United States District Court, D. Nebraska
KENT W. RINNE, Plaintiff,
DERRICK HOSICK, Beatrice Police Department Officer #306, in his individual and official capacity; ANTHONY CHISANO, Beatrice Police Department Officer #304, in his individual and official capacity; and NATASHA NESBITT, Beatrice Police Officer #316, in her individual and official capacity; Defendants.
M. Bazis United States Magistrate Judge.
matter is before the Court on Plaintiff's Motion for
Leave to Amend Complaint (Filing No. 27). The motion
will be granted.
March 13, 2018, Plaintiff brought suit against the City of
Beatrice, Nebraska, Beatrice Police Officer Derrick Hosick
(“Office Hosick”), Beatrice Police Officer
Natasha Nesbitt (“Officer Nesbitt”), and Beatrice
Police Officer Anthony Chisano (“Officer
Chisano”) (collectively “Defendants”)
alleging claims under 42 U.S.C. § 1983 for excessive
force, false arrest, and false imprisonment. Plaintiff also
asserted a state law negligence claim. (Filing No.
September 19, 2018, Senior United States District Court Judge
Richard Kopf entered a Memorandum and Order (Filing No.
14) dismissing, without prejudice, Plaintiff's
§ 1983 claims against the City of Beatrice, Officer
Hosick, Officer Chisano, and Officer Nesbitt in their
official capacities, as well as Plaintiff's
false-imprisonment claim. Therefore, the only claims
remaining in this action are Plaintiff's § 1983
claims against Officer Hosick, Officer Nesbitt, and Officer
Chisano in their individual capacities for excessive force
and false arrest.
December 12, 2018, the Court entered a final progression
order, setting January 30, 2019 as the deadline for Plaintiff
to file motions to amend pleadings and/or add parties.
(Filing No. 20.) The written discovery deadline was
set as May 31, 2019 and motions to dismiss and/or motions for
summary judgment based on immunity defenses were required to
be filed by July 15, 2019. (Id.) Plaintiff filed a
Notice of Intent to Request Leave to File an Amended
Complaint on April 30, 2019. (Filing No. 26.)
Plaintiff filed the instant Motion for Leave to Amend on May
7, 2019. Defendants filed their brief in opposition to the
motion on May 20, 2019. Plaintiff did not submit a reply
seeks leave to amend his complaint pursuant to Federal Rule
of Civil Procedure 15 to add causes of action for (1) failure
to intervene under § 1983 against Officer Chisano and
Officer Nesbitt; (2) denial of the right to a fair trial
against Officer Hosick; and (3) a state law tort claim for
intentional infliction of emotional distress against the
individual defendants and the City of Beatrice. Defendants
oppose the motion, arguing that a claim for intentional
infliction of emotional distress is barred by the statute of
limitations and that Plaintiff's proposed claim for
denial of right to a fair trial is not recognized by the
Eighth Circuit. Defendants further argue that Plaintiff's
motion should be denied as untimely.
Federal Rule of Civil Procedure 15, the Court should
“freely give leave” to amend a pleading
“when justice so requires.” Fed. R. Civ. P.
15. However, a party does not have an absolute right to
amend and “denial of leave to amend may be justified by
undue delay, bad faith on the part of the moving party,
futility of the amendment or unfair prejudice to the opposing
party.” Amrine v. Brooks, 522 F.3d 823, 833
(8th Cir. 2008) (quotation and citation omitted).
party seeks leave to amend after a scheduling order deadline,
that party must “first demonstrate good cause under
Rule 16(b) of the Federal Rules of Civil Procedure before the
court can consider whether the proposed amendments are proper
under Rule 15(a).” BCD Farms, Inc. v. Certified
Angus Beef, LLC, No. 8:05CV25, 2007 WL 2344814, at *3
(D. Neb. 2007). “In demonstrating good cause, the
moving party must establish that the scheduling deadlines
cannot be met despite a party's diligent efforts.”
Thorn v. Blue Cross and Blue Shield of Florida,
Inc., 192 F.R.D. 308, 309 (M.D. Fla. 2000) (internal
quotation omitted). “[I]f the reason for seeking the
amendment is apparent before the deadline and no offsetting
factors appear, the Rule 16 deadline must govern.”
Financial Holding Corp. v. Garnac Grain Co., 127
F.R.D. 165, 166 (W.D. Mo. 1989). However, “on motion
made after the time has expired, ” the court may extend
time “if the party failed to act because of excusable
neglect.” Fed. R. Civ. P. 6(b).
maintain that Plaintiff should be denied leave to add a state
law tort claim for intentional infliction of emotional
distress due to futility. Defendant argues that any such
claim is barred by the two-year statute of limitations set
forth in the Nebraska Political Subdivisions Tort Claims Act
(“PSTCA”). The PSTCA “is the exclusive
means by which a tort claim may be maintained against a
political subdivision or its employees.” Geddes v.
York County, 273 Neb. 271, 275, 729 N.W.2d 661');">729 N.W.2d 661, 665
(2007). “Where a claim against a political subdivision
is based upon acts or omissions of an employee occurring
within the scope of employment, it is governed by the
provisions of the PSTCA.” Britton v. City of
Crawford, 282 Neb. 374, 381, 803 N.W.2d 508, 514 (2011).
The PSTCA provides that “all suits permitted by the
[PSTCA] shall be forever barred unless begun within two years
after such claim accrued.” Neb. Rev. Stat. §
proposed Amended Complaint alleges that the conduct
underlying this suit occurred on August 25, 2016, while
Defendants were acting within the scope of their employment
as officers with the City of Beatrice. There is no allegation
in the proposed Amended Complaint that Defendants'
alleged conduct constituted a continuing action. See Ward
v. City of Alliance, 227 Neb. 306, 312, 417 N.W.2d 327,
332 (1988) (“The statute of limitations runs when
plaintiff (1) knows or should have known of both the injury
and the cause of harm or (2) has some awareness or imputed
awareness that his injuries were the result of some
wrongdoing on the part of the defendant”). Therefore,
Plaintiff was required to commence claims arising under the
PSTCA by August 25, 2018.
suit was filed on March 13, 2018 and the initial Complaint
included a negligence claim, which was later dismissed
without prejudice pursuant to a stipulation between the
parties. The Complaint alleged that Plaintiff served a notice
of claim upon the City of Beatrice within one year of the
August 25, 2016 incident giving rise to this
suit. The proposed Amended Complaint also
includes an assertion that a notice of claim was sent to the
City of Beatrice within one year of the underlying incident.
Plaintiff's proposed claim for intentional infliction of
emotional distress, as set out in the Amended Complaint, is
generally based upon the same set of operative facts alleged
in the original Complaint. Thus, this claim could arguably
relate back to the time of the original Complaint for
purposes of the statute of limitations. See West
Omaha Inv. v. S.I.D. No. 48, 227 Neb. 785, 797, 420
N.W.2d 291, 299 (1988) (“[A]n amended pleading which
relies upon the same set of facts as the original pleading,
but simply alters the legal theory upon which recovery is
sought, will relate back even though the statute of
limitations has run in the interim”). The undersigned
is unable to conclude at this time that amendment of the
Compliant to add a claim for intentional infliction of
emotional distress would be futile. See Gamma-10
Plastics, Inc. v. Am. President Lines, 32 F.3d 1244,
1255 (8th Cir. 1994) (stating that a motion to amend should
only be dismissed on the merits if it asserts clearly
frivolous claims or defenses).
also seeks leave to add a claim for denial of a
constitutional right to a fair trial. Plaintiff's Amended
Complaint alleges that Officer Hosick forwarded false
evidence and information to prosecutors. Plaintiff contends
that as a result of Officer Hosick's actions, Plaintiff
was forced to retain an attorney and “make appearances
in court to defend himself against fabricated
accusations.” (Filing No. 27-2 at CM/ECF p. 8.)
Although the charges against him were dismissed by the Gage
County Attorney, Plaintiff ...