The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KENYATTA MITCHELL as Administrator )
for the Estate of Jeff Tyson, deceased, et al. )
)
Plaintiffs, )
)
v. ) No. 1:18-cv-00232-SEB-TAB
)
CITY OF INDIANAPOLIS, et al. )
)
Defendants. )
ORDER ON DEFENDANTS’ OBJECTION TO MAGISTRATE JUDGE’S
ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT
On August 6, 2019, Plaintiffs filed a Motion for Leave to File Second Amended
Complaint in order to correct a typographical error in Defendant Officer Nicholas
Wroblewski’s name. Plaintiffs’ first amended complaint incorrectly spelled Officer
Wroblewski’s name as “Wrobleski.” The sole purpose of Plaintiffs’ motion to amend is
to correct the misspelling.
We referred the motion to Magistrate Judge Tim Baker, who found that the motion
was supported by good cause and that Defendants’ objection to the motion based on
claims of prejudice, futility, and the like were unwarranted. He therefore granted the
motion. Defendants have now appealed from that ruling by timely objection under
Federal Rule of Civil Procedure 72(a).
For the reasons detailed below, Defendant’s objection is overruled.
Standard of Review
A magistrate judge’s ruling on nondispositive matters will not be set aside by the
district judge unless clearly erroneous or contrary to law. FED. R. CIV. P. 72(a). A
finding is clearly erroneous when “the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.” Anderson v. City of
Bessemer, 470 U.S. 564, 573 (1985); see also Weeks v. Samsung Heavy Indus. Co., 126
F.3d 926, 943 (7th Cir. 1997).
Discussion
The primary grounds for Defendants’ objection are that Plaintiffs have not
demonstrated they were diligent in discovering and correcting the error in the spelling of
Officer Wroblewski’s name, and thus, have failed to establish “good cause” under
Federal Rule of Civil Procedure 16(b)(4) for amending their complaint outside the
deadline set forth in the Court’s scheduling order.1 The Seventh Circuit has stated that
“Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party
seeking the amendment.” Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d
542, 553 (7th Cir. 2005) (quotation marks and citation omitted). While we agree that
Plaintiffs should have been more diligent in discovering the misspelling of Officer
Wroblewski’s name and taking prompt action to correct the error, we nonetheless hold
1 Defendants do not object to the Magistrate Judge’s ruling on any substantive grounds other
than Rule 16.
that the Magistrate Judge’s finding that sufficient “good cause” existed to excuse the
lateness of the requested amendment is not clearly erroneous or contrary to law.
Plaintiffs have brought this lawsuit against the City of Indianapolis (“the City”)
and four named police officers, including “Nicholas Wrobleski.” The City was put on
notice of the lawsuit against Officer Wroblewski when it was served with Plaintiffs’ first
amended complaint. Although his name was misspelled, given the distinctiveness of his
surname and the detailed allegations set forth in the first amended complaint, the City
should have known that but for this one-letter mistake, the action would have been
brought against Officer Wroblewski. Knowledge on Defendants’ part is evidenced by the
fact that counsel for the City represented Officer Wroblewski at a deposition in this case
and the City has otherwise defended him in this lawsuit as if he were properly named.
Despite this, the City never brought the misspelling to Plaintiffs’ attention until they filed
their motion for summary judgment—long after the deadline to amend had passed—
seeking dismissal for Officer Wroblewski based on insufficient service as well as on
grounds that the named police officers are entitled to qualified immunity. This is what
our much beloved and missed former colleague, the late S. Hugh Dillin, referred to as
“hiding in the bushes,” a practice he would not countenance in the cases he adjudicated.
Following his example as we have on innumerable occasions over the years, neither will
we permit this practice. Given the fact that Plaintiffs’ error has not prejudiced Officer
Wroblewski’s ability to defend himself in this lawsuit, we affirm the Magistrate Judge’s
ruling as being neither clearly erroneous nor contrary to law. Defendants’ summary
judgment motion is unaffected by this ruling and will be addressed in due course.
IT IS SO ORDERED.
Date: 9/20/2019 Th, Bins Biker
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Distribution:
Faith Elizabeth Alvarez
LEE COSSEL & CROWLEY LLP
falvarez @nleelaw.com
Traci Marie Cosby
OFFICE OF CORPORATION COUNSEL
Traci.Cosby @indy.gov
Nathaniel Lee
LEE COSSEL & CROWLEY LLP
nlee@nleelaw.com
John Michael Lowery
LEE BURNS COSSELL & KUEHN
jlowery @nleelaw.com
Andrew J. Upchurch
OFFICE OF CORPORATION COUNSEL
andrew.upchurch @indy.gov