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Gordon v. Bierenga

United States District Court, E.D. Michigan, Southern Division

May 22, 2019

Nita Gordon, personal representative of Antonio Gordon, Plaintiff,
v.
Keith Bierenga and City of Royal Oak, Defendants.

          R. Steven Whalen, Mag. Judge.

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT [19] AND GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO THE CITY OF ROYAL OAK [17]

          Judith E. Levy, United States District Judge.

         Plaintiff Nita Gordon brings this case on behalf of Antonino Gordon[1] who was shot and killed by defendant police officer Keith Bierenga, of the Royal Oak Police Department. The complaint includes one count of excessive force against Officer Bierenga and one count of municipal liability against defendant the City of Royal Oak. After defendants filed an answer, the City moved for judgment on the pleadings on plaintiff's municipal liability claim. In response, plaintiff filed a motion for leave to file an amended complaint that includes additional allegations regarding municipal liability and adds a count of gross negligence against Officer Bierenga. Both motions are before the Court.

         I. Background

         On April 10, 2018, Officer Bierenga pursued Antonino Gordon in his vehicle and pulled Gordon over in Royal Oak, Michigan. (Dkt. 1 at 2.) Before Officer Bierenga could speak with Gordon, he drove away fearing arrest on a potential outstanding warrant. (Id. at 3.) Officer Bierenga returned to his vehicle and searched for Gordon, who was driving a BMW vehicle. (Id.) He eventually identified the BMW in a parking lot of a White Castle restaurant. (Id.)

         In the parking lot, Officer Bierenga exited his vehicle with his gun drawn. (Id.) Gordon attempted to drive away, and Officer Bierenga shot at Gordon in his vehicle “at point blank range” four times. (Id.) He struck Gordon. (Id.) Although Gordon managed to drive away, he was mortally wounded. (Id.) He lost consciousness while driving and died at some point thereafter. (Id.) Gordon's personal representative, Nita Gordon, brings this suit for excessive force and municipal liability on behalf of his estate.

         II. Motion to Amend

         Because permitting amendments would moot defendants' motion for judgment on the pleadings, the Court will address the motion to amend first.

         A. Legal Standard

         A party seeking to amend a claim, when such an amendment would not be as a matter of course, “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). Leave should be denied where the amendment demonstrates defects, such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Brown v. Chapman, 814 F.3d 436, 443 (6th Cir. 2016) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Defendants do not argue that there has been any delay, bad faith, or dilatory motive, but focus instead on futility. The Court will, as well.

         “A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Parchman v. SLM Corp., 896 F.3d 728, 738 (6th Cir. 2018) (quoting Beydoun v. Sessions, 871 F.3d 459, 469 (6th Cir. 2017)). When deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must “construe the complaint in the light most favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plausible claim need not contain “detailed factual allegations, ” but it must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         B. Analysis

         The proposed amended complaint does two things: it adds additional allegations with respect to the municipal liability claim against the City of Royal Oak and it adds a state law claim of gross negligence against Officer Bierenga. Defendants argue that both amendments are futile and should therefore be denied. Neither party addresses the claim of excessive force as it is largely unchanged from the original complaint and defendants have not moved to dismiss this claim.

         i. ...


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