Schwartz v. Lackwanna County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MOLLY M. SCHWARTZ, ) CIVIL ACTION NO. 4:21-CV-1645

Individually and as Administrator of )

the Estate of David E. DeWald, II ) (WILSON, D.J.)

Plaintiff )

) (ARBUCKLE, M.J.)

v. )

)

LACKAWANNA COUNTY, et al., )

Defendants )

MEMORANDUM OPINION

I. INTRODUCTION

In March 2020, David E. Dewald, II, died in Lackawanna County Prison

following a use of force by five unidentified corrections officers. After DeWald’s

death, his daughter, Molly Schwartz (“Plaintiff”), initiated this civil case asserting

both state and federal claims against several municipal entities, prison employees,

a medical company contracted to provide services at the prison, and the medical

company’s employees. The complaint names five “John Doe” corrections officers,

and two “John Doe” nurses.

Currently before the Court is Plaintiff’s motion to amend her complaint. In

that motion Plaintiff seeks to substitute the identities of the corrections officers and

nurses for the John Does. For the reasons explained herein, Plaintiff’s motion to

amend (Doc. 45) will be granted.

II. RELEVANT BACKGROUND AND PROCEDURAL HISTORY

Since we write primarily for the benefit of the parties, we will limit our

discussion of the background in this case to those facts which are relevant to

Plaintiff’s motion to amend. (Doc. 45).

On September 24, 2021, Plaintiff initiated this action. Her original complaint

names seven “John Doe” Defendants, some of which are Lackawanna County

Corrections Officers. (Doc. 1, ¶¶ 19-23) (indicating that John Does 1-5 are

believed to be corrections officers). When this complaint was served on

Defendants, an attorney entered an appearance for the five John Doe Corrections

Officers.

This case proceeded in the normal fashion. Motions to dismiss were filed,

and resolved. Answers were filed, including an answer on behalf of the John Doe

Corrections Officers. (Doc. 35). On September 12, 2022, the parties submitted a

joint case management plan. (Doc. 41). In that plan, they suggested that the final

date for amending the pleadings in this case should be April 1, 2023. (Doc. 41, p.

10). In its case management order, the Court set an April 3, 2023, deadline for

amending the pleadings. (Doc. 43).

On September 14, 2022, the Lackawanna County Defendants (including the

John Doe Corrections Officers) served Plaintiff with initial disclosures. Part of

those disclosures were served by email, and a CD-ROM containing 750 pages of

documents was served via Priority Mail. (Doc. 49-3).

On September 20, 2022, Plaintiff’s counsel sent an email to the Lackawanna

County Defendants acknowledging receipt of an “email dated September 14, 2022

providing . . . Federal Rule of Civil Procedure 26 Disclosures.” (Doc. 48-3, p. 2)

(emphasis added). That correspondence does not mention a CD-ROM. In the same

email, Plaintiff’s counsel asked if opposing counsel would “agree to stipulate to the

substitution” of named individuals for the John Doe Defendants. Id. He also

requested that counsel for the Lackawanna County Defendants identify the names

of the John Doe Corrections Officers that appear in a surveillance video of the use

of force at issue. Id. The Court has no information as to when, whether, or how the

Lackawanna County Defendants’ responded. The parties ultimately did not

stipulate to the requested amendment.

Plaintiff’s counsel reports that he never received the September 2022 CD-

ROM. Nothing in the record before the Court suggests Plaintiff’s counsel

followed-up regarding the mailed September 2022 CD-ROM.

On June 20, 2023, over two months after the expiration of the deadline to

amend the pleadings, Plaintiff filed a motion to amend and attached a certificate of

non-concurrence. (Docs. 45, 45-1). Along with her motion, Plaintiff filed a brief in

support. (Doc. 46). Although the motion and brief in support make clear that the

proposed amendment involves only the substitution of named individuals for the

unidentified Defendants (among them the John Doe Corrections Officers), no

proposed amended complaint was provided. See L.R. 15.1 (requiring that a party

requesting leave to amend file a proposed amended pleading with the Court).

Defendants filed briefs in opposition. (Docs. 46, 47). Plaintiff replied. (Doc. 49).

The Lackawanna County Defendants requested, and were granted, leave to file a

sur reply, over Plaintiff’s objections. (Docs. 50, 51, 52, 53, 58, 59). The Court also

held oral argument.

Fact discovery in this case is ongoing. (Doc. 56).

III. LEGAL STANDARD

Rule 15 of the Federal Rules of Civil Procedure governs motions to amend a

complaint.1 This rule provides for three ways by which a Plaintiff may amend his

complaint: (1) as a matter of course; (2) with the opposing party’s written consent;

and (3) by leave of court.2 Here, Plaintiff seeks to amend her complaint by leave of

court pursuant to Fed. R. Civ. P. 15(a)(3). This provision also provides that leave

to amend should be freely granted “when justice so requires.”3 Even under this

liberal standard, however, a motion for leave to amend may be denied when it is

1 “Among the District Courts within the Third Circuit, a motion to amend is

generally treated as a nondispositive matter, subject to decision by the magistrate

judge.” Aguiar v. Recktenwald, No. 3:13-CV-2616, 2014 WL 6062967 at *3 n.2

(M.D. Pa. Nov. 12, 2014).

2 Fed. R. Civ. P. 15.

3 Fed. R. Civ. P. 15(a)(2).

justified. “Permissible justifications [for denying a request for leave to amend]

include: (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice to

the opposition; (4) repeated failures to correct deficiencies with previous

amendments; and (5) futility of the amendment.”4 “The Third Circuit has

interpreted these factors to emphasize that prejudice to the non-moving party is the

touchstone for the denial of a request for leave to amend.”5

If a motion to amend is filed after the deadline set for amendments under a

scheduling order, the moving party must also satisfy Rule 16(b)(4) of the Federal

Rules of Civil Procedure.6 Rule 16(b)(4) of the Federal Rules of Civil Procedure

provides that, once issued, the Court’s scheduling order “may be modified only for

good cause and with the judge’s consent.”7

Unlike Rule 15(a)(2), which focuses on the prejudice to the non-movant, the

Court’s analysis under Rule 16(b) examines the movant’s conduct. “[G]ood cause

may be satisfied if the movant shows that their delay in filing the motion to amend

stemmed from ‘any mistake, excusable neglect or any other factor which might

4 Riley v. Taylor, 62 F.3d 86, 90 (3d Cir. 1995).

5 Tarkett Inc. v. Congoleum Corp., 144 F.R.D. 289, 290 (E.D. Pa. 1992)

(citing Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989)).

6 Eastern Minerals & Chemicals Co. v. Mahan, 225 F.3d 330, 340 (3d Cir.

2000); Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84-85 (3d

Cir. 2010).

7 Fed. R. Civ. P. 16(b)(4).

understandably account for the failure of counsel to undertake to comply with the

Scheduling Order.”8

To establish good cause, the movant must show that “despite its

diligence, it could not reasonably have met the scheduling order

deadline.” Hutchins v. United Parcel Service, No. 01–1462, 2005 WL

1793695, at *3 (D.N.J. July 26, 2005). What will constitute “good

cause” to warrant modification “necessarily varies with the

circumstances of each case.” 6A Alan Wright et al., Federal Practice

& Procedure § 1522.2, at 313 (3d ed. 2010). The Court therefore has

“great discretion in determining what kind of showing the moving

party must make in order to satisfy the good cause requirement of

Rule 16(b).” Thoman v. Philips Med. Sys., No. 04–3698, 2007 WL

203943, at *10 (D.N.J. Jan. 24, 2007) (Brown, C.J.) (citing 3 James

W. Moore et al., Moore's Federal Practice § 16.14[1][b] (3d ed.

1997)). Nevertheless, courts regularly find that the standard is not

satisfied when a party was aware of the facts that would lead it to

amend and failed to act on it. See Eichorn v. AT & T Corp., 484 F.3d

644, 651 (3d Cir. 2007); see also Marathon Fin. Ins., Inc. RRG v.

Ford Motor Co., 591 F.3d 458, 470–71 (5th Cir. 2009); Millennium

Partners, L.P. v. Colmar Storage, LLC, 494 F.3d 1293, 1299 (11th

Cir. 2007); Johnson v. Mamoth Recreations, Inc., 975 F.2d 604, 609

(9th Cir. 1992).9

IV. DISCUSSION

In opposing Plaintiff’s motion to amend, the Lackawanna County

Defendants argue:

(1) Plaintiff has failed to demonstrate good cause under Rule 16(b) of the

Federal Rules of Civil Procedure; and

8 Fermin v. Toyota Material Handling, U.S.A., Inc., No. 10-3755, 2012 WL

1393074, at *3 (D.N.J. Apr. 23, 2012) (quoting Phillips v. Greben, No. 04-5590,

2006 WL 3069475, at *6 (D.N.J. Oct. 27, 2006)).

9 Roggio v. F.B.I., No. 08-4991 ES, 2011 WL 3625042, at *5 (D.N.J. Aug.

17, 2011).

(2) Amendment would be futile because the statute of limitations has

expired, and the proposed amendments do not meet the requirements

of Rule 15 for relation back.

Plaintiff disagrees.

A. PLAINTIFF HAS DEMONSTRATED GOOD CAUSE FOR AMENDMENT

To amend her complaint Plaintiff required knowledge of the identity of five

Lackawanna County Corrections Officers that appeared in a surveillance video.

The parties do not dispute that this information appeared in prison incident reports.

The Lackawanna County Defendants assert that they served those incident reports

on Plaintiff by placing a CD-ROM that contained approximately 750 pages of

records in electronic form in the mail on September 14, 2022.10 Plaintiff’s Counsel

asserts that he did not receive that CD-ROM, and did not obtain a copy of the

incident reports until a second CD-ROM (containing the incident reports and

additional disclosures) was hand delivered to his office in April 2023.11 The only

10 (Doc. 49-3, p. 12) (certifying that initial disclosures were placed in First

Class Mail and sent to Plaintiff’s counsel’s address of record).

11 In his reply brief, Plaintiff’s counsel wrote, “is not until April of 2023

when Attorney Zlotucha’s office hand delivers the CD-ROM containing the

investigative materials and the Lackawanna County Prison incident report to

Attorney Rothenberg that Attorney Rothenberg then knows the identity of all five

names of the Corrections Officers named as John Does in the Plaintiff’s Complaint

and who are present in the surveillance video footage.” (Doc. 49, p. 6).

Moving Defendants argue in a sur-reply brief that they are “confounded” by

Plaintiff’s claim that he did not receive the CD-ROM. (Doc. 59, p. 5) (“Plaintiff

never once indicated that the documents were not received and never requested

another copy be sent). They also cite to a September 20, 2022, email where

Plaintiff’s counsel acknowledged receipt of the initial disclosures. This email,

communication between the parties relating to the initial disclosures was one email

on September 20, 2022, that neither acknowledged receipt of the CD-ROM, nor

communicated that it had not arrived. No tracking information or return receipt is

in the record demonstrating that the CD-ROM arrived. Six months later, and more

than two months after the expiration of the deadline for amendment of the

pleadings, Plaintiff filed a motion to amend requesting leave to substitute real

identities for the fictitious names used in her original complaint.

We have great discretion in determining what kind of showing will satisfy

the good cause requirement, and the kind of showing the moving party must make

to show good cause will vary given the unique circumstances of each case. In this

case, we have considered that the proposed amendment (outlined in the motion

itself) is modest, that fact discovery is ongoing, and that the substitution of the real

identities in place of the fictitious names is not a surprise to Defendants. Under

similar circumstances, courts have not demanded a high showing from the

movant.12 We find that good cause exists to modify the Court’s scheduling order

however, only acknowledges receipt of emailed documents and does not confirm

receipt of the CD-ROM.

12 Jacobs v. Cumberland County, No. 16-1523, 2017 WL 11717901 (D.N.J.

Apr. 27, 2017) (permitting substitution of Defendants’ names seven months after

the deadline for amending pleadings where there was a change in representation);

Monroe v. City of Hoboken, No. 11-2556, 2012 WL 1191177 (D.N.J. Apr. 10,

2012) (acknowledging that Courts have found the good cause requirement met in

cases of “simple inadvertence” where the proposed amendment was minor, was not

a surprise to Defendants, and did not alter the litigation in any substantive way).

and allow amendment. We have no reason to doubt that, through no fault of

Plaintiff or the Lackawanna County Defendants, the CD-ROM sent in September

2022 did not find its way into counsel’s hands. While counsel could have more

clearly and more diligently communicated its absence, we nonetheless find that

counsel was at least reasonably diligent. He requested leave to amend less than

three months after the court-imposed deadline. Counsel’s assertion that he did not

receive the incident reports that contained the identities of the corrections officers

until April 2023 is enough to satisfy the good cause requirement under these

circumstances. Although we do not condone a party’s failure to comply with

scheduling orders, “the rules are meant to ensure fair and efficient litigation, not to

‘trap’ attorneys or deprive plaintiffs of their day in court.”13

B. THE QUESTION OF WHETHER AMENDMENT IS FUTILE SHOULD BE

RESOLVED AFTER THE AMENDED COMPLAINT IS FILED AND

SERVED ON THE NEW DEFENDANTS

Rule 15(c) of the Federal Rules of Civil Procedure governs in cases where a

party seeks to amend a pleading, and have that amendment relate back to the

original date the pleading was filed. “Rule 15(c) is based on the notion that once

litigation involving particular conduct or a given transaction or occurrence has

been instituted, the parties are not entitled to the protection of the statute of

13 Jacobs, 2017 WL 11717907, at *3 (quoting Monroe, 2012 WL 1191177,

at *7).

limitations against the later assertion by amendment of defenses or claims that

arise out of the same conduct, transaction, or occurrence as set forth in the original

pleading.”14 Pursuant to Rule 15(c)(1), an amendment to a pleading relates back to

the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows

relation back;

(B) the amendment asserts a claim or defense that arose out of the

conduct, transaction, or occurrence set out--or attempted to be

set out--in the original pleading; or

(C) the amendment changes the party or the naming of the party

against whom a claim is asserted, if Rule 15(c)(1)(B) is

satisfied and if, within the period provided by Rule 4(m) for

serving the summons and complaint, the party to be 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.

The Lackawanna County Defendants argue that allowing amendment is

futile because relation back would not apply.15 However, the new Defendants have

14 6A, Mary Kay Kane, Federal Practice & Procedure § 1496 (Wright &

Miller 3d ed., July 7, 2023, Update).

15 The Lackawanna County Defendants argue, relying on Barrow v.

Wethersfield Police Dep’t, that the failure to identify individual defendants, or

make any effort to identify individual defendants, when the plaintiff knows that

such defendants must be named and was prompted to do so by the court cannot be

characterized as a mistake. 66 F.3d 466, 470 (2d Cir. 1995). The holding in

Barrow, however, was not applied where unprompted, but ultimately unsuccessful,

efforts to identify defendants were made before the statute of limitations expired.

See Byrd v. Abate, 964 F.Supp. 140 (S.D.N.Y. 1997) (finding that an inmate’s

not yet appeared under their own names in this case, and have not had the

opportunity to argue on their own behalf whether Rule 15(c)(1)(C) has been met.16

We are not inclined to address this issue in a piecemeal fashion, and find that it can

be more thoroughly addressed by the newly added Defendants themselves. Should

they choose to do so, the newly named Defendants will be free to fully develop this

statute of limitations issue, including the issue of whether relation back applies, in

their responses to the amended complaint.

amended complaint related back where the plaintiff was unable to discover an

officer’s name before the statute of limitations expired). Notably, in Barrow, this

issue was raised by the newly added defendants themselves in a motion to dismiss,

after those defendants were served with the amended complaint.

16 Counsel has entered an appearance on behalf of the John Doe Corrections

Officers to raise arguments on their behalf during the motion to dismiss stage.

During oral argument, however, counsel acknowledged that because their identities

were unknown, and no amended complaint has been provided, she had not

discussed this case with any “John Doe.”

V. CONCLUSION

Accordingly, we conclude that:

(1) Plaintiff’s Motion to Amend (Doc. 45) is GRANTED.

(2) Plaintiff is directed to file an amended complaint that substitutes the

identities of the corrections officers and nurses for the John Does

named in the original complaint on or before February 28, 2024.

No other substantive changes to the complaint will be permitted.

(3) An appropriate order will be issued.

Date: February 21, 2024 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge