The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
DANNY BUGG and
ELDON BUGG PLAINTIFFS
v. CASE NO. 6:18-CV-06040
JASON STACHEY, in his official and individual
capacities; BRIAN ALBRIGHT, in his official
and individual capacities; DAVID FRASHER, in
his official and individual capacities; and CITY OF
HOT SPRINGS, ARKANSAS DEFENDANTS
ORDER
Before the Court is a Report and Recommendation filed November 7, 2018, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
ECF No. 32. Plaintiffs have filed timely objections. The Court finds this matter ripe for
consideration.
BACKGROUND
In the instant Report and Recommendation, Judge Bryant recommends that Plaintiffs’
Motion for Supplemental Pleading, in which Plaintiffs move for leave to file a supplemental
pleading, be denied. Specifically, Judge Bryant finds that Plaintiffs wish to add Defendants’ former
attorney John L. Wilkerson and the Arkansas Municipal League (“ARML”) as defendants, but that
Plaintiffs have provided no basis for such action. Accordingly, Judge Bryant concludes that leave
to file a supplemental pleading is not warranted under Federal Rule of Civil Procedure 15(d). As
noted above, Plaintiffs have filed timely objections.
DISCUSSION
In their initial Motion for Supplemental Pleadings, Plaintiffs moved pursuant to Federal
Rule of Civil Procedure 15(d). See ECF No. 18. Rule 15(d) provides, in relevant part, that: “[o]n
motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental
pleading setting out any transaction, occurrence, or event that happened after the date of the
pleading to be supplemented.” “Rule 15(d) is intended to give the Court broad discretion in
allowing a supplemental pleading.” See Rule 15 Advisory Committee Notes, 1963 Amendment.
“An application for leave to file a supplemental pleading is addressed to the discretion of the court
and should be freely granted when doing so will promote the economic and speedy disposition of
the entire controversy between the parties, will not cause undue delay or trial inconvenience, and
will not prejudice the rights of any of the other parties to the action.” 6A CHARLES ALAN WRIGHT
ET AL., FEDERAL PRACTICE AND PROCEDURE CIVIL § 1504 (3d. ed. Sept. 2018 update). However,
a court may deny leave to file supplemental pleadings where the new claim or defense asserted in
the supplemental pleading bears “little or no relationship to the original pleading” or “[i]f the
moving party is guilty of inexcusable delay or laches.” Id. at § 1510. Likewise, a reviewing court
may consider whether the motion was filed in bad faith or with dilatory motive or whether the
supplemental pleading would be futile. See Riggs v. City of Owensville, 2011 WL 1576723, at *2
(E.D. Mo. Apr. 26, 2011).
Upon review of Plaintiffs’ objections and all relevant filings, the Court notes that Plaintiffs
desire to file a supplemental pleading to (1) add John L. Wilkerson1 and the ARML as defendants
and (2) add additional claims concerning the constitutionality of the Municipal Legal Defense
1 At the time Plaintiffs’ motion was filed, Mr. Wilkerson was serving as one of Defendants’ attorneys. He is no longer
involved in this matter and has been relieved as counsel.
Program (“Defense Program”) provided by the ARML and/or the statutes on which the Defense
Program is based. Plaintiffs’ basis for adding these additional defendants and pursuing additional
claims is based on their reading of the terms of the Defense Program, “a self-funded risk
management trust designed to benefit” the local-government members of the Defense Program.
ECF No. 35-1, p. 1. The Defense Program states, in relevant part, that it provides “extraordinary
legal defense and extraordinary expenses in ‘suits against municipal officials and employees’ and
‘civil rights suits against the municipal government’ or a participating municipality and pay
extraordinary judgements . . . imposed on ‘municipal officials and employees” and the ‘municipal
government[.]’” ECF No. 35-1, ¶ 1. However, Plaintiffs note that the Defense Program limits this
coverage in certain circumstances, as the Defense Program states that “[t]he words ‘suits against
municipal officials and employees or the municipal government” shall not include . . . claims filed
by or on behalf of any other municipal official or, in the case of suits against the municipality,
claims filed by or on behalf of any municipal official or employee of the municipal government[.]”
ECF No. 35-1, ¶ 5(c), § 1.
Here, Plaintiffs contend that Plaintiff Dan Bugg “is a municipal official that is suing three
other municipal officials as well as the municipality . . . which employed” Plaintiff Dan Bugg and
the defendant municipal employees. ECF No. 35, p. 6. Accordingly, Plaintiffs assert that the
present case falls under the exceptions outlined in the Defense Program and, therefore, Mr.
Wilkerson and the ARML have “acted without lawful authority” in representing Defendants.
However, notwithstanding Plaintiffs’ contention otherwise, the face of their Complaint clearly
alleges that Plaintiff Dan Bugg was not an employee or official of the City of Hot Springs at the
time the Complaint was filed. See ECF No. 1, ¶ 11 (“Dan had an employment relationship with
[the City of Hot Springs] from 1999 until 2018 when his employment relationship was unlawfully
discontinued at no fault of his own.” (emphasis added)). Thus, it is evident that Plaintiff Dan
Bugg—as of the date the present case was filed—was a former employee/municipal official
employed by the City of Hot Springs. The above-discussed exceptions do not appear to apply to
former employees and officials.2 Furthermore, to the extent Plaintiffs’ position is that Plaintiff Dan
Bugg was a municipal employee or official at the time the case was filed because he was illegally
terminated, the Court finds that argument unpersuasive. Therefore, upon consideration, the Court
finds that allowing Plaintiffs to file the proposed supplemental pleading would be futile, as their
present stated position is undermined by their initial Complaint.
Furthermore, the Court notes that the proposed supplemental pleading has no relationship
to the original pleading. Plaintiffs’ initial pleading asserts various causes of action related to the
allegedly wrongful termination of Plaintiff Dan Bugg, allegedly unlawful exercise of authority by
Defendant Stachey, and allegedly unlawful “organizational structure” of the City of Hot Springs.
In their objections to the present Report and Recommendation, Plaintiffs assert that the “core issue
in [their] [original pleading] is that the [original defendants] exceeded their [m]unicipal powers;
i.e. they acted without legal authority resulting in Plaintiffs’ financial injury.” ECF No. 35, p. 2
(emphasis in original). Plaintiffs, likewise, now argue that “[b]ecause original defendants acted
without lawful authority, then supplemental defendants’ actions without lawful authority is a
continuation of original defendants’ actions without lawful authority” “because [the City of Hot
2 The Defense Program defines “Municipal official and employee” to “include all officials, full-time employees, and
members of a municipal board or commission of an Arkansas municipality which is a member of the [ARML] and a
participant in the [Defense Program].” ECF No. 35-1, ¶ 5(a). The Defense Program further defines “municipal
officials” to “include municipal elected officials, department heads and members of boards and commissions. All
others with full-time employment shall be considered employees.” ECF No. 35-1, ¶ 5(b).
Springs] is a member of the ARML association, and thus subject [to] the defense-program
exceptions.” Id. at 3. The Court finds this line of argument unconvincing. Mr. Wilkerson and the
ARML played no role in the allegedly wrongful actions that gave rise to this lawsuit and the claim
that they have allegedly acted without legal authority pursuant to the exceptions to the Defense
Program in defending Defendants—a dubious argument, as shown above—is unrelated to the
allegations of Plaintiffs’ Complaint. Accordingly, the instant motion should, likewise, be denied
on this ground.
Furthermore, the Court believes that granting leave to file the proposed supplemental
pleading would not promote the economic and speedy disposition of the present controversy. As
noted above, one reason Plaintiffs wish to file a supplemental pleading is to challenge the
constitutionality of the Defense Program and/or the state statutes that underlie the Defense
Program. Plaintiffs appear to contend that the Defense Program was established pursuant to
Arkansas Code Annotated §§ 14-54-101 and 16-22-211. Upon review of the proposed
supplemental pleading, the Court is unsure whether Plaintiffs intend to challenge the
constitutionality of the aforementioned Arkansas statutes, to assert that the Defense Program itself
is unconstitutional, or both. In the event Plaintiffs mean to challenge a state statute, it appears that
the Court would be required to certify to the state attorney general that the constitutionality of a
state statute was being challenged. See Fed. R. Civ. P. 5.1(b). The attorney general would, likewise,
have sixty days to intervene. This process, along with the attendant determination of the
constitutionality of the underlying statutes and/or the Defense Program would, in turn, cause a
significant delay in the proceedings which, as stated above, are unrelated to these issues.
Accordingly, the Court finds that the instant motion should, likewise, be denied on this ground.
Therefore, for the above-discussed reasons, the Court finds that Plaintiffs’ Motion for
Supplemental Pleading should be denied.
CONCLUSION
For the foregoing reasons and upon de novo review of the Report and Recommendation,
the Court ADOPTS the instant Report and Recommendation (ECF No. 32) insofar as it
recommends that Plaintiffs’ Motion for Supplemental Pleading be denied. Accordingly, Plaintiffs’
Motion for Supplemental Pleading (ECF No. 18) should be and hereby is DENIED.
IT IS SO ORDERED, this 7th day of January, 2019.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge