Opinion
Civil Action No. SA-00-CA-0847 IV (NN)
February 5, 2002
MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
A. Introduction
In this civil rights action, plaintiffs, Robert F. Rule and Cherie Rule, have moved for severance pursuant to FED. R. Civ. 21. Docket Entry 62. Specifically, plaintiffs request the court to sever the claims already dismissed from the case pursuant to the district court's summary judgment decision entered on September 6, 2001 (Docket Entry 57), which would in turn allow them to perfect an appeal of those claims. The defendants oppose plaintiffs' request on the grounds that severing the claims would lead to multiple trials and substantial duplication in the time and work of each case. Further, defendants argue that since the claims are closely related, the defendants will be prejudiced in having to duplicate the pleadings, discovery, trial and appeals if the claims are severed. Docket Entry 67.
Finding that severance in this case is warranted, it is my recommendation that the District Court should grant plaintiffs' motion pursuant to FED. R. Civ. P. 21.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
Docket Entry 2.
B. Procedural Background
In this lawsuit, plaintiffs contend they were subjected to excessive force by Bexar County Deputy Sheriffs Dennis Douglas and Mike Carrillo at their residence on August 25, 1998 when the officers executed an arrest warrant for Cherie Rule's twenty-two year old son Michael Aschenbrener. They also allege the officers entered their residence without a search warrant, refused to identify themselves, and refused to produce the warrant, and further that Deputy Sheriff Douglas took their nine year old son from his bed and violently shook him. Plaintiffs raise violations of the Fourth Amendment to the United States Constitution by asserting that Deputy Sheriffs Douglas and Carrillo used excessive force against them and searched their residence without a warrant, as well as state law claims for assault, battery and intentional infliction of emotional distress. In addition, plaintiffs allege that defendants County Sheriff Lopez and Bexar County failed to properly train, supervise, and discipline Deputy Sheriffs Douglas and Carrillo, and that there was a custom or policy in the county of tolerating law enforcement abuses such as the one alleged by plaintiffs.Defendants moved for summary judgment and/or dismissal on the grounds that plaintiffs do not have a viable claim against Bexar County or Sheriff Ralph Lopez in his official capacity because plaintiffs cannot prove liability based on a custom or policy; and plaintiffs' claims against the individual officers are barred by qualified immunity. (Docket Entry 6). The District Court, in a decision rendered September 6, 2001 partially granted defendants' motion by dismissing plaintiffs' claims against defendants Bexar County and Sheriff Lopez as well as plaintiff Cherie Rule's claim of excessive force under the Fourth Amendment. The Court denied summary judgment on the remaining claims. Docket Entry 57. Through its request for severance, plaintiffs now wish to make the summary judgment order final so that the dismissed claims can be promptly appealed.
It should be noted that on October 5, 2001, defendants Deputy Sheriffs Carrillo and Dennis filed a notice of interlocutory appeal on the denial of their qualified immunity defense with respect to the excessive force claim made by plaintiff Robert Rule and the unreasonable search claim brought by both plaintiffs.
C. Analysis
FED. R. Civ. P. 21 provides that "[a]ny claim against a party may be severed and proceeded with separately." Id . The Fifth Circuit in interpreting Rule 21 has stated:
Severance under Rule 21 creates two separate actions or suits where previously there was but one. Where a single claim is severed out of a suit, it proceeds as a discrete, independent action, and a court may render a final, appealable judgment in either one of the resulting two actions notwithstanding the continued existence of unresolved claims in the other.
United States v. O'Neil , 709 F.2d 361, 368 (5th Cir. 1983).
Thus, a severance order under FED. R. Civ. P.21 creates two separate lawsuits out of one lawsuit. If a claim is severed out of a suit, it proceeds as a discrete, independent action with its own pleadings, discovery, trial, judgment, and appeal. Severance is proper when a trial court determines that it is in "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition or economy." If claims have been severed into two separate lawsuits, and a final judgment has been rendered disposing of one of the suits, the time to appeal that suit runs from the date of entry of that judgment. The unadjudicated claims in the other lawsuit cannot be appealed until that suit is resolved by a final judgment. Even if the order severing the lawsuits was erroneous, the time for appeal runs from the date of entry of the final judgment.
See Allied Elevator, Inc. v. East Texas State Bank , 965 F.2d 34, 36 (5th Cir. 1992); and Chrysler Credit Corp. v. County Chrysler, Inc ., 928 F.2d 1509, 1519 n. 8 (10th Cir. 1991).
Allied Elevator , 965 F.2d at 36; Chrysler Credit Corp ., 928 F.2d at 1519 n. 8.
See Conkling v. Turner , 18 F.3d 1285, 1293 (5th Cir. 1994) (citations omitted).
See Gomez v. Department of Air Force , 869 F.2d 852, 859 (5th Cir. 1989).
The Fifth Circuit Court of Appeals reviews a severance order for an abuse of discretion, recognizing that the decision to sever "is a matter within the sole discretion of the trial court." An "abuse of discretion" exists only when there is `definite and firm' conviction that the court below committed clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." In other words, for the Fifth Circuit Court of Appeals to find the district court abused its discretion in ordering a severance, the Court must conclude that the facts and circumstances of the case did not permit the court any discretion in the matter.
Conkling , 18 F.3d at 1293 (quoting First Tex. Sav. Ass'n v. Reliance Ins. Co ., 950 F.2d 1171, 1174 n. 2 (5th Cir. 1992)).
Id . (quoting Hoffman v. Merrell Dow Pharmaceuticals, Inc ., 857 F.2d 290, 307 (6th Cir.), cert. denied , 488 U.S. 1006 (1989)).
See Conkling, 18 F.3d at 1293; and New York v. Hendrickson Brothers, 840 F.2d 1065, 1082 (2d Cir. 1988).
In the instant case, plaintiffs seek to make the September 6, 2001 order granting partial summary judgment to the defendants as a final judgment for purposes of appealing the dismissed claims against defendants Bexar County and County Sheriff Ralph Lopez in his official capacity, and the plaintiffs Cherie Rule's excessive force claim. I find that a prompt resolution on these issues on appeal would be in the interests of justice and will indeed aid in the resolution of the pending claims brought by plaintiff Robert F. Rule. Moreover, since the denial of qualified immunity with respect to plaintiff Robert F. Rule's excessive force claim and plaintiffs Robert and Cherie Rule's unlawful search claim has already been brought to the Fifth Circuit by the defendants by way of an interlocutory appeal, I believe that plaintiff Cherie Rule should be entitled to also appeal the granting of summary judgment with respect to her excessive force claim. Due to the fact that the summary judgment order has been already entered, ending the need to engage in time-consuming and costly discovery on the dismissed claims, and in light of the fact that part of the case is already on appeal, I find defendants' arguments against severance unpersuasive. In the event that the Fifth Circuit disagrees with the summary judgment findings, the court will at that time determine whether the two separate lawsuits should be consolidated for purposes of trial. For now, and at this juncture in the case, I hereby recommend that severance as plaintiffs have requested should be granted.
D. Conclusion
After having considered the facts and circumstances of the instant case, I hereby recommend to the District Court that, in the interests of justice, it exercise its discretion in GRANTING plaintiffs' motion for severance pursuant to FED. R. Civ. P. 21 (Docket Entry 62), and enter final judgment on the dismissed claims in accordance with the summary judgment order entered September 6, 2001, severing those claims into a separate lawsuit.
E. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to 28 U.S.C. § 636(b)(1) and FED. R. Civ. P. 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn , 474 U.S. 140, 149-152 (1985); and Acuña v. Brown Root, Inc ., 200 F.3d 335, 339 (5th Cir.), cert. denied , 530 U.S. 1229 (2000).
Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).