United States District Court, D. Maryland
MEMORANDUM AND ORDER
STEPHANIE A. GALLAGHER, UNITED STATES MAGISTRATE JUDGE
Daniel Hodges brought this civil action against several
Maryland-based municipal and law enforcement entities and
employees alleging violation of his First, Fourth, and Sixth
Amendment rights under the United States Constitution, as
enforced under the Civil Rights Act, 42 U.S.C. § 1983,
as well as Articles 22, 24, and 26 of the Maryland
Declaration of Rights. See Pl.'s First Am.
Compl., [ECF No. 28]. Mr. Hodges also asserts that the
defendants violated the Fair Housing Act, 42 U.S.C. §
3601, et seq. Id. Now pending is Mr.
Hodges's Motion for Leave to File Third Amended Complaint
(“Motion to Amend”), [ECF No. 74], and Defendant
Anne Arundel County Police Department Corporal Jeffery
Rothenbecker's”) Opposition thereto, [ECF No. 76].
No hearing is necessary. See Loc. R. 105.6 (D. Md.
2016). For the reasons set forth herein, Mr. Hodges's
Motion to Amend will be DENIED.
Hodges originally initiated this suit against the Mayor and
City Council of Annapolis, Maryland, Annapolis Police
Department (“APD”) Chief Michael Pristoop, APD
Officer Gregory Fabela, APD Officer Alfred Thomas, APD
Officer Andrew Ascione, and unknown officers of the APD.
See [ECF No. 1]. The underlying factual allegations
revolve around a series of traffic stops. In his First
Amended Complaint, Mr. Hodges added unknown officers of the
Anne Arundel County Police Department (“AACPD”),
the Anne Arundel County Council, and AACPD Chief Timothy
Altomare (“Chief Altomare”) as defendants.
See [ECF No. 28]. In an August 3, 2016 Memorandum
Opinion (“Memorandum Opinion”), I dismissed all
claims against Anne Arundel County Council and Chief
Altomare. See [ECF No. 42]. Following that
dismissal, on August 17, 2016, Mr. Hodges was granted leave
to file a Second Amended Complaint by consent, which joined
APD Officer Gwynne Tavel and Defendant Rothenbecker, and
eliminated all unknown defendant officers. See [ECF
No. 46]. On the basis of “new information gleaned
through discovery and through the expert report [of Steven D.
Nicely, ]” Mr. Hodges now seeks to amend his complaint
a third time in order to rejoin unknown officers of the APD,
unknown officers of the AACPD, “Anne Arundel County
Council a/k/a Anne Arundel County Government, ” and
Chief Altomare. Pl.'s Mot., [ECF No. 74, 1 & Ex. 1].
In addition, Mr. Hodges raises new factual allegations
regarding “poor training and supervision” by Anne
Arundel County and Chief Altomare over the K-9 unit
involved in one of the traffic stops. Id. Defendant
Rothenbecker objects to the Third Amended Complaint, citing
prejudice and futility. See Def.'s Opp., [ECF
STANDARD OF REVIEW
Rule of Civil Procedure 15 provides that a party seeking to
amend its pleading after twenty-one days following service
may do so “only with the opposing party's written
consent or the court's leave.” Fed.R.Civ.P.
15(a)(1)(B). Furthermore, the Rule requires courts to
“freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2). The Fourth Circuit has liberally
construed this standard, such that leave to amend should be
denied only if prejudice, bad faith, or futility is present.
See Johnson v. Oroweat Foods Co., 785 F.2d 503, 509
(4th Cir. 1986) (interpreting Foman v. Davis, 371
U.S. 178 (1962)); Hart v. Hanover Cnty. Sch. Bd.,
495 F. App'x 314, 315 (4th Cir. 2012).
“[u]nder Rule 15(a), the district court has
‘broad discretion concerning motions to amend
pleadings[.]' … A district court may deny a motion
to amend for reasons ‘such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment or futility of the amendment.'”
Griaznov v. J-K Technologies, LLC, 2017 WL 915000 at
*3 (D. Md. Mar. 8, 2017) (citing Booth v. Maryland,
337 Fed. App'x 301, 312 (4th Cir. 2009) (per curiam)
(quoting Foman, 371 U.S. at 182)).
Hodges argues that his Motion to Amend timely follows the
acquisition of “new information gleaned through
discovery and through [Mr. Nicely's] expert
report[.]” Pl.'s Mot., [ECF No. 74, 1]. According
to Mr. Hodges, defendants will not be prejudiced by the
proposed addition of Anne Arundel County and Chief Altomare
because “there has been an attorney directly employed
by Anne Arundel County involved in this case [since Mr.
Hodges first added Anne Arundel County Council as a defendant
in August 2016;] and the County has participated in discovery
all along during the representation of [Defendant]
Rothenbecker[;] … [and] [t]here is a near or total
identity (sic) of interest between [Defendant]
Rothenbecker and Anne Arundel County in this case.”
Id. at 2-3. See [ECF No. 28]. Consequently,
Mr. Hodges avers that the discovery issues raised by the
Motion to Amend are limited to the “negligent or
deliberately indifferent training and supervision”
claim against Anne Arundel County and expert depositions.
Id. at 2-3.
Rothenbecker objects that Mr. Hodges's Motion to Amend is
prejudicial in its untimeliness - “filed exactly 100
days after the deadline the Court provided in its
order” and without adequate explanation for the delay.
Def.'s Opp., [ECF No. 76, 2]. Defendant Rothenbecker
notes that discovery is now closed,  and blames Mr. Hodges's
dilatory approach to discovery, including delay in generating
the expert report upon which the Motion to Amend rests, for
the very tardiness Mr. Hodges now asks the Court to excuse in
order to grant the subject Motion. Id. at 3.
Moreover, Defendant Rothenbecker contends that permitting Mr.
Hodges to rejoin Anne Arundel County Council and AACPD Chief
Timothy Altomare “and include a totally different cause
of action at this point is beyond prejudicial particularly
when [these parties] were [previously] dismissed at the
inception of this action.” Id. Defendant
Rothenbecker further insists that, “contrary to [Mr.
Hodges's] contention, the mere representation of one
party by the undersigned does not justify the assumption that
any further party or other theory of recover (sic)
can be added without prejudice.” Id.
Hodges's Motion to Amend is undeniably untimely, coming
seven months after the proposed defendants were dismissed
from litigation, well beyond the deadline for amendment set
in the scheduling order, and near the close of discovery.
See [ECF Nos. 58, 68]. That the Motion's
tardiness is largely, if not wholly, a product of Mr.
Hodges's earlier failure to abide by the Rule 26(a)(2)
disclosure deadline makes this conduct worse. See
[ECF No. 68]. However, “[t]he Fourth Circuit has held
… that delay alone is not sufficient reason to deny
leave to amend. The delay must be accompanied by prejudice,
bad faith, or futility.” Johnson, 785 F.2d at
509-10 (citations omitted); Edwards v. City of
Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (same).
there are several ways Defendant Rothenbecker would be
prejudiced if the Motion to Amend is granted. First, Mr.
Hodges seeks to introduce a new legal theory which requires
gathering and analyzing facts relating to the training and
supervision of AACPD K-9 units generally, and the team
comprised of Defendant Rothenbecker and “Rocky”
the dog (“Rocky”) in particular. However, the
fact that Defendant Rothenbecker and his co-defendants are
custodians of the relevant documents and information relating
to this issue, and that the claim is not being raised on the
eve of or during trial, mitigates the amendment's
prejudicial impact. See Johnson, 785 F.2d at 510
(“[P]rejudice can result where a proposed amendment
raises a new legal theory that would require the gathering
and analysis of facts not already considered by the opposing
party [and] … the amendment is offered shortly before
or during trial.”) (citations omitted). Second, as
discovery is now closed, the timing of Mr. Hodges's
Motion deprives Defendant Rothenbecker and proposed
defendants of the opportunity to properly question Mr. Nicely
about his statements regarding the allegedly poor training
and supervision of the subject K-9 unit. Redeposing Mr.
Nicely would be both financially burdensome and unauthorized
by the court's scheduling order. Third, given that the
parties' motions for summary judgment have been filed,
see [ECF Nos. 77, 78, 79], and will soon be ripe for
review, granting Mr. Hodges's Motion to Amend would
obligate the parties to re-brief their motions for summary
judgment and would delay progress in this case. Lastly, I am
not persuaded that involvement of an Anne Arundel County Law
Office Attorney since the time of Mr. Hodges's First
Amended Complaint ...