Driscoll v. City of Denver

1

MICHAEL DRISCOLL, Plaintiff, v. THE CITY AND COUNTY OF DENVER, a municipal entity; CHIEF OF POLICE PAUL PAZEN, in his individual capacity; PATRICK PHELAN, in his individual capacity; JOHN AND JANE DOES 1-10, in their individual capacities; Defendants.

Civil Action No. 21-cv-02866-PAB-NRN

United States District Court, D. Colorado

February 28, 2023

ORDER GRANTING

PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT TO ADD NAMED PARTIES AND CLAIMS (DKT #29)

N REID NEUREITER, UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Plaintiff's Motion for Leave to File First Amended Complaint to Add Named Parties and Claims (Dkt. #29), which was referred to this Court by Chief Judge Philip A. Brimmer. (Dkt. #30.) Defendants filed a response (Dkt. #34) and Plaintiff filed a reply in support of his motion. (Dkt. #37.) The Court held argument on February 22, 2023.

Now, being fully advised and for the reasons discussed below, it is hereby ORDERED that the subject motion is GRANTED.

BACKGROUND

This case arises out of the George Floyd Protests which occurred in the City and County of Denver in late May and early June of 2020. Plaintiff initiated this suit on October 25, 2021. (See Dkt. #1.) Plaintiff's Complaint documented many instances of allegedly excessive force by police officers against protestors and included great detail about an incident against Mr. Driscoll himself that occurred on May 31, 2020 when he was hit in the face with a rubber bullet. The projectile shattered his skull, destroyed his sinus cavity, and fractured his orbital bone around his left eye. There are few other details about specific incidents of alleged force against Mr. Driscoll, but he does generally allege seeing and experiencing what he described as brutality against protestors throughout the George Floyd Protests.

This case proceeded quietly for many months. Then, at a Status Conference on December 14, 2022, Plaintiff indicated that he believed modifying the Scheduling Order was necessary to allow further discovery and to extend the deadline for amendment of pleadings. Defendants noted that, at the time of this Status Conference, Plaintiff had issued no written discovery and taken no depositions. Plaintiff explained that, instead of issuing interrogatories or otherwise taking discovery in this case, he had engaged in significant review of discovery produced in a cross-designated case, Epps v. Denver, 20-cv-01878-RBJ (D. Colo.). The Court ordered that Plaintiff seek leave to amend his Complaint and modify the Scheduling Order on or before January 6, 2023. The subject motion followed.

Plaintiff now seeks leave to amend his Complaint to add eight (8) new defendants and numerous new allegations concerning multiple incidents spanning from May 30 and 31, 2020. In his motion, Plaintiff's counsel reveals that he has spent over “450 hours reviewing video documents, and other relevant materials,” and his paralegal has spent in excess of 600 hours reviewing video. Dkt. #29 at 7.

Defendants oppose amendment, arguing that the new allegations do not relate back to the originally pled injury that occurred on May 31, 2020. They argue that Plaintiff has failed to show good cause for the amendment, and that the proposed amendments are futile because they are barred by the statute of limitations and equitable tolling does not apply. For the reasons set forth below, the Court disagrees.

LEGAL STANDARDS

The deadline to amend pleadings elapsed on November 30, 2022. Thus, allowing amendment would mean modifying the Scheduling Order, which requires good cause. Fed.R.Civ.P. 16(b)(4) (A scheduling order “may be modified only for good cause and with the judge's consent.”) “In practice, this standard requires the movant to show the ‘scheduling deadlines cannot be met despite [the movant's] diligent efforts.'” Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014) (citing Pumpco, Inc. v. Schenker Int'l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001)). This burden is satisfied, for example, when a party learns of new information in a deposition or that the governing law has changed. Id. Rule 16(b) does not focus on the bad faith of the movant, or the prejudice to the opposing party. Rather, it focuses on the diligence of the party seeking leave to modify the scheduling order. Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000). The party seeking an extension is normally expected to show good faith on its part and some reasonable basis for not meeting the deadline. Deghand v. Wal-Mart Stores, Inc., 904 F.Supp. 1218, 1221 (D. Kan. 1995).

If good cause to amend the Scheduling Order exists, the Court then turns to Rule 15(a)(2) which states, in relevant part, that “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Leave to amend shall be freely granted when justice so requires. Id. “If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962). However, the Court may exercise its discretion to deny a motion to amend upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by previously allowed amendments, or futility of the amendment. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal .... The relevant standard in determining whether claims are futile is the same standard that is applied to a motion to dismiss under Fed.R.Civ.P. 12(b)(6).” Dorough v. Am. Family Mut. Ins. Co., No. 15-cv-02388-MSK-KMT, 2016 WL 1426968, at *2 (D. Colo. Apr. 11, 2016).

Amendments relate back to the date of the original complaint, and are thus permitted, only when all elements of Rule 15(c) are met. Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1226-27 (10th Cir. 1991). In order to relate back for statute of limitations purposes, the new claim must arise from the same “conduct, transaction, or occurrence” as set forth in the original pleading. Fed.R.Civ.P. 15(c)(1)(B).

ANALYSIS

A. There is good cause to modify the Scheduling Order under Rule 16(b)(4).

The Court will allow amendment. First, the Court finds good cause to allow the amendment because Plaintiff has shown that he has been diligent in his investigation of this matter. As previously noted, Plaintiff's counsel represents that he and his paralegal have spent over 1000 hours between the two of them reviewing video and documents.

Plaintiff's counsel also represents:

[I]n order to identify officers that were involved, officers that the City of Denver could not even identify, undersigned counsel needed to review videos multiple times, matching up the same incident from various vantage points, and watching in slow motion or even frame by frame. The work of identifying officers who did not wear body cameras nor write reports is painstaking. It requires finding their conduct in videos from other offices or from HALO videos. It requires finding a unique identifiable clothing item, and then finding other videos from earlier or later in the day which depicts that same individual with that same identifying clothing item and seeking a personal identification through some otherwise hidden object. At times, it also required viewing videos and comparing with photos and text messages.

Such review was no small feat. Working 24 hours a day, 7 days a week, it would have taken Plaintiff's counsel alone more than 2.5 weeks to review those documents. Working 8 hours days exclusively on this case without any breaks, it would have taken counsel over 56 days straight. Again, this does not include staff hours spent. There can be no dispute that Plaintiff's counsel and his staff have engaged in the labor-intensive and time-consuming project of analyzing countless hours of video and reviewing documents to identify officers involved in the alleged conduct and, in doing so, realized that officers targeted Mr. Driscoll specifically with certain uses of force. This endeavor demonstrates diligence and offers a reasonable basis for why Plaintiff could not meet the November 30, 2022 deadline to amend pleadings.

b. Amendment should be allowed under Rule 15(a).

The Court also finds that amendment should be allowed under the more lenient standard of Fed.R.Civ.P. 15. Prejudice is the most important factor when determining whether to allow a motion to amend. Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006).

Notably, Defendants do not argue that amending the Complaint in this case will prejudice them.^[1] Further, the Court does not find that Plaintiff was unduly delayed or dilatory in seeking amendment. Indeed, though the deadline to amend pleadings lapsed on November 30, 2022, Plaintiff raised the potential need for modification during the December 14, 2022 Status Conference and filed his motion on January 6, 2023 at the direction of the Court. A delay of fewer than six weeks is not undue particularly in light of the circumstances of this case.

c. The amendments relate back to the initial Complaint.

Defendants argue that amendment should be denied because the proposed amendments do not relate back to the initial Complaint and are thus barred by the statute of limitations. Amendment, therefore, is futile. Plaintiff, for his part, argues that the amendments relate back and are not barred by the statute of limitations because equitable tolling applies. Under the unique factual circumstances of this case, the Court agrees with Plaintiff that the equitable tolling applies.

The parties do...