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Price v. City of Wichita

United States District Court, Tenth Circuit

December 20, 2013

LENNON PRICE, Plaintiff,
CITY OF WICHITA, and CITY OF WICHITA POLICE DEPARTMENT OFFICER MARK McKEE, Individually and in his Official Capacity, Defendants.


DAVID J. WAXSE, Magistrate Judge.

In this civil rights action under 42 U.S.C. ยง 1983, Plaintiff asserts a Fourth Amendment claim for excessive force and state law claim for negligent use of force. Plaintiff alleges that he suffered a broken leg while being arrested by uniformed City of Wichita police officers on September 2, 2010. In his complaint, Plaintiff originally identified the officer whose leg sweep action broke his lower left leg as officer Mark McKee and named him as a defendant in the action. Plaintiff now claims that it was a different officer, Cory Masterson, whose leg sweep actually broke his leg. This matter is presently before the Court on Plaintiff's Motion to Substitute Party (ECF No. 58). Plaintiff requests leave under Fed.R.Civ.P. 15 and 21 to substitute officer Masterson in place of existing defendant McKee based upon a mistaken identification. As explained below, the Court finds that Plaintiff has shown excusable neglect for the late filing of his motion. He has further shown that the amendment relates back under Fed.R.Civ.P. 15(c)(1)(C). The motion is granted.


Plaintiff filed his complaint in Sedgwick County, Kansas District Court on August 31, 2012. Plaintiff served his K.S.A. 12-105b notice of his claims against the City of Wichita on August 31, 2012. He served defendant McKee with summons and the complaint on November 14, 2012. Defendant McKee filed his Notice of Removed with this Court on November 16, 2012. On December 5, 2013, defendant McKee filed his answer. The City of Wichita filed an answer the same day.

The Scheduling Order entered in this case set a March 15, 2013 deadline for filing motions to add parties or amend the pleadings. Although the parties moved to extend several other Scheduling Order deadlines, the original deadline for amending and adding parties was never extended.

On February 11, 2013, Defendants produced documents, including the narrative reports of officers McKee and Masterson. The reports describe that Masterson did a "leg sweep" to knock Plaintiff off balance and that McKee later applied two knee strikes to Plaintiff's leg in order to subdue Plaintiff.

Plaintiff filed his motion to amend his complaint to add his state law claims and add the City of Wichita as a named defendant on February 22, 2013.

In April 2013, Plaintiff's counsel began verbal discussion with defense counsel who was representing Defendants at that time regarding the need to amend to substitute officer Masterson for defendant McKee.

At the end of May 2013, Defendants retained a law firm to represent it in this case. They were previously represented by an attorney from the Office of the City Attorney of the City of Wichita, Kansas. On May 31, 2013, Plaintiff's counsel advised newly retained defense counsel by email that Plaintiff would be filing a motion to add officer Masterson and inquired whether Defendants would object to that motion. Defense counsel responded that he was just getting up to speed on the case and would get back to Plaintiff's counsel.

Plaintiff deposed defendant McKee on June 26, 2013, and Masterson the following day. During their respective depositions, they testified that they had spoken about the lawsuit a couple times.

The Court granted Plaintiff's motion to amend on July 8, 2013 (ECF No. 35), and Plaintiff thereafter filed his Amended Complaint (ECF No. 41) adding his state law claims and the City of Wichita as a defendant on July 19, 2013. Defendants City of Wichita and McKee filed their joint Answer to Plaintiff's Amended Complaint on August 2, 2013.

On July 31, 2013, counsel for Defendants advised Plaintiff's counsel that Defendants would not agree to the substitution.

On August 26, 2013, defendant McKee signed an correction or errata sheet for two corrections to his June 26, 2013 deposition.

Plaintiff filed the instant Motion to Substitute Party on October 9, 2013.


Defendants argue that Plaintiff failed to file his motion to substitute officer Masterson in place of Defendant McKee by the March 15, 2013 deadline set by the Scheduling Order for filing motions to add parties and has failed to establish good cause to modify the scheduling order to allow the late amendment. They point out that the narrative reports of both McKee and Masterson were provided to Plaintiff's counsel on February 11, 2013. Based upon these reports, Plaintiff should have known then that Masterson (along with McKee and another officer Piner) was involved in the arrest. Defendants further point out that on February 22, 2013, Plaintiff filed a motion for leave to amend his complain to include additional state law claims and other amendments, but did not seek to amend his complaint to add Masterson as a defendant at that time.

Plaintiff asserts he has shown "good cause" pursuant to Fed.R.Civ.P. 16 for the delayed filing of his motion based on his need for discovery to meet the requirements for establishing relation back under Rule 15(c), which could not have been met with due diligence. He also states that his counsel's personal injury and sick child in February and March 2013 delayed discovery into whether officer Masterson was the officer that injured Plaintiff's lower leg. Plaintiff claims that when his counsel learned that officer Masterson was the officer that injured Plaintiff rather than McKee, he immediately began discussions with defense counsel about the need to amend the pleadings. To determine whether Plaintiff could meet those requirements, the parties agreed the depositions of the officers would need to be taken to discover whether Masterson knew or should have known about the lawsuit within the time period limit for relation back provided by Rule 15(c).

While Fed.R.Civ.P. 16 specifically concerns scheduling orders and provides that a schedule "may be modified only for good cause, "[1] Rule 6(b)(1)(B) requires a showing of "excusable neglect" if a motion seeking an extension of a deadline is filed after the scheduling order deadline set for filing it. The standard for considering what constitutes "excusable neglect" is set forth by the United States Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership: [2]

Because Congress has provided no other guideposts for determining what sorts of neglect will be considered "excusable, " we conclude that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. These include... the danger of prejudice... the length or delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within reasonable control of the movant, and whether the movant acted in good faith.[3]

Considering the Pioneer factors set out above, the Court finds that Plaintiff has shown excusable neglect for the seven-month delay in filing his motion to substitute. The delay was caused in large part by the parties' need for discovery into whether the individual to be brought into the action, officer Masterson, had notice of the action, whether he knew or should have known that the action would have been brought against him but for a mistake concerning his identity, and whether this occurred by the 120-day time limit for the amendment to relate back under Rule 15(c)(1)(C). Masterson and McKee were not deposed until late June 2013, causing a delay in the deposition transcripts and, in turn, McKee's errata sheet corrections. All these events were well after the March 15, 2013 Scheduling Order deadline for filing motions to add parties. Also contributing to the delay were the parties' efforts to resolve the matter by agreement and some delay due to Plaintiff waiting on new defense counsel to get up to speed on the case and waiting to hear if Defendants opposed the substitution. Defendants have been aware of Plaintiff's intention to request substitution of Masterson for McKee for several months before the motion was actually filed so there is little prejudice to Defendants from Plaintiff's delay in filing the motion. As it is likely that current defense counsel will represent officer Masterson if he is substituted, there is also little prejudice to Masterson from ...

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