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Ortiz v. Singer

United States District Court, S.D. Texas, Houston Division

June 9, 2017

BARBARA ORTIZ, Plaintiff,
v.
ALFRED SINGER, et al., Defendants.

          MEMORANDUM AND OPINION

          Lee H. Rosenthal Chief United States District Judge

         Barbara Ortiz was the passenger in a car that fled from the police in what became a highspeed car chase. During the chase, Paul Kohleffel, a Texas Department of Public Safety Trooper, allegedly fired 13 gunshots into the vehicle, hitting Ms. Ortiz. Ms. Ortiz sued in December 2016, but she did not name Trooper Kohleffel as a defendant. She amended her complaint in February 2017 and then asserted claims against him.

         Trooper Kohleffel has moved to dismiss the claims against him, arguing that the statute of limitations bars the claims. (Docket Entry No. 31). Ms. Ortiz responded. (Docket Entry No. 32). Based on the pleadings, the motion and response, the record, and the applicable law, the court grants the motion to dismiss. Because further amendment would be futile, the dismissal is with prejudice and without leave to amend.

         The reasons for this ruling are set out below.

         I. Background

         In 2014, Barbara Ortiz was a passenger in a car driven by the defendant, Alfred Singer. (Docket Entry No. 28 at ¶ 9). Mr. Singer failed to stop at a stop sign and fled when a San Felipe Police Department officer initiated a traffic stop. (Id. at ¶¶ 10-11). A high-speed car chase followed. Texas Department of Public Safety Trooper Paul Kohleffel allegedly fired 13 gunshots at the fleeing vehicle, hitting the passenger-side door. (Id. at ¶¶ 13-18). Bullets hit Ms. Ortiz, who was pregnant with twins, in the head and back. One of the twins died in utero. (Id. at ¶¶ 17, 22-24).

         On December 1, 2016, Ms. Ortiz sued Mr. Singer, the State of Texas, the Texas Department of Public Safety, and the five cities and counties and their police and sheriff's departments involved in the car chase. (Docket Entry No. 1-2). The defendants moved to dismiss, (Docket Entry Nos. 2, 4, 5, 7, 11), and Ms. Ortiz amended her complaint. In the amended complaint, Ms. Ortiz dropped all the defendants except Mr. Singer and added Trooper Kohleffel. (Docket Entry No. 28). Trooper Kohleffel now moves to dismiss on the basis of limitations.

         II. The Legal Standard Under Rule 12(b)(6)

         A pleading is deficient and may be dismissed under Rule 12(b)(6) if a plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). Rule 8 “does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).

         When a plaintiff's complaint fails to state a claim, the court should generally give the plaintiff a chance to amend under Rule 15(a) before dismissing the action with prejudice, unless it is clear that to do so would be futile. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002). A plaintiff should be denied leave to amend a complaint if the court determines that “the proposed change clearly is frivolous or advances a claim or defense that is legally insufficient on its face.” 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1487 (2d ed. 1990); see also Ayers v. Johnson, 247 F. App'x 534, 535 (5th Cir. 2007) (“‘[A] district court acts within its discretion when dismissing a motion to amend that is frivolous or futile.'” (quoting Martin's Herend Imports, Inc. v. Diamond & Gem Trading U.S. of Am. Co., 195 F.3d 765, 771 (5th Cir. 1999))).

         III. Analysis

         Ms. Ortiz was injured on December 7, 2014. The Texas personal injury limitations period is two years. See Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). Ms. Ortiz filed her original petition within that two-year period on December 21, 2016, (Docket Entry No. 1-2), but filed the amended complaint on February 23, 2017, after limitations expired. (Docket Entry No. 28). Ms. Ortiz concedes that she added Trooper Kohleffel after the limitations period had expired. She argues that the amended complaint relates back to the original complaint.

         Rule 15(c)(1) states that a claim may relate back to an ...


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