                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-31-2003

Garvin v. Philadelphia
Precedential or Non-Precedential: Precedential

Docket No. 03-1573




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                     PRECEDENTIAL

                          Filed December 31, 2003

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


               No. 03-1573


             TYSHEIA GARVIN,
                               Appellant
                     v.
         CITY OF PHILADELPHIA;
       POLICE OFFICER JOHN DOE

Appeal from the United States District Court
  for the Eastern District of Pennsylvania
          (D.C. Civ. No. 02-02214)
 District Judge: Honorable Robert F. Kelly

         Argued November 7, 2003
BEFORE: MCKEE, SMITH, and GREENBERG,
            Circuit Judges

        (Filed: December 31, 2003)

              Alan E. Denenberg (argued)
              Abramson & Denenberg
              1200 Walnut Street
              Sixth Floor
              Philadelphia, PA 19107
                Attorneys for Appellant
                                   2


                          Nelson A. Diaz
                          City Solicitor
                          Mia Carpiniello (argued)
                          Assistant City Solicitor
                          City of Philadelphia
                          Law Department
                          1515 Arch Street, 17th Floor
                          One Parkway
                          Philadelphia, PA 19102-1595
                             Attorneys for Appellee


                    OPINION OF THE COURT

GREENBERG, Circuit Judge:

         I.   FACTUAL AND PROCEDURAL HISTORY
   This matter comes on before this court on Tysheia
Garvin’s appeal from an order entered by the district court
on December 6, 2002, denying her motion to amend her
complaint and an order entered on January 3, 2003,
denying a motion for reconsideration of that order. This
case arose out of an incident on April 24, 2000, when
Philadelphia police arrested Garvin after she engaged in two
altercations outside of the Criminal Justice Center in
Philadelphia. On April 18, 2002, six days prior to the
running of the two-year statute of limitations, Garvin filed
a complaint against the City and Police Officer John Doe1
alleging that she was injured when an arresting officer,
“Police Officer John Doe, intentionally and maliciously
grabbed and jerked the handcuffs [placed around her
wrists], throwing [her] to the ground face first with nothing
to break her fall.” RR at 20-21.2
   Garvin brought this action under 42 U.S.C. § 1983
(“section 1983”) against the City charging that it failed to

1. In light of the circumstances that Garvin was unaware of the name of
the police officer who allegedly injured her, she sued that officer under
the name John Doe.
2. References to RR are to the reproduced record Garvin has provided.
                                   3


train its police officers properly and engaged in a custom,
practice or policy which permits the use of excessive force
in violation of the Fourth and Fourteenth Amendments of
the United States Constitution. Garvin also sued Officer
Doe under section 1983 in both his official and individual
capacities, seeking compensatory and punitive damages,
maintaining that he violated her rights under the Fourth
and Fourteenth Amendments. Her complaint with respect
to punitive damages states that “[t]he above-described
actions of Defendant, Police Officer John Doe, in his
individual capacity, were so malicious, intentional and
reckless and displayed such a reckless indifference to the
Plaintiff ’s rights and well being, that the imposition of
punitive damages is warranted.” RR at 22. In addition,
Garvin brought supplemental state law claims against
Officer Doe for assault and battery and intentional infliction
of emotional distress.
   On April 24, 2002, Deputy Philadelphia City Solicitor
Lynne Sitarski entered her appearance for the City,3 and
then on May 13, 2002, she filed an answer and affirmative
defenses on its behalf. In its answer the City stated that the
allegations in the paragraphs of the complaint relating to
Officer Doe “pertain to parties other than answering
defendant, and therefore require no response.” SA at 2.4
Sitarski did not enter an appearance for Officer Doe or file
an answer on his behalf and indeed never has taken either
step in this action.
  On May 31, 2002, the district court entered a scheduling
order requiring the parties to exchange their initial
disclosures under Rule 26(a)(1) of the Federal Rules of Civil
Procedure starting on that date. The scheduling order set
October 31, 2002, as the date by which all fact discovery
needed to be completed and thus allowed five months for
that purpose.
  On July 24, 2002, the City served Garvin with its initial
disclosures and attached the police department records

3. Her entry of appearance form makes no reference to the John Doe
defendant.
4. SA refers to the supplemental appendix attached to appellee’s brief.
                               4


related to the April 24, 2000 incident, including Garvin’s
arrest report. The “Philadelphia Police Department Arrest
Report” for Garvin identifies a female officer as having
placed her under arrest and the initial disclosures listed
eight officers who were persons “reasonably likely to have
some information that bears significantly on the claims and
defenses involved in the present action.” RR at 34.
  Garvin maintains that the female officer identified as the
arresting officer in the City’s initial disclosures did not
actually place her under arrest as she claims to have been
injured while being arrested by a male officer. Nevertheless,
even though Garvin regarded the arrest report as
inaccurate on this critical point, she did not attempt to
depose within the time for discovery fixed by the court any
of the eight officers the City listed in its initial disclosures
to determine the identity of the officer who arrested her.
   On October 29, 2002, two days before fact discovery was
scheduled to end under the district court’s May 31, 2002
order, and more than three months after the City supplied
her with what she asserts is an incorrect identification of
the arresting officer, Garvin brought a motion to amend her
complaint to substitute the names of four police officers for
the John Doe defendant and for an enlargement of time to
conduct depositions of the newly named defendants. In her
motion to amend, Garvin stated that “[n]othing in
defendants’ Initial Disclosures or in the attached
documents identified the police officer responsible for
actually arresting/using force against the Plaintiff.” RR at
3. Garvin further maintained that she had made a good
faith effort to determine the actual name of the John Doe
defendant. Garvin conceded that the statute of limitations
as to the four officers had run on April 24, 2002, but
sought to have her amendment relate back to the date of
the filing of her initial complaint on April 18, 2002, so that
the complaint would have been timely as to the four
officers.
  On December 6, 2002, the district court denied Garvin’s
motion to amend as it held that the amended complaint
would not meet the conditions required for relation back
under Federal Rule of Civil Procedure 15(c). Thus, the
proposed amendment would have been futile as the action
                                    5


against the officers would have been barred by the statute
of limitations. Garvin then filed a motion for
reconsideration and a request that the district court certify
the question for an interlocutory appeal under 28 U.S.C.
§ 1292(b). The district court denied Garvin’s motion and
request on January 3, 2003, and on February 24, 2003,
granted summary judgment to the City of Philadelphia on
the merits with respect to Garvin’s claims against it under
section 1983. Garvin timely appealed, challenging only the
district court’s denial of her motions to amend her
complaint and for reconsideration of that denial. Br. of
Appellant at 3.

                         II.   JURISDICTION
  The district court had jurisdiction over Garvin’s claims
brought under section 1983 pursuant to 28 U.S.C. §§ 1331
and 1343 and it had jurisdiction over her state law claims
under 28 U.S.C. § 1367. We have jurisdiction under 28
U.S.C. § 1291 inasmuch as the district court’s order
granting summary judgment to the City terminated the
proceedings in the district court. Therefore, we may review
the denial of Garvin’s motion to amend at this time.5

5. As we have indicated, the office of the Philadelphia City Solicitor did
not enter an appearance for Officer Doe in the district court. Thus, the
City Solicitor has filed a brief only on behalf of the City which arguably
is not directly interested in the outcome of this appeal as it obtained
summary judgment on the merits from which Garvin has not appealed.
Nevertheless, Garvin has not moved to strike the City’s brief or in any
other way sought to limit its participation in this appeal. When we raised
a question at oral argument as to the City’s standing in this appeal its
attorney pointed out that the City had an interest in its outcome because
the City supplies an attorney in some circumstances to an officer sued
by reason of actions he or she has taken in the performance of his or her
duties and because the City might be obliged to indemnify an officer held
liable in such a case. See infra note 12.
  Of course, even if we did not allow the City Solicitor to participate in
the appeal on behalf of the City itself we still would be obliged to
adjudicate the appeal on the merits as the absence of an active appellee
would not require or justify an automatic reversal. In that event we likely
would consider the City’s brief and argument by designating the City as
an amicus curiae. In the light of these considerations we will recognize
the City’s participation on the merits without further discussion.
                               6


                      III.   DISCUSSION
  A.   STANDARD OF REVIEW
  We review the district court’s decision denying Garvin’s
motion to amend her complaint for abuse of discretion.
Singletary v. Pennsylvania Dep’t of Corrs., 266 F.3d 186,
193 (3d Cir. 2001) (citing Urrutia v. Harrisburg County
Police Dep’t, 91 F.3d 451, 457 (3d Cir. 1996)). If we were
reviewing factual conclusions made by the district court, we
would review for clear error. Id. (citing Varlack v. SWC
Caribbean, Inc., 550 F.2d 171, 174 (3d Cir. 1977)). Here,
however, the factual circumstances we consider are
essentially not in dispute so that our review is of the
district court’s interpretation of Federal Rule of Civil
Procedure 15 and thus is plenary. Id. (citing Lundy v.
Adamar of N.J., Inc., 34 F.3d 1173, 1177 (3d Cir. 1994)).
  B.   THE MOTION TO AMEND
   Claims such as Garvin’s brought under section 1983 are
subject to state statutes of limitations governing personal
injury actions. See Owens v. Okure, 488 U.S. 235, 249-50,
109 S.Ct. 573, 581-82 (1989); Sameric Corp. of Del., Inc. v.
City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998). The
Pennsylvania statute of limitations for personal injury
actions applicable here is two years. 42 Pa. Cons. Stat.
Ann. § 5524(7) (West Supp. 2003). Garvin’s state law claims
for assault and battery and intentional infliction of
emotional distress also are governed by a two-year statute
of limitations. Id. § 5524(1), (7). The naming of a John Doe
defendant in a complaint does not stop the statute of
limitations from running or toll the limitations period as to
that defendant. Talbert v. Kelly, 799 F.2d 62, 66 n.1 (3d
Cir. 1986).
   In her motion to amend her complaint Garvin conceded
that the two-year statute of limitations had run on April 24,
2002, as to her claims against the police officer who
allegedly injured her. However, as we have indicated, she
sought to substitute for John Doe four specifically named
Philadelphia police officers who allegedly were involved in
the April 24, 2000 incident and have that substitution
relate back to the filing of her initial complaint on April 18,
2002.
                                    7


  Replacing the name John Doe with a party’s real name
amounts to the changing of a party or the naming of a
party under Rule 15(c), and thus the amended complaint
will relate back only if the three conditions specified in that
rule are satisfied. Varlack, 550 F.2d at 174. Rule 15(c)
states, in pertinent part:
       (c) Relation Back of Amendments. An amendment
     of a pleading relates back to the date of the original
     pleading when . . .
           (2) the claim or defense asserted in the amended
         pleading arose out of the conduct, transaction, or
         occurrence set forth or attempted to be set forth in
         the original pleading, or
           (3) the amendment changes the party or the
         naming of the party against whom a claim is
         asserted if the foregoing provision (2) is satisfied
         and, within the period provided by Rule 4(m) for
         service of the summons and complaint, the party to
         be brought in by amendment (A) has received such
         notice of the institution of the action that the party
         will not be prejudiced in maintaining a defense on
         the merits, and (B) knew or should have known
         that, but for a mistake concerning the identity of
         the proper party, the action would have been
         brought against the party.
The parties to be brought in by amendment must have
received notice of the institution of the action within 120
days following the filing of the action, the period provided
for service of the complaint by Rule 4(m) of the Federal
Rules of Civil Procedure. If the amendment relates back to
the date of the filing of the original complaint, the amended
complaint is treated, for statute of limitations purposes, as
if it had been filed at that time. Singletary, 266 F.3d at 189.
The relation back provision of Rule 15(c) aims to ameliorate
the harsh result of the strict application of the statute of
limitations.6 See id. at 193; Colbert v. City of Philadelphia,
                                                (Text continued on page 9)

6. We recognized in Singletary, that:
    a person who was subjected to excessive force by police officers
    might not have seen the officers’ name tags, and hence would likely
                                    8


    need discovery to determine the names of his attackers, although he
    cannot get discovery until he files his § 1983 complaint. If this
    person were prevented from having his complaint relate back when
    he sought to replace a ‘John Doe’ or ‘Unknown Police Officers’ in his
    complaint with the real names of his assailants, then he would have
    to file his complaint substantially before the running of the statute
    of limitations on his claim in order to avoid having his claim end up
    being barred. This would render the § 1983 statute of limitations
    much shorter for this person than it would be for another
    complainant who knows his assailants’ names.

Id. at 190. We, however, must balance these concerns with the
requirement that in order to permit relation back under Rule 15(c) the
party to be added “will not be prejudiced in maintaining a defense on the
merits.” Fed. R. Civ. P. 15(c)(3)(A). “[T]he ‘prejudice’ to which the Rule
refers is that suffered by one who, for lack of timely notice that a suit
has been instituted, must set about assembling evidence and
constructing a defense when the case is already stale.” Nelson v. County
of Allegheny, 60 F.3d 1010, 1014-15 (3d Cir. 1995) (citation and internal
quotation marks omitted). Garvin maintains that inasmuch as the City’s
attorney knew who was responsible for allegedly using excessive force at
the time she served the City’s initial disclosures, “any prejudice to that
person that may have resulted by being added to the lawsuit was created
by the City’s attorney and her failure to provide the requested
information.” Br. of Appellant at 25. Garvin also states that any potential
prejudice created by the timing of her motion to amend could have been
cured by a short extension of the discovery period. Id. at 25 n.10.

  In its May 31, 2002 scheduling order the district court provided five
months for discovery. Garvin had the burden during the opening portion
of that period to discover the names of the individual officers so that she
could add the arresting officer as a defendant within the time provided
for the service of a summons and complaint by Federal Rule of Civil
Procedure 4(m) or at least assure that he had notice of the institution of
the action. Garvin, who obviously was in a difficult position by reason of
having waited until six days before the running of the statute of
limitations before bringing this action, could have attempted to expedite
the matter by filing a motion to compel the City to provide its initial
disclosures earlier than July 24, 2002, the date it served its disclosures,
but she did not do so. In making this observation with respect to
Garvin’s difficult position we have not overlooked our recognition in
Singletary of the arguable inequity in shortening the statute of
limitations for a plaintiff who does not know her assailant’s name.
Notwithstanding that concern the inescapable fact is that a plaintiff who
                                     9


931 F. Supp. 389, 392 (E.D. Pa. 1996); see also 6A Charles
Alan Wright et al., Federal Practice & Procedure § 1497, at
85 (2d ed. 1990). Of course, an amended complaint will not
relate back if the plaintiff had been aware of the identity of
the newly named parties when she filed her original
complaint and simply chose not to sue them at that time.
   Inasmuch as the district court found that Garvin failed to
satisfy the Rule 15(c) requirements for relation back, any
amendment of her complaint would have been futile
because the amended complaint could not have withstood
a motion to dismiss on the basis of the statute of
limitations. Riley v. Taylor, 62 F.3d 86, 92 (3d Cir. 1995)
(citing Jablonski v. Pan Am. World Airways, Inc., 863 F.2d
289, 292 (3d Cir. 1988)). Thus, if, as we shall conclude, the
district court correctly held that the complaint would not

does not know her assailant’s name but promptly brings her action may
be able to ascertain the identity of that person and sue him within two
years of the incident involved and thus avoid the potential difficulties
that a plaintiff who seeks to have her action relate back may encounter.
Thus, to an extent Garvin’s problems are self inflicted as they are
attributable to her delay in bringing this case.
  We also point out that Garvin should have recognized that something
was amiss when she received police reports attached to the disclosures
which indicated that she was arrested by a female officer rather than the
male officer who she claims injured her. At that point she could have
noticed depositions of the individual officers, but, instead, she waited
until two days prior to the end of the discovery period to seek an
amendment of her complaint and to obtain additional time for discovery.
At that time it was already too late to give timely notice to the officers as
the 120-day period provided in Rule 4(m) had expired. In the
circumstances her lack of diligence surely weighs against her,
particularly because she was suing the officers in their individual
capacities and thus sought compensatory and punitive damages against
them personally. See Colbert v. City of Philadelphia, 931 F. Supp. 389,
392-93 (E.D. Pa. 1996) (denying plaintiff ’s motion to amend his
complaint to substitute the names of the individual police officers and
relate back the filing of the original complaint under Rule 15(c) and
stating that “[t]he need for the protection of a statute of limitations is
particularly compelling since the defendant officers are threatened with
money judgments against them in their individual capacities”).
                                      10


relate back it surely did not abuse its discretion in denying
the motion to amend.7
  In order to change “the party or the naming of the party
against whom . . . claim[s] [are] asserted,” both Rule
15(c)(2) and (c)(3) must be satisfied. Fed. R. Civ. P. 15(c)(3).
Therefore, a plaintiff must show that: (1) the claim or
defense set forth in the amended pleading arose out of the
conduct, transaction or occurrence set forth in the original
pleading; (2) within the time period provided in Rule 4(m),
the party or parties to be added received notice of the
institution of the suit and would not be prejudiced in
maintaining a defense; and (3) the party sought to be added
knew that, but for a mistake concerning his or her identity,
he or she would have been made a party to the action.8
Singletary, 266 F.3d at 194.
  In the district court the City did not dispute that the
proposed amendment meets the requirement of Rule
15(c)(2) and the City does not dispute this point on appeal.
Br. of Appellee at 9 n.1. In any event, clearly the new
claims against the individual officers alleging excessive
force “arose out of the conduct, transaction, or occurrence
set forth . . . in the original pleading.” Fed. R. Civ. P.
15(c)(2).
  However, the district court found that Garvin failed to
satisfy Rule 15(c)(3)(A), because within the 120-day period

7. We recognize that an amendment to allow the naming of a party with
a statute of limitations defense would not be futile if the defendant did
not intend to assert the defense but in this case we have no reason to
believe that any of the four officers would have been so accommodating
to Garvin if she had been able to join them as defendants.
8. Inasmuch as the district court held that Garvin could not satisfy the
second condition of Rule 15(c)(3) it did not address the third condition,
except to note that:
    since there is no evidence that the four newly named defendants
    had any notice of the suit, it would be impossible to find that they
    knew or should have known that, but for a mistake made by the
    plaintiff concerning the newly named parties’ identities, the action
    would have been brought against them.
Brief of Appellant, app. at 20 n.2.
                                   11


after the filing of the original complaint, that is by August
16, 2002, the parties to be newly named had not received
actual or constructive notice of the institution of the action.
Fed. R. Civ. P. 4(m). The district court noted that “there is
no evidence that the four newly named defendants had any
notice of the suit.”9 AP at 20 n.2.10 It therefore focused its
analysis on whether those parties had constructive notice
of the filing of the action. Id.
   In Singletary we recognized that there are two possible
methods by which the district courts could impute notice
under Rule 15(c)(3). The first is the “shared attorney”
method, which is based on the notion that when the
originally named party and the parties sought to be added
are represented by the same attorney, “the attorney is likely
to have communicated to the latter party that he may very
well be joined in the action.” Singletary, 266 F.3d at 196.
The second is the “identity of interest” method, and is
related to the shared attorney method. “Identity of interest
generally means that the parties are so closely related in
their business operations or other activities that the
institution of an action against one serves to provide notice
of the litigation to the other.” Id. at 197 (quoting 6A Charles
Alan Wright et al., Federal Practice & Procedure § 1499, at
146 (2d ed. 1990)). We will address both in turn.

    1.   Shared Attorney
  In Singletary, 266 F.3d at 196, we expressly endorsed the
shared attorney method of imputing notice. That case
involved a section 1983 action brought by the mother of a
prisoner who committed suicide while in a state
correctional institution. The original complaint named as
defendants the Pennsylvania Department of Corrections,
the State Correctional Institute at Rockview (“SCI-
Rockview”), the former Superintendent of SCI-Rockview,
and “Unknown Corrections Officers.” After the relevant
statute of limitations had run and the 120-day period
provided in Rule 4(m) had expired, the plaintiff sought to

9. Garvin does not contend that she produced evidence that any of the
four officers had actual notice of the action by August 16, 2002.
10. AP refers to the appendix attached to Garvin’s brief.
                             12


amend her complaint to name a staff psychologist at SCI-
Rockview as a defendant. The district court denied the
motion to amend and we affirmed. Id. at 189.
  In analyzing the shared attorney method of imputing
notice, we stated that “[t]he relevant inquiry under this
method is whether notice of the institution of this action
can be imputed to [the defendant sought to be named]
within the relevant 120 day period . . . by virtue of
representation [he] shared with a defendant originally
named in the lawsuit.” Id. at 196. In considering this point
we noted that the case originally had been filed in the
Eastern District of Pennsylvania, but was transferred to the
Middle District of Pennsylvania. Deputy State Attorney
General Gregory R. Neuhauser entered his appearance as
“counsel for Defendants,” after the case was transferred
and more than 120 days after the case was filed. Inasmuch
as Neuhauser’s representation did not begin until after the
120-day period following the filing of the complaint had
ended, any later shared representation was irrelevant in the
relation back analysis. We stated “even if we were to
conclude that Neuhauser in some sense represented and
thereby gave notice to [the proposed defendant] before [he]
was sought to be named as a defendant, this does not help
plaintiff because Neuhauser’s representation of the
defendants commenced after the 120 day period.” Id. at
197.
  The district court here, which was well aware of
Singletary and was following it, rejected Garvin’s contention
that notice could be imputed to the four individual officers
via the shared attorney method. It found that “the four
newly named defendants were not and are not currently
represented by the City’s attorney.” AP at 20. The district
court noted that the applicable test “is not whether new
defendants will be represented by the same attorney, but
rather whether the new defendants are being represented
by the same attorney.” Id. Because the district court found
that there was no evidence of shared representation
between the City and the officers sought to be named in the
amended complaint, it declined to impute notice under the
shared attorney method.
                                    13


   The circumstances of the case support the district court’s
conclusions. After the City received notice of Garvin’s suit,
Deputy City Solicitor Sitarski entered her appearance solely
on behalf of the City of Philadelphia. Furthermore, she did
not represent any of the police officers within the 120-day
period after the filing of the complaint and for that matter
has not represented them at any time since then. See Fed.
R. Civ. P. 4(m).11 Garvin seeks to circumvent these
circumstances by arguing that as a policy matter “to
require that the City’s attorney actually have entered her
appearance for the newly named defendants prior to the
amendment of the complaint imposes an insurmountable
barrier that would render all John Doe complaints
meaningless.” Br. of Appellant at 21. Garvin argues that
until a plaintiff seeks to amend his or her complaint to add
the real names of the officers, there is no need for the John
Doe officers to have an attorney because “John Does don’t
file discovery, answer interrogatories, file motions or go to
depositions.” Id. at 20 n.5. Garvin, however, has
mischaracterized the standard the district court set forth as
that court did not require the City’s attorney to enter her
appearance on behalf of the officers for the court to
recognize the attorney as a shared attorney. Rather, it only
required evidence of shared representation so that notice
could be imputed to the four officers within the 120-day
period. Clearly, an attorney may represent an individual
without appearing for him or her in a pending lawsuit. After
all, persons who anticipate being sued sometimes consult
attorneys with respect to their circumstances. Garvin,
however, failed to provide any evidence of such shared
representation during the 120-day period or, indeed, any
time thereafter.12

11. As we explain above the City is representing its own interests in this
appeal even though a collateral consequence of it advancing those
interests is to benefit the individual police officers. See supra note 5.
12. At oral argument we asked the attorney for the City whether during
the course of the City Solicitor’s representation of the City it was acting
as de facto counsel for the four individual officers by objecting to the
motion to amend and continuing to oppose the amendment on appeal
even though the district court granted summary judgment to the City,
which Garvin did not challenge on appeal. It appears, however, that at
                                   14


  In the brief she filed on behalf of the City of Philadelphia
in opposition to Garvin’s motion to amend before the
district court, Deputy City Solicitor Sitarski stated:
     in the present case, undersigned counsel has not
     informed the proposed defendants that this lawsuit is
     pending, nor have the proposed defendants been
     advised that they might be named as defendants.
     Undersigned counsel is unaware of any other manner
     through which the proposed defendants would have
     learned that this lawsuit is pending.
RR at 133 n.2. The district court cited this statement in
support of its conclusion that the officers were not
represented by the same attorney. While it is true that

the time that the district court denied Garvin’s motion to amend on
December 6, 2002, and when the court denied the motion to reconsider
that order on January 3, 2003, the City was still a party to the case as
the district court did not grant the City’s motion for summary judgment
until February 24, 2003. The City had an interest in preventing any
delay in the litigation which could have been caused by the addition of
new parties and consequent enlargement of time for the new parties to
conduct discovery. Furthermore, both in the district court and on appeal
the City has had a financial interest in preventing any amendment to
name the four officers in order to avoid a potential obligation to the
officers for indemnification. See 42 Pa. Cons. Stat. Ann. § 8548(a) (West
1998) (providing for indemnification of employees of local agencies who
“in good faith reasonably believe[ ] that such act was, within the scope
of [their] office[s] or duties.”). As we explained above, we regard this
potential obligation to indemnify the officers as one reason to permit the
City to participate in this appeal. See supra note 5. In the
circumstances, it is apparent that, without regard for any possible
relationship with the officers, the City Solicitor had good reason to
oppose the amendment to name the officers as defendants and thus we
will not treat the City Solicitor as a de facto counsel for the officers.
  In making these observations with respect to the City Solicitor’s office
not representing the four officers we are not suggesting that if it did
represent them at a later date our result would have been different. In
this regard we point out that Garvin did not make her motion to amend
until after the 120 day period provided in Rules 15(c)(3) and 4(m) had
expired. Thus, under Singletary, any representation after the 120-day
period provided in Rule 4(m) would have come too late to help Garvin in
a shared attorney analysis.
                             15


Deputy City Solicitor Sitarski did not put this statement in
the form of an affidavit Garvin has not challenged its
accuracy.
  Nevertheless Garvin contends that the district court and
the City have misconstrued the shared attorney method of
imputing notice by requiring that the officers have received
actual notice of the lawsuit from Deputy City Solicitor
Sitarski rather than constructive notice. In support of this
argument, Garvin cites to Heinly v. Queen, 146 F.R.D. 102
(E.D. Pa. 1993). In Heinly, after the district court permitted
the plaintiff to amend his complaint to add additional
defendants, the newly added defendants moved for
summary judgment contending that the amendment did
not relate back to the filing of the initial complaint and
thus the statute of limitations barred the action as to them.
Id. at 103. In denying the motion the district court held
that:
    knowledge may be imputed to a government official
    when the original complaint names other government
    officers as defendants, the official to be added as a
    defendant is represented by the same government
    counsel as the original defendants, and counsel knew
    or should have known within the relevant time period
    that joinder of the additional official was a distinct
    possibility.
Id. at 106. The Heinly court only required that the shared
attorney have actual notice of the possibility that others
would be named in order to impute notice to the later-
named defendants.
   Heinly cannot help Garvin. In the first place in this case
Deputy City Solicitor Sitarski has not represented the four
officers and thus they have not shared an attorney with the
City. In Heinly the same Deputy Attorney General who
represented the original defendants was representing the
newly added defendants. Moreover, Heinly’s holding directly
conflicts with our analysis in Singletary and is not good
law. In Singletary we explained that, “the fundamental
issue here is whether the attorney’s later relationship with
the newly named defendant gives rise to the inference that
the attorney, within the 120 day period, had some
                              16


communication or relationship with, and thus gave notice of
the action to the newly named defendant.” 266 F.3d at 196-
97 (emphasis added). This condition for the relation back of
an amended complaint is entirely appropriate as the
plaintiff is seeking damages from the putative defendant
and not the shared attorney. Accordingly, a plaintiff must
show that there was “some communication or relationship”
between the shared attorney and the John Doe defendant
prior to the expiration of the 120-day period in order to
avail him or herself of the shared attorney method of
imputing notice. Id. Here, Garvin has failed to come forth
with     any   evidence   of  shared    representation    or
communication between Deputy City Solicitor Sitarski and
the four officers.
  We also point out an obvious practical flaw in Heinly. The
critical fact supporting the court’s holding there was that
the same Deputy Attorney General was representing both
the original and newly named defendants. A defendant
named after the statute of limitations had run presumably
could avoid Heinly’s ruling and preserve his or her statute
of limitations defense by either engaging an attorney
unrelated to an attorney already in the case or by
proceeding pro se. In that event it hardly would be possible
to conclude, in the words of Heinly, that “the official to be
added as a defendant is represented by the same
government counsel as the original defendants.” Heinly,
146 F.R.D. at 106. Of course, here the newly named
defendants never have been represented in this case by an
attorney or even appeared pro se so that even if we agreed
with Heinly, which we do not, their statute of limitations
defense would have been preserved.
  Garvin contends that the imputation standard that we
set forth invites defendants such as the City to engage in
strategic behavior in order to prevent their attorneys from
giving notice to individual police officers involved in alleged
incidents of excessive force within the 120-day period after
the filing of a John Doe complaint so as to preclude an
amended complaint from relating back. She further
contends that “the reality in police misconduct cases is that
the city or municipality almost always represents the
named police officers/defendants.” Br. of Appellant at 21.
                                    17


Therefore, according to Garvin, we should assume that
Deputy City Solicitor Sitarski would represent the four
individual officers and further assume that she had some
communication with those officers during the relevant 120-
day period so as to impute notice to them even in the face
of her statement that she did not advise them of this
action.
   We recognize that, under Pennsylvania law, a public
employee has a right to the type of representation Garvin
claims the City would have provided and in all likelihood if
the district court had permitted amendment in this case
the City Solicitor’s Office would have represented the four
police officers if such shared representation did not present
a conflict of interest.13 42 Pa. Cons. Stat. Ann. § 8547(a)
(West 1998). However, this circumstance does not change
the fact that Garvin has not come forth with evidence14 that
gives rise to the inference that Deputy City Solicitor Sitarski
or anyone else in the City Solicitor’s office had any
communication or relationship whatsoever with the four
officers within the 120-day period so as to justify imputing
notice to the officers. See Singletary, 266 F.3d at 196-97.
Moreover, while we do not doubt that Deputy City Solicitor
Sitarski skillfully has conducted the defense of this case
and, in the light of Heinly, acted prudently in not appearing
for either officer Doe or any of the newly named defendants,
we cannot by reason of these circumstances somehow

13. Garvin argues that if the officers were represented by any attorney in
the City Solicitor’s office we should impute notice under the shared
attorney method. Br. of Appellant at 21. The City counters that in
Singletary we did not view the two different attorneys who represented
the defendants, who, according to the City, see Br. of Appellee at 15,
both worked in the State Attorney General’s office, as interchangeable in
our shared attorney analysis. See Singletary, 266 F.3d at 197. We need
not address this issue inasmuch as, even assuming that we could
impute notice of any attorney in the City Solicitor’s office, Garvin has not
come forth with evidence that the four officers communicated with or
were represented by anyone in that office during the relevant period. See
Singletary, 266 F.3d at 196-97.
14. Garvin had the opportunity to take discovery on the communications
between the City Solicitor’s office and the four officers she sought to
substitute for the John Doe named in the original complaint but did not
do so.
                                18


conclude that the statute of limitations does not bar this
action as to the four newly named defendants. See
Lockwood v. City of Philadelphia, 205 F.R.D. 448, 452 (E.D.
Pa. 2002). Instead, we decline Garvin’s invitation to pile
assumption on top of assumption to reach a conclusion,
counter to the facts, that the officers had some type of
notice of this action within 120 days of its institution. We
therefore hold that the district court was correct when it
declined to impute notice to the four officers under the
shared attorney method.

    2.   Identity of Interest
    We also will impute notice if the parties are so closely
related in their business operations or other activities that
filing suit against one serves to provide notice to the other
of the pending litigation. But in Singletary, 266 F.3d at 200,
we held that “absent other circumstances that permit the
inference that notice was actually received, a non-
management employee . . . does not share a sufficient
nexus of interests with his or her employer so that notice
given to the employer can be imputed to the employee for
Rule 15(c)(3) purposes.”
   The individual police officers sought to be added to this
action certainly qualify as non-managerial employees.
Inasmuch as they do not share a sufficient nexus of
interests with their employer, the City, the district court
correctly held that it could not impute notice for purposes
of Rule 15(c)(3)(A) under the identity of interest method.
The individual police officers here have positions in the
employment structure similar to that of the staff
psychologist the plaintiff sought to add as a defendant in
Singletary as they are “not highly enough placed in the
[city] hierarchy for us to conclude that [their] interests as
. . . employee[s] are identical to the [city’s] interests.” Id. at
199.
  Garvin argues that we should adopt the reasoning of the
Court of Appeals for the Fifth Circuit in Jacobsen v.
Osborne, 133 F.3d 315 (5th Cir. 1998), and impute notice
under the identity of interest method to the individual
police officers. This argument is simply a rehashing of
                                    19


Garvin’s shared attorney contention which we already have
rejected. In Jacobsen, the court held that there was a
sufficient identity of interest between the City, the
individually named officer and the newly-named officers to
infer notice, in large part because the City’s attorney “would
necessarily have represented the newly-named officers.” Id.
at 320. In Singletary, however, we specifically distanced our
court from this aspect of Jacobsen, 133 F.3d at 320, and
separated the analysis of the identity of interest method of
imputing notice from our shared attorney discussion.
Singletary, 266 F.3d at 199. We stated in Singletary that
“[i]n Jacobsen, the key fact for the court was that the same
City Attorney would likely have interviewed the newly
named defendants soon after the lawsuit was filed, thus
giving these defendants sufficient notice of the lawsuit
within the relevant 120 day period.” Id. Here, however,
parallel with the situation in Singletary, “[b]ecause there is
no evidence or any reason to believe that the . . . attorney
for the defendant[ ] represented or even contacted [the four
officers], the basis for finding sufficient notice that existed
in Jacobsen is not present . . . .” Id. Accordingly, the
district court correctly declined to impute notice under the
identity of interest method.15

                         IV.   CONCLUSION
   We agree with the City that there is no reason why
Garvin could not have discovered the name of the arresting
officer within the time period required under Rule 15(c)(3)
and Rule 4(m). Garvin did not diligently seek to determine
the identity of the officer after she received the initial
disclosures from the City.16 She then waited until two days
before the period for fact discovery was scheduled to end
before she moved to amend her complaint to include the
names of four officers listed in the July 24, 2002 initial
disclosures.17 In the light of these circumstances and the

15. In view of our result we need not consider the significance, if any, of
the circumstance that even though Garvin sued only one John Doe
defendant she is seeking to name four officers as defendants.
16. On July 17, 2002, one week before Garvin received the City’s initial
disclosures, she served interrogatories on the City. Br. of Appellant at 5.
17. We are not suggesting that our ruling would have been different if
Garvin diligently had sought to obtain the name of the arresting officer
                                    20


other considerations we have stated herein we conclude
that the district court did not abuse its discretion in
denying Garvin’s motion to amend.18 In this regard we find
that the district court correctly held that it could not
impute notice under the shared attorney and identity of
interest methods to the four police officers. Thus, we will
affirm the orders of December 6, 2002, and January 3,
2003.19

A True Copy:
        Teste:

                        Clerk of the United States Court of Appeals
                                    for the Third Circuit




so that she could have joined him as a defendant or at least given him
notice of the claim against him within 120 days after she filed this
complaint but had not been successful in this endeavor as that situation
does not exist here. But the fact is that it is manifest that Garvin was
not diligent in the prosecution of the case in the district court. See supra
note 6.
18. Inasmuch as we hold that the district court was correct when it
declined to impute notice under the shared attorney or identity of
interest methods, we need not reach the question of whether Garvin has
satisfied the requirement of Rule 15(c)(3)(B), that is, whether the four
police officers sought to be added “knew or should have known that, but
for a mistake concerning the identity of the proper party, the action
would have been brought against the party.”
19. Garvin’s notice of appeal also recited that she is appealing from the
order granting summary judgment to the City but we are not affirming
that order as she is not challenging it in this appeal.
