Allen King v. Eric Taylor , 694 F.3d 650 ( 2012 )


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    Pursuant to Sixth Circuit Rule 206
    File Name: 12a0326p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    -
    ALLEN KING and BRUCE KING,
    Plaintiffs-Appellants, --
    Administrators of the Estate of Roger King,
    -
    No. 11-5917
    ,
    >
    -
    v.
    -
    -
    ERIC TAYLOR, in his individual capacity as a
    -
    Kentucky State Trooper,
    Defendant-Appellee. -
    N
    Appeal from the United States District Court
    for the Eastern District of Kentucky at Lexington.
    No. 5:10-cv-96—Karl S. Forester, District Judge.
    Argued: July 17, 2012
    Decided and Filed: September 12, 2012
    Before: SUTTON and GRIFFIN, Circuit Judges; and DOWD, District Judge.*
    _________________
    COUNSEL
    ARGUED: Hans G. Poppe, THE POPPE LAW FIRM, Louisville, Kentucky, for
    Appellants. Morgain M. Sprague, KENTUCKY STATE POLICE, Frankfort, Kentucky,
    for Appellee. ON BRIEF: Garry R. Adams, CLAY FREDERICK ADAMS PLC,
    Louisville, Kentucky, for Appellants. Christian Matthew Feltner, KENTUCKY STATE
    POLICE, Frankfort, Kentucky, for Appellee.
    *
    The Honorable David D. Dowd, Senior United States District Judge for the Northern District of
    Ohio, sitting by designation.
    1
    No. 11-5917        King, et al. v. Taylor                                           Page 2
    _________________
    OPINION
    _________________
    GRIFFIN, Circuit Judge. This case involves the shooting death of Roger King
    by Kentucky State Trooper Eric Taylor. Taylor, along with officers from the Sheriff’s
    Office for Boyle County, Kentucky, were attempting to arrest King at his home. Taylor
    alleges that he shot and killed King in self-defense and/or in defense of his fellow
    officers. The administrators of King’s estate brought this action, asserting claims against
    Taylor under the Fourth Amendment and Kentucky state law. The district court
    dismissed the action for lack of proper service and, alternatively, entered summary
    judgment in Taylor’s favor on the merits. Because these rulings were error requiring
    reversal, we vacate the judgment of the district court and remand for further proceedings.
    I.
    On November 25, 2009, the Sheriff’s Office for Boyle County, Kentucky,
    received an arrest warrant and emergency protective order for Roger King. King had
    allegedly entered onto his ex-wife’s property, pulled a gun from his pocket, pointed it
    at his ex-wife’s face, and said “I’m going to kill someone today.” The sheriff was
    commanded to arrest King on felony and misdemeanor charges stemming from the
    altercation. The protective order prohibited King from coming within 1,000 feet of his
    ex-wife or her household and ordered him to appear in court the following week.
    Sheriff’s deputy Jody Adams was tasked with executing the warrant and serving
    the protective order. The sheriff told Adams that he saw King the week before, and that
    King had been acting “strange [and] violent” toward him. He told Adams to obtain the
    assistance of the Kentucky State Police. Adams was aware that King, years earlier, had
    been involved in an incident with the Kentucky State Police in which King allegedly
    fired shots in the vicinity of a state trooper who entered onto King’s property. King was
    eventually arrested for his actions.
    No. 11-5917          King, et al. v. Taylor                                             Page 3
    Adams recruited fellow sheriff’s deputy Alfred Isaacs to assist in the arrest.
    Isaacs contacted Kentucky State Trooper Frank Thornberry directly, who advised that
    he was off for the night, and that Isaacs should contact Trooper Eric Taylor, which Isaacs
    did. Adams, too, contacted the Kentucky State Police dispatch office to ask for
    assistance. Taylor was dispatched. Taylor was informed that the situation could become
    dangerous in light of the allegations and was told about the earlier incident between King
    and the state trooper. While speaking with the dispatch operator, Taylor made the
    following statements with respect to King: “So, my thought . . . was, there shouldn’t be
    no [Emergency Protective Order] on that guy. And [Frank Thornberry] said, well, what
    do you mean? I said, you don’t serve an EPO on dead people. You know?”; “either
    [King will] be home (a); (b) he’ll be home and come out shooting, you know; or (c) he’ll
    come out, and—yeah, and one of us will have to kill—shoot him.”; “If I did [shoot him],
    I don’t care to be off. I’ll be off until after the first of the year.”; and “Well, if you don’t
    get a hold of me [later tonight], then it may be I’m busy shooting bullets or something.”
    Taylor, Adams, Isaacs, and three other deputies from Boyle County arrived at
    King’s home around 9:00 p.m. and aimed their headlamps and spotlights towards the
    front of the home. Adams approached and knocked on the front door, but no one
    answered. Isaacs joined Adams, and the two went to a side door and knocked, but again,
    no answer. Isaacs went to the back of the home, and Taylor covered him with his rifle.
    Through two glass doors, Isaacs saw King lying on his couch in his underwear, with a
    blanket partially covering him. The couch faced the glass doors. Taylor signaled to
    Adams, and Adams joined Taylor and Isaacs on the back porch.
    Isaacs and Adams approached the window; Taylor provided cover. Both men
    knocked on the glass door and announced their identities. Isaacs pressed the badge on
    his uniform sleeve up to the glass to show King he was a law enforcement officer.
    Taylor stood to the right of Isaacs and Adams, holding his rifle with the stock against the
    inside of his shoulder and the muzzle lowered just slightly, ready to aim and shoot if
    necessary. According to Taylor, King sat up, turned toward the officers and gave a
    “look of . . . contempt.” King then turned away from the window. Taylor saw King’s
    No. 11-5917         King, et al. v. Taylor                                            Page 4
    back and both of his elbows. King turned back toward the officers, and Taylor saw
    King’s right hand come up with a gun and point it directly at the officers. Taylor raised
    his rifle and shot at King’s midline. As discussed below, forensic evidence and expert
    testimony tell a different story.
    The window shattered, and Adams, Isaacs, and Taylor fled for cover. It was later
    discovered that Taylor’s bullet had struck King in the face, killing him instantly. A
    medical examiner for the Commonwealth of Kentucky performed an autopsy and
    determined that King died from a “projectile perforation of [his] medulla oblongata.”
    Plaintiffs are the administrators of King’s estate. They filed this action against
    the Commonwealth of Kentucky and Eric Taylor, in both his individual and official
    capacities. Suing under 
    42 U.S.C. § 1983
    , they claimed that Taylor’s use of deadly force
    against King was unwarranted and thereby violated King’s rights under the Fourth and
    Fourteenth Amendments. They also asserted that Taylor assaulted, battered, and acted
    negligently toward King by shooting him. Finally, they alleged that the Commonwealth
    was vicariously liable for Taylor’s negligence and directly liable for failing to train him
    in the proper use of force.
    Early in the proceedings, the Commonwealth and Taylor, in his official capacity,
    moved to dismiss all claims against them on the basis of sovereign immunity. Plaintiffs
    responded by voluntarily dismissing these claims without prejudice. See Fed. R. Civ.
    P. 41(a)(1)(A)(i). The same day he moved to dismiss the claims in his official capacity,
    Taylor answered the complaint in his individual capacity. He asserted in his answer that
    the complaint should be dismissed, among other reasons, because of insufficient service
    of process.
    Nearly a year after he answered the complaint, Taylor filed a motion asking the
    district court to dismiss the action for insufficient service of process, see Fed. R. Civ. P.
    12(b)(5), (i), and, alternatively, to enter summary judgment on the merits in his favor,
    see Fed. R. Civ. P. 56(a). Plaintiffs opposed the motion. They did not dispute that they
    improperly served Taylor, but argued that Taylor had waived his challenge to service.
    They also argued that, even if Taylor’s challenge were preserved, the court should
    No. 11-5917        King, et al. v. Taylor                                           Page 5
    extend the time to serve him under Federal Rule of Civil Procedure 4(m), even though
    plaintiffs could not show good cause for their failure to timely serve him. See, e.g.,
    Panaras v. Liquid Carbonic Indus. Corp., 
    94 F.3d 338
    , 340–41 (7th Cir. 1996).
    Plaintiffs argued that dismissing the complaint instead of giving them more time to
    properly serve Taylor would be draconian, as a subsequent action would be barred by
    the statute of limitations. The district court ruled that Taylor had not waived his defense
    and declined to exercise its discretion to extend the time for service. It also ruled that
    Taylor was entitled to summary judgment on the merits.
    Plaintiffs timely appealed.
    II.
    We must first consider the district court’s ruling on Taylor’s service defense, for
    without proper service of process, consent, waiver, or forfeiture, a court may not exercise
    personal jurisdiction over a named defendant. Murphy Bros., Inc. v. Michetti Pipe
    Stringing, Inc., 
    526 U.S. 344
    , 350 (1999); see Omni Capital Int’l, Ltd. v. Rudolf Wolff
    & Co., Ltd., 
    484 U.S. 97
    , 104 (1987). And in the absence of personal jurisdiction, a
    federal court is “powerless to proceed to an adjudication.” Ruhrgas AG v. Marathon Oil
    Co., 
    526 U.S. 574
    , 584 (1999) (internal quotation marks omitted).
    Plaintiffs chose to sue Taylor in his official and individual capacities. A
    summons was addressed to Taylor, “[care of] Morgain Sprague,” an attorney with the
    Office of the Kentucky State Police Legal Counsel who later represented the
    Commonwealth and Taylor in both capacities. The summons and a copy of the
    complaint were mailed to Sprague and signed for by someone in her office. Although
    this method of service was apparently sufficient to confer personal jurisdiction over
    Taylor in his official capacity—service was never challenged—it did not confer
    jurisdiction over him in his individual capacity. See Ecclesiastical Order of the Ism of
    Am, Inc. v. Chasin, 
    845 F.2d 113
    , 116 (6th Cir. 1988) (per curiam). Taylor’s full
    awareness that he had been sued makes no legal difference to the question whether he
    was properly served. See Friedman v. Estate of Presser, 
    929 F.2d 1151
    , 1156 (6th Cir.
    No. 11-5917             King, et al. v. Taylor                                                         Page 6
    1991).1 Plaintiffs concede their failure to properly serve Taylor. They seek to avoid the
    consequences of that failure by arguing that Taylor waived his ability to challenge the
    service in three different ways. We address each theory separately.
    A.
    First, plaintiffs contend that Taylor waived his defense by not including it in his
    first motion to dismiss. By operation of the Federal Rules of Civil Procedure, a
    defendant who files a motion under Rule 12, yet fails to raise in that motion the defense
    of insufficient service of process, forever “waives” that defense. Fed. R. Civ. P.
    12(b)(5), (g)(2), (h)(1)(A). Therefore, if Taylor filed a motion under Rule 12, but never
    argued therein that service was defective, he is barred from raising the issue later, and
    plaintiffs’ first theory of waiver must be sustained.
    Taylor did, in fact, make a Rule 12 motion and omitted from it a challenge to the
    service of process. However, the motion was made expressly in Taylor’s official
    capacity. Therefore, it was effectively the Commonwealth’s motion. See Kentucky v.
    Graham, 
    473 U.S. 159
    , 166 (1985) (“[A]n official-capacity suit is, in all respects other
    than name, to be treated as a suit against the entity [of which a governmental officer is
    1
    The Federal Rules of Civil Procedure provide a very specific method for apprising a defendant
    of a lawsuit and conferring a court’s jurisdiction over him. See Fed. R. Civ. P. 4. That method was not
    followed here. We do not have the option of looking past that failure, even though it was harmless in light
    of Taylor’s full awareness of the lawsuit.
    Separately, Judge Griffin notes that strict enforcement of Rule 4’s technical requirements for
    service of process, despite the absence of any prejudice to the defendant from non-compliance, is
    nonsensical and needlessly elevates form over substance. Other jurisdictions have adopted more
    progressive, harmless-error-type rules in this context. See, e.g., Mich. Ct. R. 2.105(J)(3) (“An action shall
    not be dismissed for improper service of process unless the service failed to inform the defendant of the
    action within the time provided in these rules for service.”); see also, e.g., Mich. Ct. R. 1.105 (“These rules
    are to be construed to secure the just, speedy, and economical determination of every action and to avoid
    the consequences of error that does not affect the substantial rights of the parties.” (emphasis added)).
    Judge Griffin encourages the Advisory Committee on Civil Rules to adopt a rule, similar to Michigan’s,
    that avoids the wasted resources that litigating harmless errors in service tends to create. Until then,
    however, courts must apply the service rules as they exist today. Cf. Tuke v. United States, 
    76 F.3d 155
    ,
    157 (7th Cir. 1996) (“The Supreme Court insists that federal judges carry out the rules of procedure,
    whether or not those rules strike the judges as optimal.”). Although Rule 4(m), as most of our sister
    circuits have construed it, permits a district court in its discretion to look past earlier service blunders and
    give the plaintiff another opportunity to effect proper service, see Panaras, 
    94 F.3d at
    340–41, the lack of
    prejudice to the defendant is only one factor among many that a court may consider in deciding whether
    or not to do so. See Troxell v. Fedders of N. Am., Inc., 
    160 F.3d 381
    , 383 (7th Cir. 1998). Judge Griffin
    believes that a harmless-error rule that focuses solely on the prejudice suffered by a defendant due to
    technical defects in service would go further to avoid unwarranted dismissals and thereby conserve judicial
    resources and promote confidence in our judicial system.
    No. 11-5917        King, et al. v. Taylor                                          Page 7
    an agent].”). Moreover, the substance of the motion made clear that it was filed only in
    Taylor’s official capacity, for it sought dismissal of all claims against him on the basis
    of sovereign immunity, a defense that applies to persons only when sued for damages
    in their official capacity. Pucci v. Nineteenth Dist. Ct., 
    628 F.3d 752
    , 765 (6th Cir.
    2010). Because Taylor, in his individual capacity, did not initially file a motion to
    dismiss, he was permitted under Rule 12(h) to preserve his service defense by including
    it in his answer, which he did. See Fed. R. Civ. P. 12(h)(1)(B).
    B.
    Second, plaintiffs argue that Taylor failed to preserve his challenge to service by
    not pleading it in his answer with sufficient specificity. This theory fares no better. As
    his ninth stated defense, Taylor asserted: “The Complaint should be dismissed due to
    insufficient service of process.” That is adequate to preserve the defense under Rule
    12(h)(1)(B)(ii). See Mattel, Inc. v. Barbie-Club.com, 
    310 F.3d 293
    , 307 (2d Cir. 2002)
    (“[T]o preserve the defense of lack of personal jurisdiction, a defendant need only state
    the defense in its first responsive filing and need not articulate the defense with any
    rigorous degree of specificity.”); compare United States v. Ziegler Bolt & Parts Co.,
    
    111 F.3d 878
    , 880, 882 (Fed. Cir. 1997) (defendant’s assertion in his answer that the
    complaint was “barred because of insufficient service of process” was adequate to
    preserve the defense at the outset); and Holzsager v. Valley Hosp., 
    646 F.2d 792
    , 795–96
    (2d Cir. 1981) (answer’s assertion that the district court “lacked jurisdiction over the
    person of the defendant” was sufficient under Rule 12(h)(1) to preserve a personal-
    jurisdiction defense based on constitutional concerns); with Santos v. State Farm Fire
    & Cas. Co., 
    902 F.2d 1092
    , 1095–96 (2d Cir. 1990) (statement in answer that the court
    lacked personal jurisdiction over the defendant did not preserve the separate defense of
    insufficient service of process).
    An answer is no place to lay out the detailed basis for a Rule 12(b) defense. Cf.
    Johnson Assocs. Corp. v. HL Operating Corp., 
    680 F.3d 713
    , 718 (6th Cir. 2012) (“The
    filing of an answer is, after all, the main opportunity for a defendant to give notice of
    potentially dispositive issues to the plaintiff.” (emphasis added)). Details and arguments
    No. 11-5917            King, et al. v. Taylor                                                      Page 8
    are what motions are for. Rule 12(h)(1)(B) appears to recognize this point, for it requires
    a defendant to either (i) “make” an insufficient-service defense in a pre-answer motion
    or (ii) simply “include” the defense in the answer. The rule gives a defendant the option
    to preserve the defense in either manner, provided he has not already filed a motion
    under Rule 12 that did not assert the defense. Requiring motion-like argument in an
    answer would eliminate the option the rule provides.
    Certainly a defendant must develop an argument with facts and legal analysis
    once he affirmatively challenges a plaintiff’s attempts at service. Raising the challenge
    in a perfunctory fashion will not do. See O’Brien v. R.J. O’Brien & Assocs., Inc.,
    
    998 F.2d 1394
    , 1400 (7th Cir. 1993); Photolab Corp. v. Simplex Specialty Co., 
    806 F.2d 807
    , 810 (8th Cir. 1986); see also 5B Charles A. Wright & Arthur R. Miller, Federal
    Practice & Procedure § 1353, at 341 (3d ed. 2004) (“The objection to insufficiency of
    process or its service should point out specifically in what manner the plaintiff has failed
    to satisfy the requirements of the service provision that was utilized.”). But Taylor did
    that here in his motion for summary judgment. That was sufficient under the Rules.2
    Also, that the defense was listed along with a number of others that, according
    to plaintiffs, are “seen as a matter of course in nearly every answer[,]” cannot render the
    defense any less properly preserved under Rule 12(h)(1). Plaintiffs’ counsel had a duty
    to study Taylor’s answer when it was filed. Had he done so, he would have reviewed
    his service efforts and recognized them to be unsuccessful. If the defect in service were
    not immediately apparent to counsel, he could have served Taylor with interrogatories
    requesting the factual and legal bases for the defense. Or, he could have moved to strike
    the defense as insufficiently pled, see Fed. R. Civ. P. 12(f), which undoubtedly would
    2
    Technically speaking, it is improper to raise a challenge to service of process in a motion for
    summary judgment because the defense “involves a matter in abatement and does not go to the merits of
    the action[.]” United States v. Marple Cmty. Record, Inc., 
    335 F. Supp. 95
    , 101 (E.D. Pa. 1971).
    Nevertheless, when the defense has been preserved in an answer and is later raised in a pre-trial motion,
    a court will look past the label chosen by the movant and treat the motion as a request for a ruling on the
    defense made under former Rule 12(d), restyled in 2007 as Rule 12(i). See id.; see also 5B Wright &
    Miller, supra, § 1353, at 340; cf. Mich. Surgery Inv., LLC v. Arman, 
    627 F.3d 572
    , 578 (6th Cir. 2010)
    (Batchelder, C.J., concurring) (“The physicians’ motion was not a motion for summary judgment,
    regardless of the title chosen by the physicians[.]”); cf. also Rauch v. Day & Night Mfg. Corp., 
    576 F.2d 697
    , 702 (6th Cir. 1978) (considering the substance of a motion, rather than its label, to determine whether
    it was one to dismiss or one for summary judgment).
    No. 11-5917            King, et al. v. Taylor                                                       Page 9
    have brought the error to the fore, or asked Taylor to waive service under Civil Rule
    4(d), which, had Taylor agreed, would have mooted the issue. Taylor satisfied Rule
    12(h)(1).
    C.
    We find plaintiffs’ third theory meritorious. They argue that Taylor forfeited his
    service defense through his extensive participation in the litigation. We agree. Even
    where a defendant properly preserves a Rule 12(b) defense by including it in an answer,
    he may forfeit3 the right to seek a ruling on the defense at a later juncture through his
    conduct during the litigation. See Hamilton v. Atlas Turner, Inc., 
    197 F.3d 58
    , 60 (2d
    Cir. 1999); see also Creech v. Roberts, 
    908 F.2d 75
    , 84 (6th Cir. 1990) (Guy, J.,
    dissenting) (noting that Rule 12(h) “sets only the outer limits of waiver; it does not
    preclude waiver by implication.” (citation and internal quotation marks omitted)),
    overruled on state-law grounds by Goldstein v. Christiansen, 
    638 N.E.2d 541
     (Ohio
    1994). Asserting a Rule 12(b) defense in an answer “do[es] not preserve the defense in
    perpetuity.” Burton v. N. Dutchess Hosp., 
    106 F.R.D. 477
    , 481 (S.D.N.Y. 1985). A
    defendant is “required at some point to raise the issue by motion for the court’s
    determination.” 
    Id.
     Waiting too long to do so can forfeit the defense.
    The majority of cases involving forfeiture of a defense listed in Rule 12(b)
    involve a personal-jurisdiction defense, not a service defense. The two defenses, though
    related, involve distinct concepts. See Omni Capital Int’l, 
    484 U.S. at 104
     (“Service of
    summons is the procedure by which a court having venue and jurisdiction of the subject
    matter of the suit asserts jurisdiction over the person of the party served.” (quotation
    marks omitted)); see also Fed. R. Civ. P. 12(b) (listing the defenses separately);
    5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1353, at 338
    (3d ed. 2004) (“Although the questions of personal jurisdiction and service of process
    3
    While proper to speak in terms of “waiver” when discussing a defendant’s failure to preserve
    a defense in the way Rule 12(h)(1) requires (since the rule itself employs the term), when considering
    whether a defendant has unintentionally lost the defense through his delay and participation in the
    litigation, the issue is more properly considered one of “forfeiture.” See Hamilton, 
    197 F.3d at 61
    ; see also
    United States v. Olano, 
    507 U.S. 725
    , 733 (1993) (noting that “waiver is the intentional relinquishment
    or abandonment of a known right” (citation and internal quotation marks omitted)).
    No. 11-5917              King, et al. v. Taylor                                                  Page 10
    are closely interrelated, service of process is merely the means by which a federal court
    gives notice to the defendant and asserts jurisdiction over him; the actual existence of
    personal jurisdiction should be challenged by a Rule 12(b)(2) motion”). That is why
    raising a challenge to one will not automatically raise (or preserve) a challenge to the
    other. See Santos, 
    902 F.2d at 1095
    .
    We recently clarified the test for finding forfeiture of a personal-jurisdiction
    defense through conduct: we ask whether a defendant’s conduct prior to raising the
    defense has given the plaintiff “a reasonable expectation” that the defendant will defend
    the suit on the merits or whether the defendant has caused the court to “go to some effort
    that would be wasted if personal jurisdiction is later found lacking.” Gerber v. Riordan,
    
    649 F.3d 514
    , 519 (6th Cir. 2011) (quoting Mobile Anesthesiologists Chi., LLC v.
    Anesthesia Assocs. of Hous. Metroplex, P.A., 
    623 F.3d 440
    , 443 (7th Cir. 2010)). We
    consider all of the relevant circumstances. Hamilton, 
    197 F.3d at 61
    . Recognizing that
    service of process is simply the means by which a defendant receives notice of an action
    and is formally brought within a court’s jurisdiction, whereas personal jurisdiction
    concerns the fairness of requiring a defendant to appear and defend in a distant forum,
    we agree with the Second Circuit that, as between the two defenses, it is relatively easier
    to find forfeiture of a service defense. See 
    id.,
     
    197 F.3d at 60
    ; Datskow v. Teledyne, Inc.,
    
    899 F.2d 1298
    , 1303 (2d Cir. 1990).4
    We review a district court’s ruling on forfeiture for an abuse of discretion. See
    Ziegler Bolt & Parts, 
    111 F.3d at 882
    ; accord Lechoslaw v. Bank of Am., N.A., 
    618 F.3d 49
    , 55–56 (1st Cir. 2010); Melton v. Wiley, 262 F. App’x 921, 923 n.5 (11th Cir. 2008)
    4
    The Second Circuit put it this way:
    [T]his is not a case where a defendant is contesting personal jurisdiction on the ground
    that [long-arm] jurisdiction is not available. We would be slower to find waiver by a
    defendant wishing to contest whether it was obliged to defend in a distant court. But
    here amenability of Teledyne Industries, Inc. to the jurisdiction of the Western District
    is clear, and defendant is complaining only about a defect in the form of service, one
    that could have been readily cured during the limitations period if defendant had
    promptly complained.
    Datskow, 
    899 F.2d at 1303
    ; see Hamilton, 
    197 F.3d at 60
     (“Since Atlas’s jurisdictional defense challenges
    the application of New York’s long-arm statute, we approach the waiver issue with the enhanced caution
    that Datskow contemplated.”).
    No. 11-5917            King, et al. v. Taylor                                                      Page 11
    (per curiam); Hamilton, 
    197 F.3d at 60
    ; see also Chambers v. NASCO, Inc., 
    501 U.S. 32
    ,
    43–46 (1991) (discussing the inherent powers of federal courts to govern conduct in
    actions pending before them); cf. Mickowski v. Visi-Trak Worldwide, LLC, 
    415 F.3d 501
    ,
    506 (6th Cir. 2005) (district court’s allowance of an untimely affirmative defense is
    reviewed for an abuse of discretion); Smith v. Sushka, 
    117 F.3d 965
    , 969 (6th Cir. 1997)
    (same).5 “An abuse of discretion occurs if the district court relies on clearly erroneous
    findings of fact, applies the wrong legal standard, misapplies the correct legal standard
    when reaching a conclusion, or makes a clear error of judgment.” In re Whirlpool Corp.
    Front-Loading Washer Prods. Liability Litig., 
    678 F.3d 409
    , 416 (6th Cir. 2012). Such
    review suggests “a range of plausible assessments” about the question considered. Ohio
    ex rel. Skaggs v. Brunner, 
    629 F.3d 527
    , 532 (6th Cir. 2010). Though it is certainly
    deferential, “abuse of discretion review is not the same thing as a rubber stamp[.]”
    Dunphy v. McKee, 
    134 F.3d 1297
    , 1300 (7th Cir. 1998).
    Despite the absence of any legal error or clearly erroneous findings of fact, we
    conclude that Taylor’s forfeiture in this case was so clear that the district court abused
    its discretion in ruling otherwise. After including the service defense in his answer,
    Taylor was completely silent about it until the summary judgment stage. During that
    span of silence, Taylor, solely in his individual capacity, participated extensively in the
    litigation for over a year in the following ways:
    •        Meeting with plaintiffs’ counsel and then filing with the district
    court a joint report under Civil Rule 26(f).6
    5
    Gerber does not require de novo review of forfeiture rulings. There, we considered anew
    whether the defendant had forfeited its personal-jurisdiction defense through its conduct. 
    649 F.3d at
    517–20. But we presumably did so because the plaintiff’s claim of forfeiture was raised for the first time
    on appeal, which precluded review of any exercise of discretion. See Gerber v. Riordan, No. 3:06-cv-
    01525, 
    2009 WL 1505572
     (N.D. Ohio May 28, 2009) (not addressing forfeiture allegation). Moreover,
    because the defendant never appeared or filed a brief in the appellate proceedings, there was no contention
    either that the plaintiff itself had forfeited its argument on forfeiture by not raising it below or that the
    matter should be remanded so the district court could exercise its discretion. See Ford v. Cnty. of Grand
    Traverse, 
    535 F.3d 483
    , 490 (6th Cir. 2008). Gerber did not establish the review standard for forfeiture
    rulings. Cf. United States v. Lucido, 
    612 F.3d 871
    , 876 (6th Cir. 2010) (“Cases implicating issues that
    ‘merely lurk in the record, neither brought to the attention of the court nor ruled upon,’ do not establish
    binding precedent on the unexamined point.” (citation omitted)).
    6
    Civil Rule 26(f) contemplates a conference between the parties in which consideration of “the
    nature and basis of their claims and defenses,” among other things, are considered. Fed. R. Civ. P. 26(f)(1)
    (emphasis added).
    No. 11-5917            King, et al. v. Taylor                                                      Page 12
    •        Voluntarily participating in full discovery on the merits,
    including making initial disclosures under Rule 26(a), responding
    to written discovery requests from plaintiffs, giving his
    deposition, having counsel attend the depositions of sheriff’s
    deputies Alfred Isaacs and Jody Adams, and retaining Dr.
    Gregory Davis as an expert witness and defending his deposition.
    •        Moving to amend the scheduling order to extend the deadline for
    expert witness disclosures.
    •        Joining plaintiffs’ request to extend discovery by sixty days to
    allow plaintiffs time to depose Taylor and others, and filing a
    status report urging the court to sustain the parties’ joint motion
    for an extension.
    •        Attending a status conference to discuss the progress of the action
    and the justification for extending the pretrial deadlines.
    Such voluntary, active, and extensive participation in the litigation indisputably
    gave plaintiffs a “reasonable expectation that [Taylor would] defend the suit on the
    merits.” Gerber, 
    649 F.3d at 519
    . In addition, Taylor’s decision to wait until the
    summary judgment stage to seek a ruling on his service defense caused the district court
    to go to at least “some effort that would be wasted if [proper service of process] is later
    found lacking.” 
    Id.
     He therefore forfeited his service defense.7 The district court’s
    ruling to the contrary fell outside the “range of plausible assessments” on the matter and
    was thus an abuse of discretion. Brunner, 
    629 F.3d at 532
    ; cf. Datskow, 
    899 F.2d at 1301, 1303
     (finding that the defendant forfeited its defense of improper service by
    including the defense in its answer and then waiting four months to raise the defense in
    a motion, before which time it attended a scheduling conference where the defense was
    never mentioned).
    7
    The written appearance filed by Taylor’s counsel one month before Taylor moved for dismissal
    on the basis of lack of service does not constitute forfeiture. See Friedman v. Estate of Presser, 
    929 F.2d 1151
    , 1157 n.7 (6th Cir. 1991) (noting that an appearance by counsel, filed after properly raising lack of
    proper service in the first responsive pleading, did not waive the defense). Insofar as some of our more
    recent cases might suggest otherwise, see, e.g., Gerber, 
    649 F.3d at 520
    , they must yield to Friedman. See
    United States v. Simpson, 
    520 F.3d 531
    , 539 (6th Cir. 2008) (noting that the earlier of two conflicting panel
    holdings controls).
    No. 11-5917         King, et al. v. Taylor                                         Page 13
    At oral argument, Taylor’s counsel admitted that for “tactical reasons” she did
    not bring a motion to dismiss at an earlier stage in the litigation. Counsel intentionally
    waited until after the statute of limitations had run before filing her motion. In assessing
    whether Taylor forfeited his defective-service defense through his active and extensive
    participation in the litigation, the deliberativeness of his conduct, for gamesmanship
    purposes, weighs against Taylor.
    In finding forfeiture here, we do not imply that a defendant who believes he has
    been improperly served and insists upon proper service must raise the issue in a motion
    at the earliest possible moment upon pain of forfeiture. Such a rule would contravene
    Rule 12(h). And, given that a plaintiff has 120 days to serve a defendant, see Fed. R. Civ.
    P. 4(c)(1), (m), a motion to dismiss on the basis of improper service made during the
    period for service may properly be denied as premature. See McGinnis v. Shalala, 
    2 F.3d 548
    , 551 (5th Cir. 1993) (per curiam); see also Henderson v. United States, 
    517 U.S. 654
    , 661 (1996) (“[Rule 4(m)’s] 120-day provision operates not as an outer limit
    subject to reduction, but as an irreducible allowance.”). Taylor, however, waited until
    well after the 120-day period expired to press his service defense in a motion and, in the
    meantime, took substantial steps to defend the case on the merits. Doing so forfeited his
    defense. We turn to the merits.
    III.
    The district court granted Taylor summary judgment on his defenses to plaintiffs’
    claims of excessive force under the Fourth Amendment, as well as assault, battery, and
    negligence under Kentucky law. See Fed. R. Civ. P. 56(a). We review that decision de
    novo. Longaberger Co. v. Kolt, 
    586 F.3d 459
    , 465 (6th Cir. 2009). In so doing, we view
    the facts in the light most favorable to the nonmoving party, giving that party the benefit
    of all reasonable inferences. Smith Wholesale Co. v. R.J. Reynolds Tobacco Co.,
    
    477 F.3d 854
    , 861 (6th Cir. 2007).
    No. 11-5917        King, et al. v. Taylor                                         Page 14
    IV.
    A.
    Plaintiffs sued Taylor for damages under 
    42 U.S.C. § 1983
    , which permits an
    individual to bring a private right of action against anyone who, under color of state law,
    deprives a person of rights, privileges, or immunities secured by the Constitution or
    federal statutes. Taylor seeks to avoid liability by invoking the affirmative defense of
    qualified immunity.       This defense “shields government officials performing
    discretionary functions from civil damages liability as long as their actions could
    reasonably have been thought consistent with the rights they are alleged to have
    violated.” O’Malley v. City of Flint, 
    652 F.3d 662
    , 667 (6th Cir. 2011) (citation, internal
    quotation marks, and ellipsis omitted). In determining whether a defendant is entitled
    to qualified immunity, we make two inquiries: (1) taken in the light most favorable to
    plaintiffs, do the facts show that the officer’s conduct violated a federal right, and (2)
    was the right “clearly established” to the extent that a reasonable person in the officer’s
    position would know that the conduct complained of was unlawful. 
    Id.
    The parties agree that the federal right at issue here is the right, secured by the
    Fourth Amendment, to be free from excessive force during an authorized seizure. It is
    undisputed that Taylor “seized” King by shooting him, thereby triggering the Fourth
    Amendment’s “reasonableness” requirement. See Tennessee v. Garner, 
    471 U.S. 1
    , 7
    (1985) (“[T]here can be no question that apprehension by the use of deadly force is a
    seizure subject to the reasonableness requirement of the Fourth Amendment.”); see also
    Ciminillo v. Streicher, 
    434 F.3d 461
    , 465–66 (6th Cir. 2006). “Determining whether the
    force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment
    requires a careful balancing of the nature and quality of the intrusion on the individual’s
    Fourth Amendment interests against the countervailing governmental interests at stake.”
    Graham v. Connor, 
    490 U.S. 386
    , 396 (1989) (citation and some internal quotation
    marks omitted). In Garner, the Supreme Court held that the reasonableness of using
    deadly force to subdue a suspect depends upon whether “the officer has probable cause
    to believe that the suspect poses a threat of serious physical harm, either to the officer
    No. 11-5917         King, et al. v. Taylor                                         Page 15
    or to others.” 
    471 U.S. at 11
    ; see Lyons v. City of Xenia, 
    417 F.3d 565
    , 572 (6th Cir.
    2005).
    B.
    The district court determined that plaintiffs could not establish a constitutional
    violation. Despite the existence of forensic evidence and expert testimony calling into
    serious question the officers’ account of the incident—particularly the question whether
    King pointed a gun at the officers just before being shot—the district court determined
    that this evidence does not create a genuine factual dispute that requires a trial. We
    disagree. Viewing the record in the light most favorable to plaintiffs, we conclude that
    a factual dispute exists whether Taylor reasonably believed that King posed a threat of
    serious physical harm to Taylor or the other officers. In our view, a jury could find,
    based upon the forensic evidence, expert testimony, and common sense, that King did
    not threaten the officers by pointing a gun at them just before he was shot.
    The officers unequivocally testified that King pointed a gun at them while facing
    them. Isaacs said that he saw King “looking right at [him]” while the gun was on its way
    around toward him. Adams stated that King was “looking toward the door . . . at Deputy
    Isaacs.” Because Taylor was standing to the right of Isaacs and Adams, if the officers
    are believed, the bullet should have entered the left side of King’s face and traveled to
    the right. And, because King was seated and therefore at a lower position than Taylor,
    who was standing, the bullet should have traveled slightly downwards through King’s
    head. (The photograph at R.32-12, Page ID: 343, demonstrates the point. Taylor was
    standing in front of the blown-out window, while Isaacs and Adams stood to his left.)
    But the bullet did not take this path. According to the autopsy report, the bullet entered
    the right side of King’s face and traveled two and one-half inches to the left, and three
    inches upward. The path is consistent with King being in a reclined position looking
    straight ahead (not at the officers) when shot, rather than sitting up and looking toward
    them, as the officers claim. This body position is further consistent with plaintiffs’
    theory that King was shot while lying on his couch, not making any threatening gestures
    towards the officers.
    No. 11-5917            King, et al. v. Taylor                                                    Page 16
    In addition, the officers’ testimony that King was pointing a gun at them just
    before he was shot is called into genuine dispute by expert testimony. After he was
    killed, King was found with a gun in his right hand, which was resting on his right hip.
    While the presence of a gun in King’s right hand is consistent with the officers’
    testimony, that it was found resting on his right hip decidedly is not. Isaacs said he saw
    King point the gun at him just before he (Isaacs) turned to avoid being shot in the face.
    Adams, who was standing next to Isaacs, also said he saw King point a gun towards
    Isaacs. Taylor said he fired his rifle just when he saw King “get[] in front of [him]” and
    “point[] [a gun] at [him].” Moreover, the officers (including Taylor) said they believed
    at first that King might have shot at them. They could have plausibly believed this only
    if King had his gun pointed directly at them, which would have required King to have
    his right arm extended toward the officers, somewhat parallel to the floor.8 But a jury
    could find such arm positioning entirely inconsistent with expert testimony and common
    sense. Two medical experts opined that, due to the bullet’s severing of King’s medulla
    oblongata, once shot, King immediately would have lost consciousness, causing his
    entire body to become unresponsive and flaccid. In that case, gravity would have caused
    King’s outstretched right arm to fall to the floor, not neatly into his lap. Indeed, this
    sequence of events is consistent with the testimony of plaintiffs’ expert that “it is highly
    unlikely that Mr. King’s right arm was extended toward the officers at the time of
    injury,” as it was found resting on his right hip instead of the ground.
    What exactly happened just before King was shot is a question for the jury, as
    both sides’ theories of what transpired are sufficiently supported by evidence in the
    record. Even without the further opinion of plaintiffs’ expert regarding the position of
    King’s arm just before he was shot, the jury could draw on its common sense and
    experience, along with the expert testimony regarding what happens to one’s body once
    the medulla oblongata is perforated, to determine that King did not point a gun towards
    8
    Taylor believes that whether King’s right arm was extended is “irrelevant” to whether he pointed
    the gun at the officers. We disagree, for a jury could use its common sense to find that it would be nearly
    impossible, based upon the way King’s body was positioned on the couch, for him to point a gun at the
    officers unless his right arm was extended.
    No. 11-5917            King, et al. v. Taylor                                                    Page 17
    the officers just before he was shot, thereby rendering Taylor’s use of deadly force
    unreasonable.9
    Our decision in Brandenburg v. Cureton, 
    882 F.2d 211
     (6th Cir. 1989), relied
    upon by plaintiffs but distinguished by the district court, supports our conclusion. There,
    the defendant officer testified that he shot the plaintiff’s husband because the husband
    had pointed his weapon directly at officers in a threatening manner. 
    Id. at 215
    . We
    concluded that a jury could find otherwise, based upon expert testimony that the
    “position of the [husband’s] body after death indicated that the right hand was not
    grasping the trigger and that the position of the left arm could not prove that [the
    husband] was aiming his weapon at the officers.” 
    Id.
     The same is true here. The district
    court discounted the persuasiveness of Brandenburg on the basis that, apparently unlike
    in this case, Brandenburg involved “actual physical evidence that [the decedent] did not
    have his finger on the trigger of the gun and was not aiming it at the officers when he
    was shot.” This distinction is dubious. The “actual physical evidence” supporting the
    plaintiff’s theory in Brandenburg is no stronger than plaintiffs’ evidence here. And, as
    in Brandenburg, expert testimony and common sense could lead a jury to reject the
    officers’ testimony that King was pointing a gun at them when Taylor shot him.
    With respect to the second question in the qualified-immunity analysis, we have
    little trouble concluding that if Taylor shot King while he was lying on his couch and not
    pointing a gun at the officers, Taylor violated King’s clearly-established right to be free
    from deadly force. It has been clearly established in this circuit for some time that
    “individuals have a right not to be shot unless they are perceived as posing a threat to
    officers or others.” Ciminillo, 
    434 F.3d at 468
    ; see Bletz v. Gribble, 
    641 F.3d 743
    , 752
    (6th Cir. 2011); Yates v. City of Cleveland, 
    941 F.2d 444
    , 447 (6th Cir. 1991); Robinson
    v. Bibb, 
    840 F.2d 349
    , 351 (6th Cir. 1988). Genuine disputes of material fact preclude
    upholding the district court’s entry of summary judgment on Taylor’s defense of
    qualified immunity. See Bletz, 
    641 F.3d at 749
     (“[I]f genuine issues of material fact
    exist as to whether the officer committed acts that would violate a clearly established
    9
    Taylor defends his actions solely on the basis that King pointed the gun at the officers.
    No. 11-5917         King, et al. v. Taylor                                         Page 18
    right, then summary judgment [on the defense of qualified immunity] is inappropriate.”);
    Poe v. Haydon, 
    853 F.2d 418
    , 426 (6th Cir. 1988).
    V.
    The district court also entered summary judgment on plaintiffs’ state-law claims
    of assault and battery on the basis that Taylor was entitled to a full defense under
    Kentucky’s justification and immunity statutes. See Ky. Rev. Stat. §§ 503.070(2),
    503.085(1). The statutes work in tandem in a civil suit. First, the justification statute
    provides that the use of deadly force is justifiable when the individual “believes that such
    force is necessary to protect himself against death, serious physical injury, . . . [or a]
    felony involving the use of force[.]” Id. § 503.050(2). It also permits the use of deadly
    force where an individual “believes that such force is necessary to protect a third person
    against the use or imminent use of unlawful physical force by [another]” and the
    individual believes “that the person whom he seeks to protect would himself have been
    justified” in using deadly force. Id. § 503.070(2) (emphasis added). Second, if an
    individual’s use of deadly force is justified under either provision—self-defense or
    defense of a third person—he is “immune . . . from civil action for the use of such
    force[.]” Id. § 503.085(2).
    For the same reasons we find genuinely disputed the facts underlying the
    question whether Taylor had probable cause to use deadly force to seize King, we find
    genuinely disputed whether Taylor believed such force was necessary to protect himself
    or another from death or serious physical injury. Summary judgment on Taylor’s
    defense of immunity under state law, therefore, is not appropriate.
    VI.
    Finally, the district court granted Taylor summary judgment on plaintiffs’
    negligence claim on the basis of qualified official immunity and lack of proximate cause.
    Under Kentucky law, qualified official immunity affords protection to public
    officers sued in their individual capacity from “damages liability for good faith judgment
    calls made in a legally uncertain environment.” Yanero v. Davis, 
    65 S.W.3d 510
    , 522
    No. 11-5917           King, et al. v. Taylor                                                Page 19
    (Ky. 2001). Specifically, the defense “applies to the negligent performance by a public
    officer or employee of (1) discretionary acts or functions, i.e., those involving the
    exercise of discretion and judgment, or personal deliberation, decision, and judgment;
    (2) in good faith; and (3) within the scope of the employee’s authority.” 
    Id.
     (internal
    citation omitted). “Bad faith” “can be predicated on a violation of a constitutional,
    statutory, or other clearly established right which a person in the public employee’s
    position presumptively would have known was afforded to a person in the plaintiff’s
    position, i.e., objective unreasonableness.” 
    Id. at 523
    . This standard is materially
    similar to the one a plaintiff must meet to overcome a federal defense of qualified
    immunity.
    Just as Taylor’s defense of qualified immunity on the federal claim requires a
    jury to resolve underlying disputed facts, so too with respect to Taylor’s defense of
    qualified official immunity on plaintiffs’ negligence claim.10 The same is true also with
    respect to Taylor’s defense that a superseding cause—King’s alleged criminal act of
    pointing a gun at the officers—severs Taylor’s liability for any potential negligence on
    his part. Summary judgment on this claim is not warranted.
    VII.
    For these reasons, we reverse the judgment of the district court and remand for
    proceedings consistent with this opinion.
    10
    Because we find that bad faith can be shown by Taylor’s alleged violation of King’s clearly
    established constitutional rights, we do not consider whether it also can be shown by way of “corrupt
    motive” or “malicious intent” on the part of Taylor. Yanero, 65 S.W.3d at 523.
    

Document Info

Docket Number: 11-5917

Citation Numbers: 694 F.3d 650

Judges: Dowd, Griffin, Sutton

Filed Date: 9/12/2012

Precedential Status: Precedential

Modified Date: 8/5/2023

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