UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-30098

_____________________

MICHAEL JACOBSEN,

Plaintiff-Appellant,

versus

POLICE OFFICER OSBORNE, ET AL.,

Defendants,

CITY OF NEW ORLEANS; UNIDENTIFIED PARTY; CHARLES C. FOTI, JR.,

CRIMINAL SHERIFF OF ORLEANS PARISH,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

January 15, 1998

Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge.

Primarily at issue i s whether, pursuant to F E D

. R. C IV

. P.

15(c)(3), a proposed amendment to a complaint to add new parties

relates back to the date of the original complaint, especially for

replacing “John Doe” defendants, thereby defeating a limitations

bar as to those putative parties. For his action seeking relief

under, inter alia

, 42 U.S.C. § 1983, Michael Jacobsen appeals the

denial of his motion to amend in order to substitute the correct

defendants (police officers and sheriff’s deputies) for an

erroneously named officer and a “John Doe” deputy. We A FFIRM as to

the deputies; REVERSE as to the officers; and REMAND

.- 2 - I.

Jacobsen’s original complaint contains the following

a llegations: on 21 August 1994, in New Orleans, someone accosted

Jacobsen’s wife and brother; an alter cation ensued, resulting in

the brother being arrested by New Orleans police; after Jacobsen,

who had been present, inquired as to the reason for the arrest, the

charges, and the location to which his brother was being taken,

Jacobsen was arrested for interfering with a police investigation

and was jailed by the Orleans Parish Criminal Sheriff; Jacobsen was

subjected to physical abuse and humiliating treatment until his

release the next morning; and, later, the charge of interfering

with a police investigation was dismissed.

On 17 August 1995, only four days shy of the first anniversary

of the incident, Jacobsen filed this action, pursuant to § 1983 and

state law, against New Orleans Police Officer Osb orne and Deputy

John Doe, an unnamed deputy employed by the Orleans Parish Criminal

Sheriff, clai ming that he was falsely arrested and abused by

Of ficer Osborne and sheriff’s deputies. Jacobsen also asserted

state law claims for battery and intentional infliction of

emotional distress against the City of New Orleans and the Sheriff,

based on respondeat superior

.

Service of the complaint was not completed until early October

1995. The parties consented, pursuant to 28 U.S.C. § 636(c), to

proceed before a magistrate judge, with tr ial scheduled for

September 1996.- 3 -

The Sheriff answered the complaint in late October 1995;

Officer Osborne and the City, early that December. On 30 August

1996, the City and the Officer moved to dismiss, purs u ant to F ED

.

R. C IV

. P. 12(b)(6), contending t hat the Officer was not the

arresting officer and, alternatively, that he was entitled to

qualified im munity; and that liability against the City was

incorrectly premised only upon its being the Officer’s employer.

Shortly thereafter, on 3 September, the Sheriff moved to

dismiss pursuant to F ED

. R. C IV

. P. 12(b)(1) and (6). That same day,

Jacobsen moved to continue trial (set for later that month),

asserting that he had discovered new information, requiring an

amend ed complaint. The magistrate judge granted the continuance

but did not assign a new trial date.

Two weeks later, on 18 September, over two years after the

incident and nearly five months after the court-o rdered deadline

for amended pleadings, Jacobsen moved to amend to add as defendants

the correct officers and dep uties. Apparently, he had obtained

Officer Osborne’s name as the arresting officer from arrest records

a nd an interrogatory answer by the City. But when deposed on 29

August 1996, the Officer had stated that he was only the

transporting, not the arresting

, officer. Subsequent investigation

identified the arresting officers. As for the deputies, after

d iscovery requests failed to identify those involved in the

incident, Jacobsen had deposed the Sheriff’s office o n 29 August

1996, pursuant to F ED

. R. C IV

. P. 30(b)(6), and had been able to

identify three deputies.- 4 -

Later, trial was reset for January 1997. Officer Osborne’s

Rule 12(b)(6) motion was denied because it sought dismissal on the

merits and involved considerations outside the scope of the

pleadings. The City’s similar motion was also denied.

Jacobsen’s motion to amend was denied as well. Regarding the

deputies, th e magistrate judge ruled that the amendment was

untimely and ther e was nothing to indicate that their identities

could not have been discovered earlier; and that, in any event,

the amendment would be futile because the claims were time-barred.

With regard to the police officers, the magistrate judge ruled that

the amendment would be futile because the claims were time-barred

and the amendment would not relate back because the officers had

not received notice of the action as required by Rule 15(c)(3).

The magistrate judge reconsidered the rulin g as to the

officers and allowed Jacobsen to add them as defendants to the

state law claims because, under Louisiana law, they had not

prescribed and the magistrate judge intended to m aintain

supplemental jurisdiction over them.

The Sheriff’s motion to dismiss was then granted because

neither he nor any of his employees h ad been named in the § 1983

claim. Consequently, there was no viable federal claim against any

employee of the Sheriff; and the supplemental state law claims

against the Sheriff for battery and intentional infliction of

emotional distress were dismissed to allow Jacobsen to bring them

in an appropriate state forum.- 5 -

In early December 1996, Jacobsen moved for entry of final

j udgment. The magistrate judge noted that the only remaining

federal claim was the appar ently unfounded one against Officer

Osbor ne. Thus, he refused to retain jurisdiction over the

remaining state law claims and dismissed them without prejudice.

Concomitantly, Jacobsen’s motion to dismiss Officer Osborne without

prejudice was granted.

II.

Contending that the magistrate judge abused his discretion by

denying the motion to amend, Jacobsen asserts that it was neither

untimely nor futile because the claims were not time-barred. (To

shore up his timeliness claim, Jacobsen notes that no trial date

had been fixed when the motion to amend was filed, and that leave

was later gra nted to add the officers for the state law claims.)

In the alternative, he claims that, under Rule 15(c), the amended

complaint relates back to the date of the original filing.

The denial of a Rule 15(a) mo tion to amend is reviewed for

abuse of discretion. E .g., Moody v. FMC Corp.

, 995 F.2d 63, 65

(5th Cir. 1993). Likewise, whether to grant such a motion is

committed to the sound discretio n of the district court, e .g,

Shivangi v. Dean Witter Reynolds, Inc.

, 825 F.2d 885, 890 (5th Cir.

1987); but, that discretion is limited by Rule 15(a), which states

that “leave shall be given when justice so requires”. Leffall v.

Dallas Indep. Sch. Dist.

, 28 F.3d 521, 524 (5th Cir. 1994). In

sum, the motion should not be denied “unless there is a substantial

reason to do so”. I d. Toward that end, the district court may- 6 -

consider factors such as whether there has been “ undue delay , bad

faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencie s by amendments previously allowed,

undue prejudice to the opposing party, and futility of amendment ”.

In re Southmark Corp.

, 88 F.3d 311, 314-15 (5th Cir. 1996)(emphasis

added), cert. denied, 117 S. Ct. 686 (1997).

A.

The magistrate judge ruled, i nter alia

, that the motion t o

amend, filed over two years after the incident, was futile because

the claims against the officers and deputies had prescribed. Of

course, for a § 1983 action, the court looks to the forum state’s

perso nal-injury limitations period. E .g., Moore v. McDonald

, 30

F.3d 616, 620 (5th Cir. 1994). In Louisiana, that period is one

year. Elzy v. Roberson , 868 F.2d 793, 794 (5th Cir. 1989).

On the other hand, federal law determines when a § 1983 claim

accrues. M

oore

, 30 F .3d at 620. In the context of such a claim

for wrongful arrest and confi nement, it is the plaintiff’s

knowledge of those two events that triggers the limitations period.

Pete v. Metcalfe

, 8 F.3d 214, 217-18 n.6 (5th Cir. 1993).

Accordingly, Jacobsen’s claims accrued at the latest on 22 August

1994; therefore, his proposed amendment, sought over two years

after the incident, is futile unless, under Rule 15(c), it relates

back to the date of the original filing.

B.

Rule 15(c), as amended in 1991 and 1993, provides:

An amendment of a pleading relates back to the

date of the original pleading when- 7 - (1) relation back is permitted by the law

that provides the statute of limitations

applicable to the action, or

(2) the claim or defense asserted in the

amended pleading arose out of the

conduct, transacti on, 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.

F ED

. R. C IV

. P. 15(c) (emphasis added).

Prior to the Rule being amended in 1991, the Supreme Court, in

Schiavone v. Fortune

, 477 U.S. 21 (1986), interpreted it to permit

relation back if the following conditions were satisfied:

(1) the basic claim must have risen out of the

conduct set forth in the original proceeding;

(2) the party to be brought in mu st have

received such notice th at it will not be

prejudiced in maintaining its defense; (3) the

party must or should have known that, but for

a mistake concerning identity, the action

would have been brought against it; and (4)

the second and third requirements must have

been fulfilled within t he prescribed

limitations period.

Moore v. Long

, 924 F.2d 586, 587 (5th Cir. 1991)(quoting Schiavone

,

477 U.S. at 29).- 8 -

In response to Schiavone

, Rule 15(c) was amended to change the

fourth relation-back factor. The Advisory Committee stated that

[subpart (3) was] revised to change the result

in Schiavone v. Fortune

, with respect t o the

problem of a misnamed defendant. An intended

defendant who is notified of an action within

the period allowed by Rule 4(m) for service of

summons and complaint may not under the

revised rule defeat the action on account of a

defect in the pleading with respect to the

def endant’s name provided that the

requirements of clauses (A) [notice] and (B)

[ mistake] have been met. If the notice

requirement is met within the Rule 4(m)

period, a complaint may be amended at any time

to correct a formal defect such as a misnomer

or misidentification

. On the basis of the

text of the former rule, the Court reached a

result in Schiavone v. Fortune that was

inconsi stent with the liberal pleading

practices secured by Rule 8.

F ED

. R. C IV

. P. 15(c), Advisory Committee Notes (1991 Amendment)

(emphasis added).

“The only significant diffe rence between the S chiavone rule

and amended Rule 15(c) is that, instead of requiring notice within

the limitations period, relation back is allowed as long as the

added party had notice within 120 days following the filing of the

complaint, or longer if good cause is shown.” S koczylas v. Federal

Bureau of Prisons

, 961 F.2d 543, 545 (5th Cir. 1992). As the

Second Ci rcuit has noted, the amended Rule “is meant to allow an

amendment changing the name of a party to relate back to the

original complain t only if the change is the result of an error,

such as a misnomer or misidentification.” Barrow v. Wethersfield

Police Dept.

, 66 F.3d 466, 469 (2d Cir. 1995), modified by 74 F.3d

1366 (2d Cir. 1996).- 9 -

Looking to subpart (3) of the Rule, it is undisputed that the

claims asserted against the officers and deputies arose out of the

“occurrence” set forth in the original complaint. Accordingly, as

required by subpart (3), the provision stated in subpart (2) is

satisfied. Therefore, the “notice” a nd “mistake” clauses in

subpart (3) come into play. Both must be satisfied.

1.

The motion to amend as to the newly-named officers was denied

on one basis: futility. The magistrate judge ruled that they had

not received the requisite timely notice of the action being filed.

But, our court will infer notice if ther e is an identity of

interest between the original defendant and the defendant sought to

be added or substituted. M oore

, 924 F.2d at 588; Kirk v. Cronvich

,

629 F.2d 404, 407-08 (5th Cir. 1980).

“Identity of interest generally means that the parties are so

closely related in th eir business operations or other activities

that the institution of an action against one serves to provide

notice of the litigation to the other.” K irk

, 629 F.2d at 408 n.4

(internal quotations and citation omitted). In this regard,

notice may be imputed to the new party through shared counsel.

Barkins v. International Inns, Inc.

, 825 F.2d 905, 907 (5th Cir.

1987); Hendrix v. Memorial Hosp. of Galveston County

, 776 F.2d

1255, 1257-58 (5th Cir. 1985).

The City did not file a brief; therefore, we do not know its

position regarding identity of interest. In any event, there was- 10 -

a sufficient identity of interest between the newly-named officers,

Officer Osborne, and the City to infer notice.

The ori ginal complaint was served on the City Attorney, who

rep resented the original City defendants (the City and Officer

Osborne) and would necess arily have represented the newly-named

officers. The City Attorney answered the complaint on behalf of

the City and Officer Osborne and, to do so, presumably investigated

the allegations, thus giving the newly-named officers the clause A

notice of the action. Consequently, those officers “knew or should

have known” that, but for Jacobsen’s mistaken belief that Officer

Osborne was the arresting officer, the action w ould have been

brought against them, therefore satisfying clause B.

For the officers, the proposed amendment is exactly the

situation at which Rule 15(c)(3) is aimed: the misidentification

of a defendant, as also discussed infra

. Accordingly, the proposed

amendment to substitu te the officers for Officer Osborne relates

back to the original filing, and therefore was not futile. Because

the magistrate judge lacked a substantial reason to d eny the

amendment, the denial constitutes an abuse of discretion.

2.

T he motion to amend as to the deputies was denied on two

bases: untimeliness and futility. Because it was futile, we need

not reach the timeliness issue.

As for the clause A notice requirement, Jacobsen contends that

the identity of interest doctrine should apply, claiming that

s hared counsel between the Sheriff and the deputies can be- 11 -

judicially noticed. Assuming arguendo he is correct, the failure

to clear the separate clause B “mistake” hurdle remains.

For the circumstances presented by this action, our court has

not addressed whether, in order to prevent a time-bar, an amendment

to substitute a named party for a “John Doe” defendant may relate

back under amended Rule 15(c)(3). We conclude that, in the

circumstances present in this case, relation back should not be

allowed. This is consistent with the majority of the other

circuits that have considered the issue. They have held that, for

a “John Doe” defendant, there was no “mistake” in identifying the

correct defen dant; rather, the problem was not being able to

identify that defendant.

The Second Circuit has held in a case interpreting the 1991

and 1993 amendments that “Rule 15(c) does not allow an amended

complaint adding new defendants to relate back if the newly-added

defendants were not named originally because the plaintiff did not

know their identities”. B arrow

, 66 F.3d at 470. This result is

necessitated by the goals of relation-back and Rule 15(c)(3): to

correct a mistake concerning the identity of a party. I d. The

Second Circuit reasoned that failing to identify individual

defendants cannot be characterized as a mistake. Id.

In interpreting the amended Rule, the Seventh Circuit reached

the same result i n Worthington v. Wilson , 8 F.3d 1253, 1257 (7th

Cir. 1993). For the W orthington § 1983 action, the plaintiff sued

“unknown named police off icers”. After limitations had run, the

plaintiff mov ed to substitute as defendants the two officers- 12 -

involved in his arrest. In affirming the denial of that motion,

the Seventh Circuit held: “Because Worthington’s failure to name

[the correct officers] was due to a lack of knowledge as to their

identity, and not a mistake in their names, Worthington was

prevented from availing himself of the relation back doctrine of

Rule 15(c)”. Id. at 1257.

And, in a case decided after the amendments to Rule 15(c), the

First Circuit endorsed the view that relation back is not allowed

when the plaintiff simply lacks knowledge of the proper party.

Wilson v. United States Government , 23 F.3d 559, 562-63 (1st Cir.

1994). In W ilson

, the plaintiff, after filing suit against the

wrong party, sought to substitute the United States after

limitations had run. I d. at 560-61. In affirming the time-bar,

the First Circuit noted that the United States had not received

notice of the action within the time allowed for service of

process. I d. at 562-63. In addition, it held that the mistake

prong of Rule 15(c)(3) had not been satisfied:

[T]here was no “mistake concerning the

identity of the proper party,” as required by

Rule 15(c)(3). Rather, Wilson merely lacked

knowledge of the proper party. In other

words, Wilson fully intended to sue [a

particular party], he did so, and [that party]

turned out to be the wrong party. We have no

doubt that Rule 15(c) i s not designed to

remedy such mistakes.

Id. at 563.

On the other hand, in a case decided prior to the amendments

to Rule 15(c), the Third Circuit took an opposite approach,

allowing relation back when the plaintiff sought to add a defendant- 13 -

ori ginally identified as an “unknown employee”. V arlack v. SWC

Caribbean, Inc.

, 550 F.2d 171, 174-75 (3d Cir. 1977). However, the

newly-named defendant testified that he knew there was a complaint

against his employer and that the “un known employee” referred to

him. I d. Accordingly, the court concluded that the notice and

mistake requirements had been met. Obviously, that is not the

situation here.

In closing, we note that this action has been plagued by

delays. For example, in his brief to our court, Jacobsen states

that he first learned the identities of the deputies on 29 August

1996, following the earlier discussed Rule 30(b)(6) deposition of

the Sheriff’s office. However, in Jacobsen’s witness and exhibit

list filed on 10 July 1996, “D. Cunningha m” (one of the deputies

later sought to be added as a defendant) is listed as a proposed

witness. The Sheriff’s witness list was filed on 3 July 1996; the

City’s, on 8 July. Neither listed Deputy Cunningham. There is no

explanation as to how Jacobsen learned about that Deputy by 10

July, or why he states that his identity did not surface until 29

August.

Along this line, the Sheriff moved on 22 April 1996 to compel

discovery; discovery requests had been served on Jacobsen the prior

November. But, as of April, Jacobsen had not responded. In short,

the result reached today as to the deputies could — and, indeed

should — have been avoided.

In other words, the proposed amendment as to the deputies was

not necessitated by the “mistake” or “misidentification” at which- 14 -

Rule 15(c)(3) is aimed. For such a situation, the Rule does not

allow relation back to the filing of the original complaint.

III.

For the foregoing reasons, the denial of leave to amend the

complaint is AFFIRMED as to the Sheriff’s deputies, but REVERSED as

to the police officers. Accordingly, this case is R EMANDED for

further proceedings.

AFFIRMED IN PART, REVERSED IN PART

, and REMANDED