Case 3:09-cv-00066-N Document 42 Filed 08/06/2009 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

THOMAS HANNON, §
Plaintiff, §
§ CIVIL ACTION NO.
vs. §
§ 3:09-CV-0066-N
DAVID L. NEVITT, § ECF
LAWRENCE T. CODDINGTON, JR., §
DAVID DURICA, JERRY DODD, and §
RANDY SUNDQUIST, §
Defendants. §

DEFENDANTS DAVID NEVITT, LAWRENCE CODDINGTON, DAVID DURICA,

JERRY DODD, AND RANDY SUNDQUIST’S RESPONSE TO PLAINTIFF’S MOTION
FOR LEAVE TO AMENDED COMPLAINT JOINING THE CITY OF DALLAS

TO THE HONORABLE COURT:

Defendants David Nevitt (“Nevitt”), Lawrence Coddington (“Coddington”), David

Durica (“Durica”), Jerry Dodd (“Dodd”), and Randy Sundquist (“Sundquist”) (collectively the

“Officers”), pursuant to Fed. R. Civ. P. 15(a)(2) and this Court’s Local Civil Rule 7.1(e), file

their response to Plaintiff’s Motion for Leave to File Amended Complaint Joining City of Dallas

as a Defendant (“Motion”), filed on 31 July 2009 (doc. 41). The Officers urge the Court to deny

Plaintiff’s Motion. In support hereof, the Officers respectfully show the Court the following:

I. SUMMARY OF RESPONSE

Plaintiff filed his Motion without first conferring with the Officers, as required by Local

Rule 7.1(a). Therefore, the Court should strike the Motion. If the Court considers the Motion, it

should be denied because the proposed amended complaint not only pleads facts relating to

Plaintiff’s claims against the City of Dallas, but also pleads additional facts relating to Plaintiff’s

claims against the Officers. The additional factual allegations as to the Officers’ conduct will

require, following the Officers’ answers thereto, new Rule 7(a) replies by Plaintiff. This will

Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 1
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unnecessarily delay even further the prompt and orderly resolution of the Officers’ respective

qualified immunity defenses. Further, Plaintiff’s proposed complaint fails to state a viable claim

against the City, so the amendment would be futile.

II. RELEVANT PROCEDURAL HISTORY

2.1 Plaintiff, Thomas Hannon (“Hannon”) filed this civil action on 12 January 2009.

(See Court’s Docket.) Plaintiff’s Original Complaint pleads claims against the Officers under 42

U.S.C. § 1983 and Texas common law. All of the Officers have answered. (Id.)

2.2 The Officers, who are sued in their individual capacities, asserted the defenses of

qualified immunity and official immunity. (See doc. 4, doc. 6, doc. 7, doc. 8, doc. 9, doc. 28.) In

furtherance of those defenses, the Officers filed opposed motions to require Hannon to file a

Rule 7(a) reply addressing their factual assertions supporting their immunity defenses (doc. 15,

doc. 16, doc. 30). This Court granted the Officers’ motions on 26 June 2009 (doc. 31, doc. 32,

doc. 33). Hannon filed his Rule 7(a) replies on 6 July 2009 (doc. 34, doc. 35, doc. 36, doc. 37,

doc. 38). (See Court’s Docket.)

2.3 Pursuant to this Court’s Order Requiring Status and Scheduling Conference (doc.

39), the parties held a Rule 26(f) conference and submitted their Joint Status Report and Rule

26(f) Discovery Control Plan (doc. 40) on 28 July 2009. (See Court’s Docket.) The Court has

not yet entered a scheduling order. (Id.)

III. ARGUMENT AND AUTHORITIES IN OPPOSITION TO THE MOTION

A. Hannon Failed to Confer Before Filing His Motion

Northern District Local Civil Rule LR 7.1(a) directs that, “[b]efore filing a motion, an

attorney for a moving party must confer with an attorney for each party affected by the requested

relief to determine whether the motion is opposed.” Hannon’s counsel failed to confer with the

Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 2
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attorneys representing the Officers prior to filing the Motion. Perhaps this explains the absence

of the certificate of conference required by LR 7.1(b). (See Motion.) Because Hannon has failed

to comply with this Court’s local rules, the Court should strike the Motion, or deny it.

B. Hannon’s Proposed Amended Complaint Pleads Additional Facts Regarding the

Officers’ Alleged Conduct That Will Unnecessarily Delay Resolution of the
Officers’ Qualified Immunity Defenses

Hannon’s proposed amended complaint does not merely plead facts intended to support

municipal liability under 42 U.S.C. § 1983; rather, Hannon interjects new or modified facts in

connection with the Officers’ alleged conduct. For example, paragraph 17 of the proposed

complaint alleges that the Officers “have been known to violate the rights of citizens of the

City;” paragraph 18 alleges additional misconduct by officer Sundquist; paragraph 19 alleges

additional misconduct by officer Nevitt; and paragraph 20 now alleges that the Officers had a

copy of an exculpatory videotape and intentionally withheld it. (See doc. 41-2 at 5-6.)

If the Court grants the Motion, the Officers’ answers will, of course, include their denials

of Hannon’s new allegations, supported where possible by their additional factual allegations in

support of their qualified immunity defenses. This will obligate the Officers to move the Court

to order Hannon to file new Rule 7(a) replies to the Officers’ respective answers. The end result

is that the disposition of the Officers’ qualified immunity defenses will be further delayed.

C. The Court Should Deny the Motion Because the Amendment Would be Futile

1. Applicable legal standard for motions to amend a complaint

It is undisputed that the decision to grant or deny a motion to amend is entrusted to the

sound discretion of the district court. This Court’s discretion, however, is limited by Federal

Rule of Civil Procedure Rule 15(a), which states that “leave shall be freely given when justice so

requires.” While a district court’s discretion does not permit denial of a motion to amend unless

Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 3
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there is a substantial reason to do so, in Leffall v. Dallas Independent School District the Fifth

Circuit reiterated that futility is a valid reason for denying leave to amend.1 Thus, “[i]t is within

the district court's discretion to deny a motion to amend if it is futile.”2 In Stripling v. Jordan

Production Company, LLC, 234 F.3d 863 (5th Cir. 2000), the Fifth Circuit defined “futility” in

this context to mean that the amended complaint would fail to state a claim upon which relief

could be granted, and applied “the same standard of legal sufficiency as applies under Rule

12(b)(6).”3

Stripling was decided before the Supreme Court’s decision in Bell Atlantic Corp. v.

Twombly, 550 U.S. 544 (2007), which abrogated the familiar standard enunciated in Conley v.

Gibson that a court “may not dismiss a complaint under [R]ule 12(b)(6) ‘unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim which would

entitle him to relief.”4 Under Twombly, a plaintiff’s factual allegations must be enough to raise a

right to relief above the speculative level on the assumption that all of the complaint’s allegations

are true.5 That is, it is no longer sufficient that relief could be granted under some theoretical set

of facts consistent with a complaint’s allegations, which was the familiar standard the Supreme

Court established in Conley v. Gibson.6 Rather, under Twombly, plaintiffs must “nudge[] their

claims across the line from conceivable to plausible.”7 Therefore, to survive a motion to dismiss,

1
See Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994).
2
See Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000) (citing Martin's Herend Imports, Inc.
v. Diamond & Gem Trading United States of America Co., 195 F.3d 765, 771 (5th Cir. 1999); Foman v. Davis, 371
U.S. 178, 182 (1962).
3
Stripling, 234 F.3d at 873.
4
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
5
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).
6
Conley, 355 U.S. 41, 45-46 (1957).
7
Twombly, 550 U.S. at 570.

Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 4
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a complaint must contain sufficient factual matter, accepted as true, to “state a claim for relief

that is plausible on its face.”8

2. Hannon’s conclusory allegations do not provide well-pleaded facts giving

rise to a plausible entitlement to relief

Hannon sets out his allegations supporting the City’s alleged liability in paragraphs 17–

20 and 26–28 of his proposed Complaint. But, none of the facts asserted in those paragraphs are

sufficient to raise a right to relief above the speculative level, rendering Hannon’s claims against

the City implausible.

Since the Supreme Court’s decision in Monell v. New York City Department of Social

Services, 436 U.S. 658 (1978), it is well-settled that a municipality cannot be liable under a

theory of respondeat superior.9 Isolated unconstitutional actions by municipal employees will

almost never trigger municipal liability.10 Rather, as the Fifth Circuit emphasized in 2001 in

Piotrowski v. City of Houston, to hold a municipality liable under section 1983, a plaintiff must

establish, inter alia, that an “official policy” of the municipality – not the policy of an individual

municipal official – was the “moving force” and actual cause of the loss of constitutional rights

and any resultant harm.11

In a similar vein, the Supreme Court held in City of Canton v. Harris that a Monell claim

based upon a “policy” of inadequate police training requires proof of “deliberate indifference” by

the City’s policymakers to the rights of persons with whom the police will come into contact.12

8
Twombly, 550 U.S. at 570.
9
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Bd. of Comm’rs of Bryan County v.
Brown, 520 U.S. 397, 403 (1997)); see also Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir. 1979).
10
Piotrowski, 237 F.3d at 578 (citing Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984)).
11
Piotrowski, 237 F.3d at 578.
12
City of Canton v. Harris, 489 U.S. 378, 388 (1989).

Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 5
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Deliberate indifference imposes a rigorous standard of fault. The Piotrowski court noted that

“[d]eliberate indifference . . . is a stringent test, and ‘a showing of simple or even heightened

negligence will not suffice’ to prove municipal culpability.”13 To establish deliberate indiffer-

ence, a plaintiff must show that the municipal policymaker was “both aware of facts from which

the inference could be drawn that a substantial risk of serious harm exists, and he must also draw

the inference.”14

But Hannon’s proposed complaint fails to plead those basic and essential elements of

municipal liability. Hannon fails to allege the identity of the City’s policymaker. Hannon fails

to allege any specific policy, or any City custom having the force of official policy, that was the

moving force and actual cause of his alleged deprivation of constitutional rights. Paragraph 18

of the proposed complaint merely posits that a “policy, practice or custom that permits police

officers to testify falsely” exists, but without any allegation of what that policy is, or how it

operates to permit officers to testify falsely. Paragraph 26 merely alleges that the Officers were

acting pursuant to the amorphous “official policy and practices,” again described so vaguely that

it is impossible to discern what the alleged deficient City policy is. Taken together, the proposed

complaint presents no more than a formulaic recitation of the elements of a municipal liability

claim under section 1983 and the raw conclusion that the City is liable. But, as the Supreme

Court recently held in Ashcroft v. Iqbal, ___ U.S. ___, 2009 WL 1361536 (May 18, 2009), “[a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action will not do.’”15 Because Hannon’s proposed complaint presents no more than labels,

13
Piotrowski, 237 F.3d at 579 (quoting Bryan County, 520 U.S. at 407).
14
Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
15
Iqbal, 2009 WL 1361536, at 12 (citing Twombly, 550 U.S. at 555).

Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 6
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speculations, conclusions, and barebones recitations of some of the elements of a Monell claim,

Hannon fails to state a plausible claim for relief. Thus, it would be futile to grant Hannon leave

to amend. Therefore, the Motion should be denied.

IV. CONCLUSION

Hannon failed to confer with the Officers before filing his motion for leave to amend his

complaint. Therefore, the Court should strike or deny the Motion. Further, Hannon’s addition of

facts pertaining solely to the Officers’ alleged conduct will delay the prompt resolution of the

Officers’ qualified immunity defenses. Finally, Hannon’s proposed complaint fails to plead non-

conclusory facts which, if true, would establish a claim against the City under 42 U.S.C. § 1983,

because he does not set forth sufficient factual content to allow this Court to draw a reasonable

inference that the City is liable for the Officers’ alleged actions. Therefore, it would be futile to

grant Hannon leave to file his proposed amended complaint. For all of these reasons, the Court

should deny Hannon’s motion for leave to file his proposed amended complaint.

WHEREFORE, Defendants, David Nevitt, Lawrence Coddington, David Durica, Jerry

Dodd, and Randy Sundquist, request the Court to deny the relief requested by Plaintiff, and for

all other relief to which the respondents are entitled consistent with this response.

Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 7
 Case 3:09-cv-00066-N Document 42 Filed 08/06/2009 Page 8 of 9

Respectfully submitted,

CITY ATTORNEY OF THE CITY OF DALLAS

s/ JASON G. SCHUETTE
Assistant City Attorney
Texas Bar No.17827020
jason.schuette@dallascityhall.com

s/ JAMES C. BUTT
Assistant City Attorney
Texas Bar No. 24040354
james.butt@dallascityhall.com

Dallas City Hall 7BN

1500 Marilla Street,
Dallas, Texas 75201
214.670.3519
214.670.0622 – Fax

Attorneys for Defendants Lawrence Coddington,

Jerry Dodd, David Durica, and Randy Sundquist

By: /s/ Edwin P. Voss, Jr.

Edwin P. Voss, Jr.
State Bar No. 20620300

BROWN & HOFMEISTER, L.L.P.

740 East Campbell Road, Suite 800
Richardson, Texas 75081
214-747-6100 (Telephone)
214-747-6111 (Telecopier)

ATTORNEY FOR DEFENDANT DAVID L. NEVITT

Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 8
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CERTIFICATE OF SERVICE

I certify that on 6 August 2009 I electronically filed the foregoing document with the
clerk of court for the U.S. District Court, Northern District of Texas, using the electronic case
filing system of the court. The electronic case filing system sent a “Notice of Electronic Filing”
to the following attorneys of record who have consented in writing to accept this Notice as
service of this document by electronic means:

Scott H. Palmer
Scott H. Palmer, P.C.
15455 Dallas Parkway
Suite 540, LB 32
Addison, Texas 75001
Attorneys for Plaintiff

John E. Wall, Jr.

Law Offices of John E. Wall, Jr.
5728 Prospect Avenue, Suite 2001
Dallas, Texas 75206-7284
Attorney for Plaintiff

s/ Jason G. Schuette
Assistant City Attorney

Defendants David Nevitt, Lawrence Coddington, David Durica, Jerry Dodd, and Randy Sundquist’s
Response to Plaintiff’s Motion for Leave to Amended Complaint Joining the City of Dallas
Thomas Hannon v. David L. Nevitt, et al.; No. 3:09-CV-0066-N (ECF) Page 9