United States District Court, M.D. Louisiana
THOMAS L. FURR
CITY OF BAKER, et al
RULING AND ORDER
W. DEGRAVELLES JUDGE.
matter comes before the Court on Defendants' Motion
to Dismiss Pursuant to Rule 12(b)(5) and 12(b)(6).
(Doc. 32.) The motion is opposed by
Plaintiff Thomas Furr
(“Plaintiff”).(Doc. 36.) Defendants
did not file a reply. After careful consideration of the law,
facts, and arguments of the parties, for the reasons set
forth below, Defendants' Motion is GRANTED IN
PART and DENIED IN PART.
past thirty years, Plaintiff's property has been used for
construction storage. (Doc. 3 at 2.) At the entrance of
Plaintiff's property, there are “No
Trespassing” signs posted, as well as a sign listing
the Ten Commandments. (Id.) According to Plaintiff,
his brother reported to him that the City of Baker ordered
M.R.I. LLC d/b/a Netterville's Towing and Auto (owned by
Paul Hickman, hereinafter “Netterville's”) to
enter Plaintiff's property and tow away several vehicles.
(Doc. 3-1 at 1.) Prior to the City of Baker ordering the
towing company to remove Plaintiff's vehicles, Plaintiff
claims that he repeatedly, but unsuccessfully, attempted to
reach the Code Enforcement Officer, William Johnson.
30, 2014, “agents and employees of the City of
Baker” including Leroy White and Bill Johnson allegedly
entered Plaintiff's property without a warrant, seized
and stole three trucks and a car. (Doc. 3 at 2.) According to
his complaint, Plaintiff alleges that these acts constitute:
(a) A violation of Louisiana Revised Statute § 67:26,
regarding theft of a motor vehicle;
(b) Disposal of property and malicious intent in violation of
Louisiana Revised Statute § 72.4; and
(c) Obstruction of justice by Baker City Policy Department by
refusing to arrest vandals who had previously trespassed on
(Id. at 6.) In addition to this and other state law
violations, Plaintiff also alleges a Section 1983 claim,
through which he alleges constitutional violations by various
Plaintiff alleges that neither he, nor any of his family
members received any notice of the City of Baker's intent
to seize the vehicles. (Doc. 3-1 at 2.) In failing to notify
Plaintiff of its intention, Plaintiff alleges that the City
of Baker violated Code of Ordinance Section 20-96, regarding
“Junked Vehicles and Abandoned Property.”
(Id.) Additionally, Plaintiff alleges that the
vehicles in the City of Baker's possession are exempt
from the zoning ordinance authorizing the City to tow them
because of their “antique” classification. (Doc.
3 at 5-6.)
amended complaint, Plaintiff also alleges that on May 6,
2014, officers of the Baker City Police, acting on the
directions of Police Chief Mike Knaps, entered
Plaintiff's property without a warrant, “passed
through posted signs, cut the lock on his fence maced his
[disabled younger brother's] dog, busted down his
[brother's] door down, and tazed [sic] [his younger
brother] while he was laying down in his bed” and
arrested him in violation of the Fourth and Fourteenth
Amendments. (Id. at 7.) Plaintiff's younger
brother was found innocent of all charges against him arising
out of the May 6, 2014 arrest. (Id.)
30, 2015, Plaintiff Thomas Furr filed a complaint against
“(a) the City of Baker, (b) the employees, agents,
representative and assignees of the City of Baker, namely
John Does 1 through 50, and (c) XYZ Insurance Company and all
of its agents, representatives and assignees which insures
the City of Baker.” (Doc. 1 at 1.) In his complaint,
Plaintiff alleged that on June 30, 2014, Defendants violated
his constitutional rights and violation various state tort
laws. (Id. at 2.) On July 30, 2015, Plaintiff
amended his complaint to include for the first time the
allegations relating to the arrest of Plaintiff's
disabled younger brother, Rodger Furr, as outlined above.
(Doc. 3 at 6-7.)
30, 2015, Plaintiff amended his complaint to add as
Defendants William Johnson, Paul Hickman, and
Netterville's. (Doc. 3 at 1-2.) On February 10, 2016,
Plaintiff filed an executed summons into the record with
respect Johnson, Hickman, and Netterville's. (Doc. 15.)
On February 12, 2016, Plaintiff filed the City's executed
summons into the record. (Doc. 16.)
October 30, 2015, the Court granted leave for Plaintiff to
amend his complaint once again to substitute John Does 1-11
for the following individuals: Harold Rideau, Darnell Waites,
Mike Knaps, Robert Young, John Givens, Joyce Burges, Pete
Heine, Charles Vincent as well as naming the City of Baker
Insurance Company as Defendants. (Docs. 10, 11.) On November
1, 2016, Plaintiff issued a summons upon Burges, City of
Baker Insurance, Givens, Heine, Rideau, Vincent, Waites, and
Young. (Doc. 12.) On March 10, 2016, Plaintiff filed an
executed summons with respect to Heine, Rideau, and Waites.
(Doc. 17.) The record reflects that Plaintiff has not filed
an executed summons with respect to Knaps, Young, Givens,
Burges, Vincent, or the City of Baker Insurance Company.
November 29, 2016, all Defendants moved to dismiss the
complaint pursuant to Rule 12(b)(5) and 12(b)(6), raising two
grounds for relief: first, that some of the named defendants
have not been properly served and thus they are entitled to
dismissal under Rule 12(b)(5). (See Doc. 32.)
Second, that with respect to all Defendants except for the
City, the amendments to Plaintiff's complaint do not
relate back; his claims have prescribed, and thus they are
subject to dismissal pursuant to Rule 12(b)(6). (See
id.) Plaintiff filed a memorandum in opposition (Doc.
36.) Defendants did not file a reply.
plaintiff fails to properly effectuate service, the defendant
may seek to dismiss the plaintiff's complaint under Rule
12(b)(5). See Fed. R. Civ. P. 12(b)(5) (authorizing
a court to dismiss a civil action when service of process is
inadequate). “A motion to dismiss pursuant to Rule
12(b)(5) turns on the legal sufficiency of the service of
process.” Holly v. Metro. Transit Auth., 213
Fed. App'x. 343, 344 (5th Cir. 2007). The burden of
demonstrating the validity of service when an objection is
made lies with the party making service. Id.
(citing Carimi v. Royal Caribbean Cruise Line, Inc.,
959 F.2d 1344, 1346 (5th Cir. 1992)).
challenge is made to the adequacy of service of process, the
serving party bears the burden of proving the validity of
service or the existence of good cause for failing to effect
service in a timely manner. System Sign Supplies v. U.S.
Dept. of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990);
Aetna Business Credit, Inc. v. Universal Décor
& Interior Design, Inc., 635 F.2d 434, 435 (5th Cir.
1990). The fact that the plaintiff is pro se does
not excuse the failure to properly effect service of process.
System Signs Supplies, 903 F.2d at 1013; Dupre
v. Touro Infirmary, 235 F.3d 1340 (5th Cir. 2000)
motion to dismiss for failure to state a claim under Rule
12(b)(6), the Court “must accept as true all of the
factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,
2200 (2007). “Factual allegations must be enough to
raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). The Supreme Court expounded upon the Twombly
standard, explaining that “[t]o survive a motion to
dismiss, 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, 1949 (2009)
(quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. It follows that
“where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not ‘show
[n]'-‘that the pleader is entitled to relief.'
Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).
Assessing the certainty of facts supporting a plaintiff's
claim, “the court is permitted to look at evidence in
the record beyond simply those facts alleged in the complaint
and its proper attachments.” Ambraco, Inc. v.
Bossclip B.V., 570 F.3d 233, 238) (5th Cir. 2009)).
Pro se standard
document filed pro se is to be liberally construed
... and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson, 551
U.S. at 94, 127 S.Ct. at 2200 (citations omitted). But even a
pro se complainant must plead “factual matter”
that permits the court to infer “more than the mere
possibility of misconduct.” Iqbal, 129 S.Ct.
at 1950. The court need not accept “a legal conclusion
couched as a factual allegation, ” or “naked
assertions [of unlawful misconduct] devoid of further factual
enhancement.” Id. at 1949-50 (internal
quotation marks omitted).
Defendants' Motion to Dismiss (Doc. 32)
Plaintiff's claims have prescribed and his Amendments Do
Not Relate Back
argue that the claims against all Defendants (except for the
City of Baker) have prescribed and thus should be dismissed
under Rule 12(b)(6). (Doc. 32-1 at 3.)
No Mistake of Identity
30, 2015, Plaintiff filed his original complaint concerning
the incident that occurred on June 30, 2014; however, he
failed to identify by name the individual defendants involved
in this case. (Id.) Defendants claim that when
Plaintiff filed his amended complaint, naming Defendants
William Johnson, Paul Hickman, Harold Rideau, Darnell Waites,
Mike Knaps, Robert Young, John Givens, Joyce Burges, Pete
Heine, and Charles Vincent, Plaintiff's claims had
already prescribed under Louisiana's one-year
prescriptive period for tort actions. (Id. (citing
Jones v. Orleans Parish Sch. Bd., 688 F.2d 342, 344
(5th Cir. 1982), cert. denied, 461 U.S. 951
Rule 15(c) allows a plaintiff to amend a complaint when the
amendment relates back to the date of the original complaint,
Defendants argue that the current scenario is not one which
permits relation back. (Id.) Rule 15(c) allows for a
relation back of amendments when there is a mistake
concerning the proper party's identity, but it does not
permit relation back to substitute a named party for a
“John Doe” defendant. (Id. at 3-4
(citing Fed.R.Civ.P. 15(c)(iii); Jacobsen v.
Osborne, 133 F.3d 315, 320-21 (5th Cir.1998)).)
Defendants assert that Rule 15(c) does not permit relation
back where, such as here, there is lack of knowledge of the
proper party. (Id. at 4 (citing Barrow v.
Wethersfelk Police Dep't, 66 F.3d 466, 469 (2d Cir.
1995), modified by 74 F.3d 1366 (2nd Cir. 1996);
Wilson v. United States Government, 23 F.3d 5559,
562-63 (1st Cir. 1994); Worthington v. Wilson, 8
F.3d 1253, 1257 (7th Cir. 1993)).)
explain that Plaintiff filed suit the day before his claim
prescribed against “the employees, agents,
representatives and assignees of the City of Baker, namely
John Does 1 through 50, ” and failed to actually name
any of the Defendants. Plaintiff later moved to amend,
substituting John Does 1-11 for specific named defendants,
whose identities he learned through discovery, on July 30,
2015 and October 30, 2015. (Id.) Because these
changes were made after Plaintiff's time delay had
lapsed, and they were not necessitated by the
“mistake” or “misidentification” at
which Rule 15(c)(1)(C) is aimed, the relation back is not
allowed back to the filing of the original complaint.
Below Defendants Were Not Put on Notice Within Time Delays
argue that no one who was named for the first time in
Plaintiff's October 30, 2015 amended complaint (XYZ
Insurance Company, Rideau, Waites, City of Baker Insurance,
Knaps, Young, Givens, Burges, Heine, and Vincent) was put on
notice of the claims against them for relation back purposes.
(Id. at 5.) According to Defendants, before the
Court may find that an amended complaint that adds new
defendants relates back to the date of the original
complaint, it must first find that, within 120 days of filing
the complaint, the parties 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.
(Id. (citing Fed.R.Civ.P. 15(c)(1)(C)).)
this backdrop, Defendants argue that Council members Young,
Givens, Burges, Heine, and Vincent were added as defendants
two days after the 120 day notice period, rendering the
claims against them untimely. (Id.) Furthermore,
since they were not involved in the incident, Defendants
argue that these individuals could not expect to be added to
a suit regarding the alleged theft of property by Baker City
employees. (Id.) Similarly, City Manager Waites,
Mayor Rideau and Police Chief Knaps had no direct connection
to the incident. (Id.)
Defendants argue that there is no identity of interest
between the previously named defendants and the new
individual defendants. (Id. (quoting Jacobsen v.
Osborne, 133 F.3d at 320 (“‘Identity of
interest generally 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.'”)).)
Defendants explain that the first named defendants in this
case were Code Enforcer Johnson, and Hickman, who is not an
employee of the City of Baker. (Id. at 5-6.)
Therefore, Defendants argue, there are no facts that
supporting that there is an “identity of
interest” between Defendants. (Id. at 6.)
Additional Claims Do Not Arise Out of Same Transaction or
first amended complaint filed on July 30, 2015, Plaintiff
raised new factual allegations and a claim arising therefrom,
all relating to the alleged unconstitutional treatment of his
younger brother Rodger by officers of the Baker City Police
Department. (See Doc. 3.) Defendants contend these
newly-added allegations do not relate back under Rule
15(c)(1)(B) because they do not arise out of the same
transaction or occurrence outlined in the original complaint.
(Doc. 32-1 at 6.) Under Louisiana law, tort claims are
subject to a liberative prescription of one year.
(Id. (citing La. Civ. Code Ann. art. 3492 (2017)).)
Therefore, this newly added claim must relate back to his
original complaint or else it is time-barred and subject to
explain that “[a]n amendment that shares ‘some
elements and some facts in common' with the original
claim does not relate back if its effect is ‘to fault
[the defendants] for conduct different from that identified
in the original complaint.'” (Id. at 7
(citing Jones v. Bernanke, 557 F.3d 670, 674 (D.C.
Cir. 2009) (quoting Meijer, Inc. v. Biovail Corp.,
533 F.3d 857, 866 (D.C. Cir. 2008)) and citing Dean v.
United States, 278 F.3d 1218, 1221 (11th Cir. 2002)).)
They claim that there are no facts relating the original
complaint to the amendment regarding Plaintiff's brother.
(Id.) Additionally, Police Chief Knaps was not
sufficiently on notice as to this additional claim.
(Id.) Therefore, Defendants contend that any claims
relating to Plaintiff's brother should be dismissed as