Woods v. District of Columbia

                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


    JERMAINE WOODS
               Plaintiff,
          v.                                               Civil Action No. 20-0782 (CKK)
    DISTRICT OF COLUMBIA, et al.,
               Defendants.


                                   MEMORANDUM OPINION
                                     (December 29, 2022)

         This matter involving alleged police brutality is before the Court on Plaintiff’s motion for

reconsideration of the Court’s March 21, 2022 Order denying Plaintiff leave to amend his

complaint. For a host of procedural and substantive reasons, and upon consideration of the

pleadings, 1 the relevant legal authorities, and the entire record, the Court shall DENY Plaintiff’s

[30] Motion for Reconsideration.




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 The Court’s analysis has focused on the following documents:
           • Plaintiff’s Motion for Reconsideration of Court’s Order Granting Defendants’
              Motion to Strike the Amended Complaint and Dismiss the Action with Prejudice
              and Denying Plaintiff’s Motion for Leave to File an Amended Complaint Nunc Pro
              Tunc, ECF No. 30 (“Mot.”);
           • Defendants’ Opposition to Plaintiff’s motion for Reconsideration, ECF No. 31
              (“Opp.”);
           • Plaintiff’s Reply to Defendants’ Opposition to Plaintiff’s Motion for
              Reconsideration, ECF No. 32 (“Repl.”);
           • Defendants’ Supplemental Brief, ECF No. 33 (“Defs.’ Supp. Br.”); and
           • Plaintiff’s Supplemental Brief Addressing the Consequences of Kemp v. United
              States, ECF No. 34 (“Pl.’s Supp. Br.”).
       In an exercise of its discretion, the Court finds that holding oral argument in this action
would not be of assistance in rendering a decision. See LCvR 7(f).
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                                     I.      BACKGROUND

       Because the Court, in an abundance of caution, proceeds to the merits of Plaintiff’s

arguments, it restates a more detailed factual background of this matter here.

       Plaintiff’s original complaint alleged that, on January 18, 2017, an off-duty police officer

with the Metropolitan Police Department (“MPD”) of Washington, DC reported that the driver of

a vehicle (“Suspect”) at the intersection of 3rd and U Streets Northwest had fired multiple

gunshots in the area. Woods, 

 at *1. Sometime thereafter, the Suspect picked

Plaintiff up in his vehicle and drove Plaintiff to his home. 

 Plaintiff was allegedly unaware of

the shooting or the Suspect’s alleged involvement. 

 MPD officers, including (as alleged in

the original complaint) Officer Daniel Leo, located the Suspect’s car and followed the car to

Plaintiff’s home. Id. at *2. When Plaintiff exited the car, so too did Officer Leo exit his squad

car and allegedly “instantly began to fire his service weapon at Plaintiff without uttering a single

word,” while Plaintiff tried to crawl to safety. Id. None of the rounds struck Plaintiff, but he did

sustain injuries during the incident. Id.

       Plaintiff filed a civil action against the District of Columbia and Officer Leo in the

District of Columbia Superior Court, alleging two common law tort claims and an excessive

force claim under 

. ECF No. 1-1. Defendants removed the case to this Court

and moved to dismiss the complaint for failure to state a claim or, in the alternative, for partial

summary judgment. Woods, 

 at *2. The Court granted Defendants’ motion

and dismissed the complaint without prejudice, offering Plaintiff an opportunity to file an

amended complaint. Id. at *7. Rather than so filing, Plaintiff instead moved, pursuant to Federal

Rule of Civil Procedure 60(b), for reconsideration of the Court’s order dismissing the complaint

without prejudice, attaching a proposed amended complaint. ECF No. 14. The Court denied that



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motion because Rule 60(b) provides for reconsideration of only final orders, and dismissal

without prejudice is not a final order. Mem. Op. & Order at 1, ECF No. 18 (May 5, 2021) (slip

op.). In particular, the Court’s Memorandum Opinion & Order mandated that, by May 17, 2021,

Plaintiff “must either provide the Court with Defendants’ written consent to his proposed

amend[ed complaint] or, alternatively, file a motion seeking leave to amend under Rule 15(a).

Failure to do so will result in complete dismissal of this action with prejudice.” Id. at 3.

       On May 17, 2021, Plaintiff timely filed a proposed amended complaint, ECF No. 19, but

did not file a motion for leave to amend the original complaint. Accordingly, Defendants moved

to strike the Amended Complaint and to dismiss the action with prejudice pursuant to the Court’s

[18] Order. Defs.’ Mot. at 1. Plaintiff responded by filing a motion for leave to file an amended

complaint nunc pro tunc, attaching the [19] Amended Complaint. Pl.’s Mot. at 1.

       As to the alleged use of excessive force, the [19] Amended Complaint makes the same

factual allegations, but instead claims that an Officer Fred Rosario, as opposed to Officer Leo,

fired the shots at Plaintiff. Am. Compl. ¶¶ 13-14. The Amended Complaint also adds a new

claim of civil conspiracy, alleging a coverup of the incident by failing to file a “use of force”

report that would have memorialized the shooting, and a variety of new defendants against which

Plaintiff would assert that claim. Id. ¶¶ 20, 42. The Amended Complaint also alleges that, in a

press briefing, Interim Police Chief Peter Newsham announced that “police investigators were

checking to determine if the officers involved had activated their body camera.” Id. ¶ 35

(emphasis omitted).

       The Court denied Plaintiff leave to file an amended complaint on both procedural and

substantive grounds. First, the Court found that Plaintiff did not show the “excusable neglect”

necessary to file nunc pro tunc pursuant to Federal Rule of Civil Procedure 6(b)(1)(B). Woods v.



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District of Columbia, Civ. A. No. 20-0782 (CKK), 

, at *2-3 (D.D.C. Mar. 21,

2022). Second, the Court concluded that neither Plaintiff’s proposed civil conspiracy claim nor

his excessive force claim related back to his original complaint. Id. at *3-4. As such, all claims

were time-barred. See id. at *4. Relying exclusively on Federal Rules of Civil Procedure 54(b),

which applies only to interlocutory orders, Plaintiff challenges each of these conclusions.

                                   II.          LEGAL STANDARD

       Federal Rule of Civil Procedure 54(b) governs only those orders “that adjudicate[] fewer

than all the claims or the rights and liabilities of fewer than all the parties.” See also Parker v.

John Moriarty & Assocs., 

 (D.D.C. 2016). Rule 60(b), however, applies to

final orders. Under that rule, a district court may “relieve a party or its legal representative from

a final judgment, order, or proceeding” on one of six grounds: (1) mistake, inadvertence,

surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) that the judgment is

void; (5) applying the judgment prospectively is no longer equitable; or (6) any other reason that

justifies relief. The party seeking relief under Rule 60(b) bears the burden of showing that they

are entitled to the relief sought, and the decision to grant such a motion “‘is committed to the

discretion of the District Court.’” United States v. Dynamic Visions, Inc., 

(D.D.C. 2017). Motions for reconsideration are generally “disfavored” and granting them are an

“unusual measure.” Walsh v. Hagee, 

 (D.D.C. 2013).

                                         III.     DISCUSSION

       As a threshold matter, relief under Rule 54(b) is unavailable because the Court’s order

denying leave to amend and dismissing the case without prejudice is, to state the obvious, a final

order. Parker v. John Moriarty & Assocs., 

 (D.D.C. 2016). The Court would

be entitled to stop here, because Plaintiff relies exclusively on Rule 54(b) in the pending Motion.



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Although Plaintiff might have intended to move under Rules 59(e) or 60(b), which apply to final

orders, it is not for the Court to propose arguments for represented parties. See Johnson v.

Panetta, 

 (D.D.C. 2013). Reliance on Rule 59(e) fails, too, because the

Motion was filed “later than 28 days after the entry” of the final order at issue. See Truthout v.

Dep’t of Just., 

 (D.D.C. 2013) (court may not consider untimely Rule 59(e)

motion). Only a Rule 60(b) motion would be timely, and, again, Plaintiff did not file a motion

relying on Rule 60(b). Nevertheless, for the sake of completeness, the Court will further explain

why the Motion fails under Rule 60(b) as well.

       As noted above, the Court may grant relief from a final order due to “mistake,

inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). In an intervening case,

the Supreme Court has overruled the precedent of this Circuit to hold that any legal error,

including those that are not “obvious” or “manifestly erroneous,” may constitute “mistake” for

the purposes of Rule 60(b). Kemp v. United States, 

 (2022). Kemp appears

to hold in place, however, the general rule of this jurisdiction that motions for reconsideration are

still “disfavored” and granting them should be “unusual.” Walsh v. Hagee, 

(D.D.C. 2013). Regardless, the Court sees no legal error in its last memorandum opinion.

       First, Plaintiff argues that the Court should have found that Plaintiff’s neglect of the

deadline to move for leave to file an amended complaint was “excusable” within the meaning of

Fed. R. Civ. P. 6(b)(1)(B). To file a motion out of time, a Plaintiff must show “excusable

neglect.” 

 “Four factors guide the Court’s determination of when a late filing may constitute

‘excusable neglect:’ ‘(1) the danger of prejudice to the opposing party, (2) the length of delay and

its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was

within the reasonable control of the movant, and (4) whether the movant acted in good faith.’”



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Miley v. Hard Rock Hotel & Casino Punta Cana, 

, 4 (D.D.C. 2021) (cleaned

up) (quoting In re Vitamins Antitrust Class Actions, 

 (D.C. Cir. 2003)).

Plaintiff appears to be under the mistaken impression that the Court agreed that Plaintiff satisfied

each factor. Not so. Without proceeding to a factor-by-factor analysis, the Court held that sheer

inattention to a deadline does not qualify as “excusable neglect” without something more.

Woods, 

,

       The Court relied mainly on Plaintiff’s mistakes because “fault[] is ‘perhaps the most

important single factor.’” Jarvis v. Parker, 

 (D.D.C. 2014) (quoting Inst.

for Policy Studs. V. USCIA, 

 (D.D.C. 2007)). As the Court explained in its

last opinion, counsel for Plaintiff vaguely asserts that “the uncertainty and chaos caused by the

ongoing pandemic” caused him to misfile the amended complaint without the motion for leave to

file the amended complaint. The fact that Plaintiff made a timely filing shows that the

“uncertainty and chaos” did not stop him from complying with the deadline. The degree of

counsel’s inattentiveness is particularly severe, particularly given that “attorneys ‘have a

professional obligation to be’ knowledgeable about ‘procedural rules,’ which ‘are the tools of the

trade.’” See Morrissey v. Mayorkas, 

 (D.C. Cir. 2021) (quoting Ctr. for

Nuclear Resp., Inc. v. U.S. Nuclear Regul. Comm’n, 

 (D.C. Cir. 1986)). Put

differently, because “[i]gnorance of the rules does not qualify as excusable neglect,” Plaintiff did

not carry his burden here. See 

       Second, Plaintiff insists that his proposed claim of civil conspiracy related back to his

initial complaint. As the Court explained, to permit Plaintiff to add this new claim, it must

“ar[i]se out of the [same] conduct, transaction, or occurrence set out––or attempted to be set out–

–in the original pleading.” 

 (c)(1)(B). Yet the claim, which is predicated on an alleged,



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subsequent coverup, cannot relate back because it is “new claim based on a different set of

facts.” La. Wholesale Drug Co., Inc. v. Biovail Corp., 

 (D.D.C. 2006)

(internal quotation marks omitted). Indeed, the main case on which Plaintiff relies in his Motion,

Meijer, Inc. v. Biovail Corp., 

 (D.C. Cir. 2008) in fact stands for the general

proposition that a conspiracy claim predicated in distinct conduct does not relate back to a

complaint’s earlier tort claims. 

. As such, Plaintiff identifies no legal error meriting

reconsideration of the Court’s conclusion that Rule 15(c) forecloses a civil-conspiracy claim at

this stage of litigation.

        Third, Plaintiff argues that the Court erred by concluding that Plaintiff’s proposed

substitute defendant did not have constructive notice of the initial complaint. As the Court

explained, to permit a substitute defendant, the plaintiff must demonstrate that the defendant

“received such notice of the action that [he] will not be prejudiced in defending on the merits[]

and knew or should have known that the action would have been brought against [him], but for a

mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C). Notice may be

“actual,” i.e., evidence that the putative defendant knew of the suit within the time for service of

the original complaint, or “constructive,” i.e., evidence that the putative defendant should have

known based on his relationship to the present defendant. See Page v. Pension Ben. Guar. Corp.,

 (D.D.C. 1990).

        As to actual notice, Plaintiff insists for the first time that the Court should have permitted

discovery on the question. Plaintiff misconstrues his burden. To merit amendment, it is

Plaintiff’s burden to show actual notice, not merely to show some possibility of actual notice.

See Jackson v. Starbucks Corp., Civ. A. No. 19-1487 (RC), 

, at *6 (D.D.C.

Apr. 8, 2021). Plaintiff offers no more than speculation. That will not do. See Frett v. Howard



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Univ., 

 (D.D.C. 2014) (plaintiff must demonstrate “facts regarding when,

where, or how” proposed defendants received actual notice).

         As to constructive notice, Plaintiff must show that the new defendant “should have

known” about this action during the time of service. Fed. R. Civ. P. 15(c)(1)(C). This may be

demonstrated through “identity in interest” or “shared representation.” See Bayatfshar v.

Aeronautical Radio, Inc., 

 (D.D.C. 2013). The former generally arises

in the corporate context, where notice to one defendant is notice to the putative other. See 

The other, which the Court found more applicable here, arises where the present and putative

defendant share counsel during the time of service. See e.g., Blaskiewics v. Cty. of Suffolk, 

 (E.D.N.Y. 1998); Smith v. City of Philadelphia, 

 (E.D. Pa.

2005).

         Plaintiff argues for the first time that the putative defendant did have some “identity in

interest” with Officer Leo. Plaintiff identifies no authority applying this theory outside of the

corporate context, and the Court is unaware of any. Cf. Newman v. Amazon.com, Inc., Civ. A.

No. 21-0531 (DLF), 

, at *9 (D.D.C. Mar. 31, 2022) (“As simply an employee of

Amazon at the time, he did not have an ‘identity of interest’ with the company.”). As for “shared

representation,” the Court concluded that, at a minimum, the putative defendant must have

shared legal representation during the time of service. See Smith, 

.

Plaintiff offers no reason to revisit this holding beyond a block quote to an unpublished case

outside of this jurisdiction. Because Officer Rosario left MPD in 2018, Defs.’ Mot. at 6, he was

not represented by the same counsel at such a time. As such, Plaintiff cannot demonstrate that

the putative defendant received any notice, actual or constructive, of this matter during the time

of service.



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                                    IV.     CONCLUSION

       In addition to the Motion’s procedural infirmities, the Motion offers no reason for the

Court to revisit its legal analysis in its March 21, 2022 memorandum opinion. Therefore, the

Court DENIES Plaintiff’s [30] Motion for Reconsideration. An appropriate order accompanies

this Memorandum Opinion.


Dated: December 29, 2022                               /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    United States District Judge




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