Opinion
Civil Action No: 00-1939.
May 11, 2001.
ORDER AND REASONS
Before the Court are motions by defendant City of New Orleans to dismiss plaintiff Robert Russell Manley's complaint pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). For the following reasons, the Court denies defendant's Rule 12(b)(5) motion and grants in part and denies in part defendant's Rule 12(b)(6) motion.
I. Background
Plaintiff filed a complaint on June 30, 2000 against the City of New Orleans, the New Orleans Police Department and unidentified officers, the Orleans Parish Criminal Sheriff's Department, and Sheriff Charles Foti. He seeks compensation for injuries he allegedly sustained during his arrest and detention.
The City now moves to dismiss plaintiff's claims. It argues under Rule 12(b)(5) that plaintiff has failed to name and serve any New Orleans police officer. The City further argues under Rule 12(b)(6) that plaintiff has failed to state a cause of action against any particular New Orleans police officer, that the New Orleans Police Department is not an entity amenable to suit, and that plaintiff failed to plead any facts or allegations upon which the City may be held liable. Plaintiff opposes the motions and seeks sanctions under Rules 11 and 37.
II. Discussion
The City first moves under Federal Rule of Civil Procedure 12(b)(5) (insufficiency of service of process) to dismiss plaintiff's claims. It argues that plaintiff failed to substitute the fictitious defendants with real parties within the 120 days specified in Federal Rule of Civil Procedure 4(m). See FED. R. Civ. P. 4(m), 12(b)(5)
As a threshold matter, the Court notes that plaintiffs routinely identify fictitious defendants after discovery reveals the identity of the intended defendant. Although Rule 4(m) empowers the Court to dismiss a party who has not been served within 120 days of filing the complaint, it also empowers the Court to extend the time for service if plaintiff shows good cause for failure to name and serve the appropriate New Orleans police officers. Id. 4(m). See also Jones v. St. Tammany Parish Jail, 4 F. Supp.2d 606, 610 (E.D. La. 1998).
It is undisputed that over 120 days have elapsed and that plaintiff has still not formally identified or served the John Doe defendants. Plaintiff, however, urges the Court to extend the time for service. He maintains that he refrained from naming Officers Brian Baye and Robert Bisevius, or any other New Orleans police officer, as the real parties until he had an opportunity to depose Officers Bay and Bisevius. In light of plaintiff's difficulties deposing these officers and the necessity for the Magistrate Judge to issue orders regarding these depositions, the Court extends the time for service until two weeks after Officers Baye and Bisevius have been deposed. The Court further denies plaintiff's motions for sanctions under Rules 11 and 37.
B. Rule 12(b)(6)
1. Legal Standard
In a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); American Waste Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991). Dismissal is warranted if "it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)). In deciding whether dismissal is warranted, the Court will not accept conclusory allegations in the complaint as true. See Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
When deciding a Rule 12(b)(6) motion, the Court will not consider matters outside the pleadings, except those matters of which the Court takes judicial notice. See FED. R. Civ. P. 12(b); FED R. EVID. 201. See also Cinel v. Connick, 15 F.3d 1338, 1343 n. 6 (5th Cir. 1994) ("In deciding a 12(b)(6) motion to dismiss, a court may permissibly refer to matters of public record."); In re Ford Motor Co. Bronco II Prods. Liab. Litig., 909 F. Supp. 400, 403 (E.D. La. 1995) ("[T]he Court may take judicial notice of matters of public record."); Chadwick v. Layrisson, 1999 WL 717628, at *2 (E.D. La. Sept. 13, 1999) (same).
2. Failure to State a Cause of Action
The City argues that plaintiff has failed to state a cause of action against any particular officers, that the New Orleans Police Department is not an entity amenable to suit, and that plaintiff failed to plead any facts or allegations upon which the City may be held liable. As the Court has extended the time for the identification and service of the John Doe defendants, the Court rejects the City's argument that plaintiff has failed to state a cause of action against any particular police officer. The Court dismisses plaintiff's claims against the New Orleans Police Department because it is simply a department of the City government and is not amenable to suit. See, e.g., Watson v. City of New Orleans, 2000 WL 126921, at *1 (E.D. La. Feb. 3, 2000); Norwood v. City off Hammond, 1999 WL 777713, at *2-3 (E.D. La. Sept. 30, 1999); Dugas v. City of Breaux Bridge Police Dep't, 757 So.2d 741, 744 (La.App. 3d Cir. 2000). The Court also dismisses plaintiff's claims against the City of New Orleans because plaintiff neither asserts nor alleges any facts in support of a Monell claim against the City. The Court further denies plaintiff's motions for sanctions under Rules 11 and 37.
III. Conclusion
For the foregoing reasons, the Court denies defendant's Rule 12(b)(5) motion, grants in part and denies in part defendant's Rule 12(b)(6) motion, and denies plaintiff's motions for sanctions under Rules 11 and 37.