United States District Court, W.D. Arkansas, Hot Springs Division
ORDER
Susan
O. Hickey, United States District Judge.
Before
the Court is a Report and Recommendation filed November 7,
2018, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. ECF
No. 32. Plaintiffs have filed timely objections. The Court
finds this matter ripe for consideration.
BACKGROUND
In the
instant Report and Recommendation, Judge Bryant recommends
that Plaintiffs' Motion for Supplemental Pleading, in
which Plaintiffs move for leave to file a supplemental
pleading, be denied. Specifically, Judge Bryant finds that
Plaintiffs wish to add Defendants' former attorney John
L. Wilkerson and the Arkansas Municipal League
(“ARML”) as defendants, but that Plaintiffs have
provided no basis for such action. Accordingly, Judge Bryant
concludes that leave to file a supplemental pleading is not
warranted under Federal Rule of Civil Procedure 15(d). As
noted above, Plaintiffs have filed timely objections.
DISCUSSION
In
their initial Motion for Supplemental Pleadings, Plaintiffs
moved pursuant to Federal Rule of Civil Procedure 15(d).
See ECF No. 18. Rule 15(d) provides, in relevant
part, that: “[o]n motion and reasonable notice, the
court may, on just terms, permit a party to serve a
supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the
pleading to be supplemented.” “Rule 15(d) is
intended to give the Court broad discretion in allowing a
supplemental pleading.” See Rule 15 Advisory
Committee Notes, 1963 Amendment. “An application for
leave to file a supplemental pleading is addressed to the
discretion of the court and should be freely granted when
doing so will promote the economic and speedy disposition of
the entire controversy between the parties, will not cause
undue delay or trial inconvenience, and will not prejudice
the rights of any of the other parties to the action.”
6A Charles Alan Wright et al., Federal Practice and Procedure
Civil § 1504 (3d. ed. Sept. 2018 update). However, a
court may deny leave to file supplemental pleadings where the
new claim or defense asserted in the supplemental pleading
bears “little or no relationship to the original
pleading” or “[i]f the moving party is guilty of
inexcusable delay or laches.” Id. at §
1510. Likewise, a reviewing court may consider whether the
motion was filed in bad faith or with dilatory motive or
whether the supplemental pleading would be futile. See
Riggs v. City of Owensville, 2011 WL 1576723, at *2
(E.D. Mo. Apr. 26, 2011).
Upon
review of Plaintiffs' objections and all relevant
filings, the Court notes that Plaintiffs desire to file a
supplemental pleading to (1) add John L.
Wilkerson[1] and the ARML as defendants and (2) add
additional claims concerning the constitutionality of the
Municipal Legal Defense Program (“Defense
Program”) provided by the ARML and/or the statutes on
which the Defense Program is based. Plaintiffs' basis for
adding these additional defendants and pursuing additional
claims is based on their reading of the terms of the Defense
Program, “a self-funded risk management trust designed
to benefit” the local-government members of the Defense
Program. ECF No. 35-1, p. 1. The Defense Program states, in
relevant part, that it provides “extraordinary legal
defense and extraordinary expenses in ‘suits against
municipal officials and employees' and ‘civil
rights suits against the municipal government' or a
participating municipality and pay extraordinary judgements .
. . imposed on ‘municipal officials and
employees” and the ‘municipal
government[.]'” ECF No. 35-1, ¶ 1. However,
Plaintiffs note that the Defense Program limits this coverage
in certain circumstances, as the Defense Program states that
“[t]he words ‘suits against municipal officials
and employees or the municipal government” shall not
include . . . claims filed by or on behalf of any other
municipal official or, in the case of suits against the
municipality, claims filed by or on behalf of any municipal
official or employee of the municipal government[.]”
ECF No. 35-1, ¶ 5(c), § 1.
Here,
Plaintiffs contend that Plaintiff Dan Bugg “is a
municipal official that is suing three other municipal
officials as well as the municipality . . . which
employed” Plaintiff Dan Bugg and the defendant
municipal employees. ECF No. 35, p. 6. Accordingly,
Plaintiffs assert that the present case falls under the
exceptions outlined in the Defense Program and, therefore,
Mr. Wilkerson and the ARML have “acted without lawful
authority” in representing Defendants. However,
notwithstanding Plaintiffs' contention otherwise, the
face of their Complaint clearly alleges that Plaintiff Dan
Bugg was not an employee or official of the City of Hot
Springs at the time the Complaint was filed. See ECF
No. 1, ¶ 11 (“Dan had an employment
relationship with [the City of Hot Springs] from 1999 until
2018 when his employment relationship was unlawfully
discontinued at no fault of his own.” (emphasis
added)). Thus, it is evident that Plaintiff Dan Bugg-as of
the date the present case was filed-was a former
employee/municipal official employed by the City of Hot
Springs. The above-discussed exceptions do not appear to
apply to former employees and officials.[2] Furthermore, to
the extent Plaintiffs' position is that Plaintiff Dan
Bugg was a municipal employee or official at the time the
case was filed because he was illegally terminated, the Court
finds that argument unpersuasive. Therefore, upon
consideration, the Court finds that allowing Plaintiffs to
file the proposed supplemental pleading would be futile, as
their present stated position is undermined by their initial
Complaint.
Furthermore,
the Court notes that the proposed supplemental pleading has
no relationship to the original pleading. Plaintiffs'
initial pleading asserts various causes of action related to
the allegedly wrongful termination of Plaintiff Dan Bugg,
allegedly unlawful exercise of authority by Defendant
Stachey, and allegedly unlawful “organizational
structure” of the City of Hot Springs. In their
objections to the present Report and Recommendation,
Plaintiffs assert that the “core issue in [their]
[original pleading] is that the [original defendants]
exceeded their [m]unicipal powers; i.e. they acted
without legal authority resulting in Plaintiffs'
financial injury.” ECF No. 35, p. 2 (emphasis in
original). Plaintiffs, likewise, now argue that
“[b]ecause original defendants acted without lawful
authority, then supplemental defendants' actions without
lawful authority is a continuation of original
defendants' actions without lawful authority”
“because [the City of Hot Springs] is a member of the
ARML association, and thus subject [to] the defense-program
exceptions.” Id. at 3. The Court finds this
line of argument unconvincing. Mr. Wilkerson and the ARML
played no role in the allegedly wrongful actions that gave
rise to this lawsuit and the claim that they have allegedly
acted without legal authority pursuant to the exceptions to
the Defense Program in defending Defendants-a dubious
argument, as shown above-is unrelated to the allegations of
Plaintiffs' Complaint. Accordingly, the instant motion
should, likewise, be denied on this ground.
Furthermore,
the Court believes that granting leave to file the proposed
supplemental pleading would not promote the economic and
speedy disposition of the present controversy. As noted
above, one reason Plaintiffs wish to file a supplemental
pleading is to challenge the constitutionality of the Defense
Program and/or the state statutes that underlie the Defense
Program. Plaintiffs appear to contend that the Defense
Program was established pursuant to Arkansas Code Annotated
§§ 14-54-101 and 16-22-211. Upon review of the
proposed supplemental pleading, the Court is unsure whether
Plaintiffs intend to challenge the constitutionality of the
aforementioned Arkansas statutes, to assert that the Defense
Program itself is unconstitutional, or both. In the event
Plaintiffs mean to challenge a state statute, it appears that
the Court would be required to certify to the state attorney
general that the constitutionality of a state statute was
being challenged. See Fed. R. Civ. P. 5.1(b). The
attorney general would, likewise, have sixty days to
intervene. This process, along with the attendant
determination of the constitutionality of the underlying
statutes and/or the Defense Program would, in turn, cause a
significant delay in the proceedings which, as stated above,
are unrelated to these issues. Accordingly, the Court finds
that the instant motion should, likewise, be denied on this
ground.
Therefore,
for the above-discussed reasons, the Court finds that
Plaintiffs' Motion for Supplemental Pleading should be
denied.
CONCLUSION
For the
foregoing reasons and upon de novo review of the
Report and Recommendation, the Court ADOPTS
the instant Report and Recommendation (ECF No. 32) insofar as
it recommends that Plaintiffs' Motion for Supplemental
Pleading be denied. Accordingly, Plaintiffs' Motion for
Supplemental Pleading (ECF No. 18) should be and hereby is
DENIED.
IT
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