UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
December 31, 2003
TYSHEIA GARVIN, APPELLANT
CITY OF PHILADELPHIA; POLICE OFFICER JOHN DOE
Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 02-02214) District Judge: Honorable Robert F. Kelly
Before: Mckee, Smith, and Greenberg,
The opinion of the court was delivered by: Greenberg, Circuit Judge
Argued November 7, 2003
OPINION OF THE COURT
I. FACTUAL AND PROCEDURAL HISTORY
This matter comes on before this court on Tysheia Garvin's appeal from an order entered by the district court on December 6, 2002, denying her motion to amend her complaint and an order entered on January 3, 2003, denying a motion for reconsideration of that order. This case arose out of an incident on April 24, 2000, when Philadelphia police arrested Garvin after she engaged in two altercations outside of the Criminal Justice Center in Philadelphia. On April 18, 2002, six days prior to the running of the two-year statute of limitations, Garvin filed a complaint against the City and Police Officer John Doe *fn1 alleging that she was injured when an arresting officer, "Police Officer John Doe, intentionally and maliciously grabbed and jerked the handcuffs [placed around her wrists], throwing [her] to the ground face first with nothing to break her fall." RR at 20-21.*fn2
Garvin brought this action under 42 U.S.C. § 1983 ("section 1983") against the City charging that it failed to train its police officers properly and engaged in a custom, practice or policy which permits the use of excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution. Garvin also sued Officer Doe under section 1983 in both his official and individual capacities, seeking compensatory and punitive damages, maintaining that he violated her rights under the Fourth and Fourteenth Amendments. Her complaint with respect to punitive damages states that "[t]he above-described actions of Defendant, Police Officer John Doe, in his individual capacity, were so malicious, intentional and reckless and displayed such a reckless indifference to the Plaintiff 's rights and well being, that the imposition of punitive damages is warranted." RR at 22. In addition, Garvin brought supplemental state law claims against Officer Doe for assault and battery and intentional infliction of emotional distress.
On April 24, 2002, Deputy Philadelphia City Solicitor Lynne Sitarski entered her appearance for the City,*fn3 and then on May 13, 2002, she filed an answer and affirmative defenses on its behalf. In its answer the City stated that the allegations in the paragraphs of the complaint relating to Officer Doe "pertain to parties other than answering defendant, and therefore require no response." SA at 2.*fn4
Sitarski did not enter an appearance for Officer Doe or file an answer on his behalf and indeed never has taken either step in this action.
On May 31, 2002, the district court entered a scheduling order requiring the parties to exchange their initial disclosures under Rule 26(a)(1) of the Federal Rules of Civil Procedure starting on that date. The scheduling order set October 31, 2002, as the date by which all fact discovery needed to be completed and thus allowed five months for that purpose.
On July 24, 2002, the City served Garvin with its initial disclosures and attached the police department records related to the April 24, 2000 incident, including Garvin's arrest report. The "Philadelphia Police Department Arrest Report" for Garvin identifies a female officer as having placed her under arrest and the initial disclosures listed eight officers who were persons "reasonably likely to have some information that bears significantly on the claims and defenses involved in the present action." RR at 34.
Garvin maintains that the female officer identified as the arresting officer in the City's initial disclosures did not actually place her under arrest as she claims to have been injured while being arrested by a male officer. Nevertheless, even though Garvin regarded the arrest report as inaccurate on this critical point, she did not attempt to depose within the time for discovery fixed by the court any of the eight officers the City listed in its initial disclosures to determine the identity of the officer who arrested her.
On October 29, 2002, two days before fact discovery was scheduled to end under the district court's May 31, 2002 order, and more than three months after the City supplied her with what she asserts is an incorrect identification of the arresting officer, Garvin brought a motion to amend her complaint to substitute the names of four police officers for the John Doe defendant and for an enlargement of time to conduct depositions of the newly named defendants. In her motion to amend, Garvin stated that "[n]othing in defendants' Initial Disclosures or in the attached documents identified the police officer responsible for actually arresting/using force against the Plaintiff." RR at 3. Garvin further maintained that she had made a good faith effort to determine the actual name of the John Doe defendant. Garvin conceded that the statute of limitations as to the four officers had run on April 24, 2002, but sought to have her amendment relate back to the date of the filing of her initial complaint on April 18, 2002, so that the complaint would have been timely as to the four officers.
On December 6, 2002, the district court denied Garvin's motion to amend as it held that the amended complaint would not meet the conditions required for relation back under Federal Rule of Civil Procedure 15(c). Thus, the proposed amendment would have been futile as the action against the officers would have been barred by the statute of limitations. Garvin then filed a motion for reconsideration and a request that the district court certify the question for an interlocutory appeal under 28 U.S.C. § 1292(b). The district court denied Garvin's motion and request on January 3, 2003, and on February 24, 2003, granted summary judgment to the City of Philadelphia on the merits with respect to Garvin's claims against it under section 1983. Garvin timely appealed, challenging only the district court's denial of her motions to amend her complaint and for reconsideration of that denial. Br. of Appellant at 3.
The district court had jurisdiction over Garvin's claims brought under section 1983 pursuant to 28 U.S.C. §§ 1331 and 1343 and it had jurisdiction over her state law claims under 28 U.S.C. § 1367. We have jurisdiction under 28 U.S.C. § 1291 inasmuch as the district court's order granting summary judgment to the City terminated the proceedings in the district court. Therefore, we may review the denial of Garvin's motion to amend at this time.*fn5
A. STANDARD OF REVIEW
We review the district court's decision denying Garvin's motion to amend her complaint for abuse of discretion. Singletary v. Pennsylvania Dep't of Corrs., 266 F.3d 186, 193 (3d Cir. 2001) (citing Urrutia v. Harrisburg County Police Dep't, 91 F.3d 451, 457 (3d Cir. 1996)). If we were reviewing factual conclusions made by the district court, we would review for clear error. Id. (citing Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 174 (3d Cir. 1977)). Here, however, the factual circumstances we consider are essentially not in dispute so that our review is of the district court's interpretation of Federal Rule of Civil Procedure 15 and thus is plenary. Id. (citing Lundy v. Adamar of N.J., Inc., 34 F.3d 1173, 1177 (3d Cir. 1994)).
B. THE MOTION TO AMEND
Claims such as Garvin's brought under section 1983 are subject to state statutes of limitations governing personal injury actions. See Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 581-82 (1989); Sameric Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998). The Pennsylvania statute of limitations for personal injury actions applicable here is two years. 42 Pa. Cons. Stat. Ann. § 5524(7) (West Supp. 2003). Garvin's state law claims for assault and battery and intentional infliction of emotional distress also are governed by a two-year statute of limitations. Id. § 5524(1), (7). The naming of a John Doe defendant in a complaint does not stop the statute of limitations from running or toll the limitations period as to that defendant. Talbert v. Kelly, 799 F.2d 62, 66 n.1 (3d Cir. 1986).
In her motion to amend her complaint Garvin conceded that the two-year statute of limitations had run on April 24, 2002, as to her claims against the police officer who allegedly injured her. However, as we have indicated, she sought to substitute for John Doe four specifically named Philadelphia police officers who allegedly were involved in the April 24, 2000 incident and have that substitution relate back to the filing of her initial complaint on April 18, 2002.
Replacing the name John Doe with a party's real name amounts to the changing of a party or the naming of a party under Rule 15(c), and thus the amended complaint will relate back only if the three conditions specified in that rule are satisfied. Varlack, 550 F.2d at 174. Rule 15(c) states, in pertinent part:
(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when...
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
The parties to be brought in by amendment must have received notice of the institution of the action within 120 days following the filing of the action, the period provided for service of the complaint by Rule 4(m) of the Federal Rules of Civil Procedure. If the amendment relates back to the date of the filing of the original complaint, the amended complaint is treated, for statute of limitations purposes, as if it had been filed at that time. Singletary, 266 F.3d at 189. The relation back provision of Rule 15(c) aims to ameliorate the harsh result of the strict application of the statute of limitations.*fn6 See id. at 193; Colbert v. City of Philadelphia, 931 F. Supp. 389, 392 (E.D. Pa. 1996); see also 6A Charles Alan Wright et al., Federal Practice & Procedure § 1497, at 85 (2d ed. 1990). Of course, an amended complaint will not relate back if the plaintiff had been aware of the identity of the newly named parties when she filed her original complaint and simply chose not to sue them at that time.
Inasmuch as the district court found that Garvin failed to satisfy the Rule 15(c) requirements for relation back, any amendment of her complaint would have been futile because the amended complaint could not have withstood a motion to dismiss on the basis of the statute of limitations. Riley v. Taylor, 62 F.3d 86, 92 (3d Cir. 1995) (citing Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988)). Thus, if, as we shall conclude, the district court correctly held that the complaint would not relate back it surely did not abuse its discretion in denying the motion to amend.*fn7
In order to change "the party or the naming of the party against whom... claim[s] [are] asserted," both Rule 15(c)(2) and (c)(3) must be satisfied. Fed. R. Civ. P. 15(c)(3). Therefore, a plaintiff must show that: (1) the claim or defense set forth in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading; (2) within the time period provided in Rule 4(m), the party or parties to be added received notice of the institution of the suit and would not be prejudiced in maintaining a defense; and (3) the party sought to be added knew that, but for a mistake concerning his or her identity, he or she would have been made a party to the action.*fn8
Singletary, 266 F.3d at 194.
In the district court the City did not dispute that the proposed amendment meets the requirement of Rule 15(c)(2) and the City does not dispute this point on appeal. Br. of Appellee at 9 n.1. In any event, clearly the new claims against the individual officers alleging excessive force "arose out of the conduct, transaction, or occurrence set forth... in the original pleading." Fed. R. Civ. P. 15(c)(2).
However, the district court found that Garvin failed to satisfy Rule 15(c)(3)(A), because within the 120-day period after the filing of the original complaint, that is by August 16, 2002, the parties to be newly named had not received actual or constructive notice of the institution of the action. Fed. R. Civ. P. 4(m). The district court noted that "there is no evidence that the four newly named defendants had any notice of the suit." *fn9 AP at 20 n.2.*fn10 It therefore focused its analysis on whether those parties had constructive notice of the filing of the action. Id.
In Singletary we recognized that there are two possible methods by which the district courts could impute notice under Rule 15(c)(3). The first is the "shared attorney" method, which is based on the notion that when the originally named party and the parties sought to be added are represented by the same attorney, "the attorney is likely to have communicated to the latter party that he may very well be joined in the action." Singletary, 266 F.3d at 196. The second is the "identity of interest" method, and is related to the shared attorney method. "Identity of interest generally means that the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other." Id. at 197 (quoting 6A Charles Alan Wright et al., Federal Practice & Procedure § 1499, at 146 (2d ed. 1990)). We will address both in turn.
1. Shared Attorney
In Singletary, 266 F.3d at 196, we expressly endorsed the shared attorney method of imputing notice. That case involved a section 1983 action brought by the mother of a prisoner who committed suicide while in a state correctional institution. The original complaint named as defendants the Pennsylvania Department of Corrections, the State Correctional Institute at Rockview ("SCIRockview"), the former Superintendent of SCI-Rockview, and "Unknown Corrections Officers." After the relevant statute of limitations had run and the 120-day period provided in Rule 4(m) had expired, the plaintiff sought to amend her complaint to name a staff psychologist at SCIRockview as a defendant. The district court denied the motion to amend and we affirmed. Id. at 189.
In analyzing the shared attorney method of imputing notice, we stated that "[t]he relevant inquiry under this method is whether notice of the institution of this action can be imputed to [the defendant sought to be named] within the relevant 120 day period... by virtue of representation [he] shared with a defendant originally named in the lawsuit." Id. at 196. In considering this point we noted that the case originally had been filed in the Eastern District of Pennsylvania, but was transferred to the Middle District of Pennsylvania. Deputy State Attorney General Gregory R. Neuhauser entered his appearance as "counsel for Defendants," after the case was transferred and more than 120 days after the case was filed. Inasmuch as Neuhauser's representation did not begin until after the 120-day period following the filing of the complaint had ended, any later shared representation was irrelevant in the relation back analysis. We stated "even if we were to conclude that Neuhauser in some sense represented and thereby gave notice to [the proposed defendant] before [he] was sought to be named as a defendant, this does not help plaintiff because Neuhauser's representation of the defendants commenced after the 120 day period." Id. at 197.
The district court here, which was well aware of Singletary and was following it, rejected Garvin's contention that notice could be imputed to the four individual officers via the shared attorney method. It found that "the four newly named defendants were not and are not currently represented by the City's attorney." AP at 20. The district court noted that the applicable test "is not whether new defendants will be represented by the same attorney, but rather whether the new defendants are being represented by the same attorney." Id. Because the district court found that there was no evidence of shared representation between the City and the officers sought to be named in the amended complaint, it declined to impute notice under the shared attorney method.
The circumstances of the case support the district court's conclusions. After the City received notice of Garvin's suit, Deputy City Solicitor Sitarski entered her appearance solely on behalf of the City of Philadelphia. Furthermore, she did not represent any of the police officers within the 120-day period after the filing of the complaint and for that matter has not represented them at any time since then. See Fed. R. Civ. P. 4(m).*fn11 Garvin seeks to circumvent these circumstances by arguing that as a policy matter "to require that the City's attorney actually have entered her appearance for the newly named defendants prior to the amendment of the complaint imposes an insurmountable barrier that would render all John Doe complaints meaningless." Br. of Appellant at 21. Garvin argues that until a plaintiff seeks to amend his or her complaint to add the real names of the officers, there is no need for the John Doe officers to have an attorney because "John Does don't file discovery, answer interrogatories, file motions or go to depositions." Id. at 20 n.5. Garvin, however, has mischaracterized the standard the district court set forth as that court did not require the City's attorney to enter her appearance on behalf of the officers for the court to recognize the attorney as a shared attorney. Rather, it only required evidence of shared representation so that notice could be imputed to the four officers within the 120-day period. Clearly, an attorney may represent an individual without appearing for him or her in a pending lawsuit. After all, persons who anticipate being sued sometimes consult attorneys with respect to their circumstances. Garvin, however, failed to provide any evidence of such shared representation during the 120-day period or, indeed, any time thereafter.*fn12
In the brief she filed on behalf of the City of Philadelphia in opposition to Garvin's motion to amend before the district court, Deputy City Solicitor Sitarski stated:
in the present case, undersigned counsel has not informed the proposed defendants that this lawsuit is pending, nor have the proposed defendants been advised that they might be named as defendants. Undersigned counsel is unaware of any other manner through which the proposed defendants would have learned that this lawsuit is pending.
RR at 133 n.2. The district court cited this statement in support of its conclusion that the officers were not represented by the same attorney. While it is true that Deputy City Solicitor Sitarski did not put this statement in the form of an affidavit Garvin has not challenged its accuracy.
Nevertheless Garvin contends that the district court and the City have misconstrued the shared attorney method of imputing notice by requiring that the officers have received actual notice of the lawsuit from Deputy City Solicitor Sitarski rather than constructive notice. In support of this argument, Garvin cites to Heinly v. Queen, 146 F.R.D. 102 (E.D. Pa. 1993). In Heinly, after the district court permitted the plaintiff to amend his complaint to add additional defendants, the newly added defendants moved for summary judgment contending that the amendment did not relate back to the filing of the initial complaint and thus the statute of limitations barred the action as to them. Id. at 103. In denying the motion the district court held that:
knowledge may be imputed to a government official when the original complaint names other government officers as defendants, the official to be added as a defendant is represented by the same government counsel as the original defendants, and counsel knew or should have known within the relevant time period that joinder of the additional official was a distinct possibility.
Id. at 106. The Heinly court only required that the shared attorney have actual notice of the possibility that others would be named in order to impute notice to the laternamed defendants.
Heinly cannot help Garvin. In the first place in this case Deputy City Solicitor Sitarski has not represented the four officers and thus they have not shared an attorney with the City. In Heinly the same Deputy Attorney General who represented the original defendants was representing the newly added defendants. Moreover, Heinly 's holding directly conflicts with our analysis in Singletary and is not good law. In Singletary we explained that, "the fundamental issue here is whether the attorney's later relationship with the newly named defendant gives rise to the inference that the attorney, within the 120 day period, had some communication or relationship with, and thus gave notice of the action to the newly named defendant." 266 F.3d at 196-97 (emphasis added). This condition for the relation back of an amended complaint is entirely appropriate as the plaintiff is seeking damages from the putative defendant and not the shared attorney. Accordingly, a plaintiff must show that there was "some communication or relationship" between the shared attorney and the John Doe defendant prior to the expiration of the 120-day period in order to avail him or herself of the shared attorney method of imputing notice. Id. Here, Garvin has failed to come forth with any evidence of shared representation or communication between Deputy City Solicitor Sitarski and the four officers.
We also point out an obvious practical flaw in Heinly. The critical fact supporting the court's holding there was that the same Deputy Attorney General was representing both the original and newly named defendants. A defendant named after the statute of limitations had run presumably could avoid Heinly 's ruling and preserve his or her statute of limitations defense by either engaging an attorney unrelated to an attorney already in the case or by proceeding pro se. In that event it hardly would be possible to conclude, in the words of Heinly, that "the official to be added as a defendant is represented by the same government counsel as the original defendants." Heinly, 146 F.R.D. at 106. Of course, here the newly named defendants never have been represented in this case by an attorney or even appeared pro se so that even if we agreed with Heinly, which we do not, their statute of limitations defense would have been preserved.
Garvin contends that the imputation standard that we set forth invites defendants such as the City to engage in strategic behavior in order to prevent their attorneys from giving notice to individual police officers involved in alleged incidents of excessive force within the 120-day period after the filing of a John Doe complaint so as to preclude an amended complaint from relating back. She further contends that "the reality in police misconduct cases is that the city or municipality almost always represents the named police officers/defendants." Br. of Appellant at 21.
Therefore, according to Garvin, we should assume that Deputy City Solicitor Sitarski would represent the four individual officers and further assume that she had some communication with those officers during the relevant 120-day period so as to impute notice to them even in the face of her statement that she did not advise them of this action.
We recognize that, under Pennsylvania law, a public employee has a right to the type of representation Garvin claims the City would have provided and in all likelihood if the district court had permitted amendment in this case the City Solicitor's Office would have represented the four police officers if such shared representation did not present a conflict of interest.*fn13 42 Pa. Cons. Stat. Ann. § 8547(a) (West 1998). However, this circumstance does not change the fact that Garvin has not come forth with evidence*fn14 that gives rise to the inference that Deputy City Solicitor Sitarski or anyone else in the City Solicitor's office had any communication or relationship whatsoever with the four officers within the 120-day period so as to justify imputing notice to the officers. See Singletary, 266 F.3d at 196-97. Moreover, while we do not doubt that Deputy City Solicitor Sitarski skillfully has conducted the defense of this case and, in the light of Heinly, acted prudently in not appearing for either officer Doe or any of the newly named defendants, we cannot by reason of these circumstances somehow conclude that the statute of limitations does not bar this action as to the four newly named defendants. See Lockwood v. City of Philadelphia, 205 F.R.D. 448, 452 (E.D. Pa. 2002). Instead, we decline Garvin's invitation to pile assumption on top of assumption to reach a conclusion, counter to the facts, that the officers had some type of notice of this action within 120 days of its institution. We therefore hold that the district court was correct when it declined to impute notice to the four officers under the shared attorney method.
2. Identity of Interest
We also will impute notice if the parties are so closely related in their business operations or other activities that filing suit against one serves to provide notice to the other of the pending litigation. But in Singletary, 266 F.3d at 200, we held that "absent other circumstances that permit the inference that notice was actually received, a nonmanagement employee... does not share a sufficient nexus of interests with his or her employer so that notice given to the employer can be imputed to the employee for Rule 15(c)(3) purposes."
The individual police officers sought to be added to this action certainly qualify as non-managerial employees. Inasmuch as they do not share a sufficient nexus of interests with their employer, the City, the district court correctly held that it could not impute notice for purposes of Rule 15(c)(3)(A) under the identity of interest method. The individual police officers here have positions in the employment structure similar to that of the staff psychologist the plaintiff sought to add as a defendant in Singletary as they are "not highly enough placed in the [city] hierarchy for us to conclude that [their] interests as... employee[s] are identical to the [city's] interests." Id. at 199.
Garvin argues that we should adopt the reasoning of the Court of Appeals for the Fifth Circuit in Jacobsen v. Osborne, 133 F.3d 315 (5th Cir. 1998), and impute notice under the identity of interest method to the individual police officers. This argument is simply a rehashing of Garvin's shared attorney contention which we already have rejected. In Jacobsen, the court held that there was a sufficient identity of interest between the City, the individually named officer and the newly-named officers to infer notice, in large part because the City's attorney "would necessarily have represented the newly-named officers." Id. at 320. In Singletary, however, we specifically distanced our court from this aspect of Jacobsen, 133 F.3d at 320, and separated the analysis of the identity of interest method of imputing notice from our shared attorney discussion. Singletary, 266 F.3d at 199. We stated in Singletary that "[i]n Jacobsen, the key fact for the court was that the same City Attorney would likely have interviewed the newly named defendants soon after the lawsuit was filed, thus giving these defendants sufficient notice of the lawsuit within the relevant 120 day period." Id. Here, however, parallel with the situation in Singletary, "[b]ecause there is no evidence or any reason to believe that the... attorney for the defendant[ ] represented or even contacted [the four officers], the basis for finding sufficient notice that existed in Jacobsen is not present...." Id. Accordingly, the district court correctly declined to impute notice under the identity of interest method.*fn15
We agree with the City that there is no reason why Garvin could not have discovered the name of the arresting officer within the time period required under Rule 15(c)(3) and Rule 4(m). Garvin did not diligently seek to determine the identity of the officer after she received the initial disclosures from the City.*fn16 She then waited until two days before the period for fact discovery was scheduled to end before she moved to amend her complaint to include the names of four officers listed in the July 24, 2002 initial disclosures.*fn17 In the light of these circumstances and the other considerations we have stated herein we conclude that the district court did not abuse its discretion in denying Garvin's motion to amend.*fn18 In this regard we find that the district court correctly held that it could not impute notice under the shared attorney and identity of interest methods to the four police officers. Thus, we will affirm the orders of December 6, 2002, and January 3, 2003.*fn19