IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

REBECCA STRONG, DARRELL LYNN 

BYERS, MICHAEL A. YONALLY, 

and DONALD L. PETERSON, 

Plaintiffs, 

v. 

CITY OF EUGENE, OFFICER SHAWN 

R. TROTTER (Badge #334), 

SERGEANT WILLIAM SOLESBEE 

(Badge #311), DETECTIVE DAVE 

BURROUGHS, and JOHN DOES 

#1-10, 

Defendants. 

Marianne G. Dugan 

Brian 1. Michaels 

259 East 5th Avenue, Suites 200-D/300-D 

Eugene, Oregon 97401 

Attorneys for plaintiffs 

Benjamin J. Miller 

City of Eugene 

125 East 8th Avenue, 2nd Floor 

Eugene, Oregon 97401 

Attorney for defendants 

Page 1 - OPINION AND ORDER 

Case No. 6:14-cv-01709-AA 

OPINION AND ORDER 

Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 1 of 15
AIKEN, Chief Judge: 

Plaintiffs Rebecca Strong, Darrell Byers, Michael Yonally, and 

Donald Peterson move to file an amended complaint pursuant to Fed. 

R. Civ. P. 15. For the reasons set forth below, plaintiffs' motion 

is denied. 

DISCUSSION 

On October 28, 2014, 2007, plaintiffs filed a complaint in 

this Court against defendants the City of Eugene, Shawn Trotter, 

William Solesbee, Dave Burroughs, and ten John Does, asserting 

claims under 42 U.S.C. § 1983 and state law arising out of the 

execution of an allegedly invalid search warrant "[i]n the early 

morning hours of January 11, 2013." Compl. ~ 13. Although not 

formally named as defendants, plaintiffs alleged that the following 

25 officers "participated" in the deprivation of their rights and 

therefore may be subject to liability: "Vinje, McAlpine, Pope, 

Sergeant T. Martin, Officer Casey, Mainard, Led Better, Evans, San 

Miguel, Hoernlein, Griesel, Sharlow, Warden, Hubbard, Kidd, 

Wolgamott, Froelich, Parr, Anderson, McCormick, Conner-Jones, K. 

Williams, Rathje, [and] Grose." Id. at ~~ 9-10. 

On February 25, 2015, plaintiffs filed the present motion to 

amend, seeking "solely to substitute for the 'John Doe' defendants 

the names of the actual participants on the SWAT raid" - i.e. the 

2 5 individuals listed in paragraph nine of original complaint. 

Pls.' Mot. Am. 2; Proposed Am. Compl. ("PAC") pg. 1. 

Page 2 - OPINION AND ORDER 

Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 2 of 15
STANDARD 

Leave to amend pleadings "shall be freely given when justice 

so requires." Fed. R. Civ. P. 15(a). Courts apply Rule 15 with 

"extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 

F.3d 1048, 1051 (9th Cir. 2003) (citations omitted). In determining 

whether a motion to amend should be granted, the court generally 

considers four factors: ( 1) undue delay; ( 2) bad faith; ( 3) 

futility of amendment; and (4) prejudice to the opposing party. 

Foman v. Davis, 371 U.S. 178, 182 (1962). These factors are not 

weighted equally: "futility of amendment alone can justify the 

denial of a motion [to ~mend]." Ahlmeyer v. Nev. Sys. of Higher 

Educ., 555 F. 3d 1051, 1055 (9th Cir. 2009). 

DISCUSSION 

Defendants contend that plaintiffs failed to confer as 

required by LR 7-1. In addition, defendants argue that the proposed 

amendments are futile because they do not relate back to 

plaintiffs' original complaint, as the additional defendants 1 

neither had notice of that pleading nor were omitted therefrom by 

mistake. Plaintiffs assert, to the contrary, that the PAC is timely 

because they were "'mistaken' in that they did not know which 

1 As defendants observe, it is "unclear [whether plaintiffs] 

are attempting to substitute 25 defendants for the 10 John Does, 

add 25 defendants and dismiss the 10 John Does, or substitute 10 

and also add 15 defendants." Defs.' Surreply to Mot. Am. 3-4. 

Irrespective of their status, the Court refers to these 25 

individuals as the "additional defendants." 

Page 3 - OPINION AND ORDER 

Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 3 of 15
specific officers did the handcuffing, property damage, and other 

wrongful acts. " 2 Pls.' Reply to Mot. Am. 4. 

I. Compliance With the Local Rules 

The moving party must certify in the first paragraph of any 

motion that he or she made "a good faith effort" to resolve the 

matter via "personal or telephone conferences" and was unable to do 

so, or, alternatively, that "[t]he opposing party willfully refused 

to confer." LR 7-1(a)(1). The court "may" deny any motion that 

"fails to meet [the] certification requirement." LR 7-1 (a) (2). 

In this case, plaintiffs' counsel did not comply with either 

the spirit or the letter of the Local Rules. On January 12, 2015, 

plaintiffs' counsel sent an email soliciting defendants' counsel's 

"position on moving to amend to ad Scott Vinje as a named 

defendant." First Miller Decl. Ex. 1. Defendants' counsel responded 

the following day that he "would need to see the amended complaint 

2 Plaintiffs also argue that their claims are timely because 

"'John Doe' pleading is explicitly allowed under Oregon law." 

Pls.' Reply to Mot. Am. 4 (citing Or. R. Civ. P. 20H). However, 

it is well-established "that the Federal Rules of Civil Procedure 

apply in federal court, irrespective of the source of the subject 

matter jurisdiction, and irrespective of whether the substantive 

law at issue is state or federal." Kearns v. Ford Motor Co., 567 

F.3d 1120, 1125 (9th Cir. 2009). Even accepting that the Oregon 

Rules of Civil Procedure were relevant to these proceedings, Or. 

R. Civ. P. 20H is inapplicable because, as discussed herein, 

plaintiffs were not ignorant of the names of the additional 

defendants. See Butler v. Nat'l Cmty. Renaissance of Cal., 766 

F. 3d 1191, 1202 (9th Cir. 2014) ("because Butler was not ignorant 

of the appellees' names or identities at the time the original 

complaint was filed, those amendments do not relate back under 

[the California equivalent of Or. R. Civ. P. 20H]"). 

Page 4 - OPINION AND ORDER 

Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 4 of 15
first . but it seems time-barred." Id. On February 24, 2015, 

when the parties were discussing the possible extension of 

discovery deadlines, plaintiffs requested that defendants stipulate 

to allowing them until the end of discovery to amend the complaint 

"to add defendants to replace the John Does." First Miller Decl. 

Ex. 2, at 2. Defendants' counsel declined: "I've though a lot about 

this because I'd like to find ways to make this case less 

complicated and adversarial, but I can't agree to extend the 

deadline to amend pleadings [as] I disagree with your analysis of 

the law surrounding john does and relation back." Id. at 1. 

Plaintiffs' counsel then informed defendants' counsel that she 

would "file a motion to amend naming all of the 2 dozen or so 

officers who participated." Id. Without further discussing the 

matter with defendants, plaintiffs filed their motion to amend on 

February 25, 2015. 

Thus, as defendants note, plaintiffs' counsel "never provided 

a proposed amended complaint, never called defense counsel, never 

disclosed who the defendants would be, what the claims would be, or 

provided defense counsel any opportunity to discuss why plaintiffs 

felt the need to make this case so unnecessarily complex 

[she] simply announced what she intended to do [and then] 

remain[ed] silent for a day and a half [before filing] her motion 

at midnight on the day it was due." First Miller Decl. ':][ 4. 

Ordinarily, the Court would deny plaintiffs' motion without 

Page 5 - OPINION AND ORDER 

Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 5 of 15
prejudice under these circumstances. However, following such a 

procedure is unlikely to a represent an efficient expenditure of 

both the Court's and the parties' time; defendants raised this 

matter in their opposition and were granted leave to file a 

surreply to respond to, amongst other things, plaintiffs' assertion 

that LR 7-1 was met. As a result, both the underlying motion and 

issues related to conferral are fully briefed, such that no benefit 

would be obtained by denying plaintiffs' motion on this basis. 

II. Relation Back 

It is undisputed that plaintiffs' cause of action arose on 

January 11, 2013. Compl. ~ 13; PAC~ 13; Bergquist Decl. Ex. 1. It 

is also undisputed that plaintiffs' complaint was filed prior to 

January 11, 2015. See Sain v. City of Bend, 309 F.3d 1134, 11.39 

(9th Cir. 2004) (42 U.S.C. § 1983 claims are subject to a two year 

statute of limitations in Oregon) (citing Or. Rev. Stat. § 12.11.0). 

Further, it is undisputed that plaintiffs moved to amend outside of 

the statutory limitations period, such that the PAC is timely only 

if it relates back to the original pleading. Where, as here, "the 

limitations period derives from state law, [the court must] 

consider both federal and state law and employ whichever affords 

the 'more permissive' relation back standard." Butler, 766 F.3d at 

1199-1201 (citation omitted). 

Page 6 - OPINION AND ORDER 

Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 6 of 15
A. Federal Standard 

To relate back under federal law: 

(1) the basic claim must have arisen out of the conduct 

set forth in the original pleading; (2) the party to be 

brought in 'must have received such notice [within 120 

days from the filing of the original complaint as 

prescribed in Fed. R. Civ. P. 4(m) such] that it will not 

be prejudiced in maintaining its defense; [and] (3) that 

party must or should have known that, but for a mistake 

concerning identity, the action would have been brought 

against it. 

Schiavone v. Fortune, 477 U.S. 21, 29 (1986); Fed. R. · Civ. P. 

15(c) (1). Plaintiffs meet the first requirement, as the underlying 

conduct is the same. At issue is whether the additional defendants 

received notice within 120 days of the commencement of this lawsuit 

and whether naming John Does in the complaint was a mistake. 

The Court answers both questions in the negative. Beyond 

merely concluding that listing the names of the additional 

defendants in the original pleading "put [them] on notice," 

plaintiffs neglected to provide any argument or evidence regarding 

the second requirement. Pls.' Reply to Mot. Am. 5; see also 

Wilkins-Jones v. Cnty. of Alameda, 2012 WL 3116025, *14 (N.D.Cal. 

July 31, 2 012) ("it is Plaintiff's burden to show relation back") . 

As a result, nothing in the record indicates that the additional 

defendants had actual or constructive notice. See Defs.' Surreply 

to Mot. Am. 7 ("no evidence show [s] [that] any of the Additional 

Individuals have ever seen the original Complaint"); Second Miller 

Decl. '][ 7 (defendants' counsel does "not represent any of the 

Page 7 - OPINION AND ORDER 

Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 7 of 15
Additional Individuals in their individual capacity at this point 

in time" and "[s]ome Additional Individuals are not even employed 

by the City any more"); see also Wilkins-Jones, 2012 WL 3116025 at 

*13 (second requirement of Fed. R. Civ. P. 15(c) was not satisfied 

where the plaintiff "offers no actual evidence of notice, nor does 

she offer any authority to support the proposition that it is 

sufficient to merely show the reasonable likelihood of notice, 

[n] or does she argue [the .existence of a] 'community of interests' 

[so] as to impute the County's knowledge to the [newly-named] 

Defendants") 

Concerning the third element, plaintiffs cite to Krupski v. 

Costa Crociere S.p.A., 560 U.S. 538, 539 (2010), in support of the 

proposition that the PAC is timely. Plaintiffs also contend "that 

the statute of limitations was tolled for the purposes of 

'relation-back' [until they could] determine the role of the 

individual defendants." Pls.' Mot. Am. 5 (citations omitted). 

Defendants, in contrast, rely primarily on a recent and directly 

on-point, but nonetheless unpublished, decision from this District, 

Hagen v. Williams, 2014 WL 6893708 (D.Or. Dec. 4, 2014), in arguing 

that plaintiffs did not commit a mistake within the purview of Fed. 

R. Civ. P. 15 (c) (1). 

In Krupski, the plaintiff "sought compensation for injuries 

she suffered on a cruise ship." Krupski, 5 60 U.S. at 538. She 

initiated suit against Costs Cruise Lines, whose address was listed 

Page 8 - OPINION AND ORDER 

Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 8 of 15
on her passenger ticket, even though that ticket also made 

reference to Costa Crociere. Id. Because Costa Cruise Lines was 

only the sales and marketing agent for Costa Crociere, the entity 

that actually owned, chartered, and operated the ship on which she 

was injured, "Costa Cruise [notified the plaintiff] that Costa 

Crociere was the proper defendant." Id. After substituting Costa 

Cruise for Costa Crociere, the district court dismissed the 

plaintiff's lawsuit on the basis that the amended complaint did not 

satisfy the requirements of Fed. R. Civ. P. 15. Id. The Eleventh 

Circuit affirmed, reasoning that the plaintiff "either knew or 

should have known of Costa Crociere's identity as a potential party 

because she furnished the ticket identifying it to her counsel well 

before the limitations period ended." Id. at 539. 

The Supreme Court reversed, holding that the third prong of 

Fed. R. Civ. P. 15(c) (1) "asks what the prospective defendant knew 

or should have known during the Rule 4 (m) period, not what the 

plaintiff knew or should have known at the time of filing her 

original complaint." Id. at 548. The plaintiff's "information is 

relevant only if it bears on the defendant's understanding of 

whether [it] made a mistake regarding the proper party's identity." 

Id. at 539. As such, the Supreme Court's analysis presumed the 

existence of a mistake as to the proper defendant's identity. Id. 

at 548-49; see also Wilkins-Jones, 2012 WL 3116025 at *16 

("subsequent cases construing Krupski have confirmed that Krupski 

Page 9 - OPINION AND ORDER 

Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 9 of 15
did not eliminate all inquiries into whether the plaintiff in fact 

committed a mistake; rather, it simply focused on the standard for 

the defendants' knowledge of said mistake, assuming such a mistake 

had occurred") (collecting cases). In other words, Krupski did not 

involve John Doe pleadings and instead addressed the situation in 

which a plaintiff knows about two or more possible defendants but 

misunderstands their roles in the underlying suit. 

Here, the record before the Court demonstrates that plaintiffs 

did not possess an erroneous belief regarding the true identities 

or roles of the John Doe defendants. See Hagen, 2014 WL 6893708 at 

*5 ("[m]ost courts have held that substituting a John Doe Defendant 

with a named Defendant is not correcting a 'mistake' and therefore 

does not relate back to the original complaint") (collecting 

cases). Rather, unlike the plaintiff in Krupski, they had adequate 

knowledge from the outset of this litigation of the additional 

defendants' participation in the alleged deprivation of their 

rights. 3 Compl. 'JI 9-10; Second Miller Decl. 'JI'JI 4-6. 

3 The Janua~y 11, 2013, warrant service has been the subject 

of two previous lawsuits. First, in June 2013, Byers commenced an 

action in Lane County Circuit Court (In the Matter of Search 

Warrant Executed at 27259 6th Street, Junction City, OR, Case No. 

611300005); he was represented by Marianne Dugan and Brian 

Michaels, and ultimately "lost that case." Second Miller Decl. 'JI 

4. In May 2013, Strong's former attorney filed a complaint in 

Lane County Circuit Court on behalf of Strong's son, Raymond 

Munson, alleging 42 U.S.C. § 1983 and state tort claims against 

Trotter and the City of Eugene (Munson v. City of Eugene, Case 

No. 12-13-10332); the Munson defendants prevailed on summary 

judgment in March 2014. Id. at 'JI 5. "Strong's former attorney 

received discovery, includlng all of the police reports and 

Page 10 - OPINION AND ORDER 

Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 10 of 15
Accordingly, because plaintiffs could have named the 

additional defendants in the original complaint, but chose not to, 

no mistake transpired within the meaning of Fed. R. Ci v. P. 

15(c) (1). See Krupski, 560 U.S. at 549 ("making a deliberate choice 

to sue one party instead of another while fully understanding the 

factual and legal differences between the two parties is the 

antithesis of making a mistake concerning the proper party's 

identity"); see also Nelson v. Adams USA, Inc., 529 U.S. 460, 467 

n.1 (2000) ("Adams made no such mistake [within the meaning of Fed. 

warrant service plans and took the depositions of at least 14 [of 

the additional defendants]," which she presumably provided to 

plaintiffs.' counsel in this case - i.e. Dugan and Michaels. Id. 

Regardless, on January 2, 2015, nearly a year after the prior 

lawsuits were resolved and before the statute of limitations 

expired, "Dugan ordered and received depositions which were taken 

in the Munson case [describing] what the [fourteen additional 

defendants] did and observed." Id. at '1[ 6. There is no indication 

that plaintiffs obtained any further information relating to the 

additional defendants' particular conduct between the end of the 

limitations period and the filing of the present motion. See 

generally Pls.' Mot. Am.; Pls.' Reply to Mot. Am.; PAC. As such, 

plaintiffs' contention that they lacked adequate details 

regarding the additional defendants to name them in the original 

complaint is belied by the record before the Court. See Defs.' 

Surreply to Mot. Am. 8 n.2 ("[p]laintiffs claim they do not yet 

know which specific officers did the handcuffing, property damage 

or other wrongful acts" but those "questions are answered in the 

depositions of the Additional Individuals"). Further undercutting 

plaintiffs' contention is the fact that, identical to the 

original complaint, the PAC does not specify which allegedly 

injurious act each additional defendant personally performed. 

See, e.g., PAC '1[ 10 ("[t]he following allegation is likely to 

have evidentiary support after a reasonable opportunity for 

further investigation or discovery: [the additional defendants] 

participated in handcuffing plaintiff Strong, deciding to keep 

her handcuffed, and/or damaging the personal property of 

plaintiffs Strong or Byers"). 

Page 11 - OPINION AND ORDER 

Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 11 of 15
R. Civ. P. 15(c) as it] knew of Nelson's role and existence and, 

until it moved to amend its pleading, chose to assert its claim . 

only against [Nelson's company]") ; Wilkins-Jones, 2 012 WL 

3116025 at *17 ("[t]hat Plaintiff could have also asserted claims 

against the Corizon Defendants but failed to do so was not an 

obvious mistake as in Krupski"); Cornwell v. Robinson, 23 F. 3d 694, 

704-05 (2d Cir. 1994), abrogated in part on other grounds, Nat'l 

R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (amendment to 

add certain individuals as defendants did not fulfill Fed. R. Civ. 

P. 15 (c) ( 1) where the original complaint identified those same 

individuals and their underlying wrongful conduct but neglected to 

expressly name them as defendants). 

Finally, plaintiffs' assertion regarding the tolling of the 

statute of limitations is without merit. Even assuming that 

plaintiffs did not have knowledge of the additional defendants' 

roles until after the limitations period lapsed, the fact remains 

that "federal law determines when a civil rights claim accrues." 

Lukovsky v. City & Cnty. of S.F., 535 F.3d 1044, 1048 (9th Cir. 

2008), cert. denied, 556 U.S. 1183 (2009) (citation omitted). Under 

federal law, the statute of limitations begins to run "when the 

plaintiff knows or has reason to know of the injury which is the 

basis of the action." Id. (citation and internal quotations 

omitted); see also Clavette v. Sweeney, 132 F.Supp.2d 864, 874 

(D.Or. 2001) ("[t]he Ninth Circuit has stated repeatedly the 

Page 12 - OPINION AND ORDER 

Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 12 of 15
plaintiff need not also know the identity of the person who caused 

the injury" for a claim to accrue under federal law) (citations 

omitted). For this reason, the precedent that plaintiffs rely on in 

support of their tolling argument is unpersuasive. 4 

Because the additional defendants had no basis to conclude 

during the Fed. R. Civ. P. 4(m) period that, but for plaintiffs' 

mistake, they would have been named as defendants, the PAC does not 

relate back the original pleading under federal law. 

B. State Standard 

The Oregon rule governing relation back provides that: 

[w]henever the claim or defense asserted in the amended 

pleading arose out of the conduct, transaction, or 

occurrence set forth or attempted to be set forth in the 

original pleading, the amendment relates back to the date 

4 Specifically, the three Oregon cases cited by plaintiffs 

dealt with the Oregon accrual rule, pursuant to which the 

defendant's identity is a requisite element. Adams v. Or. State 

Police, 289 Or. 233, 239, 611 P.2d 1153 (1980); Cole v. Sunnyside 

Marketplace, LLC, 212 Or.App. 509,. 519-21, 160 P.3d 1 (2007), 

rev. denied, 344 Or. 558, 187 P.3d 219 (2008); Worman v. Columbia 

Cnty., 223 Or. App. 223, 228-29, 195 P.3d 414 (2008). The five 

out-of-circuit cases, in addition to not being binding, involved 

instances in which the plaintiff was either ignorant of the 

identify the proper defendant or erroneously named the wrong 

legal entity; further, more than one of these cases involved pro 

se litigants, whose pleadings are held to less stringent 

standards. Lacedra v. Donald W. Wyatt Det. Facility, 334 

F.Supp.2d 114, 130-34 (D.R.I. 2004); Ortiz v. Bettancourt-Lebron, 

146 F.R.D. 34, 42 (D. P.R. 1992); Blaskiewicz v. Co. of Suffolk, 

29 F.Supp.2d 134, 139-40 (E.D.N.Y. 1998); Stone v. Holzberger, 

807 F.Supp. 1325, 1333-34 (S.D.Ohio 1992); Simpson v. City of 

Ivlaple Heights, 720 F.Supp. 1303, 1306 (N.D.Ohio 1988). Lastly, to 

the extent relevant, the unpublished Ninth Circuit case 

plaintiffs rely on actually supports defendants' position. 

Langley v. City of Eugene, 1990 WL 90394, *2 (9th Cir. June 25, 

1990) . 

Page 13 - OPINION AND ORDER 

Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 13 of 15
of the original pleading. An amendment changing the party 

against whom a claim is asserted relates back if the 

foregoing provision is satisfied and, within the period 

provided by law for commencing the action against the 

party to be brought in by amendment, such party (1) has 

received such notice of the institution of the action 

that the party will not be prejudiced in maintaining any 

defense on the merits, and (2) 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 brought in by amendment. 

Or. R. Civ. P. 23. 

As such, the Oregon standard is analogous to the federal 

standard in this context. See Hagen, 2014 WL 6893708 at *6-7 

(replacing John Doe defendants with named individuals via amendment 

constitutes "a change in parties" under Oregon law) (citations 

omitted). Therefore, the PAC fails under Oregon law for the same 

reasons it fails under federal law. Namely, defendants did riot 

receive adequate notice. Moreover, a "lack of knowledge regarding 

a defendant's identity is not a 'mistake' for purposes of Or. R. 

Civ. P. 23." Clavette, 132 F.Supp.2d at 876. Regardless, as 

addressed in section II(A), the record establishes that plaintiffs 

did, in fact, have sufficient knowledge of the identities and roles 

of the additional defendants at the time this lawsuit was 

commenced. 

In sum, the PAC does not relate back to the original pleading 

under state or federal law. As plaintiffs filed the present motion 

after the running of the two-year statute of limitations, the PAC 

is untimely and the proposed amendments futile. 

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Case 6:14-cv-01709-AA Document 26 Filed 05/19/15 Page 14 of 15
CONCLUSION 

Plaintiffs' motion to amend the complaint (doc. 16) is DENIED. 

As a result, plaintiffs' initial complaint (doc. 1) remains the 

operative pleading in this case. 

IT IS SO ORDERED. 

Dated this of May 2015. 

Ann Aiken 

United States District Judge 

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