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Furr v. City of Baker

United States District Court, M.D. Louisiana

August 15, 2017

THOMAS L. FURR
v.
CITY OF BAKER, et al

RULING AND ORDER

          JOHN W. DEGRAVELLES JUDGE.

         I. Introduction

         This 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”).[1](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.

         II. Background

         a. Factual background

         For the 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. (Id.)

         On June 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 Plaintiff's property.

(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 municipal actors.

         Furthermore, 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.)

         In an 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.)

         b. Procedural background

         On June 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.)

         On July 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.)

         On 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.[2] (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.

         On 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.

         III. Discussion

         a. Standard

         1. Rule 12(b)(5)

         If a 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)).

         When a 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) (unpub'd).

         2. Rule 12(b)(6)

         A. General standard

         On a 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)).

         B. Pro se standard

         “A 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).

         b. Parties' Arguments

         i. Defendants' Motion to Dismiss (Doc. 32)

         1. Plaintiff's claims have prescribed and his Amendments Do Not Relate Back

         Defendants 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.)

         A. No Mistake of Identity

         On June 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 (1983)).)

         While 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)).)

         Defendants 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. (Id.)

         B. Below Defendants Were Not Put on Notice Within Time Delays Allowed

         Defendants 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)).)

         Against 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.)

         Additionally, 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.)

         C. Additional Claims Do Not Arise Out of Same Transaction or Occurrence

         In the 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 dismissal. (Id.)

         Defendants 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 prescribed. (Id.)

         2. Insufficient ...


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