Dacosta v. City of N.Y. (296 F. Supp. 3d 569, 2017)

Jack B. Weinstein, Senior United States District Judge:

Table of Contents

I. Introduction...576

II. Facts...576

III. Procedural History...577

IV. Law...578

A. Standard of Review from Objections to Magistrate Judge's Report and Recommendations...578

B. Statute of Limitations...579

C. Motion for Leave to Amend a Pleading...583

D. Relation Back...584

1) Federal Rule 15(c)(1)(A)...584

a) New York CPLR 1024...584

b) New York CPLR 203...585

2) Federal Rule 15(c)(1)(C)...590

E. Disclosure Obligations...595

F. Particular Need for Discovery in Police Civil Rights Cases...596

G. Ethical Obligations of Government Counsel...599

V. Application of Law to Facts...603 A. Ethical Obligations of Counsel...604

B. Leave to Amend Under Federal Rules 15 and 16...605

C. Relation Back Under Federal Rule 15(c)(1)(A)...606

D. Relation Back Under Federal Rule 15(c)(1)(C)...606

VI. Conclusion...607

I. Introduction

Two legal issues are central to this civil rights opinion: first, is it ethical for a government defense attorney to fail to correct plaintiff's counsel's misconception about the proper defendant; and second, should the relation back of an amendment adding a new defendant be allowed nunc pro tunc to avoid a statute of limitations defense pursuant to the standards of the Supreme Court and the New York Court of Appeals rather than the more rigid standards sometimes applied in cases decided in the Second Circuit. The answer to the first question is "no," such a practice of holding back the identity of the proper defendant is neither ethical nor allowed in the Eastern District of New York under local and national rules. And to the second, "yes," the more flexible standards of the two highest courts allow a nunc pro tunc amendment avoiding the statute of limitations.

Plaintiff has alleged serious civil rights violations by a New York City police officer. He filed suit the day before the expiration of the statute of limitations naming the wrong police officer in his complaint about his prosecution for robbery. The City's attorney representing the named officer possessed, or should have possessed, knowledge about which police officer was involved in the investigation leading to Plaintiff's prosecution for robbery. When Plaintiff finally learned the name of the officer who was responsible for the alleged harm, the attorney for the City claimed it was too late to amend the complaint to name the proper party.

Plaintiff's amended complaint naming the proper police officer is allowed, with a relation back to the time the original complaint was filed. Defendants' motion for summary judgement on the grounds of a statute of limitations defense is denied.

II. Facts

Plaintiff was accused of three crimes in 2007: homicide, escape, and robbery. He was acquitted of the homicide and escape by a jury, and the robbery charge was shortly after dismissed. This suit is based primarily on a theory that the police lacked probable cause to bring charges and prosecute Plaintiff for the robbery.

The homicide and escape charges are unrelated to the robbery. Oct. 23, 2017 Hr'g Tr. 12:12-20. Plaintiff was accused of committing a murder on July 28, 2007, id. 16:12-20, and it was alleged that while in custody for the homicide charge, Plaintiff, while under the supervision of Detective David Shapiro, escaped from the police precinct, id. 9:25-10:6. Eventually, Plaintiff was sent to jail on the homicide and escape charges. Id. 16:12-17:8; Am. Compl. ¶ 12.

The robbery charge that forms the basis of the present civil suit is based on a different set of facts. On the evening of July 28, 2007, an armed man entered a retail sports store, threatened and assaulted employees, and forcibly removed $4,600 from the cash register. Plaintiff's Response to Defendants' Statement Pursuant to Local Rule 56.1 ("56.1 Stmt.") at ¶ 1, ECF No. 65.

About a month later, on August 29, 2007, one of the robbery victims, Mohammad Sarwar, was watching the news on television and saw a picture of Plaintiff on a wanted poster related to the homicide and escape accusations. Id. at ¶¶ 2, 3. Mr. Sarwar believed that Plaintiff was the person who robbed the store the previous month; he contacted the 106th Precinct Detective Squad. Id.

A day later, he met with Detective Fortunato Tranchina, the lead detective responsible for investigating the robbery. Id. at ¶¶ 4-5. Mr. Sarwar was shown a photo array at the precinct and again identified Plaintiff. Id. at ¶ 7. The photo array contained a photograph from the wanted poster that Mr. Sarwar had seen the day earlier-the same photograph that prompted him to come forward to the police. Id. Two other eyewitness-victims of the robbery were also there, Anita Saunders and James Cadawan. Id. They had seen the same wanted poster that Mr. Sarwar saw the prior day, but they expressed some uncertainty about whether Plaintiff was the perpetrator of the robbery. Id.

On March 11, 2008, Mr. Sarwar, Ms. Saunders, and Mr. Cadawan returned to the precinct to view a lineup. Id. at ¶ 8. Mr. Sarwar identified Plaintiff as the guilty person. Id. Ms. Saunders and Mr. Cadawan viewed the lineup, but did not identify Plaintiff. Id. Ms. Saunders identified a different person with 80% confidence and Mr. Cadawan told the police that he did not recognize any of the people in the lineup. Id.

On April 24, 2008, Detective Tranchina arrested Plaintiff, who was already in jail on the other charges-homicide and escape-and signed a criminal court complaint charging him with two counts of Robbery in the First Degree. Id. at ¶¶ 9, 11. Plaintiff was, on May 15, 2008, indicted by a Grand Jury for one count of Robbery in the First Degree, one count of Robbery in the Second Degree, two counts of Assault in the Second Degree and one count of Criminal Possession of a Weapon (in the robbery) in the Fourth Degree. Id. at ¶ 13. On September 3, 2008, a criminal court judge determined that the indictment was not defective. Id. at ¶¶ 14-15.

After spending several years in jail on the robbery, homicide, and escape charges, Plaintiff was tried and acquitted of the homicide and escape. Am. Compl. ¶ 22. That same day he was released from jail on his own recognizance. Id. at ¶ 23. A month later, on September 6, 2012, the robbery charges were dismissed. Id. at ¶ 13.

Detective Tranchina was the lead detective on the robbery case, which forms the basis of this lawsuit. Plaintiff and his counsel were under the mistaken notion that Detective Shapiro, the officer who was involved in the murder investigation, and from whose custody Plaintiff allegedly escaped, was in charge of the robbery investigation. See Compl. Plaintiff filed suit on this assumption, and named as defendants Detective Shapiro along with twenty John and Jane Doe officers. Id.

Plaintiff believed that Shapiro had orchestrated his arrest for the robbery as payback for his alleged escape. Oct. 23, 2017 Hr'g. Tr. 9:16-10:13. In discovery, Plaintiff found no evidence that this theory was true, but learned of the extensive involvement of Detective Tranchina in the robbery prosecution. Id.

III. Procedural History

Plaintiff filed suit on September 5, 2015. See Compl. As amended, the complaint asserts claims under 42 U.S.C. § 1983 for deprivation of federal civil rights, malicious abuse of process, malicious prosecution, municipal liability, and a claim for intentional infliction of emotional distress under New York state law. See Am. Compl. at 5-10. The original complaint named The City of New York, David Shapiro, a detective, and twenty John and Jane Doe defendants. See Compl. at 1.

On February 26, 2016, Defendants filed a motion to dismiss the action for failure to state a claim. Plaintiff then amended his complaint on March 18, 2016, mooting the motion to dismiss. See April 19, 2016 Order, ECF No. 21. On June 3, 2016, Defendants answered Plaintiff's First Amended Complaint. See Answer, ECF. No. 25.

After engaging in discovery, on January 9, 2017, Plaintiff filed a motion to amend his complaint for a second time to add a new defendant, Detective Tranchina, determined in discovery to have been the lead detective in the robbery prosecution at the heart of the instant case. See Pl.'s Mot. Am., EFC No. 46. Defendants opposed the motion on the ground that the statute of limitations had run and that the amended pleading did not relate back to the filing of the original complaint. See Defs.' Opp'n Am., ECF No. 47.

Magistrate judge Mann agreed with Defendants. She issued a Report and Recommendation on February 10, 2017 recommending that Plaintiff's motion to amend his pleadings and add Detective Tranchina be denied. See R. & R., ECF. No. 59.

For the reasons indicated below, the statute of limitations does not bar the suit. Relation back is permitted. The report of the magistrate judge recommending denial of permission to amend is reversed.

IV. Law

A. Standard of Review from Objections to Magistrate Judge's Report and Recommendations

The magistrate judge issued a Report and Recommendation on the issue of whether Plaintiff should be granted leave to amend his complaint and whether that amendment relates back to the original pleading. Although this is a Report and Recommendation on a motion to amend a pleading, the magistrate judge recognized that it was effectively a dispositive motion because denial would "foreclose plaintiff's potential claims against Tranchina." R. & R. at 2 n.2, ECF. No. 59.

Since this report is dispositive of Plaintiff's claims, the court reviews it de novo . See Fed. R. Civ. P. 72(b) ; Covington v. Kid , No. 94 CIV. 4234 (WHP), 1999 WL 9835, at *2 (S.D.N.Y. Jan. 7, 1999) ("A dispositive matter is one that disposes of, or terminates, a claim or defense. Because Magistrate Judge Peck's order denying Plaintiff leave to amend the complaint foreclosed the potential claims against P.O. Lorenzo and Lt. Ahearn, it was dispositive.").

A party has fourteen days to object to a Report and Recommendation. Fed. R. Civ. P. 72. Plaintiff did not file an objection. But see Grassia v. Scully , 892 F.2d 16, 19 (2d Cir. 1989) ("[T]he district court is not bound by the recommendation of the magistrate."). The court has discretion to conduct de novo review even without receiving objections within the allotted fourteen-day window. See United States v. Male Juvenile (95-CR-1074) , 121 F.3d 34, 39 (2d Cir. 1997) ("Although defendant did not object to the magistrate judge's recommendation ... [t]he record indicates that the district court made a de novo determination of the Report and Recommendation .... The court's review was well within its discretion.").

While a failure to timely object may at times lead to a waiver of a right to review, the court here reviews de novo because of the serious ethical and other considerations that were revealed by Defendants' summary judgment motion. The parties have long been on notice that the court was considering this issue. On March 7, 2017 the court informed the parties that it would hear argument on Plaintiff's motion seeking to amend his complaint along with Defendants' motion for summary judgement. See Mar. 7, 2017 Order, EFC No. 62. In a later scheduling order the court informed Defendants that "[c]ounsel for the defendants, the defendants, and prospective defendants may be questioned about their litigation conduct in failing to bring plaintiff's counsel's error to the timely attention of plaintiff's counsel, if that was a failure." May 17, 2017 Order, ECF No. 71.

B. Statute of Limitations

As in the case of many federal substantive statutes, Congress did not establish a statute of limitations for civil rights actions brought pursuant to 42 U.S.C. § 1983. Bd. of Regents v. Tomanio, 446 U.S. 478, 483, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Consequently, federal courts are sometimes driven to "borrow" state statutes of limitations. Johnson v. Ry. Exp. Agency, Inc. , 421 U.S. 454, 462, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (citing cases). Section 1988 instructs district courts to follow

the laws of the United States, so far as such laws are suitable to carry [the provisions of Section 1983 ] into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States , shall be extended to and govern the said courts in the trial and disposition of the cause ...

42 U.S.C. § 1988 (emphasis added).

The state statute to be borrowed should not be selected arbitrarily; the limitations period for "the prosecution of a closely analogous claim" must be chosen because "a federal court is relying on the State's wisdom in setting a limit" for when the action may be brought, which "inevitably reflect a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones." Johnson , 421 U.S. at 463-64, 95 S.Ct. 1716.

The statutes should be adopted with at least some state interpretative nuances. To properly apply a statute of limitation, it is necessary to understand the purposes underlying it. The purposes underlying statutes of limitation of the state of New York is as follows:

Statutes of limitation are essentially creatures of the legislative rather than of the judicial process. Although isolated instances of time limitations upon the institution of suits existed prior to the seventeenth century, the genesis of modern comprehensive prescription of time limitations is generally ascribed to the English Limitation Act of 1623.

Statutes of limitation are among the more anomalous creatures of the law. They often operate arbitrarily upon passage of the specified period of time to bar justified as well as unjustified claims, and typically apply whether the delay in bringing suit was justifiable or, indeed, could have been avoided at all. They represent a legislative judgment that such occasional hardship is outweighed by the advantages of barring stale claims.

A number of interrelated policy considerations are advanced as the "advantages" that outweigh these occasional hardships.

Perhaps most fundamental, certainly most deeply rooted in the "instinct of men," are the considerations that underlie the common appellation of limitation statutes as "statutes of repose."

It seems harsh that misdeeds and obligations perhaps long forgotten should remain a source of uncertainty and concern, if those harmed do not seek vindication within a reasonable time. Expectation are developed., with the passage of time, that the slate has been wiped clean of ancient obligations, or even that they have been forgiven, and it is not unreasonable to seek security to mold one's affairs in the light of these expectations. So long as the injured person is given a reasonable time and opportunity to seek any desired redress for personal grievance, and is aware of the bar by the passage of time, concern for that person need not conflict with this policy of repose.

The policy consideration most frequently articulated by courts, however, and the one that has had the greatest effect in shaping the law of limitations, concerns the effect of the passage of time upon the availability and reliability of evidence, and the consequent prejudice to fair and accurate determination of factual disputes. Fairness to the defendant is primarily stressed, but concern for the effectiveness of judicial machinery is also apparent.

Less often articulated, but certainly a related element of justification for time limitations, is the experiential knowledge that meritorious claims will usually be pressed within a reasonable period of time, which leads to a presumption of sorts that the probability of merit is less in a stale than a fresh claim. An English judge may have had the probability, as well as the policy of repose in mind, in stating that "Long dormant claims have often more of cruelty than of justice in them."

In addition to these general policy considerations, statutes of limitation are often used to implement a legislative attitude toward particular types of actions or particular classes of litigants. The short slander period reflects disfavor of this type of action; the two-year and six months medical malpractice period evidences special favorable treatment of a particular class of defendants.

1 J. Weinstein, H. Korn, & A. Miller., N.Y. Civ. Prac. ¶ 201.01, at 2-7 to 2-9 (1995).

State legislatures often provide for different statutes of limitations to be used depending on the claims and the parties at issue. See, e.g. , Pauk v. Bd. of Trs.' of City Univ. of N.Y. , 654 F.2d 856, 861 (2d Cir. 1981) (reviewing different New York statutes of limitations that could apply to plaintiff's Section 1983 claim). Trying to divine which limitations period to apply to a Section 1983 action was a difficult task because there are no causes of action analogous to a federal suit stating claims under Section 1983. That section is "a uniquely federal remedy" that has "no precise counterpart in state law. Therefore, it is the purest coincidence when state statutes or the common law provide for equivalent remedies; any analogies to those causes of action are bound to be imperfect." Wilson v. Garcia , 471 U.S. 261, 271-72, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (internal quotation marks and citations omitted).

Another problem with the borrowing rule is the variety of conduct that can constitute the basis of a valid Section 1983 claim. See id. at 274, 105 S.Ct. 1938 (cataloguing some of the "numerous and diverse topics and subtopics" that have been alleged as constitutional claims under § 1983 ). In endeavoring to apply "analogous" state statutes of limitations, courts could apply different limitation periods to different legal claims falling under the umbrella of a Section 1983 claim, which might even happen within the same lawsuit. Id.

In the face of these issues, the Supreme Court has explicitly shifted away from the Johnson rationale for using state statutes of limitations-that borrowing limitations statutes is a way to borrow the "wisdom" of state legislatures who balanced the interests of repose and substantive justice when considering "closely analogous claims"-and instead has held that "practical considerations ... explain why a simple, broad characterization of all § 1983 claims best fits the statute's remedial purpose." Id. at 272, 105 S.Ct. 1938.

The primary practical consideration relied upon by the Court is that a uniform statute of limitations within each state helped further "the [federal] legislative purpose to create an effective remedy for the enforcement of federal civil rights," and the effectiveness of that remedy "is obstructed by uncertainty in the applicable statute of limitations, for scarce resources must be dissipated by useless litigation on collateral matters." Id. at 275, 105 S.Ct. 1938. Eventually, the Supreme Court decided that the three-year statute of limitations of New York CPLR 214(5), which governs general personal injury actions, should be applicable to any and all Section 1983 actions filed in New York. Owens v. Okure , 488 U.S. 235, 251, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989).

Supreme Court jurisprudence in this area has led to the peculiar result that the time within which a plaintiff must bring a claim under Section 1983 varies widely from state-to-state. See Jones v. R.R. Donnelley & Sons Co. , 541 U.S. 369, 379, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004) ("[L]imitations borrowing resulted in uncertainty for both plaintiffs and defendants, as a plaintiff alleging a federal claim in State A would find herself barred by the local statute of limitations while a plaintiff raising precisely the same claim in State B would be permitted to proceed."); Katharine F. Nelson, The 1990 Federal "Fallback" Statute of Limitations: Limitations by Default , 72 Neb. L. Rev. 454, 483 (1993) ("A person in North Dakota or Maine who has been denied his or her First Amendment rights has six years in which to assert a claim, but a person in Kentucky or Louisiana loses the same First Amendment claim after only one year."); David D. Siegel, Practice Commentary on Amendment of Federal Rule 4 ( Eff. Feb. 26, 1983) with Special Statute of Limitations Precautions , 96 F.R.D. 88, 99 (1983) ("[I]t must strike any observer as incongruous that something as fundamentally 'federal' as a federal civil rights claim should be subject to varying periods from state to state."). Though Congress subsequently passed a law establishing a catch-all federal statute of limitations of four years (see 28 U.S.C. § 1658 ), the law is not retroactive and "applies only to claims arising under statutes enacted after December 1, 1990." Jones , 541 U.S. at 380, 124 S.Ct. 1836. For Section 1983 claims, courts are still required to apply the directives of Section 1988 of Title 42 as interpreted by the Supreme Court.

The application of state statutes of limitations to Section 1983 claims comes with a caveat; Section 1988 allows for the application of state law only " 'so far as the same is not inconsistent with' federal law." Wilson , 471 U.S. at 269, 105 S.Ct. 1938 (quoting 42 U.S.C. § 1988 ). "In order to gauge consistency ..., the state and federal policies which the respective legislatures sought to foster must be identified and compared." Tomanio , 446 U.S. at 487, 100 S.Ct. 1790. While "in general, state policies of repose cannot be said to be disfavored in federal law ... it is appropriate to determine whether" application of a state statute of limitations is appropriate given the federal policies embodied in the creation of a cause of action under Section 1983. Id. at 488-89, 100 S.Ct. 1790.

The instruction to consider the state's policy in setting the relevant statute of limitations is strange given the Court's acknowledgement that "practical considerations" drove its directive that a single limitations period be used for all Section 1983 claims in any state, and its recognition that "when the federal claim different from the state cause of action in fundamental respects, the State's choice of a specific period of limitation is, at best, only a rough approximation of the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones." Wilson , 471 U.S. at 271-72, 105 S.Ct. 1938 (internal quotation marks omitted).

The importance of federal policy in enacting Section 1983 can hardly be overstated. Congress passed Section 1983 as part of the Civil Rights Act of 1871 in response to the terrorist campaigns of the Ku Klux Klan that sought to deny "decent citizens their civil and political rights." Id. at 276, 105 S.Ct. 1938. "By providing a remedy for the violation of constitutional rights, Congress hoped to restore peace and justice to the [Southern] region through the subtle power of civil enforcement." Id. Section 1983 provides "a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation." Mitchum v. Foster , 407 U.S. 225, 239, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). "The high purposes of this unique remedy make it appropriate to accord the statute a sweep as broad as its language." Wilson , 471 U.S. at 272, 105 S.Ct. 1938 (internal quotation marks omitted). More specifically, "[t]he policies underlying § 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law." Robertson v. Wegmann , 436 U.S. 584, 590-91, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978).

Congressional policy encourages attorneys to file lawsuits asserting valid Section 1983 claims. Congress passed the Civil Rights Attorney's Fees Act of 1976 ( 42 U.S.C. § 1988(b) )-which allows the court to award a "prevailing party" in "any action or proceeding to enforce a provision of" Section 1983 to recover "a reasonable attorney's fee"-to encourage civil rights lawsuits and deter civil rights violations. See David Shub, Private Attorneys General, Prevailing Parties, and Public Benefit: Attorney's Fees Awards for Civil Rights Plaintiffs , 42 Duke L.J. 706, 708-712 (1992) (reviewing the legislative history of the Civil Rights Attorney's Fees Act of 1976).

Despite the importance of the policies that undergird Section 1983, "[a] state statute cannot be considered 'inconsistent' with federal law merely because the statute causes the plaintiff to lose the litigation." Robertson, 436 U.S. at 593, 98 S.Ct. 1991. In Robertson , the Supreme Court found that Louisiana's survivorship statute, which did not allow for the executor of the plaintiff's estate to recover pursuant to a decedent-plaintiff's § 1983 action, was not "inconsistent" with federal law so that it was appropriate to create a federal common law rule that would allow the survival of the action. Id. In allowing the action to abate, the Court noted that

given that most Louisiana actions survive the plaintiff's death, the fact that a particular action might abate surely would not adversely affect § 1983's role in preventing official illegality, at least in situations in which there is no claim that the illegality caused the plaintiff's death. A state official contemplating illegal activity must always be prepared to face the prospect of a § 1983 action being filed against him. In light of this prospect, even an official aware of the intricacies of Louisiana survivorship law would hardly be influenced in his behavior by its provisions.

Id. at 592, 98 S.Ct. 1991.

In order to find even a marginal influence on behavior as a result of Louisiana's survivorship provisions, one would have to make the rather farfetched assumptions that a state official had both the desire and the ability deliberately to select as victims only those persons who would die before conclusion of the § 1983 suit (for reasons entirely unconnected with the official illegality) and who would not be survived by any close relatives.

Id. at 592 n.10, 98 S.Ct. 1991. The Court classified its holding as a "narrow one" in which application of the state law "has no independent adverse effect on the policies underlying § 1983." Id. at 594, 98 S.Ct. 1991.

In situations where application of a state law could undermine Section 1983's twin goals of compensation and deterrence, courts will not apply that law. See, e.g. , Chaudhry v. City of Los Angeles , 751 F.3d 1096, 1105 (9th Cir. 2014) ("California's prohibition against pre-death pain and suffering damages limits recovery too severely to be consistent with § 1983's deterrence policy. [The California law] therefore does not apply to § 1983 claims where the decedent's death was caused by the violation of federal law."); McFadden v. Sanchez , 710 F.2d 907, 911 (2d Cir. 1983) ("To whatever extent section 1988 makes state law applicable to section 1983 actions, it does not require deference to a survival statute that would bar or limit the remedies available under section 1983 for unconstitutional conduct that causes death. State law that would preclude a claim for punitive damages in a case like the present one is manifestly 'inconsistent' with federal law within the meaning of section 1988.").

C. Motion for Leave to Amend a Pleading

Prior to trial, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). If a scheduling order has been entered setting a deadline for amendments, the schedule "may be modified" to allow the amendment "only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). While the "primary consideration" for determining whether a party has good cause is if "the moving party can demonstrate diligence," the district court may also consider "other relevant factors including, in particular, whether allowing the amendment of the pleading at this state of the litigation will prejudice defendants." Kassner v. 2nd Avenue Delicatessen, Inc. , 496 F.3d 229, 244 (2d Cir. 2007).

It must be kept in mind that all federal civil procedure rules should "be construed, administered, and employed by the court and the parties to secure the just , speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1 (emphasis added). It is "entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of [ ] mere technicalities." Foman v. Davis , 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (citing Fed. R. Civ. P. 1 and 15 in holding that amendment of a complaint should be freely given so a plaintiff is "afforded an opportunity to test his claim on the merits.").

D. Relation Back

In some instances, "an amended pleading relates back to the date of a timely filed original pleading and is thus itself timely even though it was filed outside an applicable limitations period." Krupski v. Costa Crociere S. p. A. , 560 U.S. 538, 541, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010). Two forms of "relation back" are relevant. First, an amended pleading relates back when "the law that provides the applicable statute of limitations allows relation back." Fed. R. Civ. P. 15(c)(1)(A). Second, an amended pleading that adds a new party relates back pursuant to Rule 15(c)(1)(C) if the following conditions are met:

(1) the claim must have arisen out of conduct set out in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party should have known that, but for a mistake of identity, the original action would have been brought against it; and ... [4] the second and third criteria are fulfilled within 120 days of the filing of the original complaint, and ... the original complaint [was] filed within the limitations period.

Hogan v. Fischer , 738 F.3d 509, 517 (2d Cir. 2013) (alterations in original) (citing Barrow v. Wethersfield Police Dept. , 66 F.3d 466, 468-69 (2d Cir. 1995) ).

1) Federal Rule 15(c)(1)(A)

For a claim brought pursuant to 42 U.S.C. § 1983, "the law that provides the applicable statute of limitations" is the law of the state in the jurisdiction in which the federal district court sits because there is no federal statute of limitations. See Wilson , 471 U.S. at 275, 105 S.Ct. 1938 ; Hogan , 738 F.3d at 518. Courts must "look to the entire body of limitations law that provides the applicable statute of limitations." Hogan , 738 F.3d at 518 (emphasis in original). If the claim would be saved under an applicable state law, that law must be applied. Id.

a) New York CPLR 1024

New York has a rule that specifically pertains to claims against John Doe defendants. CPLR 1024 reads:

A party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.

New York courts have read two additional requirements into the application of CPLR 1024 : (1) there must not be prejudice to the newly-substituted defendant, and (2) the plaintiff must have been reasonably diligent in attempting to ascertain the identity of the unknown defendant prior to the expiration of the statute of limitations. Hogan , 738 F.3d at 518-19.

There is also a third requirement, which arises from the interaction of CPLR 1024 and CPLR 306-b -the newly-named defendant must be served within 120 days of the filing of the complaint. Bumpus v. New York City Tr. Auth. , 66 A.D.3d 26, 31-32, 883 N.Y.S.2d 99 (N.Y. App. Div. 2009). This 120-day service requirement may be extended "upon good cause shown or in the interest of justice." Id. at 31, 883 N.Y.S.2d 99 (quoting CPLR § 306-b ). "To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service." Id. Whether an extension is in "the interests of justice" is a broader inquiry that takes into consideration the merits of the underlying action, diligence, and prejudice to the defendant, among other factors. Id. at 32, 883 N.Y.S.2d 99.

b) New York CPLR 203

Within the body of New York limitations law is also a more general relation-back statute, CPLR 203. A plaintiff's claims against one defendant may relate back to claims asserted against another if:

(1) both claims arose out of the same conduct, transaction, or occurrence, (2) the new party is 'united in interest' with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (3) the new party knew or should have known that, but for a[ ] ... mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well.

Buran v. Coupal , 87 N.Y.2d 173, 638 N.Y.S.2d 405, 661 N.E.2d 978, 981 (1995). "[T]he doctrine enables a plaintiff to correct a pleading error ... after the statutory limitations period has expired [and] ... thus gives courts the sound judicial discretion to identify cases that justify relaxation of limitations strictures to facilitate decisions on the merits if the correction will not cause undue prejudice to the plaintiff's adversary." Id. (internal citations, quotation marks, and alteration omitted).

Buran is a leading policy determining case for New York decided by its highest court. It greatly expanded opportunities to relate back for amendments based on new defendants. Prior to the decision of the New York Court of Appeals in Buran , many lower courts only allowed relation back if the mistake by the plaintiff as to identity of the proper parties was "excusable." In Buran , the Court of Appeals held that the mistake need not be "excusable," and that requiring courts to evaluate the excusability of the mistake "unwisely focuses attention away from ... the primary consideration in such cases-whether the defendant could have reasonably concluded that the failure to sue within the limitations period meant that there was no intent to sue that person at all and that the matter had been laid to rest as far as he is concerned." Id. , 638 N.Y.S.2d 405, 661 N.E.2d at 983 (emphasis in original) (internal quotation marks omitted).

Notice to the defendant, rather than the diligence of the plaintiff, is the " 'linchpin' of the relation back doctrine." Id. (quoting Schiavone v. Fortune , 477 U.S. 21, 31, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) ). The "practical effect" of requiring excusability "ha[d] been to render the relation back doctrine meaningless in all but rare circumstances.... Surely, such a result is not in keeping with modern theories of notice pleading and the admonition that the Civil Practice Law and Rules 'be liberally construe to secure the just, speedy and inexpensive determination of every civil judicial proceeding.' " Id. (quoting CPLR 104 ).

The New York Court of Appeals clarified that tactical jockeying is not encouraged.

This is not to say, however, that removing the excusability requirement from the third prong would prevent a court from refusing to apply the doctrine in cases where the plaintiff omitted a defendant in order to obtain a tactical advantage in the litigation. When a plaintiff intentionally decides not to assert a claim against a party known to be potentially liable, there has been no mistake and the plaintiff should not be given a second opportunity to assert that claim after the limitations period has expired.

Id. Courts may also be "justified in denying a plaintiff the benefit of the doctrine in order to prevent delay or disruption in the normal course of the lawsuit. Application of the doctrine in such circumstances would likely result in prejudice to the adversary and, as noted above, bar application of the doctrine under the second prong." Id.

The first prong of the Buran test-same occurrence-is easily applied and rarely litigated. The second prong, whether the new defendant is "united in interest" with the timely named defendant so that the new defendant can be charged with notice and will not be prejudiced, requires further exploration. "[T]he question of unity of interest is to be determined from an examination of (1) the jural relationship of the parties whose interests are said to be united and (2) the nature of the claim asserted against them by the plaintiff." Amaya v. Garden City Irrigation, Inc. , 645 F.Supp.2d 116, 122 (E.D.N.Y. 2009) (citing Connell v. Hayden , 83 A.D.2d 30, 42-43, 443 N.Y.S.2d 383 (N.Y. App. Div. 1981) ). A "jural relationship" is simply a "legal relationship giving rise to potential liability." Id.

"The most frequently cited relationship creating a unity of interest is vicarious liability, such as between an employer and employee or a corporation and its agents." Id. This relationship it has been held does not lead to a unity of interest in the context of a Section 1983 lawsuit because "a municipality cannot be held liable solely because it employs a tortfeasor, or, in other words, a municipality cannot be held liable under section 1983 on a respondeat superior theory." Monell v. Department of Social Services , 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (italics in original); Higgins v. City of New York , 144 A.D.3d 511, 513-16, 43 N.Y.S.3d 1 (N.Y. App. Div. 2016) (holding that there is no unity of interest between a city and its police officers because the city can only be held liable under Monell and is not vicariously liable for the actions of its officers); cf. Llerando-Phipps v. City of New York , 390 F.Supp.2d 372, 385 (S.D.N.Y. 2005) (allowing claims substituting individual officer names to relate back under CPLR 203"because the individual officers are 'united parties in interest' with their employer, Defendant City of New York.").

The reality as observed in practice, however, is that the City and police officers have a practical unity of interest. The practice is for the City to pay any officers damages in almost all Section 1983 cases. New York City has a statutory obligation to indemnify individual policer officers for their tortious conduct so long as the tortious conduct "occurred while the employee was acting within the scope of his employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred." N.Y. Gen. Mun. Law § 50-k(2) (McKinney 2017). "New York courts have ... found that the duty to indemnify creates a unity of interest between parties." Strada v. City of New York , No. 11-CV-5735, 2014 WL 3490306, at *7 (E.D.N.Y. July 11, 2014) (citing New York cases). In circumstances where the City is bound by this duty, or uniform practice, the indemnification obligation is sufficient to constitute a "unity of interest" that passes the muster of the second prong of CPLR 203. See Strada , 2014 WL 3490306 at *8 n.6 ("[H]ere, the City-the originally named party-has the duty to represent and indemnify the untimely-added officers.... [T]he statutory duty of the City to indemnify its officers, even absent vicarious liability, is sufficient to create a unity of interest between the parties.").

The third prong of the relation back test asks whether the new party knew or should have known that, but for a mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well. Whether this prong is met often turns on interpretation of the word "mistake." Most federal district courts have held that the term "mistake" in CPLR 203 should be given the same meaning as the term is given in Rule 15(c)(1)(C) of the Federal Rules of Civil Procedure. See, e.g. , Briggs v. County of Monroe , 09-CV-6147W, 2016 WL 1296060, at *10 (W.D.N.Y. Mar. 29, 2016) (citing cases). Nevertheless, as narrowly interpreted by the Court of Appeals for the Second Circuit, there is no "mistake in identity" that allows for relation back under Rule 15(c)(1)(C) if the "added defendants were not named originally because the plaintiff did not know their identities.... [T]he failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake." Barrow v. Wethersfield Police Dept. , 66 F.3d 466, 469-70 (2d Cir. 1995) ; see Hogan , 738 F.3d at 517-18 (same); see also infra Part IV(D)(2).

Other federal district courts have inquired whether the plaintiff intentionally did not initially name the newly added defendants. Amaya , 645 F.Supp.2d at 124 ; Ingenito v. Riri USA, Inc. , 89 F.Supp.3d 462, 483 (E.D.N.Y. 2015). Under this inquiry, relation back is available if a plaintiff lacked knowledge of the true identity of the defendant, but the plaintiff evinces a lack of mistake if he fails to amend his complaint in a timely manner upon learning the defendant's proper identity. See, e.g. , Amaya , 645 F.Supp.2d at 124 ("Plaintiffs were aware of Tedesco's role at least as of May 12, 2005, when he was added as a third-party defendant, yet they did not seek to add him as a direct defendant for almost three years."); Strada , 2014 WL 3490306, at *9 ("Plaintiff offers no explanation for his failure to timely amend the Complaint to add the proposed defendants despite having knowledge of the individual defendants' potential liability by, at least, October 3, 2012 ... Here, by Plaintiff's own representation, he knew of all of the proposed defendants over a month before the statute of limitations expired on November 7, 2012.").

The role of the federal district court judge, when confronted with an issue of state law, is not to graft on to state law the precedent of a similar federal law, but to "ascertain from all the available data what the state law is and apply it [as a state court would] rather than to prescribe a different rule, however superior it may appear from the viewpoint of 'general law' and however much the state rule may have departed from prior decisions of the federal courts." West v. American Tel. & Tel. Co. , 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940). "A federal court faced with a question of unsettled state law must do its best to guess how the state court of last resort would decide the issue. Where the high court has not spoken, the best indicators of how it would decide are often the decisions of lower state courts." In re Brooklyn Navy Yard Asbestos Litig. , 971 F.2d 831, 850 (2d Cir. 1992) (internal citations omitted).

Not every New York state court interprets the term "mistake" in the state relation-back test in the same way the New York federal courts do when applying the federal relation-back test. The different appellate departments evaluate the third prong in different ways.

The Fourth Department is the most permissive in allowing relation back. In that Department, filing a complaint against a "John Doe" defendant because of ignorance of the proper party's identity is a "mistake in identity" that allows for claims against newly-named parties to relate back to the original filing against "John Doe." In Kirk v. University OB-GYN Assoc., Inc. , plaintiffs sued a hospital, individual doctors, and "John Doe, M.D." and "Jane Roe, M.D." for medical malpractice related to injuries sustained by an infant during the infant's delivery. 104 A.D.3d 1192, 1193-94, 960 N.Y.S.2d 793 (N.Y. App. Div. 2013). One year after the statute of limitations became a bar, the plaintiffs moved for leave to amend their complaint by substituting the name of the physician who performed the delivery in place of "John Doe, M.D." The lower court granted the plaintiffs leave to amend their complaint. On appeal, the newly named physician argued that "there was no mistake and only neglect on the part of plaintiffs[;] [the appellate division agreed] with plaintiffs, however, [noting] that even if they were negligent, there was still a mistake by plaintiffs in failing to identify [the newly named physician] as a defendant." Id. at 1194, 960 N.Y.S.2d 793.

Following Kirk , the Fourth Department affirmed this interpretation of mistake in Johanson v. County of Erie . It held that "the third prong [of the relation back test] [was] satisfied" where a plaintiff moved to add a sheriff to a wrongful death complaint after the statute of limitations expired. Johanson v. County of Erie, 134 A.D.3d 1530, 1531, 22 N.Y.S.3d 763 (N.Y. App Div. 2015) (citing Kirk and Buran ). In Nasca v. DelMonte it held "that plaintiffs also satisfied the third prong of [the relation back] test inasmuch as they established that their failure to include DelMonte P.C. as a defendant in the original or first amended complaint was a mistake and not the result of a strategy to obtain a tactical advantage." 111 A.D.3d 1427, 1429, 975 N.Y.S.2d 317 (N.Y. App. Div. 2013) (citing Kirk and Buran ) (internal quotation marks and alteration omitted).

The Third and First Departments hew closer to the narrower federal Barrow rule (see infra Part IV(D)(2), discussing the Barrow under Rule 15(c)(1)(A) ) that "plaintiffs' failure to identify [a newly-named defendant] prior to commencing this action was not the result of any mistake but, rather, was the product of their failure to make a timely and genuine attempt to ascertain [the defendant's] identity. [And] therefore reject plaintiffs' assertion that they should be permitted ... to utilize th[e] [relation back] doctrine." Hall v. Rao , 26 A.D.3d 694, 696, 809 N.Y.S.2d 661 (N.Y. App. Div. 2006) ; see also Tucker v. Lorieo , 291 A.D.2d 261, 262, 738 N.Y.S.2d 33 (N.Y. App. Div. 2002) ("In this case, however, the failure to identify Lorieo in the original summons and complaint and make timely service on him was not due to a mistake on the part of plaintiff in identifying the proper parties. Rather, it was due to plaintiff's failure to timely request the hospital record and ascertain Lorieo's identity.").

The Second Department also requires that plaintiffs demonstrate "that diligent efforts were made to ascertain the unknown party's identity prior to the expiration of the statute of limitations," but this is an "added burden" to fulfilling the other three prongs of Section 203 and not an outgrowth of the third prong. Bumpus v. N.Y.C. Tr. Auth. , 66 A.D.3d 26, 35, 883 N.Y.S.2d 99 (N.Y. App. Div. 2009).

Though the Hall , Tucker , and Bumpus decisions fault plaintiffs for their ignorance of the proper party's identity, other decisions from the same courts have ruled that ignorance of the proper party's identity is a prerequisite to invoking the relation-back doctrine. In Somer & Wand, P.C. v. Rotondi , the Appellate Division Second Department did not allow an amended complaint adding the individual shareholders of a professional corporation to relate back to the original filing because the counterclaimants "concede that they were aware of the identities of the individual shareholders ... when they commenced the action ... [and] contend that they intentionally did not name and serve the individual shareholders because they believed that the shareholders would be personally liable under Business Corporation Law § 1505(a)." 251 A.D.2d 567, 568-69, 674 N.Y.S.2d 770 (N.Y. App. Div. 1998). The court held that "[t]he mistake here was not a mistake as to the identity of the shareholders, but a mistake of law, which is not the type of mistake contemplated by the relation-back doctrine." Id. at 569, 674 N.Y.S.2d 770. The Third Department came to the same conclusion that a "mistake resulting from a misapprehension" about the law is "not a mistake as to ... identity." State v. Gruzen Partnership , 239 A.D.2d 735, 736, 657 N.Y.S.2d 830 (N.Y. App. Div. 1997).

These decisions produce a patchwork of conflicting rules about when relation back should be permitted, complicating the task of federal districts courts in discerning how the New York Court of Appeals or the Court of Appeals for the Second Circuit would rule on this issue. The Fourth Department allows relation back when there has been a John Doe pleading without regard to a plaintiff's diligence in identifying the unknown defendant. See, e.g. , Kirk v. University OB-GYN Assoc., Inc. , 104 A.D.3d 1192, 1193-94, 960 N.Y.S.2d 793 (N.Y. App. Div. 2013). The First and Third Departments classify naming John Doe as a defendant as a failure to ascertain a defendant's identity, rather than a "mistake" in identity. See, e.g. , Hall v. Rao , 26 A.D.3d 694, 696, 809 N.Y.S.2d 661 (N.Y. App. Div. 2006) ; Tucker v. Lorieo , 291 A.D.2d 261, 262, 738 N.Y.S.2d 33 (N.Y. App. Div. 2002). The Second Department recognizes that suing John Doe could be a mistake, but plaintiffs may only avail themselves of the relation back doctrine if they attempted to avoid this mistake by making a sufficient effort to identify the defendant prior to filing suit. See, e.g. , Bumpus v. New York City Tr. Auth. , 66 A.D.3d 26, 35, 883 N.Y.S.2d 99 (N.Y. App. Div. 2009).

The Buran decision by the New York Court of Appeals is the best guidance on which of these approaches the New York Court of Appeals would likely adopt as the New York rule. Based on Buran , it appears that the permissive approach of the Fourth Department is most aligned with New York Court of Appeals precedent. In Buran , the Court explicitly eschewed a prior iteration of the doctrine that required a plaintiff's mistake to be "excusable." Buran , 638 N.Y.S.2d 405, 661 N.E.2d at 981-83. Focusing on the diligence of the plaintiff, as the First, Second, and Third Appellate Division Departments do, is a reintroduction of the excusability gloss that the Court of Appeals abandoned. While noting, with disdain, that "the practical effect [of the excusability requirement] for New York litigants has been to render the relation back doctrine meaningless in all but rare circumstances," the New York Court of Appeals cited the Second Department's decision in Sandor v. Somerstown Plaza Assocs. as emblematic of this trend. Id. , 638 N.Y.S.2d 405, 661 N.E.2d at 983. In Sandor , the appellate court did not allow relation back because the "plaintiff did not diligently attempt to ascertain the true identity of the defendant before the running of the statute of limitations," meaning the plaintiff's failure to timely identify the proper defendant "was not attributable to any reasonable mistake, but to her own inexcusable neglect." 210 A.D.2d 212, 213-14, 619 N.Y.S.2d 737 (N.Y. App. Div. 1994) (internal quotation marks omitted). The Buran Court held that the result in Sandor was "not in keeping with modern theories of notice pleading and the admonition that the Civil Practice Law and Rule be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding." Buran , 638 N.Y.S.2d 405, 661 N.E.2d at 983 (internal quotation marks omitted).

The Buran decision traced the "excusable mistake" requirement back to "a judicial gloss imposed on rule 15(c) [of the Federal Rules of Civil Procedure]" by courts which denied plaintiffs the benefit of relation back

on grounds that they deliberately failed to identify the proper party who was known to them at the time ... or where the proposed new defendant had no notice of the pendency of the action such that the defendant could not reasonably have expected to have been sued.... Despite the existence of this judicially created exception to the doctrine for reasons of lack of notice or bad faith, it is apparent that apart from excusability of the mistake, the Brock [83 A.D.2d 61, 443 N.Y.S.2d 407 (1981) ] test already provides an independent ground for denying application of the doctrine in these cases-absence of mistake under the first prong or operative prejudice to the defendant under the second. Adding the word 'excusable' to the third prong effectively converts what are already valid considerations under the first and second prongs into an independent factor under the third.

Id. , 638 N.Y.S.2d 405, 661 N.E.2d at 982-83 (internal citation omitted). If a plaintiff is not diligent in ascertaining the defendant's identity and amending his claim, a court has the discretion to deny "a plaintiff the benefit of the doctrine in order to prevent delay or disruption in the normal course of the lawsuit." Id. , 638 N.Y.S.2d 405, 661 N.E.2d at 983. Denial under these circumstances, though, would be under the "second prong" since plaintiff's nondiligence "would likely result in prejudice to the adversary." Id.

In the present case, this court concludes that the New York Court of Appeals, if deciding this issue, would hold that the diligence of the plaintiff is not an aspect of the "mistake" prong, and suing "John Doe" when a defendant's identity is unknown is a mistake for purposes of the relation-back doctrine of CPLR 203.

To the extent that the state law on relation back is relevant and ambiguous, the Court of Appeals for the Second Circuit may certify the question to the New York Court of Appeals. See Second Circuit Local Rule 27.2 ; N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27(a) (2017). A federal district court does not have this procedure available to it and must decide considering the state and federal relations at play. Under the circumstances of the present case relation back should be permitted. See supra Parts V(C)-(D).

2) Federal Rule 15(c)(1)(C)

" Rule 15(c)(1)(C) provides the federal standard for relation back." Hogan, 738 F.3d at 517. "For an amended complaint adding a new party to relate back under Rule 15(c)(1)(C), the following conditions must be met:

(1) the claim must have arisen out of conduct set out in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party should have known that, but for a mistake of identity, the original action would have been brought against it; and ... [4] the second and third criteria are fulfilled within 120 days of the filing of the original complaint, and ... the original complaint [was] filed within the limitations period."

Id. (citing Barrow , 66 F.3d at 468-69 ). Substitution of a real name for a "John Doe" defendant "adds a new party" to a complaint so that claims against that new party only relate back if the strictures of Rule 15 are met. Aslanidis v. U.S. Lines, Inc. , 7 F.3d 1067, 1075 (2d Cir. 1993).

The leading federal case on relation-back in the context of a John Doe pleading is Barrow v. Wethersfield Police Dept. , 66 F.3d 466 (2d Cir. 1995). In Barrow , a plaintiff brought suit against a police department under Section 1983. The complaint originally only named the police department as a defendant. The complaint was later amended to include John Does, and then to include the names of six police officers. The only pleading that was filed within the statute of limitations was the original complaint naming only the police department. The six officers moved to dismiss the complaint under Rule 12(b)(1) on the theory that the claims were barred by the statute of limitations. The district court granted the motion, finding that the "defendants' attorneys were not served with a complaint until ... considerably after the limitations period had expired," and the plaintiff made no showing "that the six individual defendants had even constructive knowledge of the claims against them within 120 days of the court's receipt of the initial complaint." Id. at 467.

The Court of Appeals for the Second Circuit framed the issue before it in Barrow as "whether defendants who are not named originally because the plaintiff lacks knowledge of their identity are, within the meaning of [ Rule 15(c)(1)(C) ], not named because of a 'mistake' concerning their identity." Id. at 469. The court held restrictively that

the rule is meant to allow an amendment changing the name of a party to relate back to the original complaint only if the change is the result of an error, such as a misnomer or misidentification ... [w]e are compelled to agree with our sister circuits that Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities. Rule 15(c) explicitly allows the relation back of an amendment due to a 'mistake' concerning the identity of the parties (under certain circumstances), but the failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake .... His amended complaint identifying six police officers by name-filed, by any calculation, after the statute of limitations had run-did not correct a mistake in the original complaint, but instead supplied information Barrow lacked at the outset. Since the new names were added not to correct a mistake but to correct a lack of knowledge, the requirements of Rule 15(c) for relation back are not met."

Id. at 469-70.

Relying on Barrow , most federal district courts within the Second Circuit have not allowed the amendment of a complaint to add an individual officer's name after the statute of limitations has run to relate back to the filing of the original complaint naming "John Doe" as a defendant; instead they rule that Section 1983 claims are time-barred against the newly named defendants. See, e.g. , Feliciano v. County of Suffolk , No. CV 04-5321, 2013 WL 1310399 (E.D.N.Y. Mar. 28, 2013) ; Felmine v. City of New York , No. 09-CV-3768, 2012 WL 1999863 (E.D.N.Y. June 4, 2012) ; Sherrard v. City of New York , No. 15-CV-7318, 2016 WL 1574129 (S.D.N.Y. Apr. 15, 2016) (dismissing as time-barred claims brought against defendants originally named as John Does when complaint was filed one day before statute of limitations).

Barrow is readily distinguished from the instant case. In Barrow no police officer was named, unlike here where the wrong police officer was named and the City should have known this and promptly informed Plaintiff's counsel of the correct defendant. See infra Part V.

In 2010, in Krupski v. Costa Crociere S.p.A. , the Supreme Court of the United States, like the New York Court of Appeals in Buran , took a liberal position. 560 U.S. 538, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010). It held that "relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party's knowledge or its timeliness in seeking to amend the pleading." Id. at 541, 130 S.Ct. 2485. In Krupski , a woman who was injured on a cruise sued "Costa Cruise Lines," the sales and marketing agent of "Costa Crociere S. p. A.," the operator of the cruise. The plaintiff, after the statute of limitations expired, amended the complaint to sue the proper party (the operator), but the district and circuit court held that the claim was time-barred since the amendment did not relate back. They held that the amendment did not relate back because Krupski knew or should have known about Costa Crociere's identity as a potential party, and Krupski therefore chose to sue the sales agent and did not make a "mistake" as to the identity of the party.

The Supreme Court, unanimously, disagreed with this restrictive position on relating back.

The Court of Appeals first decided that Krupski either knew or should have known of the proper party's identity and thus determined that she had made a deliberate choice instead of a mistake in not naming Costa Crociere as a party in her original pleading. By focusing on Krupski'