Perez v. Miami-Dade County

• Decision Date: 17 July 2002
• Docket Number: No. 01-15132 Non-Argument Calendar.,01-15132 Non-Argument Calendar.
• Parties: Michael PEREZ, Plaintiff-Appellee-Cross-Appellant, v. MIAMI-DADE COUNTY, Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

297 F.3d 1255

Michael PEREZ, Plaintiff-Appellee-Cross-Appellant, v. MIAMI-DADE COUNTY, Defendant-Appellant-Cross-Appellee.

No. 01-15132 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

July 17, 2002.

Thomas A. Tucker Ronzetti, Lee Allen Kraftchick, Miami, FL, for Defendant-Appellant-Cross-Appellee.

Peter William Bellas, Genovese Joblove & Battista, P.A., Miami, FL, for Plaintiff-Appellee-Cross-Appellant.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT, MARCUS and BRIGHT^*, Circuit Judges.

TJOFLAT, Circuit Judge:

The primary issue in this appeal is whether the district court abused its discretion in denying the defendants' motion, made pursuant to Rule 36(b) of the Federal Rules of Civil Procedure, to withdraw admissions.¹ As a result of the court's action, the plaintiff established the defendants' liability under 42 U.S.C. § 1983 as a matter of law and obtained a multi-million dollar jury verdict. We conclude that the court abused its discretion; we therefore vacate the judgment and remand the case for further proceedings.

I.

A.

On March 24, 1995, Michael Perez and his partner, both detectives in the Miami-Dade County Police Department, were working undercover when they overheard a police radio report that fellow officers were in pursuit of several black males who had just robbed a Radio Shack. Perez and his partner joined the chase, and, upon discovering the suspects driving away from the scene, followed them by car. When the suspects abandoned their vehicle, Perez and his partner chased them on foot.

Meanwhile, Sergeant William Allsbury,² also a County officer, was patrolling in his police car when he heard the same radio report, and, seeing Perez and his partner running along the street in the same area, believed them to be two of the suspects. When Allsbury closed in on Perez and his partner, his vehicle struck Perez. Perez contends that Allsbury struck him intentionally and that, as a result, he suffered serious injuries, including herniated discs, broken bones, and permanent psychological damage.

B.

Perez filed this action on June 19, 1997. His complaint contained four counts against the County and four against Allsbury. Count I sought relief against both defendants under 42 U.S.C. § 1983.³ It alleged that the County had a "practice, custom or policy ... [of] allowing police officers to use unnecessary and unreasonable deadly force, including, but not limited to, the use of motor vehicles to strike and detain subjects, in the apprehension of persons," and that Allsbury was carrying out that practice, custom, or policy when his automobile struck Perez. Aimed only at Allsbury, Counts II and III alleged claims of common law negligence and assault and battery, respectively. Counts IV and VI sought relief solely against the County under two Florida statutes: the "Whistle Blower's Statute" for "retaliatory personnel action[s]" the County allegedly took against Perez after he reported the incident, and the "Full Pay Statute," which entitles an employee to full pay upon being injured at work.⁴ Finally, Count V, directed at both the County and Allsbury under 42 U.S.C. § 1985, alleged that the two defendants had "conspired to deprive [Perez] of equal protection of the laws and of equal privileges and immunities under the laws based upon [their] animus against persons of African American or Latin origin." In each count, Perez prayed for compensatory and punitive damages "in excess of $5 million."⁵

Along with the complaint, Perez served the County with a Request for Admissions ("June 25 Request"), consisting of forty admissions.⁶ The request was, for the most part, a verbatim copy of the complaint, save a few minor changes, like inserting "Request for Admissions" in the place of "Complaint" and deleting the complaint's subsection titles, like "Factual Background" and "Claim 1." Indeed, the June 25 Request is replete with the same typographical errors as the complaint and even includes such statements as, "This is a claim for deprivation of constitutional rights under color of state law ..." and "Plaintiff incorporates by reference the allegations of paragraphs 1 through 16."

Though it did not answer the June 25 Request, the County, along with Allsbury, filed answers to the complaint on July 14, 1997, and denied, or claimed to be without sufficient knowledge to answer, all but two of the complaint's allegations.⁷ Significantly, the defendants denied (1) that Allsbury "intentionally or negligently aimed his vehicle directly at [Perez], gunned the engine, and struck [him]" and (2) that the County has "a practice, custom, or policy allowing police officers to use unnecessary and unreasonable deadly force ... in the apprehension of persons." The defendants also pleaded several affirmative defenses, including contributory and comparative negligence and assumption of risk. The answers were signed by Eric K. Gressman, Assistant County Attorney.

On September 12, 1997, the district court held a scheduling conference, attended by Perez's attorney and Gressman. At the conference, in discussing the merits of the case, Gressman reiterated what had been stated in the defendants' answers: that "there is no policy or procedure that says that [officers may] use cars to run over suspects ... unless deadly force is being used against [an officer]." Also at the conference, Perez's attorney stated that he had prepared written discovery requests, including requests for admissions, that, "according to Mr. Gressman, have not yet [been] served on him," but would be re-served "in the next couple of days." Following the conference, the district court entered a scheduling order, setting the pretrial conference for February 20, 1998, and requiring that all motions be filed by February 1 and that all discovery be completed by February 15.

On October 3, 1997, Perez served the County with a second request for admissions ("October 3 Request") consisting of seventy-two admissions.⁸ This request was a verbatim copy of the June 25 Request with the addition of thirty-four new items. Most of the new items concerned the extent of Perez's injuries, e.g., "As a result of being hit by Seargent (sic) Allsbury's vehicle, Plaintiff suffered a broken leg." Along with the October 3 Request, Perez served the County with a request for production of documents and notices for the taking of depositions of several County officials and employees.

Time passed and, as the district court ultimately found, the County "failed to produce the requested documents within thirty days, did not produce the witnesses for the scheduled depositions, and failed to respond to the [October 3 Request] within thirty days." On January 6, 1998, therefore, Perez re-served the discovery requests, including the October 3 Request. Gressman does not dispute that he received the January 6 discovery request, which was stamped "Received by [Miami-]Dade County Attorney, January 6, 1998."

On January 27, having not received any response from the County as to his discovery requests, Perez moved the district court to strike the defendants' answers and enter a default judgment because the officials and employees had not appeared to testify at their scheduled depositions, or, in the alternative, to compel production of the witnesses and documents sought. As for the unanswered requests for admissions, Perez argued that, under Rule 36(a) of the Federal Rules of Civil Procedure, the matters should be deemed admitted because the County had not responded within the rule's thirty-day time limit.⁹ Three days later, on January 30, 1998, Perez filed a motion for summary judgment on Count I, setting forth claims under section 1983, and asserted that the defendants, by failing to respond to the requests for admissions, "have admitted to all material facts and issues including that it is a custom, practice, and policy of the department to engage in the unnecessary use of deadly force."¹⁰

On February 3, 1998, before the district court ruled on Perez's two outstanding motions, the County finally responded to the June 25 Request, denying, or asserting the inability to admit or deny, almost all of the items. Two days later, the County asked the court for more time to respond to Perez's other discovery requests, asserting that it had first received those requests on January 6, 1998, and that the deadlines for responding be calculated from the date of January 8. The district court granted the motion on February 10.

Soon after receiving the County's answer to the June 25 Request, Perez, on February 18, filed a motion "to Strike [the County's] Response to Request for Admissions, to Determine the Responses Insufficient, and to Order the Requests Admitted." In this motion, Perez once again argued that the court should deem as admitted the items from both the June 25 Request and the October 3 Request because the County had answered the June 25 Request over six months after service and had completely failed to answer the October 3 Request. Failing to act within thirty days of service, Perez reiterated, violates Rule 36(a) and requires that the court find the items admitted.

The day before the pretrial conference, held on February 20, 1998, Gressman filed, on behalf of both defendants, a response to Perez's summary judgment motion and, along with the response, finally answered the October 3 Request. The response to the summary judgment motion was timely because the court had extended the defendants' deadline to respond. The court had not, however, extended the thirty-day time limit for answering the October 3 Request.

At the pretrial conference, after accepting as timely the defendants' response to Perez's summary judgment motion, the district court turned to Perez's motion to strike the County's answer to the June 25 Request. Before the court ruled, Gressman pointed out that the County had actually responded to both requests,...