.[23] In that case, the plaintiff “was aware of all the information on which his proposed amended complaint was based prior to filing the original complaint” and “offered no explanation for the undue delay.”[24] Those facts are not present here. Plaintiff learned of the pertinent information during the depositions conducted in September 2018 and sought leave to amend soon thereafter. Therefore, there is no undue delay.

         C. RULE 15(c)(1)

         The parties appear to agree that Plaintiff's proposed amendment would be barred by the applicable statute of limitations. “Rule 15(c) of the Federal Rules of Civil Procedure governs when an amended pleading ‘relates back' to the date of a timely filed original pleading and is thus itself timely even though it was filed outside an applicable statute of limitations.”[25] Where, as here, “the amendment changes the party or the naming of the party against whom a claim is asserted, ” the amendment relates back when the party to be brought in by amendment (1) “received such notice of the action that it will not be prejudiced in defending on the merits;” and (2) “knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.”[26]

         1. Notice

         Rule 15(c)(1)(C) requires that the party to be brought in by amendment receive notice of the action within the time period provided by Rule 4(m) for serving the summons and complaint. Here, the initial Complaint was filed on October 19, 2016, making the relevant date for notice January 17, 2017.[27]

         Notice need not be formal, [28] and courts have developed different tests for determining when notice can be imputed to a newly named defendant. Plaintiff relies on the “shared attorney” and “identity of interest” tests.

         The “shared attorney” test “is based on the notion that, when an originally named party and the party who is sought to be added are represented by the same attorney, the attorney is likely to have communicated to the latter party that he may very well be joined in the action.”[29]“The relevant inquiry under this method is whether notice of the institution of th[e] action can be imputed to [the newly named defendant] within the relevant” time period.[30] “Accordingly, a plaintiff must show that there was some communication or relationship between the shared attorney and the ...


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