District of Columbia v. Tinker

SCHWELB, Before TERRY and Associate BELSON, Judges, Judge. Senior TERRY, Judge: Associate Appellee Tinker sued the District of Co- injuries allegedly lumbia for suffered in the course of an A him arrest. awarded $500,000 in damages. During pre-trial phase of the the trial court denied the District of Columbia’s motion for leave to by asserting amend its answer the statute of defense, limitations as a and denied the Dis- summary judgment trict’s motion for based appeal on the statute of limitations. On from judgment, the final the District contends pre-trial rulings these were erroneous. We agree, judgment, reverse the and remand for proceedings further as outlined IV of opinion. underlying A. Facts Tinker’s claim following statement of facts based trial, testimony on the viewed in the appears most favorable to Tinker. It jury substantially accept- the verdict that the happened. ed Tinker’s version of what 10, 1988, evening September On the Tinker, mechanic, Joseph an automobile Street, S.E., walking from his home on Yuma Street, way toward Ninth on his to a conve- nience store. He had left his house without a wallet In his back or identification. pocket carrying Tinker was a knife with stripping four-inch blade which he used for that he was viola- Board had wires in the course of his work. walk- information While Street, ing stopped Tinker re-arrested on along parole. Yuma tion of his He was picked toy gun lying up plastic which was September and returned Lorton ground. robbery complete of his the remainder July Tinker was sentence. On Street, crossing Ninth After Tinker heard house, halfway Sep- and on transferred ato people running the sound of and brakes 28, 1990, again released on tember he was squealing, and then he heard order someone parole. around, him Turning halt. he hit and was by Metropolitan a Police offi- knocked down 19, 1991, a July Tinker filed three- On lay ground, cer. As he the officer against civil Co- count action pistol him with his service hit threatened and lumbia, injuries for the he seeking redress nightstick. him with his officer then result allegedly had suffered as a of his pulled began to his feet and Tinker to search 10, August September arrest on 1988.2 On discovering Upon him. in his back knife denying 23 the District filed its answer pocket, again shoved the officer Tinker to the in allegations complaint. substantive him, ground, pulled handcuffed him once 24, 1992, later, January Five on months feet, again placed to his him under ar- stating that “the filed a events, rest. In the course of these Tinker’s within issue of excessive force is one the ken right seriously in- shoulder and wrist were presented through and will not be jured. by expert testimony either or custody, Once in Tinker was taken to the the defendant.” police being Seventh District station. While 1992, April the District filed mo- On a there, processed complained injuries he of his by adding tion for its answer leave to amend was taken District Columbia Gener- by was a claim that the assault count barred al Hospital, where he later underwent exten- In a the statute of limitations. memorandum right sive surgery on his He shoulder. motion, support in filed of this District stayed hospital, in the and then in infir- (1) stated the initial omission of the mary jail, for about a month. in its statute of limitations defense answer (2) inadvertent, that relevant case law B. Facts relevant statute freely “provides to amend shall be limitations issue that leave (3) given,” and Tinker would “no suffer Upon hospital, his release from the Tinker timing attributable charged possession of prohibited a later, A request for few weeks amendment.” weapon, namely, the knife that he had been May a District filed motion for carrying pocket. pleaded guilty in his He claim, summary judgment on the assault ar- this charge on December at a by guing that the statute of it was barred later was sentenced date he to serve nine motions, opposed limitations. Tinker both prison.1 months in in a them both nine- court denied entirely For reasons not clear from the page order. record, mistakenly Tinker was released from tried Some later the case was before Reformatory August time Lorton 1989. $500,000 thereafter, however, jury, Tinker in which awarded Soon the District of Co- judg- damages. moved for issued a The District lumbia Board Parole warrant for verdict, arrest, notwithstanding the which the stating parole his that he was on from ment robbery appeal This followed. earlier sentence for and that the denied. sentencing alleged 1. course of The third count The date Tinker’s is not disclosed the arrest. by employees malpractice record. while medical Hospital and in Tinker was at D.C. General later complaint alleged of Tinker’s The first count Reformatory. By the D.C. at Lorton Jail and police effecting negligence in his arrest trial, the first and third time case went personnel other District of Columbia dismissed; only had the assault and counts been training, supervising arresting hiring, battery case. count remained in the alleged The second count "assault and officers. battery police force" —excessive II must this court determine whether that deni- al Eagle was an abuse of discretion. the District’s motion for leave Co., Liquor Silverberg & Electric Wine Co. by adding to amend its answer (D.C.1979), although 402 A.2d 31 we said defense, gave limitations the trial court three motions for leave to amend are not to be First, reasons. the court ruled that because granted automatically, discretion ac- “[t]he already completed, Tink- been deciding corded the trial court a motion substantially prejudiced er would be if the for leave to amend is to be considered to- District were allowed to amend its answer. gether spirit prevailing with the of liberalism Second, the court concluded that the Dis- allowing justice such amendments when approximately eight trict’s months (citations will be served.” Id. at 34 omit- so “inexcusable,” asserting this defense was ted). since experienced trying the District was many nature, cases of a similar general principles, Guided these we availability of a of statute limitations defense ruling consider the trial on the court’s Dis- recognized should have been much earlier. trict’s motion to amend its answer. Third, the court held that the had District January parties 1992both filed with “impliedly [by taking] waived this defense stipulation trial court a written said: which step joining plain- the affirmative with the stipulated agreed It is that at the filing stipulation” tiff in a expert wit- captioned trial of the above case the issue testify nesses need not be called to on the of excessive force is within one the ken stipula- issue excessive force. Because the presented through and will not be “speaks directly parties tion how will expert testimony by plaintiff proceed either the or complaint,” on this count in the said, surely the defendant. The lack of such “the District was on notice testimony grounds at trial will result in no allegation” of the details of the and should sequence being requested have for a directed verdict or “realized the time of all events involving granted by filing the assault and the of this either the or the de- appeal lawsuit.” On the District contends fendant on that issue.

that the trial court’s denial of its motion was later, Almost three months filed an abuse of discretion. the motion for leave to amend its answer adding a statute of limitations defense. 8(c) Super.Ct.Civ.R. states order, subsequent its the trial court held statute of limitations is a defense which must that, by agreeing stipulation, the Dis- affirmatively by be raised a in a defendant trict had addressed the merits of the case to responsive pleading. pleaded prompt If not “utterly such extent that there was no ly, may this defense be deemed waived way” for District to account for its failure Washington the trial court. v. Whitener to realize that a statute of limitations defense Metropolitan Authority, Area Transit might Calling major be available. this “a On the other District,” 8(f) hand, lapse the court pleadings Rule mandates that lapse found the “inexcusable” denied the justice,” construed so as do “substantial motion. consistently interpreted and has been to re preference “a disputes flect for resolution of parties’ The court’s reliance on the merits, plead not on technicalities of was, ruling stipulation as a basis for its in our (citation omitted). ing.” Additionally, Id. view, an abuse of the discretion vested it 15(a), Rule 8 must be read in Rule 15(a). This court has held that Rule provides

which their amend prejudice opposing unless there is pleadings respon of court after a leave procedure party, the rules of cannot bar a filed, pleading is and that such sive leave raising the defense of the defendant freely given justice re “shall be when so filing of limitations even after the statute quires.” WMATA, supra, its answer. Whitener present reviewing a trial court order 505 A.2d at 460. In the there When fore, properly deny denying party pleading, to amend a the trial court could not leave (or had incurred par- simply motion because the whether incur) expense as a re- litigation about ex- undue ties had entered into plead the nothing in failure to pert testimony. There was sult of the defendant’s A.2d at suggest limitations earlier. See 505 stipulation to that the District statute of here, right de- it could its to raise the affirmative Had the court done so waived enough prejudice of the statute of limitations. Thus substantial fense have found showing incumbent on Tinker to make a motion to justify of the District’s denial resulting fail- from the District’s amend. earlier; such ure to raise the defense without of limitations The defense of the statute showing, leave to amend face of Tink- readily apparent from the granted. have been should alleged complaint, which stated er’s court stated in its order that The trial one-year tort with a intentional assault—an Dis significant reason for one Septem- of limitations—occurred length trict’s motion was that “the years he almost three before ber asserting limitations] the statute of [in Tinker must have known filed suit. Thus inexcusable, truly particularly since the Dis proceeding, at that he was from the start defending is accustomed to trict of Columbia count, in the face of a least on the assault cases, by per large numbers of similar filed peril, and the District’s procedural known years imprisoned are for several sons who not bringing up matter did lateness frequently pursue and who do not their cases effectively con- change that fact. Tinker delay But while incarcerated.” whether opposition Dis- point in his ceded this really was excusable or inexcusable is beside summary judgment: trict’s motion for point; only here is whether the issue plaintiffs complaint it Certainly, from the delay opposing prejudice resulted in than one patently obvious that more was party. “[D]elay—even lengthy delay—by it year expired from the assault usually provide ground self will not sufficient September battery upon him on committed amendment_' Re for refusal to allow an filing of his civil action on and the grounds grant fusals to amendments on the 19, 1991. June ‘delay properly or alone ‘lateness’ agree with the comment Thus we supra, Eagle Liquor, reversed.” & Wine (citation omitted). Tinker “cannot claim that District’s brief that Thus the trial by unfairly surprised the District’s he was delay court’s reliance the District’s assertion of the defense.”3 only if be warranted that had caused substantial to Tinker. We con of Tinker’s case is the the heart At that it clude did not. suffered sub that he would have assertion been prejudice if the motion had Tinker The trial court reasoned that stantial his claims granted because he withdrew prejudice if the Dis would suffer substantial supervision, as hiring, training, and negligent trict to amend its answer be were allowed complaint, “because gone through alleged in Count of parties cause have “[a]ll lay issue stipulation to the expense of the defendant’s period. entire Time and words, Tinker In other by plaintiff.” The of excessive force.” been committed [have] stipulation, he saying that because inquiry should have been more nar court’s Whitener, only have been the re rowly example, dropped we what would focused. In for ease, namely, in his his maining viable claim factors as whether the stat considered such against District. As negligence readily appar claim of of limitations defense “was ute out, however, first and points complaint,” the face of the whether ent from complaint were not with “forego other third counts had elected to months until several drawn Tinker [the in reliance on defen avenue of relief after statute,” District’s motion trial court denied the plead the failure to dant’s] claim on ently Tinker makes no did not address. have been additional ex- 3. Whether there would prejudiced appeal been that would have to amend he pense if the District’s motion to Tinker expenses. litigation having parties appar- to incur further granted were is an issue which amend, error, longer rarily stipulation prison and even after the released from testimony. sequence “legally about This “brief break” his incarceration was fatally only regarded nullity [and] events undermines Tinker’s col invalid should be significant prejudice. legal purposes.” for all ... orable claim of there- fore held that his erroneous release in Au- The fact that the entered into the gust 1989 not cause the statute to start did stipulation about excessive force—which was running, 12- and that under D.C.Code alleged only in the second count of the com 302(a) final, the statute was until his tolled plaint, ultimately the one which went to tri September lawful release in 1990—less than way prevented al 4—in no Tinker from inves year complaint. before he filed his We tigating, developing, ultimately litigating ruling hold that this was error and that the alleg the merits of the two additional counts began irrevocably rim when Tinker ing negligence malpractice and medical initially August was released personnel. of District it is While (or any plaintiff) understandable that Tinker merits, considering Before we might prefer litigate simple inexpen procedural point. Citing must address a theory liability sive rather than a more Morgan University, v. American one, complicated costly in choice (D.C.1987), argues 325-329 Tinker pled hered in the case as it the trial court’s denial of the District’s mo complaint. It was not created the Dis summary judgment may tion be re entering stipulation trict’s into a reasonable appeal judgment viewed on from the final expert testimony, about nor itwas the result after a full trial on the merits. Mor entered seeking plead of the District’s tardiness in hold, rule, gan general so as a but does the statute of limitations. When Tinker de Morgan recognizes “any legal rul also go cided not to forward on the first and third ings summary made the trial court at counts of his after the affecting judgment judgment final can [the] agreed upon, with full he did so knowl appeal jury be an reviewed” after adverse edge of the District’s effort to assert (citation verdict. 534 A.2d at 327 and inter statute of limitations on the intentional tort added). omitted; punctuation emphasis nal event, any disposition claim. In that we here, principle applicable legal This is for the IV, infra, adequate order in him affords involving issue the statute of limitations was any arguable prejudice. relief from in no subsumed within the factual is sense hold that the trial court We therefore addition, presented jury. In we sues abused its discretion the District’s trial, during note that at the close motion to amend its answer. the District made a motion verdict, ground” for directed “the first III motion for which was renewal its earlier summary judgment. Although The trial court also the discus ruled alternative summary judg- mainly stipula oh the that the District’s motion for sion thereafter focused ment, limitations, complied based on the statute of tion and whether the District had it, must be denied on the merits. with we are satisfied that the renewal of D.C.Code 12-302(a) (1995) by way

§ provides, part, that if “a earlier motion of a motion for person preserve im- entitled to maintain an action” is directed verdict was sufficient review, prisoned right appellate Morgan at the time the of action ac- the issue (denial crues, “may bring itself teaches. id. at 327 of mo he or she action within the See verdict, disability incorporating is re- tion for directed time limited after i.e., motion, ap being grounds im- is “of course after released from of earlier moved”— (cita case, however, pealable prisonment. In the court after an adverse verdict” omitted)). tempo- tion We therefore hold that the ruled that because Tinker had been is, however, count, nothing alleging "negligence in the third counts. There The third —medical by personnel malpractice” malpractice D.C. purporting at the Jail count to base Tinker's Hospital, incorporates by reference D.C. General arresting force officer. claim excessive every allegation” "each and in the first two limitations, § 12- year statute of D.C.Code denial the District’s earlier motion “is 301(8). view, properly pursuant general Etheredge, before us in our does not judgment appeal argument.5 dispositive rule that from a final calls support Tinker’s The interlocutory question rulings into all of the Etheredge case here is not but Maddox Stein, leading up it.” Bano, Bulin v. 422 A.2d 763 (D.C.1995) (citation omitted). 810, 813 n. 6 Maddox, bar, as in the case at event, already we have held plaintiff alleged battery both assault deny- the trial court abused its discretion in effecting an negligence police officers ing the District’s motion to amend for leave one-year The statute of limitations arrest. necessary complaint. its The result of that battery run for assault and before holding judgment must be re- filed, three-year stat- but versed and the case remanded di- negligence ute for had not. We affirmed rections to allow amendment. Once District, summary judgment favor of the amended, complaint is be holding alleging that a claim excessive force summary entitled to renew its motion for only battery, negli- assault and involved limitations, judgment based statute of gence: motion, and that for the reasons we shall now explain, granted. would have Appellant’s complaint injury described consequence received as a of excessive applicable A The statute limitations alleged force to have been exercised Preliminarily, we must decide wheth dispute arresting officers. There is no subject er Tinker’s assault claim is to a one- intentional, physical contact was year three-year or a statute of limitations. intentional contact constitutes and such 12-301(4) § one-year D.C.Code sets a limit battery.... only tortious conduct plaintiff may on the time within which a file a clearly battery. pled is assault and battery. civil action for assault “carelessly negligently” terms are con- 12-301(8), hand, D.C.Code on the other assertions, elusory and without more the filing states that the time for suit based on a cognizable complaint does not raise a claim cause of action “for which a limitation is not Moreover, negligence.... the trial specifically prescribed,” in otherwise which by plaintiffs court was not bound charac- claims, negligence cludes most “is three of the action. terization years.” three-year applies If the (citations omitted). at 764-765 Id. here, prevail, the District cannot for it is undisputed complaint that Tinker’s was filed case, Maddox, present In as in the the years less than three after the date of his gravamen of the second count of Tinker’s injury. complaint was that the conduct of the arrest 10, 1988,

Tinker, citing Etheredge ing police September our decision in v. officer on (D.C. Columbia, battery. Through and 635 A.2d 908 amounted to assault of trial, 1993), testimony presented that claim of out the the of the witnesses contends he a only Tinker had suffered battery “assault and force” which concerned whether —excessive injuries deliberately inflicted negli any that were contained within elements of both result, maintains, gence At time did Tinker even and assault. As a he that officer. no negligence part particular subject attempt prove claim three- on this was legal justification.... negligence plaintiff Etheredge 5. been and without in shot (when seriously injured by police hinges Paige a officer in the course he shot claim on whether Tinker, of an arrest. Like he sued the District reasonably pru- Etheredge) failed to act as (2) (1) alleging negligence and both assault dent officer would have acted. Etheredge’s negligence battery. discussing (citations omitted). We held 918 claim, we said: go was that the evidence sufficient negligence The claims of and of assault and counts, made clear that the two both but we on battery, present while not con- identical distinct, though separate and even claims were text, question nevertheless related. The are “related,” sup- were and that the two counts battery respect is to the assault and claim ported by evidence. different Etheredge Paige initially shot whether Officer 64 dispute that the statute was employee.6 There is no

any police officer or other District 12-302(a)(3) Moreover, from the mo- make clear that “exces section our eases tolled September 10. denoting of art an act of Tinker’s arrest on sive force” is term ment of Columbia, battery law enforcement offi 569 assault or See Cannon v. District of (D.C.1990). 595, Finally, in of their duties. it is clear cials committed the course A.2d 596 States, 590, stops A.2d E.g., Allison v. 623 United that a release from incarceration (D.C.1993); v. District Co tolling running 594 Jackson of the stat- and re-starts (D.C.1980). 948, lumbia, 412 956 Noth A.2d Id. ute of limitations. an ing in the case law even hints at element case turns parties contend that this Both assault negligence, or a tort distinct from validity August pa 1989 of Tinker’s on the battery. District, calculating length role. The only tortious Thus we conclude statutorily man Tinker’s sentence alleged in the second count of the conduct credits, argues that this ini good-time dated proved by Tinker at trial was parole lawfully granted. Thus tial police. battery assault Tinker was le District concludes since subject It that his claim was follows limitations gitimately paroled, the statute of limitations, one-year statute of D.C.Code Tinker, 11, 1989. August on began to run on 12-301(4). (see hand, that his affidavit the other asserts 7, initial supra) that his note demonstrated tolled? B. Was the statute ruled, invalid, parole as the trial Thus we come to the central issue of limitations did and that the statute the statute of limitations this case: whether parole Septem begin to run until his valid separate throughout Tinker’s two was tolled conclusively does not ber 1990. The record incarceration, the toll periods of or whether parole August 1989 establish whether run, ended, began to ing and the statute invalid, conclude, for the but we was valid or prison, sup from Tinker was released when follow, validity vel reasons which parole, August posedly on parole of that is irrelevant. non Although parties disagree on the valid- release, tolling presented here agree, Although the issue ity they initial do of Tinker’s District of shows, impression of first was released is one and the record he Columbia, that an other courts have held prison August and re- incarceration, month, whether release from more than a until at inmate’s mained free for 15, irrevocably starts the statute § 12- valid or September invalid, 1989.7 D.C.Code least 302(a)(3) running as to cause of limitations tolls the statute of limitations when accruing of his or her at the time “imprisoned ... at the time the action plaintiff case, Moreover, crucially District of arrest. right action accrues.” if inmate is again not tolled Columbia, generally accrues the statute is a cause of action Newsome, 883 F.2d injury re-arrested. Burrell when the suffers —in Cahn, (5th Cir.1989);8 416, Kaiser v. September 1988. See present (2d Cir.1974);9 Stephens v. Jonz, F.2d Brown v. Etheredge, [under law] well settled Texas in 8. “It is case is different from 6. Thus this proof plaintiff presented period of to run immedi- the affirmative will commence which limitations i.e., by police, negligent impris- the “evidence of disability conduct ately upon the of the removal of applicable departures standard alleged from the prisoner from the is freed con- onment. When police, both before their care on the of the of finement, by illegal regardless it is an of whether entry and thereafter.” 635 into the Kerns home means, legitimate statute of a the means or A.2d at 918. begins it not tolled to run and is limitations Burrell, supra, subsequent imprisonment." record, Tinker, included in 7. An affidavit omitted). (citations 883 F.2d at 420 15, September on states that he was re-arrested (which in his re-arrest is also but the warrant for have construed toll- 9. “The New York courts record) October 25. Neither was issued on tacking prohibiting disabili- ing of statute as discrepancy, case, apparent party this has addressed released, prisoner the benefit of is ties. Once disposition it need but in of our tolling later is lost forever. A incar- statute not be resolved.

65 Curtis, 141, (S.D.Tex.1978); immediately Thus he was able F.Supp. 450 144 removed. District, Simpson Metropolitan against pursue v. D.C. Police his claim cf. (D.D.C.1992) 5, Department, F.Supp. 789 8 the law allowed him to do time within which continuously i.e., in- (allegation plaintiff began was the statute of so— limitations — District or federal au- carcerated either of release. Tinker run at the moment his possible none, case, thorities created issue of fact as to have found has cited no and we 12-302(a)(3), tolling under D.C.Code even was supporting argument his that the statute though initially arrest- ease for which he was upon his re-arrest five weeks tolled anew prosecution). for of ed was dismissed want Consequently, statute of limita- later. holding rationale for is set forth 1990, such 11, August almost a expired tions on Vidal, in cases such as Hamil v. 140 Ill. year before Tinker filed this suit June 201, 1024, App.3d 488 N.E.2d 94 Ill.Dec. 777 Newsome, supra, 883 1991. See Burrell v. (1985): cases). (citing F.2d 420 reading applicable A careful statute IV period is here reveals the limitations only period imprisonment tolled for that of appellate court reverses When occurs, during during which the [tort] erroneous, ruling trial court it deems which subsequent periods of incarceration. This the usual effect of the reversal is return prisoner is once a is reasonable because position they which were nothing prevents ... released ruling. situated at the time of the erroneous commencing his action at that time. Burden, 562, Hessey v. 569-570 See 615 204, 779, Id. at 94 Ill.Dec. at 488 N.E.2d at eases). (D.C.1992) case, (citing In this how 1026.10 ever, simple reversal will not achieve that

Further, goal. opposition In his to the District’s mo authority Tinker has cited no answer, support tion to amend its Tinker asked the whatever to his contention that be court, motion, invalid, granted him parole allegedly initial if it to “allow cause his time for additional and to name an the statute of limitations was tolled until his police practices procedures.” subsequent parole. lawful cases obviously making request, In Tinker was say nothing tolling which he relies about the looking possible to a trial on counts I They only of a ahead limitations. hold complaint. III his After the court prisoner mistakenly that a released from cus amend, tody, the District’s motion to how although allowed to count his on denied time ever, voluntarily Tinker dismissed those completion release toward the of his sen counts, tence, leaving only count II to be tried. pris must nonetheless be returned to particular of this we on to circumstances serve out the remainder of his sentence quo appropriate think it to restore the status when the mistake discovered. Leonard v. Rodda, ruling. 256, (1895); at the time of the erroneous App. 5 D.C. White v. Pearlman, (10th 788, Cir.1930); 42 F.2d Accordingly, we hold that the trial (Fla. State, Carson v. So.2d denying the District’s abused its discretion 1986); Cavelli, 919, 921, People v. 50 N.Y.2d by adding to amend its answer 409 N.E.2d 431 N.Y.S.2d limitations, and that defense of the statute (1980). help Those decisions do not us re legally on the merits the erred presented solve the issue here. motion, based on the statute of

Therefore, limitations, summary judgment count regardless validity addition, custody complaint. exercising Tinker’s initial release from in Au- II of the (1989) § 17-306 gust power the fact remains that at that our under D.C.Code circumstances,” “just in we disability imprisonment instant to do what is his 1025, Kaiser, at 94 Ill.Dec. at 778. Since the ceration will not retoll the statute.” su- N.E.2d (citations omitted). decided, pra, F.2d at 286 510 statute has Hamil case was the Illinois revisions, holding undergone of minor but the 10. is virtu- The Illinois statute involved Hamil unaffected. Hamil remains ally respects identical in all material to D.C.Code 202, 12-302(a). Ill.App.3d See 140 III, I and failure to and vacate the dismissal of counts officer’s “follow normal ac- counts, practices cepted police procedures.” those the case and reinstate and remand so trial court Tinker’s charged that the rule on The third count the District with judg- request discovery. negligence for additional The and medical care treat- reversed, ment is and the case is remanded ment afforded Tinker at D.C. General Hos- proceedings penal facility. for with this pital further consistent and at a opinion. 23, 1991, August 4. On filed an answer but overlooked part, part, and Reversed vacated in respect of the defense limitations with to remanded. count. the assault BELSON, concurring in Judge, Senior 1992, January 24, parties 5. On en- concurring in and the result: of tered a that “the issue exces- force is within the ken of the and sive join Judge Terry’s except opinion I for presented through expert will not be testi- portion for its which states the basis mony” party. either holding an to that was abuse of discretion1 13, 1992, deny April District of motion to Columbia’s 6. On filed a joint to to amend its answer include the defense motion extend the deadline for 15, 1992, appellee’s May statute of limitation to II of from March 27 to Count battery motions complaint: dispositive “assault and and the deadline for —excessive II, 29, 1992, May noting force.” As to Part I concur the result that those matters Judge Terry’s opinion, separate- accomplished but write could be before sched- 11,1992. ly controlling my appraisal mediation because uled date of June 17, promptly April granted considerations is different from motion was on somewhat Judge Terry’s. 1992. 13, 1992, April 7. Also on District discretion, Addressing the issue abuse of for filed a motion leave to file amended by setting I begin out the most relevant raising answer the defense limitations. procedural and facts:

historical opposed Plaintiff the motion. 10, 1988, September Metropolitan 1. On 31, 1992, May District 8. On filed a severely Police Officers beat Tinker (assault II motion dismiss Count injured carry- arresting him while him for force) or, battery alternatively, (knife dangerous with 4" ing weapon a —excessive partial summary judgment for as to that blade) (imitation) toy pistol. a count, based on limitations. 27,1989, February 2. On Tinker’s counsel 10, September 9. On the trial en- serving purpose a letter for the filed tered a memorandum order timely of Columbia notice of the its answer District’s to amend claim involved here. limitations, assert and at the same time years three 3. On June almost motion to denying on the dis- merits years incident and than two after the more judgment partial summary for miss or District, Tinker filed after his notice grounds. limitation complaint. count of his civil The second later, 15, days September complaint alleged police officer 10. A few that a 1992, pretrial through the court order him the use of excessive entered assaulted completed alleged allowing discovery to be Significantly, first count certain force. 30,1992, setting essentially negligence November 22, 1993. noted failing properly supervise its March The order train (negligent I proximately particular of- had withdrawn Count officers caused a etc.) training, September 1992. ficer’s use of “excessive force” imply Although agree that term does not ... reflection on the I there was an abuse discretion, Walker, emphasize point we have made judge.” 772 F.2d United States v. superfluous, perhaps (5th we Cir.1985) "While it in King v. before: (quoted n. 9 United note that discretion is nevertheless abuse of States, (D.C. 1988)). n. 3 really phrase is.... which sounds worse than it 27,1993, ruling filing to amend until the May through the case of the motion 11. On pre- Judge September At of the court on 10th. The was tried before Webber. trial, days Sep- later on plaintiff time of withdrew Count III trial order entered few treatment) 15, 1992, specified discovery (negligent preju- tember allowed medical and completed to be November dice. returned verdict $500,000 against trial for March 1993. For reasons amount of set (assault record, battery appear of the trial date Count II which do not —excessive force). year. May until late of that was deferred chronology procedural part and histori This of the demonstrates have set forth the plaintiff to ample cal in some detail because the trial that there was time for the facts discovery on I and Count III court’s exercise of discretion must be evalu conduct Count particular prior ated in of the context to the actual close of made, 30,1992. ruling pretrial and a A supplemental which it was like November necessarily very completed orderly reviewed here must fact- could have been fashion In trial original based. this case the court stated and the trial conducted within the important that three factors were to its exer Superior tight time schedule set “First,” or, trial court Court, cise discretion. trial in March as it which called for stated, prejudice to the out, “there indeed May turned of 1993. connection, plaintiff.” In this the trial court of time and ex- As for the commitment opinion in referred to our Whitener v. Wash pense by plaintiff, it is true that Auth., ington Metro. Area Transit ordinary parties completed most (D.C.1986) legal where we stated the discovery that would relate to the assault principle that is central to this of our count the time the District filed the mo- discussion, viz.: amend, although specific tion to some items ... “we hold that when there is no sub- crucially open. impor- left But what is were prejudice plaintiff, stantial a defen- count, negligence tant is that the which the by [Super.Ct.Civ.] not dant is barred Rule majority here does not hold to have been 8(e) raising the statute of limitations filed, time-barred when embraced within it motion, pre-trial though in a even the stat- allegation police that a officer had used ute [seven has not been raised months excessive force in the manner which he in the defendant’s answer to the before] plaintiff. plaintiffs allega- handled complaint.” Id. super- negligent hiring, training tions (indeed, permissible obligatory) naught It is have come to unless the vision would go plaintiff this court beneath the surface of the trial could establish that the manner particular police court’s conclusion of officer had treated examine which a Lynch, plaintiff its foundations. See Buder v. Merrill constituted excessive and unwarrant- Pierce, Smith, Inc., I, Fenner & 644 F.2d ed force. order establish Count (8th Cir.1981). trial have had to establish essen- The two bases the assigned support finding preju- tially required same facts to establish an its count, relating parties gone dice here were that “all and more —the “more” have assault through allegations inadequate hiring, train- discovery period,” the entire supervision. important expense ing, “time and has been committed It also by way discovery peri- plaintiff.” nothing new of a required by expense od or would have been discovery, chronology forth As for set granting motion to amend that was day above makes it clear that on the already contemplated by filed, 13,1992, April motion to amend was original complaint. jointly asked the court to extend dis- Buder, 15th, covery May request promptly supra, the United States Court Eighth reversed a granted by Appeals trial court. This meant as a of for the Circuit plaintiffs request for judge’s denial of a practical matter that five weeks were left complaint, brought two discovery at filed. leave to amend the the time the filing years original after the elapsed from the time of the and a half Five months so, requirement of of the case and the doing the court made stances complaint. 8(c) limi- that the defense of Super.Ct.Civ.R. of them is relevant here. One observations normal- delay affirmatively pleaded, is not a settled that alone tations be that it is well denying leave to amend.2 The trial court indicat- ly promptly. reason for raised sufficient appellate delay particularly court should Another is that ed that it deemed the generalized a trial court’s state- the District is accustomed look behind inexcusable since court, by it prejudice. large complaints The Buder when defending ment of numbers so, previously unassert- To the extent that prisoners. did observed that the incarcerated upon suggests facts that were District is to be held ed claim was based parties. pleading to all in this re- already higher known or available standard of to a I litigants generally, that to the extent cannot gard The court also observed than necessary, countervailing discovery might agree. Certainly, that additional be there are here, concerning power factors, court’s it well within the trial also not of record opposing party funding of the Of- alleviate the burden on the levels the workload compensating might tend granting Corporation a continuance or Counsel that fice of by delay. way any argument The court any general loss occasioned in a to offset higher that there was no indica- held to a thought it relevant that the District is to be opposing parties experience. were then less tion that the to institutional standard due think, any necessary dis- I to hold appropriate approach, to conduct additional is able any they been if the covery than would have to the same standard Finally, any assumptions filed earlier. about litigant amendment had been other without experience degrees that a court’s or of staff- the Buder court observed institutional nonmoving par- weighing ing supervision. or Buder and tion is denied. See ty, should not dissenting, post at 73-74. length of the conduct Tool en inexcusable.” Our administration pecially assigned sustained. casts this basis for the The second reason It say that a months) light hardship to the more attractive form appears to Co., court’s so, prejudice must be balanced here, the other factors stated as I will give rise to the considerations discussed finding F.Supp. delay, “inexcusable,” while far me, first, trial court was justice. seven of this dissenting colleague re- moving party if the mo- explain, for the for denial of the 884, 886 also Scott trial court’s action prejudice cannot be months, of concern for the But the District’s length Judge and this (N.D.Ga.1969). such goes exemplary, above, the (over Schwelb, Crescent concern. particu- against too far “truly is es- sev- Davis, principles applicable here are set balance Justice evaluation counsel here should reject mere game of contrary merits to be avoided counsel on the merits.” of Civil Procedure (1962): agree It is too Rule pleading is to facilitate ^[******] accept 371 U.S. technicalities^] Goldberg’s 15(a) variety of factors. Some of the conduct of defendant’s skill in which one approach late declares our be spirit of the Federal Rules principle that the decisive to the outcome dissenting colleague that opinion in Foman v. 83 S.Ct. take into account and for decisions on the basis that leave “The Federal day proper pleading misstep 9 L.Ed.2d to amend forth in purpose decision entirely of such on the Rules basic is a justice re- Rather, freely given when so assigned. “shall be the court lar reason is to be heeded.... quires”; this mandate should de- inquiry is whether the court here any apparent or declared In the absence of policy of Su- generally liberal part from or delay, bad faith 15(e) as undue reason —such regarding amendments per.Ct.Civ.R. movant, part of the dilatory motive on the particular circum- pleadings grounds of 'lateness' grant Silverberg amendments Liquor Elec. Eagle Wine & Co. v. 2. See reversed”). (D.C. 1979) ("refusals ‘delay’ may properly Co., or alone repeated specific failure to trial court’s rationale cure deficiencies a waiver. The allowed, previously upon precisely amendments “having undue was that focused how prejudice opposing party by to proceed present the virtue both would to their amendment, futility issue, of the allowance evidence on the excessive force there is amendment, should, sought etc.—the leave utterly way explain no to how the District require, “freely given.” the as rules be ‘inadvertently’ could have not realized the sequence involving time of all the events (citations 181-82, Id. at 83 S.Ct. at 230 omit- filing assault and the of this law suit.” This ted). follow, stipulation does not as the dealt with considerations, Applying these I am unable preparation the mechanics of trial and trial agree impact to with the dissent on the of the periods itself rather than the various time requested amendment on the administration elapsed that had between the date of the justice. Certainly, argued it cannot be filing incident and the of the law suit. that the assertion of limitations have significantly litigation. increased the cost of obviously dealing We are with what Justice allegations The excessive force of Count II Foman, Goldberg supra, to in referred as proven had to be in to order make out a case “misstep by counsel” rather than a waiver. negligent hiring, training supervision and plaintiffs began rely if Even counsel to judicial under Count I. Nor would effective- implication some that limitations would not in administering ness crowded calendars pled, resulting step there was no he took compromised have been because the remain- during the that be- eleven weeks intervened ing discovery accomplished could have been filing stipulation tween the of the permitted within the time the court for other readily motion to that could not have amend even while the amend- been retraced a short time and with no ment, and the trial could have been held prejudice. Specified discovery remained original within trial court’s time frame. open for another seven months after the filed, the trial to amend and date

This opposite case stands end of the was set for some eleven months after spectrum Douglas from Strauss v. Aircraft filed, Co., (2d Cir.1968). motion to amend was with the actual 404 F.2d 1158 following another two months later. It There, by delaying its assertion of the statute is, moreover, say plaintiffs to coun- safe of limitations in the United States considering, sel had been even before the York, Court for the Southern District of New filed, time avenues strung plaintiff along the defendant until discovery he would wish follow Counts it was plaintiff bring too late for the I and III and the wit- nature jurisdiction same action in another where it might nesses he retain. would not have been time barred. In this case, raising the seven-month upon Corporation It was incumbent statute of limitations had no such effect on Counsel, fisc, guardian public as the who, moreover, was left with the advance the defense of limitations. While arising other two counts out of the same the defense of limitations not be a sub series of events. defense, stantive is one created ground adopted strong public policy third for denial set forth reasons. simply the trial court was that the defendant had of limitations are not techni “Statutes impliedly contrary, they long waived the limitations defense calities. On the have joining stipulation expert testimony respected in a to a well- been fundamental judicial system.” Regents would not be needed on excessive force ordered Board of Tomanio, 478, 487, obviously issue. It is 100 S.Ct. true when the v. U.S. (less (1980). District entered this than 64 L.Ed.2d 440 See Bond (Far (D.C.1989) Serano, attempted three months before it to assert limitations) rell, J., Corporation concurring). Those reasons are so the Office Counsel specified availability strongly presumed still not to exist after the awakened stretching passed limitations as a defense. But it is has that a defendant need time raising a limitations de- temporary specify it to call this unfortunate oblivion reasons for case, particular may simply presented.” but cumstances Johnson v. United fense States, On Corporation assert it. The Counsel’s unfor- contrary, reviewing the exer- misstep deprive should not role “[our] tunate here defense, supervisory thus cise of discretion is in nature District of this (citations $500,000 imposition of in attitude.” Id. the District with the deferential omitted). judgment. quotation counsel all internal marks knew along of the limitations issue stated the trial issued a writ- opposition to motion to amend that it was ten order in which she enumerated several “patently pleadings from the obvious” denying the motion. reasons for year passed from more than the time An of her and of the examination reasons filing of of the incident until the time the of persuades that reversal record as a whole me contemplated prep- the action. Plaintiff had is unwarranted. presentation III aration and of Counts I and time filed. from the the action was II. case, particular of I circumstances this Terry that the Judge concur with denial of PREJUDICE reversed, to the motion amend must be and prejudice plaintiff. A. Pre-order to the proceedings.3 further the case remanded for judge recognized, agree, I The trial and SCHWELB, Judge, dissenting: Associate freely granted to amend should be leave majority’s the agree I am unable to with prejudice if “no would result substantial judge conclusion that the trial abused her to affirma- permitting the defendant raise an in denying discretion the District’s motion for stage litigation.” tive defense at a later the Accordingly, leave amend its answer. Washington (quoting Order at 3 Whitener v. judgment. to affirm vote the Auth., 457, 459 Metro. Area Transit (D.C.1986)). noted, however, that leave She

I. granted not be where there to amend need delay” or allowance has been “undue where SCOPE OF REVIEW would in “undue of amendment result responsive pleadings “Once have been (quot- prejudice” opposing party. Id. filed, permission amend is entrusted to the Davis, ing Foman v. 371 U.S. appel court sound discretion of the trial and (1962)). The S.Ct. 9 L.Ed.2d question court is limited to late review of that, case, judge in this “there was found there an whether abuse discretion.” plaintiff’ prejudice indeed because Research, Inc., Systems v. Raven & Gordon gone through the entire [a]ll [had] (D.C.1983) (citations omitted). 10, 13 expense Time discovery period. [had] bottom, trial judge [who] “[A]t [it is] plaintiff. been committed competing Id. must balance interests.” [the] Order 3. denied leave amend judge has Where above, although quoted grounds language to the non-mov The find- finding cryptic, somewhat constitutes a factual ing party, inquire we whether changed ing position, that Tinker his prejudice “has a rational basis the record.” court, money, in spent appellate in its ca time and reliance “[T]he Id. review limi- plead the own of District’s failure to pacity, does not render its decision months the suit was judgment wise under the cir- tations until ten after what is most be, they particular my agreement Judge If the combination should I note limitations, asserting authority Terry we un- District’s lateness in should exercise our (1989) to assert trial erroneous denial of leave § D.C.Code to vacate the dis- court's der 17-306 limitations, III, counts, predictable subsequent plaintiff's reinstate missal Counts I and those litigation strategy placed have proceedings It and remand for further on them. requires position have been my than would view fairness far better is that basic timely fashion— placed positions in had limitations in parties be in which it asserted back plaintiff judg- his they have left the $500,000. without found at the time that the trial will themselves ment erroneously denied the motion to amend. for obviously judge’s try the case on the brought. It was view for Tinker could permitted change simplest strongest if claim without retain- the District were result, plaintiff ing expert course after the had acted in reli- As a counsel witnesses. position, ance in District’s initial III1 obviously placed Counts I and plaintiff significantly prejudiced. A would be back burner and did not conduct judge supervising who has been on these claims. litigation obviously ap- knows more than strategy adopted by Tinker’s attor- pellate court knows about the course of the neys in on the District’s actions was reliance finding and we must sustain her not at all unreasonable. The trial prejudiced unless that find- Tinker would “the and his counsel are found that the record. See ing unsupported equitably rely upon impact entitled to (1989). D.C.Code 17-305 Surely absolutely stipulation.” she was principal judge’s finding basis right. prejudice appears to have been that Tink- cheap. not come A Expert witnesses do discovery in er had conducted his reliance on litigant position in Tinker’s has limited re- position. separate the District’s In his con- pay experts available to or to conduct sources curring opinion, Judge Belson makes the complex discovery relating expert to testimo- (the point prevail that order to on Count I ny. attorneys After Tinker’s had secured a count) negligent training Tinker would have stipulation expert testimony that would not that, required prove to been as a result of claim, they required be on the excessive force negligent training, police their officers they concluded that had an excellent chance Accordingly, Judge used force. excessive claim, prevailing on that and that it would view, any discovery Belson’s which Tinker unnecessary therefore for them to retain be question had to devoted of excessive discovery expert witness or to conduct on force would continue to be relevant negligence Tinker’s claims.2 permitted case even if the District was to if, its following judge granted amend answer and even that If the trial had the District amendment, answer, Count II dismissed time- was if the limita- leave to amend its sustained, If expended barred. the time and effort to II had tions defense Count been wasted, then, discovery this were not attorneys accord- then Tinker’s would have been Belson, ing Judge to preju- Tinker was not way compelled to alter in a most radical diced. litigation plan pursuant to which mindset and they conducting the case for more had been quarrel I cannot Judge logic; with Belson’s year. belatedly than half a It would also the use of excessive force was indeed an necessary to take have become for counsel Although element of I. Count the continued I III Counts off the back burner usefulness of Tinker’s “excessive force” dis- proceed naming of covery litigation for the I of Count is rele- Any lawyer experts. competent trial would vant, however, point I do not that believe this (or case) surely agree that a case of a conclusively negates preju- claim of Tinker’s great put together more difficult to deal dice. when, reason, ac- for some counsel has not year, For more than half a Tinker’s attor- tively pursued period it for a substantial neys were led to believe that the statute of time. limitations was out of the case and that support in ample therefore going II to decided on the There was Count fact, finding Tinker judge’s for the that expressly stipu- merits. the District record significantly prejudiced if expert testimony would not be would have been lated force, permitted had to amend its required question of excessive been sure, implicitly represented judge plausi- could and thus that counsel answer. To be needed, negligence and Tinker thereafter dis- 1. Count III was the medical count. would not be except Count II. See Part missed all of his claims judge’s subsequent 2. The denial of the Dis- trial B, II infra. trict’s motion for leave to amend the answer expert testimony reinforced the assessment that bly my plaintiffs opportu- my opinion, have reached a result. of an different loss however, opinion, delay, judge’s finding nity litigate, neg- without undue rational, training claims, ligent negligence and it should be our sustained under medical obvious, palpable prejudice. deferential standard of constitutes review. judge did not could not and ad B. Post-order question post-order prejudice dress the prejudice to Tinker which led to the Tinker, for the relevant events occurred after judge’s has denial District’s motion disposition of her the District’s motion. The compounded been have oc- events which rule, however, judge explicitly did Tink judge’s curred since the Tinker al- (on order. “equitably er was entitled” to conclude leged opposition in his mo- to the District’s the basis tion for leave to amend its answer that testimony required expert would not be II) the trial of Count that Count II would in sought including discovery,

he would have In light holding, tried. fact be of that find naming of an in terms of im- that, if inconceivable the case were re proper police procedures, if this defense her, judge find manded unrea previously been Plaintiff did raised. judge’s sonable Tinker’s reliance on the rul forego the other based on avenues of relief ing, in which the vindicated defendant’s answer which failed to raise See, right rely stipulation. e.g., Statute Limitations. (D.C. Moore, Ouriaghli v. that, Tinker contended in the event that the 1993). granted, motion for leave to he amend was “time should be allowed for additional discov- If we treat issue as one for ery expert an police practices instance, and to name to decide the first would like- procedures.” At that Tinker the time wise hold that reliance on Tinker’s the opposition, possible filed his was still ruling was judge’s reasonable. The decision III, litigate although him to Counts I and party to allow a amend its whether to answer obviously prejudiced Here, Tinker would have been highly discretionary is a one. Dis- preparation presentation of these abrupt had made a trict belated and about- by the Dis- posi- claims occasioned departed only from the face which change trict’s of direction. original tion taken answer understanding upon but also from which judge After the the District’s mo- denied between tion, however, there was occasion to con- no Knowing Tinker had relied on based. Tinker, discovery, additional duct the position, initial the District’s de- relying judge’s promptly dis- ruling, on the clined to allow District to amend. Tinker I and takes missed Counts III. The District judge’s had no reason believe that the counts, position dismissed two ruling discretionary on call such would 12-301(8) time-barred, § now see D.C.Code erroneous, subsequently be vacated as and I (1995), My colleagues, are out of the case. second-guess think we do not should his equity, to do Part IV of laudable effort see decision, judge’s counsel’s or- 65, Judge Terry’s opinion, Judge ante at der, spend money not to time and 3, 70, effectively opinion, ante n. Belsoris at “just in witnesses case.” counts, now reinstate these but Tinker is reconstruct, try many years compelled to prejudice The lack “on C. the merits” fact, expert testi- requiring after the a case District. mony. failure to assert The District’s initial defense, change judge’s abrupt finding its limitations and its that Tinker would suf- entry belatedly if the strategy, prejudice thus resulted in the fer District were sup- further led Tinker to dismiss claims allowed to amend its answer is order which (and have) any fact that surely ported which he could have incontrovertible promptly litigated prejudice if the Dis- which the District suffered as a the merits invoked the of limitations result of the denial of its related trict had II) (as solely in its to a technical The District original answer. defense. Count precluded presenting posi- documents had been lost or because was not its cause merits, contrary, tion on the and indeed did so when memories had faded. On the trial. the case came to such documents or memories would also have relevant, least, I, to Count which the been Judge Terry expressly recognizes, maj. As if had to defend even District would have 60, op. at the statute of limitations is a Count II had been dismissed. The District obliged is defense which defendant to raise pre-suit notice of the claim had also received responsive pleading, in a and which the trial (1995). pursuant It to D.C.Code 12-309 may deem waived if it has not been ability to its to contest suffered no 8(c); promptly Super.Ct.Civ.R. asserted. See the merits. 103, Gogos, Feldman v. 628 A.2d 104-105 (D.C.1993); Washington v. Metro- Whitener observes, true, Judge Terry It is politan Authority, Area Transit 505 A.2d pleadings are to be construed so as to do 457, Statutes of limitations 8(f), justice, Super.Ct.Civ.R. see protect defendants and the courts from 8(f) “consistently interpreted Rule has been having to deal with cases in which preference for of dis- to reflect ‘a resolution seriously impaired for truth search merits, putes on the not on technicalities of evidence, the loss of death whether (citations maj. op. pleading.’” See at 60 witnesses, disappearance fading or omitted). fact, however, has memories, documents, disappearance of or merits, dispute and it is decided this otherwise. the District that now insists that the com- plaint grounds. Kubrick, be dismissed on technical United States v. 444 U.S. (1979); S.Ct. L.Ed.2d 259 Basically, asking its Columbia, Hobson v. District 686 A.2d own technical error be excused so that it can (D.C.1996); v. Malcolm Ehrenhaft belatedly assert a technical defect in the Price, Inc., 1192,1202 (D.C.1984) case; Tinker is to bear the conse- Kubrick); Glover, (quoting Bailey see also untimeliness, District, quences says of his (21 Wall.) 342, 349, 88 U.S. 22 L.Ed. 636 but the District’s own tardiness should be (1874). “Statutorily imposed limitations on standard, By overlooked. this double actions are technical defenses which should of an escape District seeks to the results strictly be construed to avoid the forfeiture impartial tribunal’s of the substan- resolution Lintz, plaintiffs rights.” of a Steketee v. controversy parties. between the But tive 46, Rothberg, Williams & 38 Cal.3d 210 Cal. disposition litigation of on the basis of coun- 781, (1985) (citation 1153, 1158 Rptr. 694 P.2d sel’s technical errors and omissions is a two- omitted); Owens-Corning Fiberglas see also sword, edged is the kind of case in and this (D.C. Henkel, 1224, Corp. v. 689 A.2d which those who live such a sword should 1997) Steketee). (quoting defenses Such die it. just present “obstacles to claims.” Id. This court has stated that “the statute of III. not limitations is such a meritorious defense the law or the either facts should be THE ORDERLY ADMINISTRATION Simpson strained in aid of it.” v. District of OF JUSTICE Rights, Human 597 A.2d Columbia Office of (citation omitted). (D.C.1991) 392, 399-400 judge’s second reason for The trial majority’s holding judge the trial the District’s motion to amend was “the required was to allow the District to amend delay truly She length of inexcusable.” [was] its answer to assert a limitations defense de- explained that kinds of technical “[t]hese in awards to the statute of limitations a rank great governmen- to ... fenses are of benefit which, hierarchy light our of in of the values defendants, avoiding the ex- tal in terms of cited, assuredly not authorities does de pense litigation light in of the volume of serve. particular Judge litigation of in this area.” case, delay present Terry that “whether the was the District makes no asserts really beside the claim that it could not defend II be- excusable or inexcusable is Count an witness and for perception of leave to name point.” Maj. op. at 61. This is, view, stipu my unduly discovery. in constricted. of of the point” “the extension right rely parties and Tinker’s lation of the court, responsibility of the trial “It is the expressly right the trial court on it —a which discretion, exercising its to fashion when would recognized equitable considerations — ruling by balancing variety of factors.” judge give favorable required the have Gordon, court supra, 462 A.2d at 13. The request, proba Tinker’s consideration to alia, consider, orderly “the ad- should inter bly Although was com grant it. justice” and the adverse ef- ministration reopen it. plete, judge would have had moving party’s requests. thereon of the fects expense meant more This would have judge not Although at 13.3 the trial did Id. orderly judicial delay, to the in expressly reasoning articulate her terms ruling A in favor of the Dis administration. justice, her reference to the administration “prejudiced only trict thus have delay expense and to the length ability [plaintiff] but also the of other litigation very point close to the which came doing are what is persons persons [who] If a liti- making in Gordon. — necessary rules —to utilize the to follow the especially experienced institu- gant, and Sera, system.” Perry v. 623 A.2d District,4 permitted litigant tional like ruling judge’s a limitations defense to defer the assertion of part, in “to alleviate some laudably designed, discovery with until after there has been plagues civil languor often which claims, allegedly respect time-barred (quoting Solo Id. at 1219 n. calendar.” significant- litigation costs of will be then the Village IV mon v. Condominium increased, in ly judicial effectiveness ad- Fairfax Ass’n, 378, 379-80 Unit Owner’s compro- ministering will crowded dockets (D.C.1993)). mised. statute of limita- [of “If the defense IV. vacillation can cause lurks

tions] irreparable injury.” party the other Strauss THE STIPULATION Co., 404 F.2d Douglas Aircraft Whitener, (2d accord, Cir.1968); supra, 505 concluded that The trial also Strauss). By (quoting the same A.2d at 460 impliedly waived [the has the defendant token, complicate vacillation can such defense because limitations] prejudice of prolong proceedings, to the step joining took the affirmative administration, judicial and the “risk sound filing propor- prejudice increases of substantial directly parties will speaks to how the length [the] defendant’s tion complaint. proceed on this count Strauss, supra, seeking the amendment.” January 24, filed On 404 F.2d at 1155. specifically in counsel a[s]tipulation, which cap- trial of the above agreed that “at the permitted the Dis- judge If trial had the force is answer, ease the issue of excessive I and tioned then Counts trict to amend its will of the [ken] within the necessarily taken off the one III would have been testimony through expert presented burner, had not be judge would have and the back the or the defendant.” request for either alternative to act on Tinker’s position from the date of only was “in a here is the District that “the issue 3. The assertion explore to the filing resulted in to and deter- whether opposing party," (emphasis maj. op. add at 61 any promptly defense all of the essentials of mine ed), and cannot be reconciled overstates the case agree I limitations." Id. at 121. of the statute of W. See also 3 James with Gordon. Moore, Belson, however, Moore's Judge that with 15.08[4], ¶ to & at 15-69 15-75 Federal Practice pleading the same standard should be held to 1996) (2d (enumerating common 6-11 ed. nn. out, higher, points litigant, as he as other no amend, explain but leave to reasons for ing haustive.”). See, e.g., Columbia but also no lower. are, course, not ex reasons "[t]hese that Partnership, 183 Ltd. 630 v. Wical Texaco, Inc., case, as in Faith v. In this (W.D.Mich.1969), significant that it is F.R.D. regard to of limitations in its answer constituted a The District asserts the find- ute judge trial ing of waiver that is difficult to fathom waiver of that defense. The “[i]t judgment reasoning.” According granted the trial court’s to motion for WMATA’s District, stipulation permitted pleadings, in which did raise a “[t]he that WMATA parties dispense both to wit- limitations defense. This court affirmed respect question showing of appellants nesses with of exces- made no “[b]ecause absolutely nothing prejudice, disclose[d] sive force had to do with and the record none.” the statute of I find the Dis- A.2d at 457. relied on “the same limitations.” We analysis unpersuasive. type ‘prejudice’ reg courts [trial] trict’s most standard ularly determining per employ in whether to If, asserts, as the District now all of Tink- pleadings.” mit amendments to Id. at 459 subject force to er’s excessive claims were Co., (quoting v. R.D. LaPorte Werner one-year limi- dismissal under the statute of 191 (N.D.Ill.1983)). F.Supp. tations, stipulation patently then the su- Indeed, perfluous. purpose and, me, it would serve no dispositive There is a critical stipulation regarding to enter a the manner present difference between Whitener and the specified Whitener, which claims are to be tried if judge trial case. had found By signing those claims are time-barred. the belated assertion .of a limitations stipulation, representing, the District was prejudice, defense would cause no and she implicitly, at least the excessive force permitted therefore WMATA assert claims were to be decided on their merits notwithstanding defense WMATA’sfailure during representation the trial. Such a case, present include it in In the its answer. respect would be absurd with to a hand, time- judge on the other the trial found that claim, barred thus con- the introduction of such a defense after dis- veyed message the claims were covery completed prej- had been would cause timely. subsequently When the District plaintiff, udice to the and she denied the moved to amend its answer and to dismiss District’s motion leave to amend. Be- II, asserting Count it was opposite cause, error, the exact legal absent clear abuse or prior message implied by stipula- disposition of a motion for leave to amend a tion. call, pleading basically judge’s Gordon, supra, 462 A.2d at the deferen- The trial “eq- found that Tinker was I tial standard which have described Part uitably rely upon impact entitled to opinion I of this dictated affirmance both in stipulation.” agree. litigant’s A Moreover, in this Whitener and case. change obviously preclude mind does not present effectively stip- granting every of leave to amend in ulated that claims the excessive force situation, readily but the District should not presented jury, be and there was no permitted change course so dramatical- comparable stipulation Whitener. where, ly complete, where here, litigation strategy Tinker had set his VI. original in reliance on the position.5 CONCLUSION V. Because he was led to believe that WHITENER properly “excessive force” claims were places heavy The District reliance on our unnecessary proceed it Tinker found to case, my opin- decision in That in Whitener. complaint to trial on those counts of his for

ion, provides support scant for the District’s expert which he would have had to retain an position. Apparently stipu- in reliance on the witness. question presented in The lation —reliance which the trial found Whitener altogether justified whether WMATA’s failure to raise the stat- to be did —Tinker R.W.P., 74, (D.C. (quoting 5. "The kind of barristerial about-face which B.J.P. v. 637 A.2d 78 1994)). characterizes this case finds little favor in the Abrams, 6, (D.C.1997) courts.” In re 689 A.2d 9 76 217, My colleagues at 285. prepare Id. at 83 S.Ct. witness or otherwise

name injustice which would flow counts, have alleviated the subsequently he for trial on those and position by returning the from the District’s trial them in reliance on the dismissed ante, by quo and thus parties to the status having a judge’s Tinker now obtained order. reinstating claims. effectively the dismissed insists, verdict, the District substantial faced, however, the Her is now with Tinker hold, colleagues the claim on my and resuscitating a case which the culean task of If to trial is time-barred. we which he went very stale in passage of time has rendered in accept position District’s its were to deed. find himself entirety, then Tinker would now in that he dismissed trap, in a for the claims that Tinker jury’s verdict established trial reliance on mistreated offi- gravely abused and ruling also time-barred and court’s would I have de- uphold to the law. cers sworn way late to resuscitate them. District’s it would be far too which the scribed course, change after Tinker had relied of me, result for which the To effectively did original position, the District’s inequitable. paraphrase To contends is most probably Ironically, him in. Supreme opinion Court’s passage from the today it off than finds itself better Lines, Cherry Truck Inc. v. Meat Harris limitations if it had asserted the have been 283, Packers, Inc., 215, 9 371 83 S.Ct. U.S. place, for at that time in the first defense curiam): (1962) (per L.Ed.2d 261 presented a fresh case Tinker could have Now, I and III. result Counts hardship great to In view of the obvious error, have to Tinker will instead judge’s party upon who relies one. try to reassemble an ancient then suffers re- finding [prejudice] given finding, it should be versal of respectfully I dissent.6 reviewing court. great deference an initial proper result as Whatever here, the record con-

matter on the facts showing unique circumstances

tains a Appeals ought that the Court of

sufficient judge’s

not to have disturbed the

ruling. Because, appears beyond doubt that judgment, ed "unless it my the trial court's or- support prove the District's motion for leave can no set of facts der sustained, ought do not to be amend its answer him to relief.” which would entitle his claim (or me) necessary 41, 45-46, Gibson, for the court think it Conley U.S. 78 S.Ct. v. 355 any For the reasons stated reach other issues. (footnote omitted). (1957) 2 L.Ed.2d 80 however, below, my convinced as I am not as complaint construed in the must be complaint— colleagues Count II of the are that plaintiff. v. Vincent favorable to the most time-barred that went to trial —is the sole count 367, Anderson, eov 621 A.2d Mor entirety. in its er, doubt in a reasonable “[i]f there complaint, which is the paragraph 9 of the problem, will re the court statute of limitations II, "adopts paragraph of Count Tinker lead question in favor of solve every incorporates by herein each and reference Simpson, challenge.” standing against through allegation paragraphs 8 of Count I." (quoting Saunders v. Hol supra, at 401 incorpo- paragraphs paragraph one of Co., F.Supp. loway Constr. reference, alleges Tinker Count II rated into (W.D.Ark.1989)). principles Applying these police officers II, conclude that would be reasonable to Count accepted properly follow normal and failed to alleged negligence fairly has Tinker procedures, exces- police practices used officers, as well as intentional assault effectuating the arrest of the sive force has, three-year battery. If he then the Tinker, respond Joseph did not [pllaintiff, E. applies. apparently See D.C.Code limitations existed, properly as it failed to the situation Bano, 12-301(8) (1995). Compare Maddox manner; [p]lain- proper violated react in a (D.C.1980), relied on 764-65 rights; abused the and otherwise tiff's civil District, Etheredge Colum v. District the bia, Joseph [pllaintiff, E. Tinker. (D.C.1993), cited Tink for failure not be dismissed A should grant- upon er. which relief a claim to state

Case Details

Case Name: District of Columbia v. Tinker

Court Name: District of Columbia Court of Appeals

Date Published: Mar 13, 1997

Citation: 691 A.2d 57

Docket Number: 93-CV-1020

Court Abbreviation: D.C.