Opinion
NO. 7:22-CV-198-FL
2023-07-18
Dacia WILSON, Plaintiff, v. CITY OF JACKSONVILLE, NORTH CAROLINA; Officer E.Y. Gellinas in his individual and official capacity; and Unidentified Officers 1-3 in their individual and official capacities, Defendants.
M. Brad Hill, Hill Law PLLC, Raleigh, NC, for Plaintiff. Norwood P. Blanchard, III, Clay Allen Collier, Crossley McIntosh Collier Hanley & Edes, PLLC, Wilmington, NC, for Defendants City of Jacksonville, North Carolina, Officer E. Y. Gellinas. Unidentified Officers 1-3, Pro Se. Clay Collier, Crossley McIntosh Collier Hanley & Edes, PLLC, Wilmington, NC, for Defendant Unidentified Officers 1-3.
M. Brad Hill, Hill Law PLLC, Raleigh, NC, for Plaintiff. Norwood P. Blanchard, III, Clay Allen Collier, Crossley McIntosh Collier Hanley & Edes, PLLC, Wilmington, NC, for Defendants City of Jacksonville, North Carolina, Officer E. Y. Gellinas. Unidentified Officers 1-3, Pro Se. Clay Collier, Crossley McIntosh Collier Hanley & Edes, PLLC, Wilmington, NC, for Defendant Unidentified Officers 1-3. ORDER LOUISE W. FLANAGAN, United States District Judge
This matter is before the court on defendants' motion to dismiss plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(2), (4), (5) and (6). (DE 13). Also before the court is plaintiff's motion to join necessary and permissive parties, conduct limited discovery to assist in identification of these parties, and stay proceedings until all necessary and appropriate parties are joined, pursuant to Federal Rules of Civil Procedure 19, 20, and 26. (DE 22). The court held hearing on the motions and took the matter under advisement. For the following reasons, defendants' motion is denied and plaintiff's motion is granted.
Defendants City of Jacksonville, North Carolina ("Jacksonville") and Officer E.Y. Gellinas ("Gellinas") jointly filed the instant motion to dismiss, and they state that any claims against the "Unidentified Officers 1-3" should be dismissed on the same grounds. (DE 13 at 2). In this order, the court refers to moving defendants Jacksonville and Gellinas as "defendants," for ease of reference, unless otherwise specified.
STATEMENT OF THE CASE
Plaintiff commenced this civil rights action September 26, 2022, in Onslow County Superior Court, under the procedure set forth in N.C. Gen. Stat. § 1A-1, Rule 3(a)(1) and (2), requiring the issuance of a civil summons and an application and order extending time to file complaint. Plaintiff filed her complaint October 17, 2022, alleging she was wrongfully arrested and subjected to an unreasonable search in violation of the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, as well as the North Carolina Constitution and common law. Plaintiff seeks compensatory and punitive damages on all counts.
Defendant Jacksonville removed the action to this court November 22, 2022, and defendants subsequently filed the instant motion to dismiss all claims against them. In support of the motion, they rely upon an Onslow County application and order extending time for plaintiff to file a complaint and civil summons, as well as copies of a conditional discharge and deferred prosecution agreement made in underlying state criminal action against plaintiff.
Although defendant Gellinas did not join the notice of removal, defendant Jacksonville represented in the notice of removal that defendant Gellinas consented to removal.
Plaintiff in response filed the instant motion to join unidentified officers as necessary and permissive parties; for limited discovery allowing her to discover the identity of these officers; and for the court to stay briefing on defendants' motion, reasoning that once the officers are identified plaintiff will file an amended complaint, rendering defendants' motion moot. Defendants oppose the motion.
The court held hearing on the motions April 12, 2023, and arguments focused primarily upon the sufficiency of summons against defendant Jacksonville ("the summons") and whether an amended complaint adding the complete identifying information for defendant Gellinas and unidentified officers 1-3 would relate back to the date of the original complaint. Plaintiff also contended at hearing that defendant Gelinas would need to be joined into the action because he had not yet been served. In relation to these issues, the parties introduced and provided the court with copies of McGraw v. Gore, 31 F.4th 844 (4th Cir. 2022) and Robinson v. Clipse, 602 F.3d 605 (4th Cir. 2010). Also discussed at length were this court's prior decisions in Lee v. City of Fayetteville, No. 5:15-CV-638-FL, 2016 WL 1266597 (E.D.N.C. Mar. 30, 2016) and Vaughan v. Foltz, No. 2:16-CV-61-FL, 2019 WL 1265055 (E.D.N.C. Mar. 19, 2019). The court took the matters under advisement and, responsive to the court's direction at hearing, plaintiff filed copies of alias and pluries summons issued in state court and affidavits of service on defendant Jacksonville.
Discovery is stayed pending decision on the instant motions.
STATEMENT OF FACTS
The facts alleged in plaintiff's complaint may be summarized as follows. September 24, 2019, a marked Jacksonville Police Department cruiser followed plaintiff, then a healthcare worker who "assisted in the care of patients with mental disabilities," and pulled her over with its lights flashing as she made her way home from work. (Compl. ¶¶ 11-12). Defendant Gellinas emerged from the cruiser and, upon approaching plaintiff, explained he expected her to be Mario Singletary ("Singletary"). (Id. ¶ 14). Singletary had in fact lent plaintiff the vehicle she was driving. (Id.).
Gellinas informed plaintiff he had pulled her over because of a "strong smell of marijuana." (Id. ¶ 15). Plaintiff acknowledges in her complaint that she had smoked marijuana earlier in the evening but contends that she was not smoking at the time Gellinas followed her or pulled her over. (Id. ¶ 16). Another officer, designated in the complaint as "Officer 1," arrived at the scene with a search dog. (Id. ¶ 18). Following some questioning, plaintiff admitted to the presence of a "cigarillo containing marijuana in the vehicle's ash tray." (Id.). A search of the vehicle revealed no other drugs or contraband. (Id. ¶ 19).
Two female officers, designated as "Officer 2" and "Officer 3," then arrived at the scene and conducted a search of plaintiff's person. (Id. ¶¶ 20-21). After subjecting her to multiple such searches, the officers requested plaintiff permit them to conduct a strip search, threatening a cavity search if she declined. (Id. ¶¶ 20-22, 25-29). Feeling she had no "good option," plaintiff complied and pulled her pants down to her knees. (Id. ¶ 31). Officer 3 then "yanked" plaintiff's underwear down as well, "violently" spread her legs," "and shined a flashlight directly on [p]laintiff's vagina." (Id. ¶¶ 31-32). No drugs or contraband were found on plaintiff's person. (Id. ¶ 33).
Gellinas, with his initials and last name listed, issued plaintiff citations for possession of marijuana based upon the "cigarillo." (See id. ¶ 36). The citations ultimately were resolved by conditional discharge. (Id. ¶ 43).
COURT'S DISCUSSION
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(2) allows for dismissal of a claim for lack of personal jurisdiction. "When a district court considers a question of personal jurisdiction based on the contents of a complaint and supporting affidavits, the plaintiff has the burden of making a prima facie showing in support of its assertion of jurisdiction." Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014). At this stage, the court "must construe all relevant pleading allegations in the light most favorable to plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction." Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989); see Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993) ("[T]he district court must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiff's favor.").
Internal citations and quotation marks are omitted from all citations unless otherwise specified.
A motion under Rule 12(b)(4) challenges the sufficiency of process, while a motion under Rule 12(b)(5) challenges the sufficiency of service of process. See Fed. R. Civ. P. 12(b)(4), (b)(5). "When the process gives the defendant actual notice of the pendency of the action, the rules . . . are entitled to a liberal construction" and "every technical violation of the rule or failure of strict compliance may not invalidate the service of process." Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). Nevertheless, "the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored." Id. The plaintiff bears the burden of establishing that process properly has been served. Dalenko v. Stephens, 917 F. Supp. 2d 535, 542 (E.D.N.C. 2013); see also Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993) (holding the plaintiff must prove service of process if challenged).
"To survive a motion to dismiss" under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. In evaluating whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff," but does not consider "legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). B. Analysis
Defendants raise two separate procedural issues in their motion. First, they contend when this case was first brought in Onslow County Superior Court plaintiff failed to issue proper summons to defendant Jacksonville and as a result the case had abated prior to removal. As a result, they argue, the action was legally dead on its arrival to federal court, and subject to dismissal. Second, assuming proper summons to defendant Jacksonville, defendants contend, and plaintiff agrees, no summons was issued to defendant Gellinas and the unidentified officers. Plaintiff now seeks to join the individual defendants, but defendant Jacksonville contends any claims against them would not relate back to the original state filings and now are time barred. The court considers each argument in turn below.
1. Abatement
Parties proceeding in North Carolina state court are not limited to the filing of a complaint when they commence a lawsuit. See N.C. R. Civ. P. 3(a). Rather, pursuant to North Carolina Rule of Civil Procedure 3, a plaintiff may, as here, commence an action by issuance of summons when she files for an extension of time and secures a state court order granting the extension. See N.C. R. Civ. P. 3(a); see, e.g., Lassiter v. LabCorp Occupational Testing Servs., Inc., 337 F. Supp. 2d 746, 752 (M.D.N.C. 2004) ("[A] plaintiff may initiate a Title VII action in a North Carolina state court utilizing either means set forth in Rule 3 of the North Carolina Rules of Civil Procedure.").
"[S]tate law governs the case's procedure up to its removal." Rice v. Alpha Sec., Inc., 556 F. App'x 257, 260 (4th Cir. 2014); see, e.g., Eccles v. Nat'l Semiconductor Corp., 10 F. Supp. 2d 514, 519 (D. Md. 1998) ("Rules 4(m) and 81, both as read together and as interpreted by federal courts, establish that state law governing service of process (and all other issues) applies before removal, and that federal law applies after removal. This scheme comports with 28 U.S.C. § 1448[.]").
Rule 3 dictates that each step is required for commencement of an action to be effectuated. Thus, "[a]n action is not commenced under the delayed service provision of Rule 3 until: (1) an application is made to the court for permission to file a complaint within twenty days; (2) the court enters an order granting that extension; and (3) a summons is issued pursuant to that order." Telesca v. SAS Inst., Inc., 133 N.C. App. 653, 655, 516 S.E.2d 397 (1999); see Lassiter, 337 F. Supp. 2d at 751 ("Merely filing an application for an extension of time is insufficient; a plaintiff must have a summons issued within the relevant statutory period to sustain his claims.").
Defendants argue plaintiff here failed to properly issue summons to defendant Jacksonville, and thus her state court filings made September 26, 2022, were insufficient to commence an action. See Conner Bros. Mach. Co. v. Rogers, 177 N.C. App. 560, 561, 629 S.E.2d 344 (2006) ("Our Court has held that where a summons does not issue within five days of the filing of a complaint, the action abates and is deemed never to have commenced."); accord Roshelli v. Sperry, 57 N.C. App. 305, 308, 291 S.E.2d 355 (1982). In effect, according to defendants, plaintiff's case was "legally dead" upon its removal to federal court and is subject to dismissal. Rice, 556 F. App'x at 260 ("[T]he removal of a case to federal court cannot 'breathe jurisprudential life in federal court to a case legally dead in state court.' ") (quoting Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160, 168 (3d Cir. 1976)).
As noted previously, plaintiff agrees no summons has issued to defendant Gellinas or the unidentified officers. The court's analysis herein thus focuses on sufficiency of the summons as to defendant Jacksonville.
For a summons to "issue" it must be "filled out." N.C. R. Civ. P. 4(a). Rule 4(b) of the North Carolina Rules of Civil Procedure governs the required contents of state summons, providing that a summons shall "contain the title of the cause" and additionally be "directed to the defendant or defendants" such that it "notif[ies] each defendant to appear and answer within 30 days after its service upon him." N.C. R. Civ. P. 4(b).
Summons to defendant Jacksonville is pictured below:
Image materials not available for display. (Summons (DE 14-1)). It leaves blank that section directing plaintiff to indicate who the summons is issued "To" and also fails to identify the specific defendant addressed in the section for "Name and Address of Defendant 1." Additionally, where Rule 4(j)(5) requires that service upon a city be made to "its mayor, city manager or clerk" plaintiff's filings subsequent to hearing disclose that the "Public Safety Complex" resides at the listed address, "200 Marine Blvd. Jacksonville NC 28540." See N.C. Gen Stat. § 1A-1, Rule 4(j)(5); (Pl. Aff. (DE 27) at 1). According to defendants, these errors render the summons fatally defective as to defendant Jacksonville.
The North Carolina Supreme Court addressed related question in Wiles v. Welparnel Const. Co., 295 N.C. 81, 243 S.E.2d 756 (1978), where it considered the sufficiency of a summons under Rule 4 directed to the agent of the defendant corporation rather than the corporation itself. Id. at 83, 243 S.E.2d 756. Relevant to that inquiry, Rule 4(b) requires that "a summons shall be directed to the defendant rather than to a process officer ordering him to summon the defendant." Id.
The court examined the justification for the rule, reasoning that "[t]he rationale of all rules for service of process on corporations is that service must be made on a representative so integrated with the corporation sued as to make it a priori supposable that he will realize his responsibilities and know what he should do with any legal papers served on him." Id. at 84, 243 S.E.2d 756. In short, the purpose of the rule was to ensure notice. Id. (analogizing to Federal Rule of Civil Procedure 4, the "primary purpose" of which is "to provide the mechanisms for bringing notice of the commencement of an action to defendant's attention and to provide a ritual that marks the court's assertion of jurisdiction over the lawsuit" (quoting Wright & Miller, Federal Practice and Procedure: Civil § 1063 p. 204 (1969))).
Applied to the facts of the case, the court in Wiles observed that the defendant corporation was named as the defendant in the complaint as well as in the caption of the summons. The only defect was "the direction of the summons to the corporation's registered agent rather than to the corporation." Id. Though "Rule 4(b) does require that the summons be directed to the defendant," the court felt "constrained to agree" with rationale by the Fourth Circuit in "a similar context":
A suit at law is not a children's game, but a serious effort on the part of adult human beings to administer justice; and the purpose of process is to bring parties into court. If it names them in such terms that every intelligent person understands who is meant, . . . it has fulfilled its purpose; and courts should not put themselves in the position of failing to recognize what is apparent to everyone else."Id. at 84-85, 243 S.E.2d 756 (quoting United States v. A.H. Fischer Lumber Co., 162 F.2d 872, 873 (4th Cir. 1947)). The court held "[u]nder the circumstances, the spirit certainly, if not the letter, of N.C. R. Civ. P. 4(b) ha[d] been met." Id. at 85, 243 S.E.2d 756. As it was clear from the complaint and caption of the summons that "the corporation, rather than the officer or agent receiving service, [was] the entity being sued," the error in directing summons to the agent of the defendant corporation was not fatal. Id.
The court engaged in similarly purposive reasoning in Harris v. Maready, 311 N.C. 536, 542, 319 S.E.2d 912 (1984), where the defendant inadvertently was handed a copy of a summons directed to another defendant in the action. Id. at 542, 319 S.E.2d 912. The court held under Wiles "the mandates of Rule 4 ha[d] been met." Id. at 544, 319 S.E.2d 912. "[T]here was no substantial possibility of confusion in this case about the identity of [the defendant] as a party being sued" as the caption of the summons "listed his name first among the defendants being sued." Id. "Any person served in this manner would make further inquiry personally or through counsel if he had any doubt that he was being sued and would be required to answer the complaint when it was filed." Id.
Applied here, though that part of the summons indicating who it was directed to was left blank, defendant Jacksonville is the first defendant listed in the caption of the summons. See Harris, 311 N.C. at 544, 319 S.E.2d 912. Further, though it was addressed to the Public Safety Complex of defendant city rather than its mayor, city manager, or clerk, as in Wiles where the summons was directed to the agent of the corporation rather than the corporation itself, it is nevertheless clear from the complaint and summons that defendant Jacksonville is being sued. Id. at 84-85, 243 S.E.2d 756. Indeed, defense counsel at hearing confirmed that he could not "with a straight face" tell the court that defendant Jacksonville was unaware that a lawsuit was filed against it. Where "the possibility of any substantial misunderstanding concerning the identity of the party being sued in this situation is simply unrealistic," Wiles, 295 N.C. at 85, 243 S.E.2d 756, the court concludes summons properly was issued, and plaintiff's action commenced against defendant Jacksonville pursuant to the delayed service provision of Rule 3 at the time of plaintiff's state court filings, September 26, 2022.
An official transcript of the hearing has not been filed. The court accordingly relies in this order on its internal rough notes.
Defendant Jacksonville in opposition contends Stack v. Union Reg'l Mem'l Med. Ctr., Inc., 171 N.C. App. 322, 614 S.E.2d 378 (2005) requires a different result. There, however, the summons was issued to an entity unrelated to the moving defendant. Indeed, the defendant to whom summons was issued, the Foundation, provided it "ha[d] never owned, merged with, operated or controlled" the moving defendant, Union Regional, and instead was "a charitable organization" unengaged in the type of conduct alleged. Id. at 323-24, 614 S.E.2d 378. By comparison, defendant does not here contend that the Public Safety Complex of Jacksonville is "an entirely different entity" from defendant Jacksonville. Id. at 326, 614 S.E.2d 378. Stack is thus distinguishable from the instant facts.
Where summons was issued to defendant Jacksonville, plaintiff's action had not abated, and rather remained a live action at the time of removal. That part of defendants' motion seeking dismissal of the action on the basis of abatement accordingly is denied.
Though defendant's briefing additionally raises issue generally with service of process, at hearing counsel clarified that it disputes the form of the summons served, providing: "[w]e're not saying he didn't mail it properly or any of that stuff. It was the form of the summons." To the extent counsel for defendant Jacksonville was mistaken at hearing, however, and defendants did in fact intend to raise separate issue with service of process, they shall so notify the court within 30 days of the instant order being entered. In the event of such notice, the court in its discretion EXTENDS time for service pursuant Federal Rule of Civil Procedure 4(m) and, without further order from this court, the clerk is DIRECTED to set a 30-day deadline from the time of defendant's filing for plaintiff to serve process on defendant Jacksonville.
2. Relation Back
Plaintiff in her motion seeks discovery to assist in complete identification of defendant Gellinas and the unidentified officers, so that service may be made upon them and they may thereby be joined. Plaintiff contends her claims against individual defendants then would relate back to the commencement of this action, September 26, 2022, pursuant to Federal Rule of Civil Procedure 15(c). Defendants argue there would be no relation back, bringing to bear the statute of limitations on plaintiff's claims.
Plaintiff's § 1983 claims and state law claims are subject to a three-year statute of limitations. See N.C. Gen. Stat. § 1-52(13). Though § 1983 does not contain a statute of limitations, it "borrow[s]" its statute of limitations from the forum state's "most analogous" statute of limitations. Owens v. Okure, 488 U.S. 235, 239, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). Generally, the "most analogous" statute of limitations is the one applicable to personal injury cases. Id. at 240-41, 109 S.Ct. 573. In North Carolina, the statute of limitations for personal injuries is three years. See N.C. Gen. Stat. § 1-52(16).
Accrual of the statute of limitations, however, is a matter of federal law. Brooks v. City of Winston-Salem, N.C., 85 F.3d 178, 181 (4th Cir. 1996). Under federal law, a cause of action accrues when the plaintiff "possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action." Id. Here, plaintiff possessed knowledge of the harm done to her September 24, 2019, the date of her alleged search and seizure. Plaintiff thus was required to have commenced her lawsuit no later than September 26, 2022, where September 24, 2022, was a Saturday. As already noted, plaintiff filed in state court on that date exactly.
In effect, if plaintiff's claims against individual defendants do not relate back to the date of the original filing on September 26, 2022, they are time barred and subject to dismissal. Brooks v. City of Winston-Salem, North Carolina, 85 F.3d 178, 181 (4th Cir. 1996) ("Dismissal is appropriate when the face of the complaint clearly reveals the existence of a meritorious affirmative defense."); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 352 (1990) ("A complaint showing that the statute of limitations has run on the claim is the most common situation in which the affirmative defense appears on the face of the pleading," rendering dismissal appropriate) (cited by Brooks for this contention).
Relation back of amendments is governed by Rule 15(c) of the Federal Rules of Civil Procedure. Relevant here, where plaintiff's amended complaint would "change[ ] the party or the naming of the party against whom a claim is asserted," it relates back if: 1) the claim in both the original and amended complaint arise out of the "same transaction"; and, 2) "within the period provided by Rule 4(m) for serving the summons and complaint the party to be brought in by the amendment": i) "received notice of the action such that it will not be prejudiced in maintaining a defense to the claim"; and ii) "should have known that it would have originally been named a defendant 'but for a mistake concerning the identity of the proper party.' " Goodman v. Praxair, Inc., 494 F.3d 458, 467 (4th Cir. 2007) (en banc) (quoting Fed. R. Civ. P. 15(c)(1)(C)).
The first requirement here plainly is met—plaintiff's claims against individual defendants arise out of the alleged search and seizure described in the original complaint.
Turning to the second, two-part requirement, key to this inquiry is the notice period governing. Defendants contend the individual defendants were required to be on notice within the three-year limitations period. The court disagrees.
"[T]he 'limitation period for purposes of analyzing whether [a] newly added defendant received notice and should have had knowledge of the action' as required for relation back under Rule 15(c) is not the statute of limitations for the underlying claim, but instead 'the Federal Rule of Civil Procedure 4(m) service period.' " McGraw v. Gore, 31 F.4th 844, 849 (4th Cir. 2022) (quoting Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010)). "The reference to Rule 4(m) . . . incorporates a 90-day notice period; under Rule 4(m), a defendant must be served within 90 days after a complaint is filed, or longer if good cause is shown." Id.; see Fed. R. Civ. P. 4(m). "Relation back is allowed, in other words, so long as the added defendant had notice within the 90 days - or any 'good cause' extension - allowed under Rule 4(m)." McGraw, 31 F.4th at 849; see id. at 850 ("Under Rule 15(c), a party must be on notice within the time allowed for service under Rule 4(m), not within the statute of limitations for the plaintiff's claim.").
In McGraw, as here under the delayed service provision, the plaintiff's original complaint was filed before expiration of the three-year limitations period on his § 1983 claim, which claim arose out of alleged deficient medical attention received while imprisoned. 31 F.4th at 846-47. Following frivolity review pursuant to 28 U.S.C. § 1915, the court directed the plaintiff to file a particularized complaint naming individual defendants in place of the North Carolina Department of Public Safety, and the plaintiff filed an amended complaint naming two nurses at the facility where he had been incarcerated. Id. at 847. "This complaint, though within the deadline provided by the district court, was outside the original three-year statute of limitations on [the plaintiff's] underlying cause of action." Id. The district court dismissed the case as time-barred, deciding that the second pleading did not relate back under the second prong of Rule 15(c) because neither defendant nurse "received notice of the action within the limitation period for [the plaintiff's] § 1983 claim." Id. at 848.
The United States Court of Appeals for the Fourth Circuit reversed, concluding in part that under its prior holding in Robinson, which "flows directly from the text of Rule 15(c)(1)(C)," "the required 'notice' and knowledge must come 'within the period provided by Rule 4(m) ' for service." Id. at 849 (emphasis in original) (quoting Fed. R. Civ. P. Rule 15(c)(1)(C)). Where one defendant, "Wargas," was served within 90 days of the district court authorizing service of the amended complaint following frivolity review, the court held Rule 15(c) plainly was satisfied. Id. at 850 ("Wargas was served on February 3, 2020, the 90th day after authorization. So within the relevant time period, Wargas was formally served, receiving a copy of the complaint naming her as a defendant - which clearly satisfies the [Rule 15(c)] notice requirement."). With respect to the other defendant, "Gore," who was not served with formal process during Rule 4(m)'s default 90-day service period, the court reasoned Rule 15(c) incorporates Rule 4(m)'s good cause extension and held that extension applicable under the circumstances. Id. at 852; see Fed. R. Civ. P. 4(m) ("[I]f the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.").
Thus, under McGraw and Robinson, so long as the newly added individual defendants receive notice and should have had knowledge of the action within the Federal Rule of Civil Procedure 4(m) 90-day service period following filing of amended complaint, they will have received required notice under Rule 15(c). Where amended complaint has not yet been filed in the instant action, that the notice period under 15(c) has not even begun to toll.
Subsection (i) additionally requires that the newly added party "not be prejudiced in defending on the merits" when notified within the Rule 4(m) service period. Here, where no answer has been filed, and scheduling activities have been stayed during the pendency of the instant motions, the proceedings have not advanced such that a newly added party would prejudiced. See Robinson, 602 F.3d at 609 ("[A]t the time [the added party] received notice, the proceedings [had] not advanced to the point that [he could] show any prejudice with regard to [his] presentation or preparation of [his] defense.").
The final requirement for relation back under Rule 15(c) under subsection (ii), that the newly named parties "knew or should have known that the action would have been brought against [them], but for a mistake concerning the proper [parties'] identit[ies]," is a closer question. Fed. R. Civ. P. 15(c)(1)(C)(ii) (emphasis added). In particular, the issue before the court is whether naming Doe defendants, or identifying defendant Gellinas by his initials due to lack of further identifying information, constitutes a "mistake" allowing relation back as to those parties under Rule 15(c).
The Fourt Circuit has "rejected formalism in evaluating 'mistake' under Rule 15(c)." Robinson, 602 F.3d at 610 (citing Goodman, 494 F.3d at 470-71). "Rather than focusing on the reason behind a plaintiff's mistake . . . [the court has] found that [t]he 'mistake' language is textually limited to describing the notice that the new party had, requiring that the new party have expected or should have expected, within the limitations period, that it was meant to be named a party in the first place." Id. (emphasis in original).
In Robinson, pro se plaintiff proceeding in forma pauperis filed a § 1983 action alleging excessive force arising out of a high-speed chase and subsequent shooting. 602 F.3d at 606. The complaint identified "Patrolman Clipse" ("Clipse") as the wrongdoer but named only the South Carolina Department of Public Safety and Highway Patrol as defendant. Id. It was recommended that the complaint be dismissed after frivolity review pursuant to 28 U.S.C. § 1915 as the state department was entitled to sovereign immunity, and the plaintiff in response moved to add Clipse as a defendant. Id. The district court "found that although [the plaintiff] filed his original complaint within the three-year statute of limitations, his amendment adding Clipse did not relate back to the date of the original complaint under Rule 15 because . . . Clipse had no notice of [the plaintiff's] suit until May of 2007, and Clipse had no reason to know that the action would have been brought against him but for [the plaintiff's] mistake." Id. at 607.
The Fourth Circuit reversed, providing that the word "mistake" in Rule 15(c) is "textually limited" such that it requires the new party had notice within the time period set out by Rule 4(m), and reasoning that:
Clipse knew within the limitation period that he was the party [the plaintiff] intended to sue. As stated previously, Clipse was served and answered the amended complaint within the Rule 4(m) period. The amended complaint named Clipse as a defendant in his individual capacity. Thus, Clipse "has been given fair notice of [the original] claim within the limitation [ ] period."Id. at 610. So too here, provided that Gellinas and the unidentified officers are notified within the time period set out by Rule 4(m), they will timely "kn[o]w or should [ ] know[ ] that the action would have been brought against [them], but for a mistake concerning the proper party's identity." Fed. R. Civ. P. 15(c)(1)(C). Thus, the third requirement of Rule 15(c) would be met.
In opposition, defendant Jacksonville cites to prior decisions in which this court has held a lack of knowledge of the proper party to be sued is not a mistake under Rule 15(c)(3)(C)(ii). See Lee, 2016 WL 1266597, at *8 ("A 'mistake' is an error, misconception, or misunderstanding; an erroneous belief. Plaintiff's ignorance of the proper party's identity is not an error, misconception, or misunderstanding."); Vaughan, 2019 WL 1265055, at *9 ("It is well-settled in this circuit that plaintiff should not be permitted to amend her complaint to remove the John Doe defendants and substitute real parties, because their lack of knowledge of the proper defendants is not considered a 'mistake' under Rule 15(c)(3).").
These prior decisions rely primarily upon Goodman and Locklear v. Bergman & Beving AB, 457 F.3d 363 (4th Cir. 2006). In Locklear, the Fourth Circuit stated that "Rule 15(c)(3)(B) is not satisfied when the claimed mistake consists of a lack of knowledge of the proper party to be sued." Locklear, 457 F.3d at 368. In Goodman, however, the Fourth Circuit en banc limited its holding in Locklear, providing that "the text of Rule 15(c)(3) does not support [its] parsing of the 'mistake' language." Goodman, 494 F.3d at 470. The court clarified that "the 'mistake' language is not the vehicle to address [ ] concerns" associated with " 'Doe' substitutions." Id. at 473. Rather, "the notice and prejudice requirements of Rule 15(c)(3)(A) and (B) adequately police this strategic joinder practice." Id. "The Rule's emphasis on notice, rather than on the type of 'mistake' that has occurred, saves the courts . . . from an unguided and therefore undisciplined sifting of reasons for an amendment," the "peril" of which is illustrated by "disagreement among courts over which mistakes are forgiven under Rule 15(c) and which mistakes result in dismissal." Id.
In Robinson, the court described Goodman as "reject[ing] formalism in evaluating 'mistake,' " and allowed the plaintiff's amended complaint adding individual officer to relate back to the original complaint that named only the police department as a defendant. Robinson, 602 F.3d at 610. In so holding, as heretofore described, the court did not construe the type of mistake made, but instead focused on "the notice that the new party had, requiring that the new party have expected or should have expected, within the limitations period, that it was meant to be named a party in the first place." Id. (emphasis in original); see Goodman, 494 F.3d at 471 ("The Rule's description of when such an amendment relates back to the original pleading focuses on the notice to the new party and the effect on the new party that the amendment will have." (emphasis in original)).
Similarly, in McGraw, already described in relation to required notice under Rule 15(c), the court held that plaintiff's claims against two prison nurses arising out of alleged deficient medical attention received while incarcerated would be allowed to relate back to his original complaint. McGraw, 31 F.4th at 851. Notably, that original complaint named as defendants the North Carolina Department of Public Safety as well as "defendants yet 'to be determined.' " Id. Defendants contended the complaint could not "relate back because [plaintiff] named so-called 'John Doe defendants' in his original complaint - with his reference to defendants yet 'to be determined' - and substituting named parties for such placeholder defendants is not a 'mistake' within the meaning of Rule 15(c)(1)(C)(ii)." Id. The court signaled the defendants' reasoning amounted to "formalism in evaluating 'mistake,' " rejected in Goodman. Id. The court, however, decided it:
need not consider whether this means [plaintiff] could substitute named parties for the "to be determined" defendants to which he alluded in filling out his form complaint, because that is not what happened here. Instead, [plaintiff's] amended complaint substituted named parties Wargas and Gore for a different named party - a state agency immune from suit. And that is precisely the "mistake" we held correctable under Rule 15(c) in Robinson, where the plaintiff likewise sued a state agency entitled to sovereign immunity and then amended his complaint
to substitute an individual defendant.Id. (emphasis in original).
The court here squarely is faced with whether substituting named parties upon discovery of their identities for defendants "to be determined," specifically Gellinas and unidentified officers 1-3, is a "mistake" correctable under Rule 15(c). Said differently, the issue before this court is whether a party may correct a lack of knowledge of the proper party as a mistake under Rule 15(c). See Williams v. Kincaid, 45 F.4th 759, 775 (4th Cir. 2022) (providing that the Fourth Circuit "has yet to squarely address this question"). But see Locklear, 457 F.3d at 368. Where the Fourth Circuit has instructed that "the 'mistake' language is not the vehicle to address [ ] concerns" associated with " 'Doe' substitutions," this court concludes that plaintiff may correct a lack of knowledge of the proper party as a mistake under Rule 15(c). Goodman, 494 F.3d at 473. In evaluating whether subsection (ii) of Rule 15(c)(1)(C) has been met, this court focuses not on "the type of 'mistake' that has occurred," but rather on notice and prejudice to the added parties. Kincaid, 45 F.4th at 775 (providing that the court saw "no reason" to reject the focus on notice set forth in Goodman"); see Robinson, 602 F.3d at 610 ("[T]he 'mistake' language is textually limited to describing the notice that the new party had[.]" (emphasis in original)). For the reasons already provided, notice and prejudice does not here bar relation back.
In declining to construe the "mistake" language to bar relation back for unknown defendants, the court is mindful of the procedural distinction between this case and McGraw and Robinson. Specifically, this is not a case in which plaintiff's joinder of the parties follows frivolity review and court decision that the state agency sued in the original complaint is entitled to sovereign immunity. See McGraw, 31 F.4th at 851; Robinson, 602 F.3d at 606. To distinguish on that basis, however, would be to focus on "the type of 'mistake' that has occurred" and to engage in "an unguided and therefore undisciplined sifting of reasons for an amendment." Kincaid, 45 F.4th at 775. The "peril," Goodman, 494 F.3d at 473, of which is evident when the court compares the instant facts to those in McGraw, 31 F.4th at 851.
The original complaint in McGraw named as defendants the North Carolina Department of Public Safety as well as "defendants yet 'to be determined.' " 31 F.4th at 851. Though the court ultimately held amendment adding individual nurse defendants related back as they replaced the North Carolina Department of Public Safety, the nurses also quite plainly fit into the latter category. See id. As the individuals who allegedly committed the acts complained of, it is evident they were the defendants plaintiff anticipated adding at the time of the original complaint once their identity was "determined." For a different outcome to result here would be to engage in the type of formalism the Fourth Circuit has repeatedly rejected. See id.; see also A.H. Fischer Lumber Co., 162 F.2d at 873 (directing that the court should not put itself "in the position of failing to recognize what is apparent to everyone else").
Also relevant to the court's decision is the Fourth Circuit's more recent analysis in Kincaid. See 45 F.4th at 775. There, plaintiff named in original complaint "nine 'Custody Does'; and fifteen 'Health Care Does.' " Id. at 765. Plaintiff then amended the complaint "to include Defendants Wang (presumably, one of the Health Care Does) and Garcia (presumably, a Custody Doe)." Williams v. Kincaid, No. 1:20-CV-1397, 2021 WL 3671186, at *1 (E.D. Va. Aug. 18, 2021). As would be true here, the amendment was not made in response to frivolity review, and the individuals were not added in place of a state agency, but rather were added in place of Doe defendants. Id. On appeal, Wang and Garcia contended the amended complaint did not relate back because "naming a 'Doe' defendant does not constitute a 'mistake' under Rule 15(c)(1)(C)(ii)." Kincaid, 45 F.4th at 775. Though the Fourth Circuit ultimately declined to consider the argument because it was raised for the first time on appeal, it stressed Goodman's emphasis on notice "rather than on the type of 'mistake' that has occurred." Id.
Even if we now wished to reject the focus on notice set forth in Goodman (and we see no reason why we could or should do so), Wang and Garcia never made this argument before the district court. To the contrary, in their motions to dismiss, they conceded that the "Relation Back doctrine" does "appl[y] to renaming John Does in amended complaints when the John Doe defendant receives notice before the expiration of the service provided under Federal Rule of Civil Procedure [ ] 4(m)."Id. at 776 (emphasis added).
In sum, based upon the Fourth Circuit's decisions in Robinson, McGraw, and Kincaid, this court concludes its strict construal of "mistake" under Rule 15(c)(1)(C)(ii) in Lee and Vaughan was in error. The court accordingly departs from its approach in Lee and Vaughan.
In sum, the court grants plaintiff's motion and stays proceedings for limited discovery to assist in identification of unidentified officers 1-3 and complete identification of defendant Gellinas. Where plaintiff anticipates filing amended complaint to add discovered parties, the court denies without prejudice defendants' motion, so that defendants may raise again, if they wish, the remainder of the issues raised in their motion after filing of the amended complaint. Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) ("As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.").
The parties are directed to confer within 21 days from entry of this order and to propose a plan for limited discovery on the identification of unidentified officers and Gellinas.
CONCLUSION
Based on the foregoing, defendants' motion (DE 13) is DENIED and plaintiff's motion (DE 22) is GRANTED, on the terms set forth herein. This case is STAYED pending limited discovery on the complete identity of defendant Gellinas and unidentified officers, with discovery plan due as provided herein.
SO ORDERED, this the 18th day of July, 2023.