DOE 1 et al v. Michigan Department of Corrections et al

Filing 162

ORDER granting 132 Plaintiffs' Motion for leave to file an amended complaint; terminating as moot 139 Defendants' Motion to hold in abeyance ; 149 Plaintiffs' Motion for leave to file additional exhibits and 154 Plaintiffs' Motion for leave to file additional exhibits. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1, et al.,
Plaintiffs,
v.

Case No. 13-14356

MICHIGAN DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
/
ORDER (1) GRANTING PLAINTIFFS’ MOTION TO AMEND THE COMPLAINT; (2)
TERMINATING AS MOOT PLAINTIFFS’ MOTIONS FOR LEAVE TO FILE
ADDITIONAL EXHIBITS AND DEFENDANTS’ MOTION TO HOLD THE MOTION TO
AMEND IN ABEYANCE; AND (3) DIRECTING THE PARTIES TO SUBMIT A
PROPOSED SCHEDULING ORDER
Plaintiffs filed the instant “Motion for Leave to File First Amended Complaint,”
seeking to add five new John Doe plaintiffs, John Does 8-12. (Dkt. # 132.) Defendants
opposed that motion, (Dkt. # 135), and moved the court to hold the motion to amend in
abeyance, (Dkt. #139). Plaintiffs filed a reply, (Dkt. # 140), and also filed two motions for
leave to file additional exhibits in support of the Motion for Leave to File First Amended
Complaint, (Dkt. ## 149, 154.) On March 8, 2016 the court held a hearing on the motion
to amend and orally granted that motion. At the hearing, the court also established that
the time for filing further amendments to the complaint is now closed. Finally, the court
directed the parties to submit a proposed scheduling order establishing a discovery
period and briefing schedule with regards to the exhaustion issue as it pertains to the
new John Does. Counsel for both parties represented that such a proposed order could
be submitted by Monday, March 14, 2016.

For the reasons stated below and on the record at the hearing, the court grants
Plaintiffs’ Motion for Leave to File First Amended Complaint, and terminates as moot the
motion to hold the motion to amend in abeyance and the two motions for leave to file
additional exhibits.
Leave to amend is “freely given when justice so requires.” Morse v. McWhorter,
290 F.3d 795, 799 (6th Cir. 2002). Denial may be appropriate, however, where there is
“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 the amendment, etc.” Foman v.
Davis, 371 U.S. 178, 182 (1962). As Plaintiffs point out, “[t]he court has not established
a discovery cut-off deadline, trial date or date for filing a motion for class certification.”
(Dkt. # 132, Pg. ID 2686.) Nor has the court, before this order, established a deadline
for amendments to the complaint.
Defendants argue, in part, that the amendment would be futile because the new
Doe plaintiffs have not shown that they fully exhausted their administrative remedies,
and thus are subject to a Rule 56 summary judgment challenge. This argument,
however, misapprehends the standard for futility in the Sixth Circuit. “A proposed
amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to
dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). The
possibility that the proposed plaintiffs may not overcome a summary judgment
challenge is not relevant to the court’s inquiry today.
Because Rule 15 “plainly embraces a liberal amendment policy,” Demings v.
Nationwide Life Ins. Co., 593 F.3d 486, 493 (6th Cir. 2010) (quoting Morse v.

McWhorter, 290 F.3d 795, 800 (6th Cir. 2002)), and because Defendants have not
identified any “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, [or] futility of
the amendment,” Foman, 371 U.S. at 182, Plaintiffs’ motion is granted. The court is,
however, wary that continual amendments adding new Does could allow Plaintiffs to
repeatedly escape dismissal for failure to exhaust administrative remedies, so the court
also now closes the period during which Plaintiffs may amend their complaint.
Accordingly, IT IS ORDERED that Plaintiff’s Motion for Leave to File First
Amended Complaint, (Dkt. # 132), is GRANTED, and Plaintiffs’ motions for leave to file
additional exhibits, (Dkt. ## 149, 154), and Defendants’ motion to hold in abeyance,
(Dkt. #139) are TERMINATED as moot.
IT IS FURTHER ORDERED that Plaintiffs will, forthwith, file the Amended
Complaint (devoid of any bolding to indicate amended material) and that no further
amendments to the complaint shall be allowed, except for good cause. Defendants shall
file an Answer in accordance with Federal Rule of Civil Procedure 12.
IT IS FURTHER ORDERED that the parties are DIRECTED to jointly submit a
proposed scheduling order no later than March 18, 2016, establishing a discovery
period and briefing schedule addressing the exhaustion issue as it pertains to John
Does 8-12.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: March 11, 2016

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, March 11, 2016, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\13-14356. DOE.grantamend.V2.smq.wpd