Opinion
2:20-cv-00520
12-21-2022
EMILY SHARP RAINS, Plaintiff, v. WESTMINSTER COLLEGE; MELISSA KOERNER; and RICHARD BADENHAUSEN, Defendants.
Jill N. Parrish, District Judge.
REPORT AND RECOMMENDATION TO GRANT DEFENDANT RICHARD BADENHAUSEN'S RULE 12(B)(6) MOTION TO DISMISS (DOC. NO. 67)
Daphne A. Oberg, United States Magistrate Judge
Pro se plaintiff Emily Rains originally brought this action against her former employer, Westminster College, and her former supervisor, Melissa Koerner, (collectively the “Westminster Defendants”) following her termination. Ms. Rains asserted claims for discrimination and retaliation under Title VII of the Civil Rights Act of 1964, breach of contract, defamation, and false-light invasion of privacy, among other claims. Ms. Rains then filed a second amended complaint, adding Richard Badenhausen as a defendant. In this second complaint, Ms. Rains asserts claims against Dr. Badenhausen for defamation per se and false-light invasion of privacy.
(See Am. Compl., Doc. No. 8-2.)
42 U.S.C. § 2000e et seq.
(See Am. Compl., Doc. No. 8-2.)
(Second Am. Compl., Doc. No. 62.)
(Id. at ¶¶ 117-28.)
(Id. at ¶¶ 129-32.)
Dr. Badenhausen moves to dismiss the claims against him pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that they exceed the statutes of limitation. Specifically, Dr. Badenhausen argues (1) Ms. Rains' claims are barred under Utah's one-year statutes of limitation for defamation and false-light invasion of privacy, and (2) the relation-back doctrine does not apply because Dr. Badenhausen had no notice of the action before the statutes of limitation expired and Ms. Rains' failure to name Dr. Badenhausen was not due to a mistake regarding his identity. Ms. Rains opposes the motion, arguing the relation-back doctrine applies.
(Def. Richard Badenhausen's Rule 12(b)(6) Mot. to Dismiss (“Mot.”), Doc. No. 67.)
(Id.)
(Pl.'s Opp'n to Def. Richard Badenhausen's Mot. to Dismiss Pursuant to Rule 12(b)(6) (“Opp'n”), Doc. No. 69.)
After reviewing the briefs and record in this matter, it is evident the statutes of limitation had expired for claims against Dr. Badenhausen by the time Ms. Rains filed her motion for leave to file her second amended complaint-and the relation-back doctrine does not cure this deficiency. For these reasons, the undersigned recommends the district judge grant the motion to dismiss and dismiss the claims against Dr. Badenhausen with prejudice.
No oral argument is necessary. Instead, the court bases its decision on the written memoranda, as permitted by Rule 7-1 of the Local Civil Rules. See DUCivR 7-1(g).
On September 15, 2020, District Judge Jill N. Parrish referred this case to the undersigned magistrate judge under 28 U.S.C. § 636(b)(1)(B). (Doc. No. 19.)
(Doc. No. 67.)
BACKGROUND
Ms. Rains was terminated from a faculty position at Westminster in October 2018. Upon her termination, Ms. Rains received a dismissal letter stating that Westminster has an “‘expectation of confidentiality around employment actions' and that ‘[a] breach of confidentiality in this matter will constitute egregious misconduct in violation of'” Westminster's faculty manual. On June 16, 2020, the Chronicle of Higher Education published an article written by Dr. Badenhausen. On June 17, 2020, Ms. Rains filed her first amended complaint in state court, alleging the article is defamatory and constitutes false-light invasion of privacy, among other things. The Westminster Defendants subsequently removed this action to federal court.
(Second Am. Compl. ¶ 22, Doc. No. 62 (alternation in original).)
(Id. at ¶ 73 (alteration in original).)
Ms. Rains asserts the Chronicle of Higher Education “is a resource used by Westminster faculty and administrators and the faculty and administrators for Colleges and Universities around the world, to find jobs, post jobs, and read about trends and challenges in academia.” (Id. at ¶ 67.)
(See id. at ¶ 68.)
(See Am. Compl. ¶¶ 117-32, Doc. No. 8-2.)
(Notice of Removal, Doc. No. 8.)
Ms. Rains' first amended complaint asserts nine different causes of action, including defamation per se and false-light invasion of privacy. But Ms. Rains originally brought the defamation and false-light invasion of privacy claims only against Westminster. Even though Ms. Rains asserted no claims against Dr. Badenhausen in her first amended complaint, the complaint identifies Dr. Badenhausen by name and position, and it details his role in Ms. Rains' termination and his involvement regarding the allegedly defamatory article.
(Am. Compl. ¶¶ 77-132, Doc. No. 8-2.)
(See id. at ¶¶ 117-32.)
(See id. at ¶¶ 54, 59, 68-76.)
On February 26, 2021, Ms. Rains learned from a discovery response that Westminster views the article as Dr. Badenhausen's private statements, rather than statements made on behalf of Westminster. Eight months after learning this, on October 22, 2021, Ms. Rains filed a motion to amend the complaint, seeking to add Dr. Badenhausen as a defendant.Pursuant to an order granting her motion, Ms. Rains filed her second amended complaint on April 29, 2022, naming Dr. Badenhausen as a defendant on count eight (defamation per se) and nine (false-light invasion of privacy). The factual allegations in the second amended complaint are the same as in the first amended complaint; the only change is the addition of Dr. Badenhausen as a defendant. On May 18, 2022, Dr. Badenhausen filed this motion to dismiss, arguing the claims asserted against him are barred by the statutes of limitation for defamation and false-light invasion of privacy, and they do not relate back to the date of the first amended complaint.
(See Pl.'s Mot. for Leave to File a Second Am. Compl. to Add Richard Badenhausen as a Def. (“Mot. to Amend”) 6, Doc. No. 26; Opp'n 5, Doc. No. 69; Mot., Doc. No. 67 at 2.)
(Mot. to Amend, Doc. No. 26.)
(Mem. Decision and Order Granting Mot. for Leave to File Am. Compl. to Add Def. (“Order Granting Mot. to Amend”), Doc. No. 61.)
(Second Am. Compl. ¶¶ 117-32, Doc. No. 62.)
(Compare Am. Compl. ¶¶ 68-76, Doc. No. 8-2, with Second Am. Compl. ¶¶ 68-76, Doc. No. 62.)
(Mot., Doc. No. 67); see also Fed.R.Civ.P. 15(c).
LEGAL STANDARDS
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for failure to state a claim upon which relief may be granted. To avoid dismissal under Rule 12(b)(6), a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” In assessing plausibility, the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. However, the court need not accept the plaintiff's conclusory allegations as true. Failure to satisfy a statute of limitations can render a claim implausible under Rule 12(b)(6) when the dates in the complaint make clear the claim is extinguished.
Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)).
Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013).
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
See Herrera v. City of Espanola, 32 F.4th 980, 991 (10th Cir. 2022) (“[A] statute of limitations defense may be appropriately resolved on a Rule 12(b) motion when the dates given in the complaint make clear that the right sued upon has been extinguished.” (citation and internal quotation marks omitted)); see also Goodman v. Praxair, Inc., 494 F.3d 458, 467 (4th Cir. 2007) (“[W]here facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” (internal quotation marks omitted)); see also White v. Wiseman, No. 2:16-cv-01179, 2020 U.S. Dist. LEXIS 121908, at *22-24 (D. Utah July 9, 2020) (unpublished) (finding relation-back doctrine did not save claims filed outside the statute of limitations period from Rule 12(b)(6) dismissal); Pliuskaitis v. USA Swimming, Inc., 243 F.Supp.3d 1217, 1228-29 (D. Utah 2017) (granting defendant's Rule 12(b)(6) motion and holding plaintiff's complaint was deficient as a matter of law when filed outside the limitations period).
Rule 15 of the Federal Rules of Civil Procedure is also relevant here. Rule 15(c)(1) permits an amended pleading to relate back to an earlier, timely filed pleading even when the applicable statute of limitations has run when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction or occurrence set out-or attempted to be set out-in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and . . . the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
When an amended complaint filed after expiration of the statute of limitations seeks to add a new defendant, Rule 15(c)(1)(C) controls,and a plaintiff must satisfy three elements: (1) the amended complaint asserts a claim that arises out of the same transaction or occurrence set out in the original pleading; (2) the new party had notice of the action, prior to the expiration of the statute of limitations; and (3) the new party knew or should have known that but for a mistake in identity the action would have been brought against her.
See Yudin v. Univ. of Utah, No. 2:13-cv-01063, 2014 U.S. Dist. LEXIS 81106, at *10 (D. Utah June 12, 2014) (unpublished) (“[R]ule 15(c)(1)(C) applies to an amendment that changes a party or the name of a party.”); see also White, 2020 U.S. Dist. LEXIS 121908, at *22 (requiring a plaintiff to satisfy the requirements of Rule 15(c)(1)(C) when filing his amended complaint “after expiration of the statute of limitations, [and] incorporat[ing] a new defendant”).
See Watson v. Unipress, Inc., 733 F.2d 1386, 1390 (10th Cir. 1984); White, 2020 U.S. Dist. LEXIS 121908, at *22; see also Goodman, 494 F.3d at 467 (articulating the same three elements).
ANALYSIS
Dr. Badenhausen contends the second amended complaint should be dismissed as to him for two reasons. First, he contends the claims Ms. Rains asserts against him in the second amended complaint are barred by the applicable statutes of limitation. Next, Dr. Badenhausen argues the relation-back doctrine is inapplicable because he had no notice of the action before the limitation periods expired and Ms. Rains' failure to timely name Dr. Badenhausen as a defendant was not due to a mistake regarding his identity.
(Mot., Doc. No. 67 at 4.)
(Id. at 7.)
I. Statutes of Limitation
Federal courts exercising supplemental jurisdiction over state law claims must apply the statutes of limitation of the forum state-in this case, Utah. Under Utah law, slander and libel claims (subsets of defamation) are subject to a one-year statute of limitations. False-light invasion of privacy claims flowing from the same set of operative facts supporting a defamation claim are subject to the same one-year statute of limitations. Because Utah Code § 78B-2-302 contains no tolling provision, the limitations period begins to run when the allegedly defamatory statement “is known or [] reasonably discoverable by the plaintiff.” Further, “whe[n] an allegedly defamatory statement is published in a manner widely available to the public,” it is deemed reasonably discoverable, and “the one-year statute begins to run on the date of first publication.” Because Ms. Rains' claim for false-light invasion of privacy stems from the same set of operative facts supporting her defamation claim, it is governed by the statute of limitations for defamation. Accordingly, Ms. Rains was required to file both claims within one year of the allegedly defamatory statement.
See Jenny Yoo Collection, Inc. v. Essense of Austl., Inc., No. 17-2666-JAR-GEB, 2019 U.S. Dist. LEXIS 59611, at *18 (D. Kan. Apr. 8, 2019) (unpublished) (“When a federal court presides over supplemental state law claims, state substantive law controls. Statutes of limitations are . . . substantive law.” (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966))). Ms. Rains' state-law claims of defamation and false-light invasion of privacy claims are “so related” to her federal Title VII claims, this court has supplemental jurisdiction over them. See 28 U.S.C. § 1367.
See Jensen v. Sawyers, 2005 UT 81, ¶ 53 (“extend[ing] the one-year [statute of limitations] to false light invasion claims that flow from allegedly defamatory statements”); see also Diamond Ranch Acad., Inc., v. Filer, No. 2:14-cv-751, 2016 U.S. Dist. LEXIS 19210, at *56 (D. Utah Feb. 17, 2016) (unpublished) (“[C]laims based on the same operative facts that would support a defamation action are subject to the one-year statute of limitations.” (alteration in original) (internal quotation marks omitted)).
Russell v. Std. Corp., 898 P.2d 263, 264 (Utah 1995).
Pliuskaitis, 243 F.Supp.3d at 1228; see also Russell, 898 P.2d at 264 (“[A]n alleged defamation is reasonably discoverable, as a matter of law, at the time it is first published and disseminated in a newspaper which is widely available to the public.”).
(See Second Am. Compl. ¶¶ 63-76, 117-32, Doc. No. 62.)
See Jensen, 2005 UT 81, ¶ 53.
As alleged in both the first amended complaint and the second amended complaint, the article containing the allegedly defamatory statement was published on June 16, 2020. Ms. Rains filed her first amended complaint on June 17, 2020-one day after the article was published in the Chronicle. Ms. Rains alleges the Chronicle “is a resource used by Westminster faculty and administrators and [] faculty and administrators for Colleges and Universities around the world.” Where the article was published in a widely available manner on June 16, 2020, and Ms. Rains filed claims based on the article only one day later, the statutes of limitation for the allegedly defamatory statements began to run on the date of publication. Accordingly, it is apparent from the face of the complaint that the statutes of limitation for both claims expired on June 16, 2021-four months before Ms. Rains file her motion to amend on October 22, 2021.
(Am. Compl. ¶ 68, Doc. No. 8-2; Second Am. Compl. ¶ 68, Doc. No. 62)
(See Am Compl., Doc. No. 8-2.)
(Second Am. Compl. ¶ 67, Doc. No. 62.) Similarly, Westminster asserts “the Chronicle of Higher Education is a newspaper of national circulation with tens of thousands of subscribers.” (Mot., Doc. No. 67 at 6.)
(See Mot. to Amend, Doc. No. 26.)
Based on the dates in the second amended complaint, the claims Ms. Rains asserts against Dr. Badenhausen (defamation per se and false-light invasion of privacy) had expired by the time Ms. Rains moved to file her second amended complaint. Accordingly, the second amended complaint fails to state a plausible claim for relief as it pertains to Dr. Badenhausen unless it relates back to Ms. Rains' timely filed first amended complaint under Rule 15.
(See Second Am. Compl. ¶¶ 117-32, Doc. No. 62.)
(See Am. Compl., Doc. No. 8-2 (filed on June 17, 2020).)
II. Relation-Back Doctrine
To show an amended pleading relates back to the date of an earlier pleading, a plaintiff must establish three elements: (1) the amended complaint asserts a claim arising out of the same transaction or occurrence set out in the original pleading; (2) the new party had notice of the action before the statute of limitations expired; and (3) the new party knew or should have known the action would have been brought against her but for a mistake in identity.
See Watson, 733 F.2d at 1390; White, 2020 U.S. Dist. LEXIS 121908, at *22; see also Goodman, 494 F.3d at 467.
The parties agree the first element-same transaction or occurrence-is satisfied. However, their positions diverge as to whether Dr. Badenhausen had sufficient notice of the action and whether he knew or should have known he would have been included as a defendant but for a mistake in identity.
(See Mot., Doc. No. 67 at 8 (conceding “the [second] amendment may refer to the same occurrence as the original complaint.”); Opp'n 9, Doc. No. 69 (“The first requirement of the ‘relation back' test is satisfied because the first amended complaint and the second amended complaint contain verbatim allegations of fact.”).)
a. Dr. Badenhausen Had Sufficient Notice of the Action Before the Statutes of Limitation Expired.
Dr. Badenhausen argues he had no notice Ms. Rains intended to sue him until she filed her motion to amend on October 22, 2021, four months after the statutes of limitation for the claims asserted against him had passed. While the first amended complaint “clearly identified his speech as the target of the defamation claims,” it did not name Dr. Badenhausen as a defendant. Dr. Badenhausen contends the first amended complaint “instead expressly claimed that Westminster College was and should be liable for his conduct.” He argues it is “standard practice for employees not to be named as defendants even though their acts are alleged to trigger the employer's liability. Consequently, the fact that an employer is named as a defendant does not serve to notify the employee of the potential claim against him personally.” Dr. Badenhausen maintains that “[a]t no point did [Ms. Rains] indicate that she intended to sue or seek to collect damages against him.”
(See Mot., Doc. No. 67 at 8.)
(Id.)
(Id.)
(Id.) Dr. Badenhausen does not cite any authority for this proposition.
(Id.)
Ms. Rains argues Dr. Badenhausen was sufficiently put on notice because he “shares substantial identity of interest with [Westminster]” due to his “executive level position” such that “notice was imputed to [D]r. Badenhausen when [Westminster] received notice of the first amended complaint” on July 7, 2020. Additionally, Ms. Rains contends it is “not reasonably possible” that Westminster “never contacted [Dr. Badenhausen] or raised the litigation to his attention to either gather information or ask him questions” considering “the actions which give rise to the defamation and false light claims were [Dr]. Badenhausen's.”
(Opp'n 10, Doc. No 69.)
(Id. at 11-12.)
In the context of Rule 15's relation-back doctrine, the addition or substitution “of a completely new defendant creates a new cause of action” which risks “undermin[ing] the policy upon which [a] statute of limitations is based.” Nonetheless, the Tenth Circuit recognizes new parties can be added or substituted “where the new and old parties have such an identity of interest that it can be assumed that relation back will not prejudice the new defendant.” This “identity of interest” method of imputing notice “means that the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other.” Factors such as whether an individual to be added held administrative or supervisory duties and the extent of an the individual's involvement in the conduct leading to the cause of action are relevant to this analysis.
Graves v. Gen. Ins. Corp., 412 F.2d 583, 585 (10th Cir. 1969).
Id.; see also Young v. Farrar, No. 10-4108-KHV, 2011 U.S. Dist. LEXIS 59000, at *6 (D. Kan. June 2, 2011) (unpublished) (citing Graves, for the same proposition).
George v. Beaver Cty., No. 2:16-cv-1076, 2019 U.S. Dist. LEXIS 5807, at *11-12 (D. Utah Jan. 11, 2019) (unpublished); see also Garcia v. Bd. of Cnty. Comm'rs of Cnty. of Bernalillo, No. 09-cv-322, 2010 U.S. Dist. LEXIS 155823, at *11-12 (D.N.M. Nov. 30, 2010) (unpublished).
See George, 2019 U.S. Dist. LEXIS 5807, at *13-14.
For example, in George v. Beaver County, a plaintiff sought to amend his pleadings to add parties pursuant to Rule 15(c)(1)(C), despite being barred by the applicable statute of limitations. The court concluded one of the parties to be added had received imputed notice under an identity-of-interest theory.In arriving at this conclusion, the court found the fact that the party to be added held a supervisory position and was involved in much of the conduct leading to the cause of action was particularly persuasive.
2019 U.S. Dist. LEXIS 5807.
Id. at *10.
See id. at *11-14.
See id. at *14.
Similarly, Dr. Badenhausen holds an executive level position at Westminster. Currently, he is the dean of the honors college and he previously worked as the interim provost. These leadership roles reflect supervisory and administrative duties. Additionally, Dr. Badenhausen is inextricably linked to the conduct and actions leading to Ms. Rains' defamation and false-light claims. Indeed, he authored the allegedly defamatory article. Further, the Westminster Defendants identified Dr. Badenhausen as a key witness in this case. The operations and activities of Dr. Badenhausen and Westminster are so closely related that the parties share an identity of interest sufficient to put Dr. Badenhausen on notice of this action within the relevant one-year limitations period. Therefore, this element is satisfied.
(Opp'n 10, Doc. No. 69.)
(See Second Am. Compl. ¶ 68, Doc. No. 62.)
(See Opp'n 11, Doc. No 69 (referencing information provided in Westminster's initial disclosures).)
b. Dr. Badenhausen Did Not Know and Should Not Have Known that He Would Have Been Sued but for a Mistake of Identity.
Dr. Badenhausen argues Ms. Rains “made no mistake of identity regarding the proper defendant in this case,” and Westminster College is responsible for the allegedly defamatory statements. Dr. Badenhausen contends he “reasonably perceived [Ms.] Rains' decision not to sue him (but instead press her claim against Westminster) as a deliberate strategic choice, rather than a misapprehension of his role in the case.”
(Reply Mem. in Support of Def. Richard Badenhausen's Rule 12(b)(6) Mot. to Dismiss (“Reply”) 2, Doc. No. 70.)
(Id.)
For her part, Ms. Rains argues “it is irrelevant what was in [her] mind . . ., or whether she acted diligently to amend the complaint. What is relevant is what was in the mind of the defendant.” She contends Dr. Badenhausen “knew that Westminster was being sued for his conduct, which means he knew or should have known that but for a mistake of identity, he would be the one [] sued for the defamatory statements.” Ms. Rains argues she
(Opp'n 12, Doc. No. 69.)
(Id. at 13.)
does not believe she is mistaken about the identity of the proper party because she believes that Westminster is the proper party, not [D]r. Badenhausen. She believes this is so because [D]r. Badenhausen was acting in the scope of his employment when he wrote and published the defamatory statements, making Westminster the proper defendant as to the defamation and false light claims.
(Id.) The parties disagree as to whether the doctrine of respondeat superior applies in this case. This issue is not currently before the court. The discrete issue before the court is the correct application of Rule 15(c)'s relation-back doctrine.
Ms. Rains contends that “despite all the evidence that supports [her] assertion that she is not mistaken, she has no other choice but to act on Westminster's assertion that she was mistaken when she sued [it] for [Dr]. Badenhausen's article.”
(Id. at 14.)
According to the Supreme Court in Krupski v. Costa Crociere S.p.A., whether the new party knew or should have known the action would have been brought against her but for a mistake in identity hinges on “what the party to be added knew or should have known, not on the amending party's knowledge or its timeliness in seeking to amend the pleading.” “Information in the plaintiff's possession” may be relevant to the extent it bears on the “defendant's understanding of whether the plaintiff made a mistake regarding the proper party's identity.” Delay by the plaintiff in moving to amend may also be relevant to the defendant's understanding. “[I]t would be error to conflate knowledge of a party's existence with the absence of mistake,” because a plaintiff may still make a mistake of identity even when she is aware of the existence of both parties but misunderstands the role a party played in the “conduct, transaction, or occurrence giving rise to [the] claim.” Nonetheless, when a plaintiff makes a “deliberate choice to sue one party instead of another while fully understanding the factual and legal differences between the two parties,” this is the “antithesis of making a mistake concerning the proper party's identity.” This is because “[a] prospective defendant who legitimately believed that the limitations period had passed without any attempt to sue him has a strong interest in repose.”
560 U.S. 538 (2010).
Id. at 541.
Id. at 548.
See id. at 555.
Id.at 548.
Id. at 549 (internal quotation marks omitted).
Id.
Id. at 550.
The Krupski Court went on to examine Nelson v. Adams USA, Incorporated, illustrating a situation where a decision to amend cannot be attributed to a mistake of identity. In Nelson, the defendant obtained a judgment for fees and costs against a corporation of which Mr. Nelson was the president and sole shareholder. After the defendant learned this corporation lacked funds to satisfy the judgment, it sought to amend its pleadings to add Mr. Nelson as a party. Where “there was nothing in the initial pleading suggesting that [Mr.] Nelson was an intended party, [and] where there was evidence in the record . . . that [the defendant] sought to add [Mr. Nelson] only after learning that the company would not be able to satisfy the judgment,” the Supreme Court noted this “countered any implication” of a mistake concerning the proper party's identity, and suggested instead that the defendant sought only to ensure the judgment would be paid.
529 U.S. 460 (2000).
See Krupski, 560 U.S. at 551-52.
Nelson, 529 U.S. at 465-67.
Id.
Krupski, 560 U.S. at 551-52 (internal quotation marks omitted).
Similarly, nothing in Ms. Rains' earlier pleading suggests Dr. Badenhausen was an intended party. To the contrary, despite identifying him by name, identifying his position at Westminster, and describing in detail his role as author of the allegedly defamatory statements, Ms. Rains chose not to assert any causes of action against Dr. Badenhausen in her first amended complaint. Further, Ms. Rains' own statements make clear that she “does not believe she is mistaken about the identity of the proper party because she believes that Westminster is the proper party, not [D]r. Badenhausen.” Instead, Ms. Rains seeks to add Dr. Badenhausen as a defendant solely in response to Westminster's position that he, and he alone, is liable for the allegedly defamatory statements. Similar to Nelson, this is not a case of mistaken identity but, rather, an attempt to ensure someone will be found liable.
(See Am. Compl., Doc. No. 8-2.)
(See id. at ¶¶ 53, 68-132.)
(Opp'n 13, Doc. No. 69.)
(See id. at 14.)
Sweet v. Audubon Financial Bureau, LLC is also instructive. In Sweet, the plaintiffs moved to file an amended complaint after the statute of limitations had run, seeking to add two defendants. Testimony taken during depositions suggested these two individuals may have been responsible for the conduct giving rise to the plaintiffs' claims. The court held the claims asserted against the individuals did not relate back under Rule 15. The court's decision as to the first proposed defendant hinged on the fact that the plaintiffs' counsel had identified him, by name, in a separate but related lawsuit against the same defendant: Audubon Financial Bureau, LLC. The complaint in the related case alleged the proposed defendant owned, operated, and ran Audubon. Based on this, the court determined counsel and, by extension, the plaintiffs, knew of the proposed defendant's control of Audubon.
No. CIV 13-258, 2016 U.S. Dist. LEXIS 189361 (D.N.M. June 27, 2016) (unpublished).
See id. at *3-5.
See id. at *4.
See id. at *2, 7-10.
See id. at *5-6. Only the court's analysis as to the first proposed defendant is addressed here, as it is most instructive.
See id.
See id. at *8.
The court considered this critical to determining what the proposed defendant would have understood as to whether there was a mistake of identity by the Sweet plaintiffs. Rather than thinking the plaintiffs made a mistake as to his identity, the proposed defendant “instead would have suspected that [the p]laintiffs simply made a tactical decision to sue [] the corporation he co-owned and co-managed [] instead of suing him directly.” Despite acknowledging the allegations in the related case were “bare[] bones,” the court determined the plaintiffs “had sufficient (although concededly minimal) knowledge” to decide to raise claims against that individual “throughout the duration of the lawsuit, and they [were] not entitled to a second (untimely) bite at the apple.”
See id. at *7-11.
Id. at *11.
Id. at *7 (internal quotation marks omitted).
Id. at *9.
The Sweet case is on point because Ms. Rains had much more than bare-bones information regarding Dr. Badenhausen's identity and his involvement in the conduct giving rise to her claims. In her amended complaint (filed one day after publication of the allegedly defamatory article), Ms. Rains named Dr. Badenhausen, identified his position at Westminster, and described his role as author of the article. Additionally, as of February 26, 2021, Ms. Rains knew Westminster disclaimed responsibility for the statements in the article. After learning of Westminster's position, Ms. Rains had nearly four months remaining in the limitations period to bring claims against Dr. Badenhausen. Despite having the information necessary to decide whether to do so, Ms. Rains did not move to amend her complaint until October 22, 2021-eight months after learning of Westminster's position and four months after the statutes of limitation expired. Dr. Badenhausen reasonably believed Ms. Rains' failure to assert claims against him was not due to any mistake of identity on her part, but was the result of Ms. Rains' deliberate choice to sue Westminster instead. Dr. Badenhausen relied on this belief for nearly four months after the statutes of limitation had expired, giving him a “strong interest in repose.”
Krupski, 560 U.S. at 550.
Where Ms. Rains has not satisfied the third element under Rule 15(c)(1)(C), her second amended complaint does not relate back. Accordingly, the claims asserted against Dr. Badenhausen are barred by the statutes of limitation.
RECOMMENDATION
Because the statutes of limitation for the defamation and false-light invasion of privacy claims asserted against Dr. Badenhausen expired by the time Ms. Rains moved to amend her complaint, and because she cannot satisfy all three elements required under Rule 15(c)(1)(C) for a pleading to relate back, the undersigned RECOMMENDS the district judge GRANT the motion to dismiss and DISMISS the claims against Dr. Badenhausen with prejudice.
(Doc. No. 67.)
The court will send copies of this Report and Recommendation to all parties, who are notified of their right to object to it. The parties must file any objection to this Report and Recommendation within fourteen (14) days of service thereof. See 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b). Failure to object may constitute waiver of objections upon subsequent review.