BROWN v. WILSON

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JORDAN BROWN, )

)

Plaintiff, )

)

v. ) Civil Action No. 20-985

)

JANICE WILSON, JEFFREY MARTIN, )

ROBERT McGRAW, TROY STEINHAUSER )

and FRANK PAWLOWSKI, )

)

Defendants. )

MEMORANDUM ORDER

Presently before the Court is Defendants’ Motion for Judgment on the Pleadings and brief

in support (Docket Nos. 143, 144), which the Court construes as Defendants’ motion for leave to

file a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c),

along with Plaintiff’s brief in opposition (Docket No. 150). For the reasons set forth below,

Defendants’ motion will be denied.

Plaintiff filed his Complaint in this matter over four years ago, on July 1, 2020. (Docket

No. 1). On May 9, 2023, the Court entered a Pretrial Order, setting a trial date of February 5, 2024.

(Docket No. 56). The Court cancelled that trial date,1 and on August 15, 2024, issued an Amended

Pretrial Order scheduling jury selection and trial to begin on December 3, 2024, and setting

numerous pretrial deadlines in the meantime. (Docket No. 128). On September 3, 2024, Attorneys

Nicole J. Boland and Brendan J. O’Malley, both from the Office of General Counsel for the

Pennsylvania State Police (the “OGC-PSP”), entered their appearance on behalf of Defendants,

and on September 5, 2024, Attorneys Scott A. Bradley and Michael P. Gaetani, both from the

1 The Court rescheduled the trial in order to set a criminal trial in accordance with its obligations under the

Speedy Trial Act.

Pennsylvania Office of Attorney General, filed a motion to withdraw their appearance on behalf

of Defendants. (Docket Nos. 129, 130, 131).

As the trial date is fast approaching, the Court held a telephonic status conference with

counsel on September 10, 2024, during which the Court inquired whether Defendants’ OGC-PSP

counsel would be prepared to meet all existing deadlines and proceed to trial as scheduled if Mr.

Bradley and Mr. Gaetani were permitted to withdraw from the case, and Ms. Boland answered in

the affirmative. (Docket No. 138). Therefore, that same day, the Court agreed to the last-minute

replacement of defense counsel in this matter. (Docket Nos. 139, 152). However, after committing

to meet pretrial and trial deadlines, Ms. Boland raised with the Court, for the first time, a potential

request to reopen expert discovery, as well as the possibility of filing a motion for judgment on the

pleadings. In response, the Court instructed defense counsel to file a motion and brief asking for

such requests, and the Court issued an Order later that day indicating, among other things, that

Defendants would have until September 13, 2024, to submit to the Court notice of any

forthcoming, as yet unanticipated, requests, motions, etc. (Docket No. 140).

On September 13, 2024, Defendants filed both a Motion to Re-Open Expert Discovery and

supporting brief (Docket Nos. 141, 142) and a Motion for Judgment on the Pleadings and

supporting brief (Docket Nos. 143, 144). On September 16, 2024, the Court issued an Order

indicating that Defendants’ Motion for Judgment on the Pleadings and brief would be construed

solely as a motion for leave to file a motion for judgment on the pleadings pursuant to Rule 12(c),

and that such filings were otherwise stricken as noncompliant with the Court’s instructions given

during the telephonic status conference and via the Court’s Order at Docket Number 140. (Docket

No. 146). Plaintiff thereafter filed an Omnibus Brief in Opposition to Defendants’ Motion to

Reopen Expert Discovery and Motion for Judgment on the Pleadings.2 (Docket No. 150).

Plaintiff’s motion for leave to file a Rule 12(c) motion is therefore now ripe for decision.

According to Rule 12(c), “After the pleadings are closed—but early enough not to delay

trial—a party may move for judgment on the pleadings.”3 Fed. R. Civ. P. 12(c). Defendants assert

in their motion, without further elaboration, that their Rule 12(c) motion is being filed early enough

so as not to delay trial. (Docket No. 143 at 1). The sole case Defendants cite in support of their

contention that their motion is timely and will not delay trial is Liburd v. Government of Virgin

Islands, Civ. Action No. 2011-020, 2013 WL 960780, at *4 (D.V.I. Mar. 13, 2013), in which a

motion for judgment on the pleadings was found to be timely when filed approximately three

months before the then-scheduled trial. In Liburd, however, the defendants’ motion “was filed on

the eve of the dispositive motions deadline—eleven months after [the defendants’] Answer was

filed and six months after the deadline for completing factual discovery.” Id. at *3. Additionally,

the Court found in Liburd that the plaintiff had not articulated how he would be prejudiced by such

2 The Court found Plaintiff’s Motion to Re-Open Expert Discovery and supporting brief (Docket Nos. 141,

142) to be substantially compliant with the Court’s instructions, and that motion is being ruled upon by separate

Memorandum Order, filed herewith.

3 Wright and Miller provide as follows with regard to motions filed pursuant to Rule 12(c):

Ordinarily, a motion for judgment on the pleadings should be made promptly after the close of

the pleadings. Generally, however, a Rule 12(c) motion is considered timely if it is made early

enough not to delay trial or cause prejudice to the non-movant. If a party engages in excessive

delay before moving under Rule 12(c), the district court may refuse to hear the motion on the

ground that its consideration will delay or interfere with the commencement of the trial. The

determination whether the motion is a legitimate one or simply has been interposed to delay the

trial is within the sound discretion of the judge. However, if it seems clear that the motion may

effectively dispose of the case on the pleadings, the district court should permit it regardless of

any possible delay consideration of the motion may cause. Conversely, if the pleadings do not

resolve all of the factual issues in the case, proceeding with discovery and potentially a trial on

the merits would be more appropriate than an attempt at resolution of the case on a Rule 12(c)

motion.

5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 (3d ed. 2024 update) (footnotes

omitted).

motion, nor was it established that the motion was filed so late as to delay trial. Id. at *4. The

Court therefore explained that, under the particular facts and circumstances of that case, it would

reject the argument that the Rule 12(c) motion was untimely. See id.

In this case, however, in accordance with this Chambers’ Practices and Procedures,4 if

Defendants would be permitted to file their Rule 12(c) motion, the Court would allow Plaintiff 30

days to file a brief in response and Defendants would be given a 14-day reply period, at which

point the Court would take the parties’ filings under advisement and ultimately issue an opinion.

Given the gravity of a motion filed under Rule 12(c), the Court would provide such a schedule to

accommodate the parties’ need to thoroughly brief complex issues, and to allow the Court adequate

time to formulate a thorough and well-reasoned decision. The Court finds that here, unlike the

particular facts and circumstances of Liburd, imposing such a briefing schedule at this time, so

close to the trial date, while still providing the parties with adequate time to submit their other

substantial pretrial submissions, and while also allowing the Court adequate time to consider and

issue a ruling on Defendants’ motion, would undoubtedly delay the trial in this case.

Also unlike the plaintiff in Liburd, Plaintiff here has shown that he would be prejudiced by

Defendants filing a Rule 12(c) motion at this point in the case. After several extensions, fact

discovery was completed on November 12, 2021, and expert discovery was completed on January

31, 2023. (Docket Nos. 27, 46). The Court held a series of case management conferences,

including a post-discovery status conference on February 7, 2023, after which the Court ordered

motions for summary judgment to be filed by March 24, 2023. (Docket Nos. 47, 48). Defense

counsel did not raise the possibility of a Rule 12(c) motion at that point and, indeed, had long

before informed the Court that no such motions were anticipated when they jointly submitted the

4 See https://www.pawd.uscourts.gov/sites/pawd/files/Practices_Procedures_Judge_Hardy_10_21.pdf.

Rule 26(f) Report, way back on November 9, 2020. (Docket No. 17 at 2). Instead of filing

summary judgment motions by the Court’s imposed deadline, however, the parties filed a

stipulation in which they agreed to forgo filing such dispositive motions, and “[a]s a compromise

of the claims and defenses asserted in this case,” the parties agreed to the dismissal of certain

claims, Count III (Civil Conspiracy) and Count IV (Supervisory Liability), while also stipulating

to a trial on the remaining claims, Count I (Malicious Prosecution) and Count II (Fabrication of

Evidence). (Docket No. 49). As Plaintiff points out, the agreement to forgo dispositive motions

was reached because Plaintiff agreed to release putatively viable claims; yet, Defendants now seek

to file a last-minute dispositive motion, seeking dismissal of the remaining claims, after securing

the dismissal of other claims in exchange for agreeing to move forward to trial. Moreover, ordering

Plaintiff to respond to Defendants’ proposed Rule 12(c) motion at this juncture, and thus requiring

the re-litigation of portions of this case so close to trial, in the midst of meeting the other deadlines

imposed on the parties by the Court’s Amended Pretrial Order, would also be prejudicial to

Plaintiff, as it would undoubtedly hamper his ability to prepare for trial and/or could necessitate

delaying trial in order to provide Plaintiff with an adequate opportunity to respond to such motion.5

5 Some courts have found that alleged untimeliness of a motion for judgment on the pleadings is not a bar to

dismissal, despite being filed at the last minute, when the motion is well-supported and – unlike this case – the plaintiff

has not articulated a basis for any prejudice caused by the delay. See, e.g., General Elec. Co. v. Sargent & Lundy, 916

F.2d 1119, 1123, 1131 (6th Cir. 1990) (cited in Liburd, 2013 WL 960780, at *3-4). Here, however, in addition to the

Court finding that such motion would delay trial and prejudice Plaintiff, upon review of the proposed Rule 12(c)

motion and brief filed by Defendants, the motion appears to be not well-supported. First, Defendants raise matters in

their brief that have already been resolved, e.g., the Civil Conspiracy count in Plaintiff’s Complaint that has been

dismissed (Docket No. 117 at 60). Defendants also argue that they are entitled to judgment on the pleadings despite

the Court having previously indicated – after the parties conducted extensive discovery and submitted briefing, and

the Court heard lengthy oral argument on motions in limine and jury instructions – that the record shows here the

existence of factual issues in dispute, including issues of probable cause and malice. (Docket No. 148-6 at 72-73).

Furthermore, Defendants base certain arguments in their brief on facts that are not alleged in the pleadings, such as

alleged actions of members of the District Attorney’s Office.

In any event, Defendants indicate in their motion that the legal arguments that they would present in a Rule

12(c) motion will also be subject to a forthcoming Rule 50 motion. Therefore, regardless of whether Defendants are

permitted to file a Rule 12(c) motion at this time, Defendants will have the opportunity to raise the arguments they

wish to present to the Court via a Rule 50 motion.

Additionally, the Court is mindful that Plaintiff has invested substantial time and incurred

significant expenses in the discovery process in this matter, including by retaining experts. See

Grajales v. Puerto Rico Ports Auth., 682 F.3d 40, 46 (1st Cir. 2012) (noting that, “while district

courts enjoy broad discretion in managing their dockets . . . once the parties have invested

substantial resources in discovery, a district court should hesitate to entertain a Rule 12(c) motion

that asserts a complaint’s failure to satisfy the plausibility requirement”).

Furthermore, to the extent Plaintiff argues that Defendants cannot seek to modify the

Court’s scheduling orders without showing “good cause,” the Court agrees. See Fed. R. Civ. P.

16(b)(4). In order “to establish good cause, a party must demonstrate that they acted diligently.”

Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., Civ. Action No. 09-290, 2013 WL 772698, at

*2 (W.D. Pa. Feb. 28, 2013). Furthermore, “carelessness, or attorney error, which might constitute

‘excusable neglect’ under Rule 6(b), is insufficient to constitute ‘good cause’ under Rule 16(b).”

Id. (quoting Graham v. Progressive Direct Ins. Co., 271 F.R.D. 112, 121 (W.D. Pa. Sept. 15,

2010)). Here, although Defendants do not specifically seek to modify the Court’s scheduling

orders in order to file their Rule 12(c) motion, the Court notes that Defendants offer no explanation

as to why they seek to file a Rule 12(c) motion at this late date, so close to trial and long after other

dispositive motions were due, when the pleadings upon which the Rule 12(c) motion is based have

been available to the parties for years. See, e.g., Transource Pennsylvania, LLC v. DeFrank, Civ.

No. 1:21-CV-01101, 2023 WL 8456121, at *3 (M.D. Pa. Dec. 6, 2023) (denying a motion for

judgment on the pleadings as untimely where the defendants provided no good cause as to why

the court should modify its scheduling order and allow the filing several months after the

dispositive motion deadline had passed, where the defendants were long aware of the facts

supporting their motion, and where there was no suggestion that the motion could not have been

filed sooner despite diligent efforts); Sullivan v. Sabharwal, Civ. No. 2016-21, 2018 WL 5316171,

at *3 (D.V.I. Oct. 26, 2018) (denying the defendants’ motion for judgment on the pleadings where

they filed a motion for partial summary judgment and a Daubert motion before the court-ordered

dispositive deadline, and they gave no reason why they could not have filed their motion for

judgment on the pleadings before that deadline as well).

Additionally, although new counsel has recently substituted their appearance, the need for

such substitution remains unexplained and, regardless of such change in counsel, Plaintiff points

out that lawyers from the OGC-PSP have been involved in this litigation since July 8, 2020.

(Docket No. 150 at 1-3 (discussing the OGC-PSP lawyers’ involvement in this case)). Plaintiff

notes that Defendants provide no explanation for the failure to file a motion for judgment on the

pleadings earlier in this case, even though 1,513 days passed from the time lawyers from the OGC-

PSP accepted service of the Complaint until they finally entered their appearance at this late

juncture. (Id. at 3). Plaintiff argues that, during that time, OGC-PSP lawyers approved the parties’

Rule 26(f) report indicating that “No Rule 12 motions are anticipated,” and OGC-PSP lawyers

approved the parties’ summary judgment stipulation, discussed, supra. (Id. (referring to Docket

No. 17 at 2, and Docket No. 50)). Plaintiff notes that lawyers from the OGC-PSP were also

apparently aware of the extensive oral argument before the Court, during which the parties

addressed disputes involving proposed jury instructions and motions in limine,6 and during which

the Court found that there are genuine issues of material fact for a jury to determine in this case.

6 See Docket No. 80 (Plaintiff’s Motion in Limine to Preclude Evidence or Argument About Information that

was Unknown to Defendants When They Arrested Plaintiff Jordan Brown), Docket No. 82 (Plaintiff’s Motion in

Limine to Preclude the Testimony of Jenessa Houk), Docket No. 84 (Plaintiff’s Motion in Limine to Preclude Evidence

or Argument Regarding any Opinion as to Jordan Brown’s Guilt or Innocence), Docket No. 86 (Defendants’ Motion

In Limine (First) to Exclude Evidence and Testimony of Expert Witnesses), Docket No. 88 (Defendants’ Motion In

Limine (Second) to Exclude Certain Evidence of Damages and/or to Bifurcate Trial Issues), Docket No. 90

(Defendants’ Motion In Limine (Third) to Exclude Certain Photographs of Plaintiff), and Docket No. 98 (Plaintiff’s

Motion for Proposed Jury Instructions that there was No Probable Cause to Arrest Plaintiff, and that Defendants Used

Fabricated Evidence to Arrest Plaintiff).

(Id. (referring to Docket Nos. 115, 148-6)). Given the amount of time that has passed since the

Complaint was filed in this matter, and despite the various conferences with the Court,

opportunities for legal argument, and motions and briefs filed in this case over that lengthy period,

Defendants – without explanation – waited until less than three months before the rescheduled trial

date to seek to file a Rule 12(c) motion for judgment on the pleadings and without showing good

cause why the Court should entertain the instant motion.

Thus, upon careful consideration of the particular facts and circumstances of this case, the

Court finds that permitting Defendants to file a Rule 12(c) motion at this juncture would not only

delay the trial in this matter, but, importantly, it would also prejudice Plaintiff. Defendants have

offered no reason whatsoever for their failure to file such motion at an earlier date, despite having

long been aware of the facts that purportedly support their motion, and Defendants have thus also

not shown good cause why the Court should entertain such motion at this time. Therefore,

Defendants’ motion for leave to file a motion for judgment on the pleadings pursuant to Rule 12(c)

will be denied.

Accordingly, in view of the foregoing, the Court enters the following Order:

AND NOW, this 10th day of October, 2024,

IT IS HEREBY ORDERED that Defendants’ Motion for Judgment on the Pleadings

(Docket No. 143), which the Court construes as Defendants’ motion for leave to file a motion for

judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), is DENIED.

/s/ W. Scott Hardy

W. Scott Hardy

United States District Judge

cc/ecf: All counsel of record