Opinion
Civil Action 99-D-261-N
July 6, 2001
ORDER
Before the court is Defendant James F. "Buddy" Glasgow's Motion To Dismiss, which was filed May 3, 2001. (Doc. No. 65.) Plaintiff Darlene Morgan filed a Response on May 21, 2001. (Doc. No. 68.) Upon sua sponte reconsideration, and after careful consideration of the argument of counsel, the relevant law, and the record as a whole, the court finds that the Motion is due to be granted.
I. STANDARD OF REVIEW
A defendant may move to dismiss a complaint if the plaintiff has failed to state a claim upon which relief may be granted. A motion to dismiss attacks the legal sufficiency of the complaint. Therefore, the court assumes that all factual allegations set forth in the complaint are true, see United States v. Gaubert, 499 U.S. 315, 327 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990), and construes all factual allegations in the light most favorable to the plaintiff. See Brower v. County of Inyo, 489 U.S. 593, 598 (1989). Generally, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." In re Johannessen, 76 F.3d 347, 349 (11th Cir. 1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
II. DISCUSSION
Glasgow was the police chief of the city of Calera. Plaintiff basically alleges that she suffered an infringement of her constitutional rights due to a warrantless search of her Chilton County home. Calera police were involved, and Plaintiff sues Glasgow on the grounds of negligent supervision and training.
This case was filed in March 1999, and Plaintiff originally and erroneously named James Finn as Calera's chief of police. Though Finn is presently the chief, it appears that Glasgow held the position at the time relevant to this civil action. The defendants filed a motion to dismiss in late April 1999, and Plaintiff stated in mid-May 1999 that she intended to amend her complaint to name Glasgow. Amendment at that time would have been well within the statute of limitations. For reasons not explicitly stated in Plaintiff's Response, Plaintiff elected to withhold amendment until the court ruled on the pending motion to dismiss. The court issued its ruling February 26, 2001, and Plaintiff named Glasgow in her Amended Complaint filed March 6, 2001.
Glasgow raises a number of arguments in his motion to dismiss, but the only one he seriously pursues is that Plaintiff's claims are time-barred because he was not named in a timely-filed complaint. As a general rule, a party must file within the statute of limitations. A tardy complaint is acceptable only if it "relates back" to the original claim. See FED. R. CIV. P. 15(c). In this case, the dispositive issue is whether Plaintiff made a permissible mistake or a conscious choice not to name Glasgow until after the running of the statute of limitations. Because Plaintiff consciously chose not to amend her complaint, the complaint is untimely, and Glasgow's motion to dismiss is due to be granted.
Four requirements must be met for an amendment to relate back and for Rule 15(c) to be satisfied. First, the amended complaint must arise out of the conduct, transaction or occurrence set forth in the original pleading. Second, the proper party must have received notice of the original complaint within 120 days of its filing. Third, the proper party must not be prejudiced in maintaining a defense on the merits. Fourth, the proper party must either have known or should have known that, but for Plaintiff's mistake in identity, it would have been named in the original complaint. See id.
In support of his motion, Glasgow relies heavily on Powers v. Graff, 148 F.3d 1223 (11th Cir. 1998). In Powers, the Eleventh Circuit held that a court does not abuse its discretion when it applies Rule 15(c) in a manner that precludes amendment, if a plaintiff seeks to substitute for fictitious defendants a corporation's controlling officers. See id. at 1226. The plaintiffs in Powers sued a brokerage in its corporate form and knew the names of its controlling officers, but the plaintiffs did not move to name any of them until it became apparent that the brokerage was facing insolvency. Because the district court believed the plaintiffs had acted inequitably, it exercised its discretion not to allow amendment.See id. at 1226-27.
This court is bound by the Eleventh Circuit's reasoning and holdings. At the core of Powers was the Eleventh Circuit's opinion that the purposes of Rule 15 are not served when "the newly added defendants were known to the plaintiff before the running of the statute of limitations."Id. at 1226. The Court's analysis hinged on its narrow textual interpretation of the types of "mistake[s] concerning the identity of the proper party," against whom the action should have been brought, which justify relation back under Rule 15(c). "`Nothing in the Rule or in the [Advisory Committee] Notes indicates that the provision applies to a plaintiff who was fully aware of the potential defendant's identity . . .'" Id. at 1227 (quoting Rendall-Speranza v. Nassim, 107 F.3d 913, 918 (D.C. Cir. 1997)). "Even the most liberal interpretation of "mistake" cannot include a deliberate decision not to sue a party whose identity plaintiff knew from the outset.'" Id. (quoting Wells v. HBO Co., 813 F. Supp. 1561, 1567 (N.D. Ga. 1992)).
In denying Defendant Glasgow's motion to dismiss, the court focused on the fact that courts liberally apply Rule 15(c) to promote the resolution of claims on their merits. However, the court overlooked its prior ruling in Chumney v. U.S. Repeating Arms Co., 196 F.R.D. 419 (M.D. Ala. 2000) (DeMent, J.), which analyzed Powers and found that complaints cannot relate back under Rule 15(c) if a plaintiff makes a conscious choice not to sue a particular defendant prior to the running of the statute of limitations. The court stated as follows:
The court finds that, under Powers, the relevant issue in this case is not whether the amendment seeks to `add' or `change' a defendant, but instead whether the amendment corrects a `mistake' about the identity of the defendant. Furthermore, whether a plaintiff made a `mistake,' rather than a conscious choice, in originally omitting the relevant defendant turns on whether the newly added defendant was known to the plaintiff before the running of the statute of limitations.Id. at 429 (citing Powers, supra at 1226).
Plaintiff concedes that she discovered her error in identifying James Finn as Calera's chief of some time soon after filing her Complaint. "However," she states, "the Plaintiff elected not to amend the complaint until a determination was made by the Court on the Defendants' pending Motion To Dismiss, which included a Motion on behalf of Calera's Chief of Police." (Doc. No. 68 at 2.) The untimely complaint, therefore, is the product of a conscious litigation choice rather than a mistake or error.
The court finds that Plaintiff's Amended Complaint added Glasgow even though she knew of his identity, and should have known that he was the proper party, well before the running of the statute of limitations. The court finds that Plaintiff made a conscious choice not to amend her complaint within the statute of limitations. Therefore, under the authority of Powers and Chumney, the court finds that Plaintiff's claims against Glasgow are time-barred.
When Plaintiff discovered that she had misidentified the city's chief of police, she should have filed leave to amend her complaint immediately. The court would have freely granted such leave. Such motion not having been filed, Glasgow's Motion To Dismiss is due to be granted.
III. ORDER
Based on the foregoing, it is CONSIDERED and ORDERED that the court's Memorandum Opinion And Order of May 23, 2001, (Doc. No. 69), be and the same is hereby WITHDRAWN. Defendant James F. "Buddy" Glasgow's Motion To Dismiss be and the same is hereby GRANTED.