CA1: Getting an evidentiary hearing in a service fight

Blair v. Towler, Nos. 06-1626, 07-1258.  This started as a fairly standard “cops beating the crap out of someone case.” “In an initial action, after the petitioners filed an amended complaint, the district court granted the defendants' motions to dismiss, without prejudice, for failure to perfect service of process.”  They appealed that, and requested a stay while they tried again.  Then they refiled and re-served.  “Ah ha!”  The defendants say, the action is time-barred.  The District Court also denied discovery on the issue of service and an evidentiary hearing, saying that they were “grasping at straws.”

So, both appeals are consolidated.  I bet you want to know what happens.  If you really do, you should click on the link that appears below this text. Thank you.

The First holds that under FRCP 5(a)(2), the amended complaints did not really supercede the original complaint (as a legal matter), and second, the amended complaints did not contain a new claim for relief (as a “factual” matter).  Therefore they are substantively identical.  And, therefore the point of FRCP 5(a)(2) is to “...ensures that a party, having been served, is able make an informed decision not to answer a complaint without fearing additional exposure to liability for claims raised only in subsequent complaints that are never served.”  And, the First says that the defendants had notice.

As to the issue of the denial of discovery and an evidentiary hearing, the First says that the standard for obtaining discovery is low (whereas the standard for a hearing is high).  And therefore, “Thus, where a plaintiff can demonstrate the existence of a plausible factual disagreement or ambiguity, our jurisprudence favors permitting the litigants the opportunity to flesh out the record.” 

There is a big factual dispute as to who in the police department accepts service.  It seems like the police department kept changing its policies to thwart process servers, and the city attorney would promise to help, but never return calls. The First concludes that the plaintiffs have adduced enough evidence (and the defendants just made self-serving affidavits) to be more than a “grasp at straws” (as the District Court judge called it).  Therefore, the District Court is reversed on both the discovery and the evidentiary hearing issue. 

However, even if the defendants win, the District Court then has to address whether a renewal statute saves the plaintiffs.

Now, taking a step back, I wonder how much difference it makes that the plaintiffs were acquitted in deeply underlying criminal case.