Carter v. Butts Cnty.

• Decision Date: 01 June 2015
• Docket Number: Case No. 5:12–CV–209 (LJA).
• Citation: 110 F.Supp.3d 1325
• Parties: David CARTER, Clayton Graham, Jr., and Mitchell Webster, Plaintiffs, v. BUTTS COUNTY, GEORGIA, Sheriff Gene Pope, Individually and in his Official Capacity, Timothy Filbeck, Individually and in his Official Capacity, Defendants.
• Court: U.S. District Court — Middle District of Georgia

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David CARTER, Clayton Graham, Jr., and Mitchell Webster, Plaintiffs,
v.
BUTTS COUNTY, GEORGIA, Sheriff Gene Pope, Individually and in his Official Capacity, Timothy Filbeck, Individually and in his Official Capacity, Defendants.

Case No. 5:12–CV–209 (LJA).

United States District Court, M.D. Georgia, Macon Division.

Signed June 1, 2015.
Filed June 2, 2015.

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James A. Eidson, Hapeville, GA, Matthew Clinton Hines, Austell, GA, for Plaintiffs.

G. Kevin Morris, Buford, GA, for Defendants.

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ORDER

ABRAMS, District Judge.

Before the Court are Defendants' Motion for Summary Judgment (Doc. 46), Plaintiffs' Motion to Strike (Doc. 65), and Defendants' Motion for Leave to File Reply Brief (Doc. 66). For the reasons explained below, Defendants' Motion for Summary Judgment (Doc. 46) is GRANTED in part and DENIED in part, Plaintiffs' Motion to Strike (Doc. 65) is DENIED, and Defendants' Motion for Leave to File Reply Brief (Doc. 66) is GRANTED.

PROCEDURAL HISTORY

Plaintiffs David Carter, Clayton Graham, Jr., and Mitchell Webster commenced this action on June 7, 2012, alleging violations of their federal and state law rights. (Doc. 1.) Plaintiffs subsequently amended their Complaint on February 14, 2014, asserting federal constitutional tort claims, pursuant to 42 U.S.C. § 1983, for arrest without probable cause as well as state law claims for negligent hiring and retention and conversion. (Doc. 22.) Plaintiffs brought these claims against Butts County, Georgia ("Butts County"), Sheriff Gene Pope ("Sheriff Pope"), individually and in his official capacity, and Lieutenant Timothy Filbeck ("Lieutenant Filbeck"), individually and in his official capacity. (Id. ) On March 10, 2014, Defendants moved for summary judgment on the following grounds: (1) Plaintiffs' § 1983 claims against Lieutenant Filbeck are barred by the existence of probable cause and qualified immunity; (2) neither Butts County nor Sheriff Pope engaged in any activities that would give rise to liability under § 1983 ; (3) Sheriff Pope, in his official capacity, is entitled to Eleventh Amendment immunity; (4) Butts County is not amenable to suit for the actions of the Butts County Sheriff or his employees; (5) Sheriff Pope and Lieutenant Filbeck are entitled to official immunity as to Plaintiffs' state law claims; and (6) Plaintiffs have failed to state a claim for conversion. (See Doc. 46–1.)

On April 3, 2014, Plaintiffs filed their Response. (Doc. 52.) On April 17, 2014, Defendants requested a fourteen-day extension pursuant to Local Rule 6.2 to file a reply brief, which the Clerk of the Court granted. (Doc. 61.) Although Defendants' reply brief was due on May 1, 2014, because of a purported calendaring error, Defendants did not file their Reply until May 5, 2014. (Doc. 64.) Plaintiffs thereafter moved to strike Defendants' Reply. (Doc. 65.) In response, Defendants filed a Motion for Leave to Accept their Reply (Doc. 66) as well as a Response to Plaintiffs' Motion to Strike. (Doc. 67.) The forgoing motions are now ripe for review. See M.D. Ga. L.R. 7.3.1(a).

MOTION TO STRIKE

As a preliminary matter, the Court will address Plaintiffs' Motion to Strike (Doc. 65) and Defendants' Motion for Leave to Accept their Reply (Doc. 66), both of which will be construed together. Plaintiffs contend that the Court should strike Defendants' Reply because it was filed four days late. Defendants, on the other hand, argue that the Court should grant them an enlargement of time and accept their untimely Reply because the delay in filing was due to a simple calendaring error.

Under Rule 6(b) of the Federal Rules of Civil Procedure, a request for an enlargement of time after the time to respond has elapsed may only be granted for good cause where the movant has demonstrated excusable neglect. Fed. R. Civ. Pro. 6(b)(1)(B). In determining whether a party's neglect is excusable under Federal Rule 6(b), courts consider the following factors: "(1) the danger of prejudice to the opposing party, (2) the length of delay and

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its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith." Glover v. City of Pensacola, 372 Fed.Appx. 952, 955 n. 6 (11th Cir.2010) (citing Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) ). This determination is primarily "an equitable one, taking account of all relevant circumstances surrounding the party's omission." Pioneer, 507 U.S. at 395, 113 S.Ct. 1489.

Weighing the Pioneer factors, the Court finds that Defendants' neglect in filing their Reply four days late is excusable. First, Plaintiffs will not be prejudiced by the consideration of Defendants' Reply. Second, a delay of four days has no impact on these judicial proceedings or the efficient administration of justice. Third, the reason for delay was the failure of defense counsel's administrative assistant to properly calendar the correct due date—the type of "innocent oversight" that courts in this Circuit have repeatedly deemed excusable. See Walter v. Blue Cross & Blue Shield United of Wis., 181 F.3d 1198 (11th Cir.1999) (finding excusable neglect where "the reason for the delay was the failure of a former secretary of [plaintiff's] attorney to record the applicable deadline"); Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir.1996) (finding that the late filing was due to excusable neglect, as it "was simply an innocent oversight by counsel" that resulted from a breakdown in communication between attorneys). Finally, there is no evidence that counsel for Defendants acted in bad faith. Accordingly, the Court will consider Defendants' Reply as though timely filed.

FACTUAL BACKGROUND

This action arises out of the alleged unlawful arrest of Plaintiffs as they were cleaning out the foreclosed home of Lieutenant Filbeck, a lieutenant in the Butts County Sheriff's Office, on February 22, 2011.¹

I. Arrest of Plaintiffs

Lieutenant Filbeck and his wife purchased the property located at 191 Quail Trail, Jackson, Georgia 30233 (the "Property") on March 29, 2005. (Doc. 59 at 38–70.) In connection with the purchase, Lieutenant Filbeck executed a Security Deed, dated March 29, 2005 (the "Security Deed"). (Doc. 59 at 59–69.) Section 9 of the Security Deed states, in relevant part, that "[i]f (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument ... or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender's interest in the Property ... including protecting and/or assessing the value of the Property, and securing and/or repairing the Property." (Doc. 59 at 64.)

Beginning in 2007, Lieutenant Filbeck fell behind on his mortgage payments, causing him to file for bankruptcy. (Doc. 46–2 at ¶ 3.) The bankruptcy petition was subsequently dismissed in 2009, after Lieutenant

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Filbeck successfully reached an agreement with his creditors. (Doc. 46–2 at ¶ 4.) However, by July 2010, Lieutenant Filbeck had again fallen into default (Doc. 59 at 119–21); and, as early as September 2010, Ocwen Loan Servicing LLC ("Ocwen") initiated foreclosure proceedings on the Property. (Docs. 46–2 ¶ 6.) Ocwen notified Lieutenant Filbeck of the impending foreclosure by letters dated September 22, 2010 and November 22, 2010. (Docs. 37 at 36:14–20, 92:19–21; 59 at 29–36.) Ocwen also placed notices of the foreclosure sale in the local paper in December 2010, and Lieutenant Filbeck acknowledged that he saw those notices. (Doc. 37 at 48:4–9, 64:18–20, 92:22–24; see also Doc. 59 at 100.)

Lieutenant Filbeck and his family ceased residing at the Property in early November 2010, and moved to 446 James Moore Drive, where they ate, slept, and began receiving mail. (Doc. 37 at 7:13–22, 45:5–12, 51:13–19, 81:7–82:14.) The Filbecks also discontinued the utilities on the Property sometime in November or December 2010. (Docs. 37 at 46:8–47:17; 52–1 at ¶ 10; 52–3 at ¶ 9; 59 at 80, 88–99.) Ultimately, the Property was foreclosed on January 4, 2011, and conveyed by a deed under power of sale (the "Deed Under Power") to U.S. Bank National Association, as Indenture Trustee for the Registered Holders of Aegis Asset Backed Securities Trust 2005–2, Mortgage Backed Notes, by and through its duly appointed attorney-in-fact, Ocwen.² (Doc. 45 at 161–63.) Lieutenant Filbeck's ownership interest in the Property was thus extinguished on January 4, 2011. Nothing in the record suggests that Lieutenant Filbeck ever sought to challenge the foreclosure.

On or about December 12, 2010, Altisource Portfolio Solutions ("Altisource"), Ocwen's agent and property manager, contracted with MD Maintenance, LLC ("MDM") to prepare the Property...