United States District Court, N.D. Indiana, Hammond Division
ABIGAIL GARCIA, on behalf, of herself and her two minor children J.G. and A.G., MARILY GARCIA, JESUS RIOS GARCIA, and GILBERTO GARCIA, Plaintiffs,
THE CITY OF EAST CHICAGO COMMON COUNCIL d/b/a EAST CHICAGO POLICE DEPARTMENT, et al. Defendants.
OPINION AND ORDER
R. CHERRY UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiffs' Motion to File
Second Amended Complaint [DE 33], filed by Plaintiffs on
March 24, 2017. Defendants filed a response and objection on
March 29, 2017. Plaintiffs have not filed a reply, and the
time to do so has passed.
seek leave to file a Second Amended Complaint to replace
anonymous defendant officers with known names disclosed by
Defendants through discovery. Defendants oppose the proposed
amendment on the basis that the claims are barred by the
statute of limitations and the failure to serve notices on
the individual officers under the Indiana Tort Claims Act.
Rule of Civil Procedure 15(a) provides that a party
“may amend its pleading only with the opposing
party's written consent or the court's leave”
and that “[t]he court should freely give leave when
justice so requires.” Fed.R.Civ.P. 15(a)(2). The United
States Supreme Court has explained that “freely
give” means that, in the absence of any apparent or
declared reasons (e.g., undue delay, bad faith, dilatory
motive), repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to an opposing party, or
futility of the amendment, the court should grant leave.
Foman v. Davis, 371 U.S. 178, 182 (1962); see
also Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th
Cir. 2010). The decision whether to grant or deny a motion to
amend lies within the sound discretion of the district court.
See Campbell v. Ingersoll Milling Mach. Co., 893
F.2d 925, 927 (7th Cir. 1990).
their original Complaint, Plaintiffs allege that, on March
11, 2015, they sustained constitutional deprivations and were
subject to a number of state law torts by Defendants.
Plaintiffs filed their Complaint with the Lake County
Superior Court in Crown Point, Indiana, on April 8, 2016. The
case was removed to this Court on July 8, 2016.
December 8, 2016, the Court set a deadline of March 11, 2017,
for motions for leave to amend the pleadings.
March 8, 2017, Plaintiffs filed a Plaintiffs' Motion to
File Second Amended Complaint, with the proposed Second
Amended Complaint naming the individuals officers attached as
March 21, 2017, the Court, sua sponte, struck the
March 8, 2017 motion and its exhibits for failure to comply
with Federal Rule of Civil Procedure 5.2 because the motion
and the proposed Second Amended Complaint contained the full
names of minors. The Court granted Plaintiffs up to and
including March 23, 2017, to refile the motion in compliance
with Rule 5.2.
March 23, 2017, Plaintiffs refiled the motion but improperly
described it on the docket as the Second Amended Complaint
itself rather than as a Motion. On March 24, 2017, the Court
struck the filing for having been improperly docketed with
leave to refile, and, on March 24, 2017, Plaintiffs filed the
instant Plaintiffs' Motion to File Second Amended
Complaint, with the proposed Second Amended Complaint naming
the individual officers again attached as an exhibit.
March 27, 2017, Defendants filed an objection, which the
Court struck for failure to comply with Rule 5.2 because
Defendants included the full names of minors despite the
Court's warning in the March 21, 2017 Order. On March 29,
2017, Defendants refiled the objection now before the Court.
statute of limitations for claims brought under 42 U.S.C.
§ 1983 is two years. See Serino v. Hensley, 735
F.3d 588, 590 (7th Cir. 2013). Under Indiana law, an action
for injury to a person or character must be commenced within
two years. See Ind. Code § 34-11-2-4.
proposed Second Amended Complaint, Plaintiffs seek to name
the individual police officers. The two-year statute of
limitations on these claims expired on March 11, 2017.
Defendants argue that, because the instant motion was filed
on March 23, 2017, the statute of limitations has expired.
Seventh Circuit Court of Appeals, the statute of limitations
is tolled to account for the time it takes a court to rule on
a motion for leave to file an amended complaint when the
proposed amended complaint is attached to the motion for
leave to amend. Moore v. State of Indiana, 999 F.2d
1125, 1131 (7th Cir. 1993) (“As a party has no control
over when a court renders its decision regarding the proposed
amended complaint, the submission of a motion for leave to
amend, properly accompanied by the proposed amended complaint
that provides notice of the substance of those amendments,
tolls the statute of limitations, even though technically the
amended complaint will not be filed until the court rules on
case, Plaintiffs identified the names of the individual
defendant officers and named them in the initial proposed
Second Amended Complaint attached to the Motion to File
Second Amended Complaint that was filed with the Court on
March 8, 2017, ...