Opinion
Case No. 6:17-cv-01120-MK
12-12-2018
RANDY DEAN MANNS, Plaintiff, v. LINCOLN COUNTY; and JANE and JOHN DOES 1-20, Defendant.
FINDINGS & RECOMMENDATION :
Randy D. Manns ("plaintiff") moves to file an amended complaint (doc. 15) pursuant to Fed. R. Civ. P. 15. Oral argument was held on December 4, 2018. For the reasons set forth below, plaintiff's motion is DENIED.
BACKGROUND
On July 19, 2017, plaintiff filed a complaint in this Court against defendants Lincoln County, and Jane and John Does 1-20, asserting claims under 42 U.S.C. § 1983 and state law claims arising out of alleged medical malpractice and negligence during his incarceration between July 24 through August 12, 2015. See generally, Compl. (doc. 1). Plaintiff further alleged Jane and John Does "1 through 20 [were] corrections deputies, supervisors, doctors, nurses, medical staff, administrative staff, and/or other agents or employees of Lincoln County Jail, who were acting under color of law at all material times." Id. at ¶ 5. Plaintiff also alleged "defendants were negligent concerning [plaintiff's] serious medical needs" and "unlawfully failed to provide adequate medical care for [plaintiff's] skin graft and post-surgical needs, including failing to provide appropriate hygiene, bandages, dressing gowns, cleanliness, safety and other precautions to prevent infection and contamination." Id. at ¶ 13. He further alleged that "defendants failed to adequately treat and care for plaintiff and were deliberately indifferent to his serious medical needs." Id. at ¶ 16.
On April 12, 2018, plaintiff filed a motion to amend his complaint to identify John Doe 1 as Head Medic Deputy Danny Tam ("Nurse Tam"). Pl.'s Mot. Am. 1 (doc. 15); see also Proposed Am. Compl. 2 ("PAC") (doc. 15-1). Defendants oppose the motion.
STANDARD OF REVIEW
Leave to amend pleadings shall be "freely give[n] when justice so requires." Fed. R. Civ. P. 15(a)(2). Courts apply Rule 15 with "extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citations omitted). In determining whether a motion to amend should be granted, the court generally considers five factors: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility; and (5) whether the plaintiff has previously amended the complaint. Ri Ky Roofing & Sheet Metal, LLC v. DTL Builders, Inc., No. 6:17-cv-01251-JR, 2018 WL 2336756, at *1 (D. Or. May 23, 2018) (citing Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)).
These factors are not weighted equally: "futility of amendment alone can justify the denial of a motion [to amend]." Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir. 2009). A proposed amendment is futile if it would be immediately "subject to dismissal." Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998). In making this determination, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). The proposed complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, a plaintiff must present allegations that are "enough to raise a right to relief above the speculative level." Id. at 555 (citation omitted).
DISCUSSION
Plaintiff asserts his § 1983 claims against Nurse Tam are within the two year statute of limitations because they "relate back" to his original complaint. Pl.'s Mot. Am. 2-3. Defendants argue plaintiff's motion should be denied because the proposed amendment is "untimely, prejudicial and barred by the statute of limitations." Def.'s Opp'n Am. 2 (doc. 19).
I. Preliminary Matter
Although expressly permitted to do so by local rule, plaintiff did not file a reply to defendant's argument in their opposition. LR 7-1(e). On that ground alone, the Court could deny plaintiff's motion for leave to amend. Hansen v. Long, 2014 WL 3435871, *14 (C.D.Cal. Jan. 28, 2014) (failure to address argument in reply is a concession of the argument), adopted 2014 WL 3436156 (C.D.Cal. July 10, 2014); see also Maciel v. Cate, 731 F.3d 928, 932 n.4 (9th Cir. 2013) (holding a party forfeited an argument by failing to address it in reply brief); United States v. McEnry, 659 F.3d 893, 902 (9th Cir. 2011) (where an argument is available but not raised, it is waived). As plaintiff's motion raised arguments regarding relation back however, the Court addresses the substantive merits of plaintiff's contentions below.
II. Relation Back
The parties agree plaintiff's Section 1983 claims are governed by a two-year statute of limitations. Pl.'s Mot. Am. 2; Def.'s Opp'n Am. 5; see also Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002). Plaintiff asserts his claims against Nurse Tam fall within the statute of limitations because they "relate back" to the original complaint. See generally, Pl.'s Mot. Am. Defendants contend the claims are barred by the statute of limitations because the two year statute of limitations expired on August 12, 2017, two years after the date plaintiff was released from incarceration. Neither party disputes the following timeline of events:
• July 24-August 12, 2015: plaintiff was incarcerated at Lincoln County Jail where the alleged conduct that gave rise to his claims took place. Def.'s Opp'n Am. 1 (citing Compl. ¶ 11 (doc. 1)).Thus, as the PAC was filed outside the two year statute of limitations window, the claims against Nurse Tam are barred by the statute of limitations unless they "relate back" to the original complaint. See Krupski v. Costa Crociere S. p. A ., 560 U.S. 538, 541 (2010). In § 1983 cases, a district court must consider both federal and state law and apply whichever is more permissive in allowing relation back. Butler v. Nat'l Cmty. Renaissance of California, 766 F.3d 1191, 1200 (9th Cir. 2014). Federal and Oregon state law provide different requirements for a claim to relate back.
• July 19, 2017: plaintiff files a complaint in this Court listing Jane and John Does 1-20. See (doc. 1).
• October 9, 2017: discovery conference where plaintiff's counsel learns the last name of Nurse Tam. Pl.'s Mot. Am. 2; Def.'s Opp'n Am. 2-3.
• April 12, 2018: plaintiff files PAC identifying John Doe 1 as Nurse Tam. PAC 2 (doc. 15-1).
Plaintiff's counsel also represents during the October 9, 2017, Fed. R. Civ. P. 26 conference, prior counsel for defendant, Jans Schmidt, reached an understanding "that defense counsel would not object to naming Tam [in an amended] complaint." Pl.'s Mot. Am. 2. Defendant maintains Schmidt "did not make any representation to plaintiff's counsel that defendants were waiving any affirmative defenses, including statute of limitation defenses, or that [defendant] would not be objecting to the addition of Danny Tam as a defendant." Def.'s Opp'n Mot. 3 (doc. 19); see also Schmidt Decl. (doc. 20) ¶¶ 3-4. Because the parties' dispute is not relevant to the legal analysis at issue for the pending motion, the Court need not resolve it.
A. Federal Standard
Pursuant to Fed. R. of Civ. Pro. 15(c), an amendment that adds or substitutes a defendant relates back to the original complaint if:
(1) the amendment arises out of the same "conduct, transaction, or occurrence set out" in the original complaint; (2) the defendant brought in by the amendment received notice of the action, within 90 days of the original complaint, such that the defendant "will not be prejudiced in defending on the merits"; and (3) within those 90 days, the new or renamed defendant knew "or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity."Fed. R. Civ. P. 15(c); see also Sarnowski v. Peters, No. 2:16-cv-00176-SU, 2016 WL 10705318, at *3 (D. Or. Sept. 8, 2016). Here, defendants concede the first element is met. Def.'s Opp'n Am. 6. Defendants argue, however, plaintiff cannot satisfy the notice requirement of Rule 15(c); nor can plaintiff demonstrate Nurse Tam knew or should have known that the action would have been brought against him, "but for a mistake concerning the proper party's identity." Fed. R. Civ. P. 15(c)(1)(C)(ii).
Rule 15 does not specifically indicate 90 days but rather references "the period provided under Rule 4(m)." As of Dec. 1, 2015, Rule 4(m) provides for a period of 90 days. Fed. R. Civ. P. 4(m).
Plaintiff has not met his burden of establishing sufficient notice. See Wilkins-Jones v. County. of Alameda, 2012 WL 3116025, *14 (N.D.Cal. July 31, 2012) ("it is Plaintiff's burden to show relation back"). Beyond merely asserting "that Tam received notice of the lawsuit within 90 days of filing" plaintiff neglected to provide any argument or evidence regarding the second requirement. Pl.'s Mot. Am. 5; see also Strong v. City of Eugene, No. 6:14-cv-01709-AA, 2015 WL 2401395, at *3 (D. Or. May 19, 2015), aff'd, 2018 WL 2439539 (9th Cir. May 31, 2018). Defendants correctly contend plaintiff has not offered "evidence in support of his motion that Nurse Tam had any notice of the lawsuit" within the requisite time period as outlined by Rule 15. Indeed, as noted above, plaintiff failed to file a reply offering evidence supporting Nurse Tam had notice of the lawsuit in the requisite time frame. LR 7-1(e).
At oral argument, plaintiff concedes that the court would have to infer plaintiff had notice of the lawsuit because his employee file and plaintiff's medical records, with Nurse Tam's name presumably in those records, had been released during discovery. Hearing (December 4, 2018). However, as defendant pointed out first, those records were released at some point in the summer of 2018, long after the applicable statute of limitations had run. Id. Further, defendant argues that plaintiff's supposition that mere release of Nurse Tam's employee file or plaintiff medical records could potentially put Nurse Tam on notice of his status as a defendant requires the Court to go beyond making an inference, it moves the inquiry into the realm of speculation. Id. The Court agrees with both of defendant's arguments.
As a result, nothing in the record indicates that Nurse Tam had actual or constructive notice. See Def.'s Opp'n Am. 6 ("Plaintiff submits no actual evidence in support of his motion that Nurse Tam had any notice of the lawsuit within 90 days."); see also Wilkins-Jones, 2012 WL 3116025 at *13 (second requirement of Fed.R.Civ.P. 15(c) was not satisfied where the plaintiff "offers no actual evidence of notice").
Plaintiff similarly fails to establish a mistake concerning the third element. The parties agree neither the Supreme Court nor the Ninth Circuit have addressed the question of whether a plaintiff's failure to identify a "Doe" defendant by name in the complaint qualifies as a "mistake" pursuant to Rule 15(c).
Plaintiff relies on two Oregon District Court decisions that held naming John Doe defendants was a "mistake" that "could be construed to encompass plaintiff's inability to specifically identify doe defendants (by name) prior to the expiration of the statute of limitations." Phillips v. Multnomah County, 2007 WL 915173, at *10 (D. Or. Mar. 23, 2007); Korbe v. Hilton Hotels Corp., 2009 WL 723348, at *7 (D. Or. Mar. 13, 2009); Pl.'s Mot. Am. 4. This reliance, however, is misplaced because those cases are distinguishable from the present one. In each of those cases, the timely complaint described "Doe" defendants with sufficient specificity, alleging their jobs and their role in the events giving rise to the plaintiffs' claims. Phillips, 2007 WL 915173, at *11-*12; Korbe, 2007 WL 915173, at *7.
Here, by contrast, plaintiff has described the "Doe" defendants as "corrections deputies, supervisors, doctors, nurses, medical staff, administrative staff, and/or other agents or employees of Lincoln County Jail" and has not described what specific conduct each "Doe" defendant engaged in. Compl. ¶¶ 5, 13-22, 25-30 (doc. 1). In other words, plaintiff's complaint failed to describe Nurse Tam with sufficient specificity or allege what conduct he engaged in.
Phillips and Korbe are distinguishable on other grounds as well. In those cases the plaintiffs sought the identities of "Doe" defendants through discovery before the statute of limitations expired, and defendants had withheld the requested names. Phillips, 2007 WL 915173, at *10; Korbe, 2007 WL 915173, at *4. Those factors are not present here. Indeed, plaintiff knew Nurse Tam's first name, and defendant informed plaintiff's counsel of his last name upon request. Freedman Decl. ¶¶ 3-5 (doc. 16); Schmidt Decl. ¶ 3 (doc. 20).
Moreover, several courts in this district that have examined the issue have held relation back does not apply when a plaintiff seeks to replace a "Doe" defendant with a newly named party. See, e.g., Sarnowski, 2016 WL 10705318, at *4 ("At present, the weight of authority interpreting the mistake requirement indicates that relation back does not apply when a plaintiff seeks to replace a Doe defendant with a newly named party.") (citation and quotation marks omitted); Strong, 2015 WL 2401395, at *4-*5 (civil rights plaintiffs did not make a "mistake" under Rule 15(c) when they named "Doe" defendants in the original complaint); Hagen v. Williams, No. 6:14-cv-00165-MC, 2014 WL 6893708, at *6 (D. Or. Dec. 4, 2014) ("I agree with the majority of other courts that intentionally naming a 'John Doe' Defendant is not a 'mistake' as to the Defendant's identity."); Skoog v. Clackamas Cty., No. 00-cv-1733-MO, 2004 WL 102497, at *8 (D. Or. Jan. 12, 2004), rev'd in part on other grounds, 469 F.3d 1221 (9th Cir. 2006) ("The weight of authority interpreting the mistake requirement concludes relation back does not apply when a plaintiff seeks to replace a Doe defendant with a newly named party, essentially reasoning 'mistake concerning identity' does not, by its plain language, include a lack of knowledge regarding the proper defendants.").
The Circuit Courts of Appeals also largely agree. See, e.g., Heglund v. Aitkin Cty., 871 F.3d 572, 579 (8th Cir. 2017), cert. denied, 138 S. Ct. 749 (2018) ("We conclude that naming a John Doe defendant is not a 'mistake.'"); see also Wilson v. U.S. Gov't, 23 F.3d 559, 563 (1st Cir. 1994) ("Rule 15(c)(3) permits an amendment to relate back only where there has been an error made concerning the identity of the proper party and where that party is chargeable with knowledge of the mistake, but it does not permit relation back where, as here, there is a lack of knowledge of the proper party.") (citation and quotation marks omitted; emphasis in original); Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 470 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir. 1996) ("Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities."); Locklear v. Bergman & Beving AB, 457 F.3d 363, 366 (4th Cir. 2006) ("we have not viewed lack of knowledge of the proper party to be sued as a 'mistake' as that term is used" in Rule 15); Jacobsen v. Osborne, 133 F.3d 315, 320-21 (5th Cir. 1998) ("[T]he proposed amendment as to the deputies was not necessitated by the 'mistake' or 'misidentification' at which Rule 15(c)(3) is aimed."); Smith v. City of Akron, 476 Fed.Appx. 67, 69 (6th Cir. 2012) ("The Rule allows relation back for the mistaken identification of defendants, not for defendants to be named later through 'John Doe,' 'Unknown Defendants' or other missing appellations."); Garrett v. Fleming, 362 F.3d 692, 697 (10th Cir. 2004) ("A plaintiff's designation of an unknown defendant as 'John Doe' in the original complaint is not a formal defect of the type Rule 15(c)(3) was meant to address."); but cf. Singletary v. Penn. Dep't of Corr., 266 F.3d 186, 200 (3d Cir. 2001) (urging the Rules Advisory Committee to amend Rule 15(c)(3) to adopt the opposite approach).
In sum, the clear trend in this district holds relation back does not apply when a plaintiff seeks to replace a "Doe" defendant with a newly named party. Sarnowski, 2016 WL 10705318, at *4; Strong, 2015 WL 2401395, at *4-*5; Hagen 2014 WL 6893708, at *6. As such, plaintiff's claims do not relate back pursuant to Fed. R. of Civ. Pro. 15(c), and leave to amend should be denied.
B. State Standard
Plaintiff's claims fair no better under Oregon state law. Oregon Rule of Civil Procedure 23C, which governs relation back, is similar to federal law. Plaintiff is correct that some courts have permitted relation back where a plaintiff seeks to amend a complaint to name specific "Doe" defendants, and that Oregon courts distinguish between "misnomer" and "misidentification" situations. Worthington v. Estate of Davis, 282 P.3d 895, 898 (Or. Ct. App. 2012). A "misnomer" occurs where a plaintiff clearly identifies but misnames a defendant in the original pleading and amends to correct the naming error. Id.; Krauel v. Dykers Corp., 21 P.3d 1124, 1126 (Or. Ct. App. 2001). An amendment to correct a "misnomer" relates back to the original pleading so long as the amendment arises out of the same conduct, transaction, or occurrence. Id. On the other hand, a "misidentification" occurs when a plaintiff seeks to substitute or add a new defendant, such as when the plaintiff "initially chose the wrong defendant to sue or, at least, failed to choose all of the correct defendants" in the original complaint. Worthington, 282 P.3d at 899; see also Harmon v. Meyer, 933 P.2d 361, 363 (Or. Ct. App. 1997). Rule 23C provides that in those circumstances, the amendment only relates back to the original complaint if it arises out of the same conduct, transaction, or occurrence as the original complaint, and if the newly named party:
(1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining any defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party brought in by amendment.ORCP 23C.
Plaintiff did not supply, and the Court was unable to locate, an Oregon state court decision addressing whether naming a "Doe" defendant qualifies as "misnomer" or "misidentification." Plaintiff relies on Korbe in support of his argument that naming a Doe defendant "was not a change in parties and thus did not trigger" Rule 23. Korbe, 2009 WL 723348, at *2.
This reliance is again misplaced, however, because in that case the original complaint described the "Doe" defendant in detail, alleging he had negligently operated a hotel vacuum cleaner causing plaintiff to trip on the cord and suffer injury. Id. at *1, *4. Moreover, the court's reasoning was additionally premised on the fact the case was one of misnomer because had the defendant "been served with the original complaint, he would have understood that he was the intended defendant, notwithstanding the fact that the complaint identified him as John Doe." Id. at *2, *7.
Here, by contrast, the original complaint fails to describe any Doe defendant with sufficient specificity such that Nurse Tam would have understood that he was indeed the defendant, notwithstanding the "Doe" designation. In fact, the original complaint describes all 20 "Doe" defendants in broad terms. See Compl. at ¶ 5 (doc. 1) (Jane and John Does "1 through 20 [were] corrections deputies, supervisors, doctors, nurses, medical staff, administrative staff, and/or other agents or employees of Lincoln County Jail, who were acting under color of law at all material times."). Moreover, Judge McShane's more recent decision in Hagen concluded just the opposite of plaintiff's argument: holding it is invariably a "misidentification" when a plaintiff "intentionally [chooses] to name John Doe defendants." Hagen, 2014 WL 6893708, at *7.
In any event, the Court finds the distinction is not dispositive. Under Hagen's reasoning, this case is automatically one of "misidentification." Similarly, following Korbe's approach, the result is the same because the original complaint fails to describe the "Doe" defendants with sufficient identifiable detail. Accordingly, this case is one of "misidentification" and subject to Rule 23C requirements of notice and mistake.
The Rule 23C mistake requirement inquires whether plaintiff's misidentification was such that the true defendant knew or should have known that, but for plaintiff's mistaken identification, the action would have been brought against him. ORCP 23C. The requirement uses language virtually identical to Rule 15(c) and courts treat the requirements as "analogous." See Hagen, 2014 WL 6893708 at *7; Strong, 2015 WL 2401395, at *5; D.H.M. v. Oregon Youth Auth., 2008 WL 1766727, at *7 (D. Or. Apr. 8, 2008). As such, plaintiff's proposed amendment fails under Oregon's Rule 23C "mistake" requirement for the same reasons it does not meet the federal Rule 15(c) "mistake" requirement. Plaintiff has failed to establish his claims against Nurse Tam relates back under either state or federal law. The claims are time-barred and plaintiff should not be permitted leave to amend.
Rule 23C requires that the true defendant "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party brought in by amendment." Rule 15(c)(1)(C) requires that the true defendant "knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity."
RECOMMENDATION
Plaintiff's motion to amend the complaint (doc. 15) should be DENIED. As a result, plaintiff's initial complaint (doc. 1) should remain the operative pleading in this case.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation. DATED this 12th day of December 2018.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge