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Baldwin v. Estherville

United States District Court, N.D. Iowa, Central Division

September 14, 2018

GREGORY BALDWIN, Plaintiff,
v.
ESTHERVILLE, IOWA, Defendant.

          OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR LEAVE TO AMEND ANSWER, THE PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT ON THE PLAINTIFF'S STATE CONSTITUTIONAL CLAIMS, AND CERTIFICATION OF FURTHER QUESTIONS TO THE IOWA SUPREME COURT

          MARK W. BENNETT U.S. DISTRICT COURT JUDGE

         TABLE OF CONTENTS

         I. INTRODUCTION...........................................................................3

         A. Factual Background...............................................................3

         B. Procedural Background...........................................................5

         II. THE CITY'S MOTION TO AMEND ITS ANSWER................................8

         A. Arguments Of The Parties........................................................8

         B. Analysis.............................................................................10

         1. Applicable standards.....................................................10

         2. Application of the standards...........................................12

         3. Summary...................................................................19

         III. THE RENEWED MOTION FOR SUMMARY JUDGMENT....................19

         A. The Pending Motion.............................................................19

         B. Summary Judgment Standards.................................................20

         C. The Iowa Constitutional Claims...............................................22

         1. Nature of the claim or claims......................................22

         2. The Iowa constitutional violation.............................23

         a. Arguments of the parties.......................................23

         b. Discussion.........................................................24

         i. Requirements of the Iowa Constitution..............24

         ii. Application of the Iowa standards....................28

         c. Summary...........................................................33

         3. "All due care" qualified immunity....................................33

         a. Arguments of the parties.......................................33

         b. Discussion.........................................................34

         i. Who decides the defense and when ?.................34

         ii. The "all due care" defense............................36

         iii. "All due care" of the officers.........................41

         c. Summary...........................................................46

         IV. CERTIFICATION OF ADDITIONAL QUESTIONS..............................47

         A. Standards For Certification.....................................................47

         B. Questions Of First Impression.................................................49

         1. Questions already identified............................................49

         2. Additional questions.....................................................50

         C. Application Of The Certification Standards.................................52

         D. Opportunity To Refine Or Add To The Questions To Be Certified............................................................................53

         V. CONCLUSION............................................................................54

         This case arises from the plaintiff's arrest by city police officers for riding his ATV on and in a ditch beside a city street, allegedly in violation of a state statute that the officers believed had been, but was not, incorporated into the city's code of ordinances. Although I granted summary judgment for the city and the individual police officers on the plaintiff's claim of violation of the Fourth Amendment to the United States Constitution and his claim of false arrest, I reserved ruling on the plaintiff's claims against the city for violations of the Iowa Constitution. I certified to the Iowa Supreme Court the question of whether a defendant can raise a defense of qualified immunity to an individual's claim for damages for violation of article I, §§ 1 and 8 of the Iowa Constitution. The Iowa Supreme Court has now answered that question in the affirmative and adopted the available qualified immunity defense, in a thoughtful majority opinion over an equally thoughtful defense. The city seeks leave to amend its answer to assert the qualified immunity defense newly-minted by the Iowa Supreme Court. I must decide whether to allow the proposed amendment and whether to rule on all the questions raised in the parties' reanimated cross-motions for summary judgment and supplemental briefing on the Iowa constitutional claims, in light of the Iowa Supreme Court's answer to the certified question, or, once again, to certify some of those questions to the Iowa Supreme Court.

         I. INTRODUCTION

         A. Factual Background

         The factual background to this case is set out in considerable detail in my prior ruling on cross-motions for summary judgment, see Baldwin v. Estherville, Iowa, 218 F.Supp.3d 987, 989-93 (N.D. Iowa 2016), then by the Iowa Supreme Court in Baldwin v. City of Estherville, 915 N.W.2d 259, 261-65 (Iowa 2018). For present purposes, suffice it to say that, on November 10, 2013, Officers Reineke and Hellickson, of the Estherville City Police, were shown a video by a resident in the Estherville area of a person the officers identified as plaintiff Gregory Baldwin riding a 4-wheeler ATV that proceeded along North 4th Street and turned into a ditch, using the north Joe Hoye Park entrance, after which it continued in the ditch until it reached West 14th Avenue North, where it returned to the roadway.

         The officers then reviewed Iowa Code Ch. 3211, which, inter alia, permitted operation of ATVs only on streets designated by cities, see Iowa Code § 3211.10(3), because the officers believed that Chapter 3211 had been incorporated by reference into the City's Code of Ordinances when Chapter 321 was incorporated. They also consulted The Handbook of Iowa All-Terrain Vehicle and Off-Highway Motorcycle Regulations (Handbook), which the defendants contended is a handbook frequently relied upon by police officers when determining whether off-road vehicles are operating in compliance with applicable laws. Finally, they discussed the matter with the City's police chief and a police captain. They concluded that the activity shown in the video amounted to a violation of City Ordinance E-321I.10. However, that Ordinance was not valid or in effect at the time, because it did not exist.

         Officer Reineke prepared a citation and attempted to serve it on Baldwin at his home, but he was not there. Officer Reineke then refiled the citation with the notation "Request Warrant." On November 12, 2013, a state magistrate entered an order directing that a warrant issue. On November 13, 2013, Officer Hellickson served the warrant on Baldwin and took him to jail. Baldwin's wife posted bond, and Baldwin later pleaded not guilty to the charge.

         In the days that followed, the City Attorney discovered that the City had not included Iowa Code Ch. 3211 when it incorporated Iowa Code Ch. 321 into the City's Code of Ordinances. The City Attorney was granted leave to amend the charge to allege a violation of a different ordinance, City Ordinance 219-2(2). City Ordinance 219-2 generally permits ATVs to be operated on City streets except where prohibited, but subsection (2) prohibits operation of ATVs "in city parks, playgrounds, or upon any publicly-owned property." On Baldwin's Motion For Adjudication Of Law Points And To Dismiss, the Iowa District Court found that the cited act was not a violation of the City's Code of Ordinances as written and dismissed the case. The state court did so only after making two key constructions of pertinent City Ordinances: (1) that the plain meaning of "street" in City Ordinances included the "ditch," and (2) that "publicly-owned property" in City Ordinance 219-2(2), to the extent that it conflicted with another ordinance defining "street," did not include the "ditch" of a City street. See Baldwin, 218 N.W.2d at 1000-1001.

         B. Procedural Background

         Again, some of the procedural background is set out in more detail in my ruling on cross-motions for summary judgment. See Baldwin, 218 F.Supp.2d at 993-95. Suffice it to say that, on November 4, 2015, Baldwin filed his Petition, which became docket no. 3 in this action, in the Iowa District Court in and for Emmet County, against the City and Officers Reineke and Hellickson, in their individual and official capacities. He asserted four claims arising from his citation and arrest for the allegedly improper operation of his ATV on November 10, 2013. In Count I, against the City, Baldwin alleged a violation of article I, § 8 of the Iowa Constitution by subjecting him to an unreasonable seizure. In Count II, against defendants Reineke and Hellickson, in their individual capacities, he alleged a violation of the Fourth Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983, by subjecting him to an unreasonable seizure. In Count III, against the City, he alleged a violation of article I, § 1 of the Iowa Constitution by violating his right to freedom, liberty, and happiness. Finally, in Count IV, against all defendants, he alleged a common-law claim of "false arrest." He sought- and still seeks-damages, interest, costs of the action, attorney's fees, and such other relief as may be deemed just and equitable.

         The defendants removed this case to this court on November 20, 2015, based on federal question jurisdiction, with supplemental jurisdiction over the state-law claims, pursuant to 28 U.S.C. §§ 1331, 1367(a), 1441(a), and 1446. Thereafter, on November 23, 2015, the defendants filed a joint Answer, denying Baldwin's claims and asserting various affirmative defenses, including immunity from suit.

         On November 18, 2016, on the parties' cross-motions for summary judgment, I granted the defendants' motion as to Baldwin's claims of a federal constitutional violation in Count II and state law false arrest in Count IV, denied Baldwin's motion for summary judgment on those claims, and stayed those parts of Baldwin's motion seeking summary judgment on his claims of Iowa constitutional violations in Counts I and III pending a decision by the Iowa Supreme Court on whether it would review the decision in Conklin v. State, No. 14-0764, 863 N.W.2d 301, 2015 WL 1332003 (Iowa Ct. App. March 25, 2015) (table op.), which held that there is no private cause of action for a violation of the Iowa Constitution.[1] On February 17, 2017, at the request of the parties, I continued the trial in this matter indefinitely until the Iowa Supreme Court issued a ruling in either Conklin or State v. Godfrey, No. 15-0695, which also raised the question of whether the equal protection and due process provisions of the Iowa Constitution provide a direct action for damages.

         On June 30, 2017, the Iowa Supreme Court issued its opinion in State v. Godfrey, 898 N.W.2d 844 (Iowa 2017), holding that the equal protection and due process clauses of the Iowa Constitution, article I, §§ 6 and 9, are self-executing, such that a tort claim for monetary damages exists for violations of each, when the legislature has not provided an adequate remedy. The Iowa Supreme Court left open the question of whether defendants could assert qualified immunity as a defense to such claims. On June 30, 2017, the Iowa Supreme Court issued Procedendo and an order denying further review in Conklin. In light of Godfrey, the defendants filed a Second Motion For Summary Judgment on August 11, 2017, in which they assumed that the ruling in Godfrey extends to other claims under the Iowa Constitution, and they sought summary judgment in their favor on what they contended was the remaining legal question of whether they are entitled to qualified immunity in connection with Baldwin's remaining Iowa constitutional claims.

         On October 2, 2017, in response to the defendants' Second Motion For Summary Judgment, I entered an Order Certifying Question To The Iowa Supreme Court staying all proceedings in this court, as to all issues, in their entirety, pending the Iowa Supreme Court's answer to the following question:

Can a defendant raise a defense of qualified immunity to an individual's claim for damages for violation of article I, § 1 and § 8 of the Iowa Constitution?

         The parties did not thereafter request the certification of any additional questions to the Iowa Supreme Court. On June 29, 2018, the Iowa Supreme Court answered the certified question, as follows:

A defendant who pleads and proves as an affirmative defense that he or she exercised all due care to conform with the requirements of the law is entitled to qualified immunity on an individual's claim for damages for violation of article I, sections 1 and 8 of the Iowa Constitution.

Baldwin, 915 N.W.2d at 260-61.

         On July 10, 2018, Baldwin filed a Status Report stating that the Iowa Supreme Court had answered the certified question. He requested that I lift the stay in this proceeding and order supplemental briefing on the unresolved portions of the motions for summary judgment concerning the application of Iowa's new qualified immunity defense to the facts of this case. On July 12, 2018, the City filed its Motion For Leave To Amend Answer in order to assert Iowa's new qualified immunity defense, which Baldwin resisted on July 13, 2018. On July 13, 2018, the City also filed a Status Report agreeing that supplemental briefing was appropriate on the remaining portions of the motions for summary judgment. The City also reported that it believed that the parties had completed discovery and that, subject to a ruling on the various pending motions, this case was now ready to be set for trial. The Iowa Supreme Court's opinion answering the certified question was filed in this court on July 23, 2018. On August 5, 2018, Baldwin filed a supplemental brief in support of his Motion For Summary Judgment, as to his Iowa constitutional claims and in resistance to the City's Second Motion For Summary Judgment. In that supplemental brief, Baldwin also seeks summary judgment that the defendants acted in reckless disregard for his rights under article I of the Iowa Constitution, as a gateway to a jury award of punitive damages, and a determination that he is entitled to attorney's fees. On August 6, 2018, the City filed a brief in support of its Motion For Leave To Amend Answer and in resistance to Baldwin's Motion For Summary Judgment on his Iowa constitutional claims, a determination of reckless disregard, and Baldwin's entitlement to attorney's fees.

         On August 29, 2018, 1 entered an Order lifting the stay on proceedings in this case and indicating that a trial date would be set by separate order, after consultation with the parties. On August 30, 2018, 1 entered a Trial Management Order setting a jury trial for January 7, 2019.

         I now turn to consideration of the various matters raised by the parties in light of the Iowa Supreme Court's answer to the certified question.

         II. THE CITY'S MOTION TO AMEND ITS ANSWER

         The City seeks leave to amend its Answer to add the new affirmative defense of "all due care" adopted by the Iowa Supreme Court in answer to this court's certified question. Although the defendants had asserted as one of several affirmative defenses in their original Answer that "Defendants are immune from suit," the City seeks leave to add the following affirmative defense in an Amended Answer: "Defendant's employees exercised all due care to conform with the requirements of the law and are therefore entitled to qualified immunity." Baldwin contends that leave to amend should be denied.

         A. Arguments Of The Parties

         The City acknowledges that good cause for an untimely amendment under Rule 16(b) of the Federal Rules of Civil Procedure requires a showing that, despite diligence, the movant could not reasonably have offered the amendment sooner. The City contends that it can meet this requirement, because the "all due care" standard for qualified immunity adopted by the Iowa Supreme Court could not reasonably have been foreseen. This is so, the City argues, because Baldwin argued for adoption of a strict liability standard, while it argued for adoption of the federal qualified immunity analysis, but the Iowa Supreme Court declined to do either and, instead, fashioned a new affirmative defense based on proof that the defendants exercised "all due care." The City argues that, while its proffered amendment is admittedly after the deadline for amendments, there is good cause for the timing of the proffered amendment under these circumstances.

         In his resistance, Baldwin argues that the deadline for motions to amend pleadings under the court's original Scheduling Order expired more than ten months ago and, indeed, was marked "COMPLETED" in the court's subsequent Scheduling Order entered on August 2, 2017. He also points out that discovery is completed. He argues that allowing the City to amend its Answer to add an "all due care" qualified immunity defense, which asserts a position contrary to the City's previous admission of negligence, would cause undue prejudice to him within the meaning of Rule 16. More specifically, he asserts that he intends to use the City's original negligence defense against them, so it would unduly prejudice him to allow the City to pursue an inconsistent defense. Baldwin also argues that allowing the amendment would be prejudicial, because it would force him to go to trial without the opportunity to discover just what the City's officers contend was their exercise of "all due care." Next, he contends that the amendment should be rejected, because it is futile, where the proposed "all due care" qualified immunity defense is entirely inconsistent with the City's original negligence defense and legally insufficient. Finally, in his supplemental brief, Baldwin argues that the City cannot assert an immunity defense, because the Iowa Municipal Tort Claims Act eliminates any common-law immunity of the City, which Baldwin asserts includes Iowa's new "all due care" immunity. He also argues that there is no mention in cases from the common-law era of a qualified immunity defense for a municipality based on the good faith of municipal officers, so that the City never had such a defense at common law.

         In the portion of its supplemental brief addressing its request for leave to amend its Answer, the City argues that seeking leave to amend without undue delay, based on a new development in the law, as it did, here, is precisely the kind of "circumstance" in which justice requires that leave to amend be granted. The City also points out that it is the sole remaining defendant and that it is properly allowed to plead and prove the due care of its officers as a defense. The City contends that an adjudication that the officers exercised due care bars a plaintiff's vicarious-liability claim against a municipality. Contrary to Baldwin's contentions, the City argues that IOWA Code § 67O.4(1)(c) specifically provides for municipal immunity for any claim based upon an act or omission of an officer or employee exercising due care in the execution of a statute, ordinance, or regulation, whether the statute, ordinance, or regulation is valid. Thus, the City argues that it is entitled to plead and prove the officers' due care in order to establish its immunity.

         B. Analysis

         1. Applicable standards As the Eighth Circuit Court of Appeals recently explained,

"[A] motion for leave to amend filed outside the district court's Rule 16(b) scheduling order requires a showing of good cause." Williams v. TESCO Servs., Inc., 719 F.3d 968, 977 (8th Cir. 2013); see Fed.R.Civ.P. 16(b)(4). "The primary measure of good cause is the movant's diligence." Harris v. FedEx Nat'l LTL, Inc., 760 F.3d 780, 786 (8th Cir. 2014) (quotation omitted). "We generally will not consider prejudice [to the nonmovant] if the movant has not been diligent in meeting the scheduling order's deadlines." Harris v. Chi. Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012) (quotation omitted). We review the district court's denial of the motion to amend for abuse of discretion, but we review de novo whether the proposed amendments would have been futile. United States ex rel. Joshi v. St. Luke's Hosp., Inc., 441 F.3d 552, 555 (8th Cir.), cert, denied, 549 U.S. 881, 127 S.Ct. 189, 166 L.Ed.2d 142 (2006).

Kmak v. Am. Century Companies, Inc., 873 F.3d 1030, 1034 (8th Cir. 2017); Kozlov v. Associated Wholesale Grocers, Inc., 818 F.3d 380, 395 (8th Cir. 2016) ("Rule 15(a) does not apply when, as here, the 'district court has established a deadline for amended pleadings under FRCP 16(b), '" and, instead, the movant must show "good cause" pursuant to Rule 16(b)(4) (quoting In re Graphics Processing Units Antitrust Litig., 540 F.Supp.2d 1085, 1090 (N.D. Cal. 2007)).

         As to diligence, the court concluded in Kmak that the plaintiffs had not been diligent in seeking leave to amend, because" [t]he new claims were legal variations on a theme the parties had been litigating for years." 873 F.3d at 1034. The court also agreed with the district court's reasons for finding unpersuasive the plaintiffs' excuse that only last-minute discovery first gave them a hint that the new claims existed. Id. at 1035. In Kozlov, the court also concluded that the movant had not acted diligently, because the movant had access to almost all the relevant evidence at least eighteen months before the motion to amend was filed. Kozlov, 818 F.3d at 395. Also, "[w]here there has been 'no change in the law, no newly discovered facts, or any other changed circumstance . . . after the scheduling deadline for amending pleadings,' then [courts] may conclude that the moving party has failed to show good cause." Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012) (quoting Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 718 (8th Cir. 2008)).

         "Motions [to amend] that would prejudice the nonmoving party by 'requiring a reopening of discovery with additional costs, a significant postponement of the trial, and a likely major alteration in trial tactics and strategy' are particularly disfavored." Kozlov, 818 F.3d at 395 (quoting Steir v. Girl Scouts of the U.S.A., 383 F.3d 7, 12 (1st Cir. 2004)). Thus, in Kozlov, the court affirmed the denial of leave to amend where the amendment "would have required more discovery and new experts because negligent hiring was never alleged before this request to amend." Id. Similarly, in Kmak, the court concluded that denial of leave to amend was appropriate, because the amendment would have resulted in undue delay as well as prejudice to the defendant by forcing it to re-litigate the dispute on new bases, requiring additional and costly discovery, and depriving it of the meaningful value of a prior summary judgment ruling. Kmak, 873 F.3d at 1035 (citing Sanders v. Venture Stores, Inc., 56 F.3d 771, 774 (7th Cir. 1995)).

         Finally, "[d]enial of a motion for leave to amend on the basis of futility 'means the district court has reached the legal conclusion that the amended complaint could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.'" Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010) (quoting Cornelia I. Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir. 2008)). Thus, a proffered amendment may be futile, if the proposed amendment is deficient as a matter of law or contrary to a determination that the court has already made. See Mississippi River Revival, Inc. v. City of Minneapolis, Minn., 319 F.3d 1013, 1018 (8th Cir. 2003).[2]

         2. Application of the standards

         Here, contrary to Baldwin's assertions, I conclude that the City has met the "good cause" requirement for amending its Answer, even though the amendment is offered well after expiration of the deadline in the original Scheduling Order. See Kmak, 873 F.3d at 1034; Fed.R.Civ.P. 16(b)(4). I find that the City has been diligent in seeking leave to amend to assert the new "all due care" affirmative defense. See Id. (stating that diligence is the "primary measure" of good cause (internal quotation marks and citations omitted)). Furthermore, I find unpersuasive Baldwin's assertions of prior failure to plead the defense, prejudice, and futility.

         First, the City was diligent in that it acted promptly to amend its Answer to assert the newly-defined affirmative defense by filing its request to amend within two weeks of the Iowa Supreme Court handing down the decision adopting the new defense. Compare Kozlov, 818 F.3d at 395 (concluding the movant was not diligent where he waited at least eighteen months after the factual basis for his claim was apparent before seeking leave to amend). Second, the Iowa Supreme Court's answer to the certified question in this case created a qualified immunity affirmative defense based on "all due care" that neither party had advanced in this court or before the Iowa Supreme Court. Baldwin does not dispute the City's assertion that he argued for "strict liability" for violation of the Iowa Constitution, with no immunity defense, while the City argued for "qualified immunity" following federal law. It is plain that the Iowa Supreme Court considered and rejected both of these suggestions in its ruling and, instead, opted for an "all due care" qualified immunity defense that was not advanced by either party.[3] Even to the extent that the proposed new defense is just a "legal variation[] on a theme the parties had been litigating for years," see Kmak, 873 F.3d at 1034, it is a "variation" in an unforeseen tonality, not just in a new key. Thus, this is a situation in which there was a significant "change in the law," resulting in "changed circumstances" that could not have been reasonably foreseen by the parties in this case. Compare Hartis, 694 F.3d at 948 (finding a lack of diligence "[w]here there ha[d] been no change in the law, no newly discovered facts, or any other changed circumstance . . . after the scheduling deadline for amending pleadings" (internal quotation marks and citation omitted)).

         I am not persuaded by Baldwin's contention that the defense was not pleaded. I note that the defendants did not plead an affirmative defense based only on "qualified immunity," as adopted by the federal courts for federal constitutional claims, as Baldwin seems to contend. Rather, the defendants pleaded more generally that "[d]efendants are immune from suit," which might reasonably encompass the "all due ...


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