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Hannon v. Nevitt Response
Hannon v. Nevitt Response
THOMAS HANNON, §
Plaintiff, §
§ CIVIL ACTION NO.
vs. §
§ 3:09-CV-0066-N
DAVID L. NEVITT, § ECF
LAWRENCE T. CODDINGTON, JR., §
DAVID DURICA, JERRY DODD, and §
RANDY SUNDQUIST, §
Defendants. §
Durica (“Durica”), Jerry Dodd (“Dodd”), and Randy Sundquist (“Sundquist”) (collectively the
“Officers”), pursuant to Fed. R. Civ. P. 15(a)(2) and this Court’s Local Civil Rule 7.1(e), file
their response to Plaintiff’s Motion for Leave to File Amended Complaint Joining City of Dallas
as a Defendant (“Motion”), filed on 31 July 2009 (doc. 41). The Officers urge the Court to deny
Plaintiff’s Motion. In support hereof, the Officers respectfully show the Court the following:
I. SUMMARY OF RESPONSE
Plaintiff filed his Motion without first conferring with the Officers, as required by Local
Rule 7.1(a). Therefore, the Court should strike the Motion. If the Court considers the Motion, it
should be denied because the proposed amended complaint not only pleads facts relating to
Plaintiff’s claims against the City of Dallas, but also pleads additional facts relating to Plaintiff’s
claims against the Officers. The additional factual allegations as to the Officers’ conduct will
require, following the Officers’ answers thereto, new Rule 7(a) replies by Plaintiff. This will
Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 1
Case 3:09-cv-00066-N Document 42 Filed 08/06/2009 Page 2 of 9
unnecessarily delay even further the prompt and orderly resolution of the Officers’ respective
qualified immunity defenses. Further, Plaintiff’s proposed complaint fails to state a viable claim
2.1 Plaintiff, Thomas Hannon (“Hannon”) filed this civil action on 12 January 2009.
(See Court’s Docket.) Plaintiff’s Original Complaint pleads claims against the Officers under 42
U.S.C. § 1983 and Texas common law. All of the Officers have answered. (Id.)
2.2 The Officers, who are sued in their individual capacities, asserted the defenses of
qualified immunity and official immunity. (See doc. 4, doc. 6, doc. 7, doc. 8, doc. 9, doc. 28.) In
furtherance of those defenses, the Officers filed opposed motions to require Hannon to file a
Rule 7(a) reply addressing their factual assertions supporting their immunity defenses (doc. 15,
doc. 16, doc. 30). This Court granted the Officers’ motions on 26 June 2009 (doc. 31, doc. 32,
doc. 33). Hannon filed his Rule 7(a) replies on 6 July 2009 (doc. 34, doc. 35, doc. 36, doc. 37,
2.3 Pursuant to this Court’s Order Requiring Status and Scheduling Conference (doc.
39), the parties held a Rule 26(f) conference and submitted their Joint Status Report and Rule
26(f) Discovery Control Plan (doc. 40) on 28 July 2009. (See Court’s Docket.) The Court has
Northern District Local Civil Rule LR 7.1(a) directs that, “[b]efore filing a motion, an
attorney for a moving party must confer with an attorney for each party affected by the requested
relief to determine whether the motion is opposed.” Hannon’s counsel failed to confer with the
Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 2
Case 3:09-cv-00066-N Document 42 Filed 08/06/2009 Page 3 of 9
attorneys representing the Officers prior to filing the Motion. Perhaps this explains the absence
of the certificate of conference required by LR 7.1(b). (See Motion.) Because Hannon has failed
to comply with this Court’s local rules, the Court should strike the Motion, or deny it.
Hannon’s proposed amended complaint does not merely plead facts intended to support
municipal liability under 42 U.S.C. § 1983; rather, Hannon interjects new or modified facts in
connection with the Officers’ alleged conduct. For example, paragraph 17 of the proposed
complaint alleges that the Officers “have been known to violate the rights of citizens of the
additional misconduct by officer Nevitt; and paragraph 20 now alleges that the Officers had a
copy of an exculpatory videotape and intentionally withheld it. (See doc. 41-2 at 5-6.)
If the Court grants the Motion, the Officers’ answers will, of course, include their denials
of Hannon’s new allegations, supported where possible by their additional factual allegations in
support of their qualified immunity defenses. This will obligate the Officers to move the Court
to order Hannon to file new Rule 7(a) replies to the Officers’ respective answers. The end result
is that the disposition of the Officers’ qualified immunity defenses will be further delayed.
C. The Court Should Deny the Motion Because the Amendment Would be Futile
It is undisputed that the decision to grant or deny a motion to amend is entrusted to the
sound discretion of the district court. This Court’s discretion, however, is limited by Federal
Rule of Civil Procedure Rule 15(a), which states that “leave shall be freely given when justice so
requires.” While a district court’s discretion does not permit denial of a motion to amend unless
Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 3
Case 3:09-cv-00066-N Document 42 Filed 08/06/2009 Page 4 of 9
there is a substantial reason to do so, in Leffall v. Dallas Independent School District the Fifth
Circuit reiterated that futility is a valid reason for denying leave to amend.1 Thus, “[i]t is within
the district court's discretion to deny a motion to amend if it is futile.”2 In Stripling v. Jordan
Production Company, LLC, 234 F.3d 863 (5th Cir. 2000), the Fifth Circuit defined “futility” in
this context to mean that the amended complaint would fail to state a claim upon which relief
could be granted, and applied “the same standard of legal sufficiency as applies under Rule
12(b)(6).”3
Stripling was decided before the Supreme Court’s decision in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), which abrogated the familiar standard enunciated in Conley v.
Gibson that a court “may not dismiss a complaint under [R]ule 12(b)(6) ‘unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.”4 Under Twombly, a plaintiff’s factual allegations must be enough to raise a
right to relief above the speculative level on the assumption that all of the complaint’s allegations
are true.5 That is, it is no longer sufficient that relief could be granted under some theoretical set
of facts consistent with a complaint’s allegations, which was the familiar standard the Supreme
Court established in Conley v. Gibson.6 Rather, under Twombly, plaintiffs must “nudge[] their
claims across the line from conceivable to plausible.”7 Therefore, to survive a motion to dismiss,
1
See Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994).
2
See Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000) (citing Martin's Herend Imports, Inc.
v. Diamond & Gem Trading United States of America Co., 195 F.3d 765, 771 (5th Cir. 1999); Foman v. Davis, 371
U.S. 178, 182 (1962).
3
Stripling, 234 F.3d at 873.
4
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
5
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).
6
Conley, 355 U.S. 41, 45-46 (1957).
7
Twombly, 550 U.S. at 570.
Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 4
Case 3:09-cv-00066-N Document 42 Filed 08/06/2009 Page 5 of 9
a complaint must contain sufficient factual matter, accepted as true, to “state a claim for relief
Hannon sets out his allegations supporting the City’s alleged liability in paragraphs 17–
20 and 26–28 of his proposed Complaint. But, none of the facts asserted in those paragraphs are
sufficient to raise a right to relief above the speculative level, rendering Hannon’s claims against
Since the Supreme Court’s decision in Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978), it is well-settled that a municipality cannot be liable under a
almost never trigger municipal liability.10 Rather, as the Fifth Circuit emphasized in 2001 in
Piotrowski v. City of Houston, to hold a municipality liable under section 1983, a plaintiff must
establish, inter alia, that an “official policy” of the municipality – not the policy of an individual
municipal official – was the “moving force” and actual cause of the loss of constitutional rights
In a similar vein, the Supreme Court held in City of Canton v. Harris that a Monell claim
based upon a “policy” of inadequate police training requires proof of “deliberate indifference” by
the City’s policymakers to the rights of persons with whom the police will come into contact.12
8
Twombly, 550 U.S. at 570.
9
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Bd. of Comm’rs of Bryan County v.
Brown, 520 U.S. 397, 403 (1997)); see also Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979).
10
Piotrowski, 237 F.3d at 578 (citing Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984)).
11
Piotrowski, 237 F.3d at 578.
12
City of Canton v. Harris, 489 U.S. 378, 388 (1989).
Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 5
Case 3:09-cv-00066-N Document 42 Filed 08/06/2009 Page 6 of 9
Deliberate indifference imposes a rigorous standard of fault. The Piotrowski court noted that
negligence will not suffice’ to prove municipal culpability.”13 To establish deliberate indiffer-
ence, a plaintiff must show that the municipal policymaker was “both aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and he must also draw
the inference.”14
But Hannon’s proposed complaint fails to plead those basic and essential elements of
municipal liability. Hannon fails to allege the identity of the City’s policymaker. Hannon fails
to allege any specific policy, or any City custom having the force of official policy, that was the
moving force and actual cause of his alleged deprivation of constitutional rights. Paragraph 18
of the proposed complaint merely posits that a “policy, practice or custom that permits police
officers to testify falsely” exists, but without any allegation of what that policy is, or how it
operates to permit officers to testify falsely. Paragraph 26 merely alleges that the Officers were
acting pursuant to the amorphous “official policy and practices,” again described so vaguely that
it is impossible to discern what the alleged deficient City policy is. Taken together, the proposed
complaint presents no more than a formulaic recitation of the elements of a municipal liability
claim under section 1983 and the raw conclusion that the City is liable. But, as the Supreme
Court recently held in Ashcroft v. Iqbal, ___ U.S. ___, 2009 WL 1361536 (May 18, 2009), “[a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’”15 Because Hannon’s proposed complaint presents no more than labels,
13
Piotrowski, 237 F.3d at 579 (quoting Bryan County, 520 U.S. at 407).
14
Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
15
Iqbal, 2009 WL 1361536, at 12 (citing Twombly, 550 U.S. at 555).
Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 6
Case 3:09-cv-00066-N Document 42 Filed 08/06/2009 Page 7 of 9
speculations, conclusions, and barebones recitations of some of the elements of a Monell claim,
Hannon fails to state a plausible claim for relief. Thus, it would be futile to grant Hannon leave
IV. CONCLUSION
Hannon failed to confer with the Officers before filing his motion for leave to amend his
complaint. Therefore, the Court should strike or deny the Motion. Further, Hannon’s addition of
facts pertaining solely to the Officers’ alleged conduct will delay the prompt resolution of the
Officers’ qualified immunity defenses. Finally, Hannon’s proposed complaint fails to plead non-
conclusory facts which, if true, would establish a claim against the City under 42 U.S.C. § 1983,
because he does not set forth sufficient factual content to allow this Court to draw a reasonable
inference that the City is liable for the Officers’ alleged actions. Therefore, it would be futile to
grant Hannon leave to file his proposed amended complaint. For all of these reasons, the Court
should deny Hannon’s motion for leave to file his proposed amended complaint.
Dodd, and Randy Sundquist, request the Court to deny the relief requested by Plaintiff, and for
all other relief to which the respondents are entitled consistent with this response.
Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 7
Case 3:09-cv-00066-N Document 42 Filed 08/06/2009 Page 8 of 9
Respectfully submitted,
s/ JASON G. SCHUETTE
Assistant City Attorney
Texas Bar No.17827020
jason.schuette@dallascityhall.com
s/ JAMES C. BUTT
Assistant City Attorney
Texas Bar No. 24040354
james.butt@dallascityhall.com
Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 8
Case 3:09-cv-00066-N Document 42 Filed 08/06/2009 Page 9 of 9
CERTIFICATE OF SERVICE
I certify that on 6 August 2009 I electronically filed the foregoing document with the
clerk of court for the U.S. District Court, Northern District of Texas, using the electronic case
filing system of the court. The electronic case filing system sent a “Notice of Electronic Filing”
to the following attorneys of record who have consented in writing to accept this Notice as
service of this document by electronic means:
Scott H. Palmer
Scott H. Palmer, P.C.
15455 Dallas Parkway
Suite 540, LB 32
Addison, Texas 75001
Attorneys for Plaintiff
s/ Jason G. Schuette
Assistant City Attorney
Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 9