Harris v. Rambosk

ROBERT DALE HARRIS, Plaintiff, v. KEVIN RAMBOSK, in his official capacityas Sheriff of Collier County, Florida, KASEY P. WINGO,individually, MICHAEL D. CHAPMAN, individually,SCOTT PEPIN, individually,and ROSS ANTHONY, individually, Defendants.

Case No: 2:18-cv-17-FtM-29MRM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

November 5, 2020

OPINION AND ORDER

This matter comes before the Court on defendant Scott Pepin's Motion for Reconsideration, or in the Alternative for § 1292(b) Certification (Doc. #180), filed on November 6, 2019. Plaintiff filed a Response in Opposition (Doc. #187) on November 7, 2019. The Court allowed Defendant Pepin to file a Reply (Doc. #195) on June 9, 2020. For the reasons set forth below, the Motion to Reconsider is granted. Upon reconsideration, the Court grants the Motion For Summary Judgment based upon the statutes of limitations. The Court denies the Motion For Certification Of An Interlocutory Appeal as moot.

I.

Plaintiff Robert Dale Harris (plaintiff or Harris) filed his original Complaint (Doc. #1) on January 9, 2018. The Complaint asserted claims for false arrest, excessive force, malicious prosecution, negligence, assault and battery, negligent infliction of emotional distress, conspiracy, and First Amendment retaliation against Collier County Sheriff Kevin Rambosk in his official capacity and Collier County Sheriff's Office (CCSO) deputies Kasey P. Wingo, Michael D. Chapman, and Brian Wiedel in their individual capacities. The claims asserted in the Complaint arose out of two arrests of plaintiff and several encounters between Plaintiff and CCSO deputies. All claims were timely filed within the various applicable statutes of limitations as to all named defendants. Although he was mentioned by name in the recitation of facts as to an April 4, 2014 arrest and the subsequent trespass warning, CCSO Deputy Scott Pepin (Deputy Pepin) was not named as a defendant in the Complaint.

On May 1, 2018, plaintiff filed an Unopposed Motion to Amend Complaint. (Doc. #49.) Among other proposed changes, the amended complaint would add "two additional defendants who, upon further review of discovery and additional facts acquired by counsel after the original Complaint was filed, played a key and significant role in the Plaintiff's claims for conspiracy, excessive use of force, malicious prosecution, and violation of his first amendmentrights." (Id. ¶ 3.)¹ The Motion was granted the same day. (Doc. #50.)

The Amended Complaint (Doc. #51) was filed on May 2, 2018. Deputy Pepin was one of the two new defendants named in the Amended Complaint. The Amended Complaint asserted claims against Deputy Pepin for false arrest and excessive force under 42 U.S.C. § 1983 (Count VIII), malicious prosecution under § 1983 and state law (Counts IX and X), assault and battery under state law (Count XI), and First Amendment retaliation (Count XVI). The claims against Deputy Pepin arose out of two encounters: (1) Plaintiff's arrest by CCSO deputies Chapman and Wingo on April 4, 2014, in which it is alleged that Deputy Pepin assisted in the arrest, struck Plaintiff's back with a baton, and deployed a Taser into his back (Id., ¶¶ 301-335); and (2) a trespass warning that Deputy Pepin and three other deputies issued to Plaintiff on June 10, 2014. (Id., ¶¶ 361-372.) A Summons was issued as to Deputy Pepin (Doc. #52) on May 9, 2018.

Deputy Pepin was personally served with the Summons and Amended Complaint on May 18, 2018. (Doc. #197.) On June 8, 2018, Deputy Pepin, through the law firm of DeBevoise & Poulton, P.A.,filed a Motion to Dismiss Amended Complaint (Doc. #62) on statute of limitations and qualified immunity grounds. Under Local Rule 2.03(a) of the Local Rules of the United States District Court for the Middle District of Florida, this constituted a general appearance by counsel on behalf of Deputy Pepin. The Court denied the Motion to Dismiss on October 18, 2018. (Doc. #74.)

On November 1, 2018, Deputy Pepin filed his Answer and Affirmative Defenses. (Doc. #76.) Deputy Pepin denied the allegations of wrongdoing, and his Fourth Affirmative Defense asserted that Counts VIII-XI were barred by the four-year statutes of limitations.

On June 10, 2019, Deputy Pepin moved for summary judgment on Counts VIII, IX, X, and XI. (Doc. #113.)² Deputy Pepin argued in part that the claims based on the April 4, 2014 arrest were time-barred because the four-year statutes of limitations began to run on April 4, 2014, and Plaintiff filed the Amended Complaint adding Deputy Pepin as a new defendant on May 2, 2018 - more than four years later.

On November 5, 2019, the Court entered its Opinion and Order (Doc. #175) granting in part and denying in part Deputy Pepin'smotion for summary judgment. The Court agreed that Counts VIII, IX, X, and XI all appeared to be untimely (Id., pp. 8-10), and rejected plaintiff's arguments that equitable estoppel applied. (Id., pp. 10-12.) The Court found, however, that such claims were not time-barred because they related back to the timely-filed claims set forth in the January 9, 2018 original Complaint. (Id., pp. 12.) Specifically, the Court found that the claims against Deputy Pepin related back to the original Complaint under Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure. (Id., pp. 13-14.) The Court then proceeded with the merits of the summary judgment motion as to these counts, ultimately denying summary judgment. (Id., pp. 14-26.)

Deputy Pepin now seeks reconsideration of the Court's determination that the Amended Complaint related back to the original Complaint. Alternatively, Deputy Pepin requests that the Court certify the issue for interlocutory appellate review under 28 U.S.C. § 1292(b). In his Response in Opposition (Doc. #187), plaintiff argued that even if the Amended Complaint does not relate back under Rule 15(c)(1)(B), it related back under Rule 15(c)(1)(A). Deputy Pepin was allowed to file a Reply (Doc. #195) as to this issue.

II.

The issue in this case is whether the Amended Complaint adding Deputy Pepin as a new defendant relates back to the timely-filedoriginal Complaint. If it does, the claims against Deputy Pepin are not barred by any of the applicable statutes of limitations, and the claims may proceed (subject, of course, to the current appeal on the qualified immunity issue.) If it does not, all pending claims against Deputy Pepin are untimely (regardless of the outcome of the qualified immunity issue.)

Rule 15(c) of the Federal Rules of Civil Procedure Rule governs the relation back effect of amendments to federal pleadings. Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 541 (2010); Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1131 (11th Cir. 2004). The effect of allowing relation back is that the amended pleading is permitted to adopt the earlier pleading's filing date and is not time-barred by statutes of limitations or similar provisions, even if otherwise untimely. Makro Cap. of Am., Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008). Rule 15(c)(1) "mandates relation back once the Rule's requirements are satisfied; it does not leave the decision whether to grant relation back to the district court's equitable discretion." Krupski, 560 U.S. at 553.

Under Rule 15(c)(1), an amended pleading relates back to the date of an original pleading 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 if, within the period provided by Rule 4(m) for serving the summons and complaint, 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.

Fed. R. Civ. P. 15(c)(1)(A)-(C). Thus, Rule 15(c) establishes two ways in which an amended pleading can relate back to an earlier pleading.

First, relation back is permitted when the law imposing the statute of limitations itself permits relation back. See Fed. R. Civ. P. 15(c)(1)(A). Second, a pleading would relate back if it "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." Fed. R. Civ. P. 15(c)(1)(B). However, Rule 15 imposes an additional requirement for pleadings in this second group that also involve a change in the party against whom the claim is asserted. See Fed. R. Civ. P. 15(c)(1)(C). In order for pleadings in that subgroup to relate back, the party being added must have "(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." Id. Such pleadings also still must meet the common transaction or occurrence test of Rule 15(c)(1)(B). Seeid.

Makro Cap., 543 F.3d at 1258 (footnote omitted.) "Although the statute of limitations is an affirmative defense that must be established by the defendant, when relation back is required to satisfy the statute of limitations, the burden is on the plaintiff to prove that Rule 15(c) is satisfied." Covey v. Assessor of Ohio Cnty., 666 F. App'x 245, 248 (4th Cir. 2016)(citations omitted.)

A. Relation Back Pursuant To Rule 15(c)(1)(B)-(C)

The general rule is set forth in Fed. R. Civ. P. 15(c)(1)(B). An amendment of a complaint relates back to the date of the original complaint if the claim asserted in the amended pleading "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original...