UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) ) BRIAN BECKER , et al. , )

Plaintiffs ) ) v. ) Civ. Action No. 01-0811 (PL F/JMF) ) DISTRICT OF COLUMBIA , et al. , )

Def endants ) ) ) MEMORAN DUM OP INION This matter has be en re fer red to me by

J udg e F riedman. Curr ently pendingand re ady

for resolution is the Defe ndants’ Second Re newe d Motion for L eave to File Amende d Answer [#337] . For

the re asons stated he rein, the D efe ndants’ motion will be denied. I. Background This class ac tion arises out of prote sts surrounding the World Bank a nd International Monetary Fund ( “I MF” ) mee tings of A pril 16-17, 2000. Complaint (“Compl.”) [#1] ¶¶ 43, 44. The Plaintiffs, var ious nonprofit g roups and individuals, broug ht suit aga inst the District of Columbi a, the Me tropolitan Poli ce D epar tment (“MPD”) , its officials and of fice rs, and va

rious fede ral a g ency

defe ndants alleg ing, inter alia , violations of their First, F ourth, and F ifth Amendment rig hts; claims of excessive forc e; and c ommon-law fa lse arr est. Compl. ¶ 2. Relevant to this motion i s the claim ar ising out of a mass arr est of 673 prote stors that took place in the vicinity

of 20th and I

Streets NW on April 15, 2000, in conjunction with their marc h from the U.S. Depa

rtment of Just ice on 10th Stree t and Pennsylvania Ave nue NW toward D upont Circle. I d. ¶¶ 88- 94. The c ircumstance s of the ar rests, booking s, and subseque nt relea ses of thearr estee s are highly contested by

the par ties, but undisputed facts show that the pr ocessing of

arr estee s was leng thy

and somewhat chaotic, with the f inal arr estee not havingbeen booke d until the followingmorning , April 16, 2000. Plaintiffs’ Opposition to S econd Re newe d Motion for L eave to File Amende d Answer (“Pls. Opp.”) [#340] at 13-14. The Plaintiffs, on behalf of a class compr ising those pr otestors arr ested in the Apr il 15, 2000 incident, broug ht this claim ag ainst the District of Columbia MPD, then-MPD Chief of Police Charle s Ramsey , and then-Executive Assistant to the MPD Chief of Police Ter renc e Ga iner in par

t alleg ing that the

arr ests violated the F ourth Amendment of the Constit ution because they wer e under

taken without individualiz ed proba

ble ca use. Def endants now se ek to amend the ir answe r to add the a ffirmative defe nse of f ailure to mitigate da

mag es, base d on alleg ations that some of those ar rested in c onjunction with the World Ba nk/I MF prote sts refuse d to self-identify afte r beingarr ested, ther eby prolong ing the ir detentions. Def

endants’ Me morandum in Support of Second Rene wed Motion for L eave to File Amended Answer ( “De fs. Mem.”) at 2. This evidenc e is disputed by Plaintiffs, who assert that the re fusal to self- identify was unde rtake n by

a diffe rent g roup of pr otestors, not members of this particula r cla ss. Pls . Opp. at 3. It is undisput ed that appr ox imately 150 persons a

rre sted at some point during the protests did ref use to provide identific ation; these per sons were eventua lly rele ased on A

pril 22, 2000, but the date a nd time at which they

wer e ar rested a ppear s at this point to be undeter

mined. I d. The impac t of this refusa l to self-identify on the leng th of detention as opposed to any

number of othe r fa ctors is furthe r disputed by the Plaintiffs. Pls. Opp. at 13-15.

1 Plaintiffs argue that many fac tors contributed to leng th of detention, includingto which 1 bus an ar restee was a ssigne d for tra nsport to the rec eiving fac ility . Pls. Opp. at 14. There has been no disc overy

as to what fa ctors may

have a ffe cted leng th of detention or a s to what the 2II. Analysi s

The amendment of plea dings in c ivil matters is gove rned by Rule 15 of the F eder al Rules of Civil P roce dure. Rule 15 pe rmits amendment under a re latively

liberal standa

rd; leave to amend should be f

ree ly g rante d when justice so r equire s. Fe d. R. Civ. P . 15(a) (2). The decision to gr ant or de ny

leave to amend is within the sound discretion of the tria l court, howe ver, it is an abuse of discretion to deny

leave without a sufficie nt rea son. Dove v. Wash. Metro. Ar ea T ransit Auth., 221 F.R.D. 246, 247 (D .D.C. 2004). A denia l of leave to amend is appropr iate in ca ses of undue dela

y , bad fa ith or dilatory

motive, repe ated f

ailure to c ure de ficienc ies by amendments previously

allowed, undue prejudice to the opposing pa rty , and/or futility

of the amendment. Foman v. D avis, 371 U.S. 178, 182 (1962). The party opposing the amendment be ars the bur den to show why

leave should not be g rante d. Dove, 221 F .R.D. at 247. Def endants’ Motion esse ntially argues they

should be permitted to amend the ir answe r on the basis of the policy

that leave should be fre ely g iven to aid in the disposition of cases on the merits. Def

s. Mem. at 6. Def

endants a ssert that the amendment is timely following the

cer tification of the c lass, as opposed to any time prior to cer

tification, bec ause the pool of plaintiffs to which the a ffirmative defe nse may be applica

ble expanded. I d. at 4-5. Plaintiffs argue in opposition that leave should be de nied larg ely on the basis of undue delay , g iven that the Def endants off

er little justification for wa iting more than five year s to first move to amend. Pls. Opp. at 20-21. Plaintiffs also ra ise the issue of bur den and a rgue that allowingamendment a t this stag e, af ter discove ry

has closed, w ould be over ly prejudicia l. I d. at 23. A. Undu e De lay

relative impact of a

ny of these f actor s was. I d. 3The De fenda nts’ five-year

delay in bring ing f

orth this new af

firmative de fense afte r 2 discovery has closed is unsubstantiated a nd undue. De lay s of any

wher e betwe en 38 months and eig ht y ear s have be en found to be undue, and the ref ore ba rre d amendment of

the pleading s. See Wil liamsburg Wax Museum, Inc. v. Historic F igur es, I nc., 810 F .2d 243 (D.C. Cir. 1987) (se ven y ear s after

filing of complaint, afte r close of

discovery

and summary

judgme nt); Doe v. McMillan, 566 F.2d 713, 720 ( D.C. Cir. 1977) (38 months after initial pleadings) ; Abdullah v. Washington, 530 F . Supp. 2d 112, 115 (D.D.C. 2008) (f ive y ear s after

initial pleadings) , app. dismiss ed, No. 08- 7022, 2008 U.S. App. L exis 9082 (D.C. Cir. Mar. 12, 2008) . Equally signific ant in evaluating whe ther ther e has be en undue de lay is the status of the ca se at the time of the propose d amendment. Waiting to move to a mend until after the close of disc overy and afte r the filingof or r

uling upon dispositive motions has been conside red a n undue dela

y . See Wil liamsburg Wax Museum, 810 F.2d a t 247; Abdullah, 530 F. Supp. 2d at 115. Def endants in the pre sent ca se wa ited over f ive year s from the time of their initial answer until they

first moved to amend, af

ter discove ry

was c losed, and some motions for summary judgme nt filed. Fur ther, the D efe ndants offe r little justi fication and cer tainly no “sound re ason” f

or waiting five y ear s to assert this defe nse, providinga fur ther ba r ag ainst g rantingleave . See Doe v. McMillan, 566 F.2d at 720 (movants provided “ no sound rea son for fa ilure to seek a mendment

ear lier”) ; Prefer

red Me al Sy s. v. Save More Foods, Inc., 129 F .R.D. 11, 12 (D.D.C. 1990) (deny ing motion to amend be cause defe ndant provided no justification for two-a nd-a- half year
The De fenda

nts first moved to amend their a nswer to a dd this affirmative de fense in 2 Dec ember

2006. I t would unfairly

prejudice Def

endants to use the date of their Sec ond Renewe d Motion to determine how much time has e lapsed, a s they have attempted twice be fore to assert this defense , both times being dismissed without prejudice . There fore , for the pur poses of this motion, we assume a f

ive-year delay (2001-2006) as opposed to an e ight- y ear delay (2001-2009)

. 4delay

in seekingto add new de fense and no indication that they only rec ently lear ned of the information). The re is no asse rtion in the curr ent Def endants’ Motion that the infor mation was only reve aled dur ing disc overy ; that is belied by the fa cts of the c ase. The Def endants ha d notice in 2001 that the Plaintiffs intended to pursue a class ac tion reg ardingthe mass ar rests. See g ener ally Compl.; Motion to C ertify Class [ #15] (Oct. 30, 2001). I t theref ore must be a ssumed that the Def

endants c onducted their

discovery

with an eye towar d the possibilit y of a c lass action. The infor mation about larg e number s of ar restee s ref

using to self

-identify was wide ly

repor ted in the media at that time, and the Def endants c ite those article s in their own motion. See Def s. Mem. at 3. The D efe ndants arguably have no mor e information now about the af firmative defe nse than they

had in 2000 when the events oc curr ed, and, a s there w as no discover y focuse d on these a lleg ations, cer

tainly no more than the y

had at the c lose of discove ry in 2005. Why

the Def endants did not asser

t this affirmative de fense prior to or during discovery

so that it could be probed while discovery

was still being c onducted is unknown a nd appar ently

without justification. B. Prejudice to non -m oving party In evaluating the possibility of pre judice to the nonmoving party , one sig nificant fa ctor is whether the amendme nt will require a dditional discovery . See Abdullah, 530 F . Supp. 2d at 115 (findingprejudice when discove ry was c losed); Nurr iden v. Goldin, 382 F. Supp. 2d 79, 91 (D.D.C. 2005) ( finding no prejudice when, inter alia , amendment would r equire no additional discovery ), af f’d on other

g rounds, No. 05-CV- 5386, 2007 WL1126199 (D.C. Cir. Apr. 16, 2007), ce rt. denied, 128 S. Ct. 1473 (2008). In Abdullah, the Plaintiff’s “r eal a nd substantial” discovery burden – he would have f ormulated his discover

y differ ently

and the ne w discover

y
5that would be nec essar y to rebut the a ffirmative defe nse had be come larg ely inacc essible over

the prec edingfive y ear s of delay – amounted to pre

judice bar

ringamendment. Abdullah, 530 F

. Supp. 2d at 115. The cur rent Plaintiffs have a similar discover y problem. Discove ry

has long since c losed and the Plaintiffs asse rt that they would have unde rtake n discovery differ ently

and probed the alleg ation duringdiscovery had they known of the D istrict’s intent to assert the fa ilure to miti g ate a ffirmative defe nse. Pls. Opp. at 23. The e vidence now nee ded to addr ess the aff irmative def

ense w ould require extensive additional discovery , as the fie ld arre st and booking

rec ords ar e either

incomplete or none x istent and there has bee n no information discover ed as to the times of re lease . I d. at 6-10, 15. It likely will take extensive discovery to even de termine if the def ense a pplies to any

of the c lass members, g iven the state of the re cords a

nd the fa ct that more than 1,300 pe ople wer e ar rested a nd booked over

the cour se of that we ekend. T he fa ct that discovery is closed and the a

mount of additional discovery that would be nee ded to prope rly rebut the a ffirmative defe nse prove too prejudicial to Plaintiffs to permit amendment for its

asser tion. Allowing a

mendment af

ter a n unjustified five-year

delay and ca using the discovery

phase to be re -opene d in this now-eig ht-y ear -old ca se g oes beyond the g ener ous standard pr escr ibed by the Fe dera l Rules of Civil Procedur e, and the ref ore, must be de nied. III. Conclusi on For the fore g oing r easons, De fenda nts’ Second Rene wed Motion for L eave to File Amended Answer [#337] will be denie d. An Orde r ac companies this Memora ndum Opinion.

6/S/

Date d : J uly

20, 2009 JOHN M. F ACCIOLA UNI TED STATES MAGI STRATE J UDGE

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