Lipman v. County Executive Cuyahoga County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Kevin Lipman, et al., ) CASE NO. 1:18 CV 2985

)

Plaintiff, ) JUDGE PATRICIA A. GAUGHAN

)

vs. )

)

Cuyahoga County, et al., ) Memorandum of Opinion and Order

)

Defendant. )

Introduction

This matter is before the Court upon New Party Defendant Geneke Jackson’s Motion to

Dismiss. (Doc. 61). For the following reasons, the motion is GRANTED.

Facts 1

On December 28, 2018, plaintiffs Kevin Lipman as Administrator of the Estate of

Ta’Naejah McCloud, deceased, and Shabrina McCloud filed this Complaint against defendants

Armond Budish (in his official capacity as Cuyahoga County Executive), Cuyahoga County

Children and Family Services (CFS), Tequila Crump, Ursula Owens, Kristina Quint, Ada

1 As the motion raises only procedural issues, the Court sets forth the procedural

history and not the underlying facts alleged in the case.

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Jackson, Marquetese Betts, and Jane and John Does I-VII. The case arises out of the death of

Ta’Naejah, a five year old child with a developmental disability who died on March 19, 2017.

On February 28, 2019, the Court held a Case Management Conference with the Case

Management Order stating in part, “Pleadings shall be amended without leave of Court and new

parties shall be joined on or before 6/1/19.” On May 23, 2019, this Court issued its

Memorandum of Opinion and Order granting defendants’ Motion to Dismiss as to the federal

claim, and dismissing the state law claims without prejudice. Judgment was entered. On June

17, 2019, plaintiffs filed a Motion to Alter or Amend Judgment Based in Part on New

Information and FRCP 15(a) Motion for Leave to File a First Amended Complaint Instanter.

(Doc. 22). A proposed First Amended Complaint was attached. (Doc. 22 Ex. 1). The proposed

First Amended Complaint named the following defendants: Cuyahoga County, Tequila Crump,

Ursula Owens, Kristina Quint, Ada Jackson, Marquetese Betts, Geneka Jackson, and Jane and

John Does I-VI. The Court denied the motions on September 4, 2019. Plaintiffs appealed. On

September 4, 2020, the United States Court of Appeals for the Sixth Circuit affirmed in part and

reversed in part this Court’s Order dismissing the federal claims, and vacated the dismissal of the

state law claims. At a status conference on November 10, 2020, the Court granted the oral

motion to amend the Complaint without objection. On January 27, 2021, plaintiffs filed their

First Amended Complaint. (Doc. 55). The following defendants were named: Cuyahoga County,

Tequila Crump, Ursula Owens, Kristina Quint, Ada Jackson, Marquetese Betts, and Geneka

Jackson.

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This matter is now before the Court upon New Party Defendant Geneke2 Jackson’s

Motion to Dismiss.

Discussion

New Party Defendant Jackson moves to dismiss on the basis that the statute of limitations

has expired, and she has not been served with a summons or complaint.

(1) Statute of limitations

The parties do not dispute that the § 1983 claim is governed by a two-year statute of

limitations. Indeed, Ohio's two-year statute of limitations for bodily injury applies to § 1983

claims. LRL Properties v. Portage Metro Housing Authority, 55 F. 3d 1097 (6th Cir. 1995),

Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008). On this basis, the statute of limitations

expired on March 19, 2019.3 New Party Defendant Jackson argues that because she was not

substituted in place of one of the Jane Does until the filing of the First Amended Complaint on

January 27, 2021, well after the statute of limitations expired, the claim against her must be

dismissed. For the following reasons, the Court agrees.

In some instances, Fed.R.Civ.P. 15(c) allows relation back to the original pleading. It has

been previously recognized that relation back to an original complaint filed before a statute of

limitations has expired is permitted under current Sixth Circuit law when a plaintiff seeks to

correct a misnomer or effect the substitution of defendants but not when a plaintiff attempts to

name an additional defendant whose identity is discovered after the statute of limitations

2 Jackson states her name was improperly spelled “Geneka” in the First Amended

Complaint. Plaintiffs state that Jackson is defendant Quint’s supervisor.

3 In fact, plaintiffs agree that all claims are governed by the two-year period which

expired on March 19, 2019.

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expired:

In the Sixth Circuit, lack of knowledge about the identity of a defendant does not

constitute a “mistake” for purposes of application of the relation back provision of Rule

15(c). Brown v. Cuyahoga County, Ohio, 517 Fed.Appx. 431, 433–34 (6th Cir.2013)

(citing Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.1996)). In both Brown and Smith v.

City of Akron, [476 Fed.Appx. 67 (6th Cir. 2012)], plaintiff identified John Doe

defendants in the original complaint filed before the § 1983 statute of limitations ran.

After the statute of limitations had expired, plaintiff filed an amended complaint which

named specific police officers and jail employees. In both cases, the Sixth Circuit held

that the police officers and jail employees were entitled to dismissal because the case

against them in [the] amended pleading was filed after the expiration of the statute of

limitations. The addition of “new, previously unknown defendants in place of ‘John Doe’

defendants ‘is considered a change in parties, not a mere substitution of parties,’ and

‘such amendments do not satisfy the mistaken identity requirement of Rule 15(c).’ ”

Smith v. City of Akron, 476 Fed.Appx. at 69 (quoting Cox v. Treadway, 75 F.3d at 240).

Gamblin v. City of Akron, 2013 WL 6180864 (N.D.Ohio November 25, 2013). Thus, the First

Amended Complaint does not relate back under Fed.R.Civ.P. 15(c) to the original Complaint

and, accordingly, the statute of limitations has expired as to New Party Defendant Jackson.

Plaintiffs ignore this precedent and the application of Fed.R.Civ.Pro. 15(c) and urge the

Court to apply the more lenient Ohio Rules of Civil Procedure regarding relation back to the

original Complaint. However, this lawsuit was filed in this federal court on the basis of federal

question jurisdiction with supplemental jurisdiction over the state law claims. “The general

rule, of course, is that the Federal Rules of Civil Procedure ...apply to all civil cases brought in

federal courts.” American Copper & Brass, Inc. v. Lake City Indus. Products, Inc., 757 F.3d 540

(6th Cir. 2014) (citing Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir.2001)

(holding that the “Federal Rules of Civil Procedure are the rules of practice which apply to civil

actions in the federal courts, regardless of whether jurisdiction is based on federal question or

diversity of citizenship”).

Moreover, Smith v. City of Akron, 476 Fed.Appx. 67 (6th Cir. 2012), is again instructive.

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There, the court looked askance at plaintiff’s same attempt to use Ohio’s rules even though the

complaint had originally been filed in the state court (alleging violations of the federal

constitution and state tort law). After removal of the case, plaintiff amended his complaint after

the statute of limitations had run to add the two police officers by name in place of the John

Does. Not only did the court conclude that the amendment did not relate back to the original

complaint under Fed.R.Civ. P. 15(c) because there was no “mistaken identification” of

defendants, but the court also rejected plaintiff’s attempts under the Ohio rule:

Smith separately argues that because he filed his original complaint in Ohio and because

Ohio has more permissible John Doe pleading standards, he should be permitted to

correct the complaint after the end of the two-year limitations period. Even if we were

willing to accept this doubtful theory, it offers no aid to Smith. As it turns out, he did not

satisfy Ohio's John Doe pleading standards either. Compare Erwin v. Bryan, 125 Ohio

St.3d 519, 929 N.E.2d 1019, 1026 (2010) (plaintiff must state that the defendant's name

could not be discovered, sufficiently identify the defendant to facilitate obtaining service

and personally serve the summons on the defendant), with R.1 (Smith's original

complaint).

Id. at 70. Similarly, even if this Court were to accept plaintiff’s argument that Ohio Rule Civ.P.

15 should apply which would be even more attenuated than in Smith, New Party Defendant

points out that plaintiff did not meet the requirements of Ohio Rule 15 which provides:

(D) Amendments Where Name of Party Unknown. When the plaintiff does not know

the name of a defendant, that defendant may be designated in a pleading or proceeding by

any name and description. When the name is discovered, the pleading or proceeding must

be amended accordingly. The plaintiff, in such case, must aver in the complaint the fact

that he could not discover the name. The summons must contain the words “name

unknown,” and a copy thereof must be served personally upon the defendant.

While the original Complaint stated that the unknown defendant’s name could not be identified,

the Summons did not contain the words “name unknown” and the Jane/John Does were served

via certified mail and not personal service. (Doc. 1, Summons 10; service by clerk receipt

January 15, 2019). Thus, plaintiffs did not satisfy Ohio’s pleading standards.

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Finally, Jackson was named as a defendant in place of a Jane Doe in the proposed First

Amended Complaint on June 17, 2019. Plaintiff maintains that although the Court had allowed

plaintiff the opportunity to amend the Complaint and add new parties without leave of Court by

June 1, 2019, the Court granted defendants’ motion to dismiss and entered the Judgment Entry

on May 23, 2019. Consequently, the case was closed before the June 1 deadline. However, while

the Court had ordered a June 1, 2019 deadline for amending the Complaint and adding parties,

the Court was not thereby (and could not be) extending the statute of limitations.

For these reasons, the statute of limitations bars the claims against New Party Defendant

Jackson. 4

(2) Equitable tolling

Plaintiffs maintain that equitable tolling should apply to save their claim against Jackson.

Although the doctrine of equitable tolling is to be applied sparingly, it typically “applies when a

litigant’s failure to meet a legally mandated deadline unavoidably arose from circumstances

beyond the litigant’s control.” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209

F.3d 552, 561 (6th Cir. 2000). In Brown v. Cuyahoga County, supra, the Sixth Circuit

recognized the five-factor balancing test to determine whether equitable tolling is appropriate:

“1) lack of notice of the filing requirement; 2) lack of constructive knowledge of the filing

requirement; 3) diligence in pursuing one's rights; 4) absence of prejudice to the defendant; and

5) the plaintiff's reasonableness in remaining ignorant of the particular legal requirement.”

(citations omitted). Plaintiffs acknowledge they were not ignorant of the filing requirement, but

4 The Court need not address defendants’ alternative argument regarding failure of

service.

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argue they were diligent, no prejudice would result to defendants, and it was this Court’s actions

which prevented them from timely adding Jackson. The Court disagrees.

Plaintiffs maintain that before they “could delve into the crux of fact-finding discovery,

the plaintiffs’ Complaint was then dismissed by this Court on May 23, 2019” (Doc. 67 at 8) and

the matter was “dead for tolling purposes” as it remained on appeal until September 2020. If the

statute of limitations had not run as of the time of the Court’s original dismissal, the Court would

agree that the period the matter remained on appeal would not have been held against plaintiffs.

However, the limitations period had expired at least two months earlier. Like Smith v. City of

Akron, supra, where the court noted, “Because he waited until the last day of the two-year

limitations period to file his complaint, that left no time to discover the identity of his arresting

officers within the relevant time,” plaintiffs herein filed their Complaint less than three months

before the end of the limitations period. Plaintiffs cannot seek to avoid the statute of limitations

by citing the time the case was on appeal. Plaintiffs state that but for the Court’s May 23, 2019

dismissal, they would have added Jackson within the time prescribed by the Court in its Case

Management Order for adding new parties, i.e., June 1, 2019. But, the Court’s Case

Management Order was not an order extending the statute of limitations. The Court does not

find plaintiffs’ diligence argument based on this Court’s actions to be persuasive.

Plaintiff relies on Friedman v. Campbell, 1999 WL 1045281 (6th Cir. Nov. 8, 1999), an

unpublished Sixth Circuit decision which pre-dates Smith v. City of Akron and Brown v.

Cuyahoga County. Moreover, it is distinguishable because the court emphasized plaintiff’s pro

se status and the fact that the district court had stayed plaintiff’s discovery requests which were

issued shortly after filing suit and then ordered that defendants did not have to respond until a

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later date. Once plaintiff received the responses, he promptly attempted to amend his complaint

to identify the John Doe. The appeals court found that plaintiff had been diligent from the time

he filed the original complaint to learn defendant’s identity and amended his pleading shortly

after learning the information.

The Court does not find that equitable tolling applies.

For these reasons, New Party Defendant Geneke Jackson is entitled to dismissal.

Conclusion

For the foregoing reasons, New Party Defendant Geneke Jackson’s Motion to Dismiss is

granted.

IT IS SO ORDERED.

/s/ Patricia A. Gaughan

PATRICIA A. GAUGHAN

United States District Court

Dated: 4/13/21 Chief Judge

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