Pettinato v. Professional Parent Care et al

Filing 33

ORDER GRANTING DEFENDANTS' MOTION FOR LEAVE TO AMEND ANSWER ADDING COUNTERCLAIM [#23]. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALLISON PETTINATO,
Plaintiffs,
Case No.: 16-14419
Honorable Gershwin A. Drain

v.

PROFESSIONAL PARENT CARE., et
al.,
Defendants.
___________________________/
ORDER GRANTING DEFENDANTS’ MOTION FOR LEAVE TO AMEND
ANSWER ADDING COUNTERCLAIM [#23]
I.

INTRODUCTION
Presently before the Court is the Defendants’ Motion for Leave to Amend

Answer Adding Counterclaim, filed on December 1, 2018. Plaintiff has filed a
Response in Opposition and Defendants filed a Reply in support of their present
motion. A hearing on this matter was held on February 20, 2018. For the reasons
that follow, the Court will grant Defendants’ present motion.
II.

FACTUAL BACKGROUND
The pertinent facts giving rise to the instant action have already been

addressed by the Court in an earlier opinion and order. Accordingly, the Court will
only discuss those facts relevant to the resolution of Defendants’ present motion.

Plaintiff filed her First Amended Complaint alleging sexual harassment and
retaliation in the workplace on February 2, 2017. Defendants filed their Answer
and Affirmative Defenses on February 16, 2017. During the course of discovery,
Plaintiff produced ten audio and five video recordings. One of the video recordings
is of Defendant Morris Huppert in his bedroom. Another video was from a meeting
between Plaintiff and Defendant Linden concerning Plaintiff’s sexual harassment
allegations against Huppert.
Defendants maintain that these video recordings violates Michigan law,
specifically Mich. Comp. Laws § 750.539 et seq., and Defendants seek to add a
counterclaim for violation of this statute.
III.

LAW & ANALYSIS
Federal Rule of Civil Procedure 15 governs the amendment of pleadings. It

states in relevant part:
(a)

Amendments Before Trial.

(1) Amending as a Matter of Course.
pleading once as a matter of course within:

A party may amend its

(A) 21 days after serving it,
(B) if the pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading or 21 days after service
of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its
pleading only with the opposing party=s written consent or the court=s
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leave. The court should freely give leave when justice so requires.
Fed. R. Civ. P. 15(a). Rule 15(a) is intended to Aenable a party to assert matters that
were overlooked or were unknown at the time the original complaint or answer was
interposed.@ Iron Workers Local No. 25 Pension Fund v. Klassic Services, Inc., 913
F. Supp. 541, 543 (E.D. Mich. 1996).

Leave to amend should only be denied

where Athere is evidence of undue delay, bad faith, undue prejudice to the nonmovant, or futility.@ Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 519 (6th Cir.
2001).
Here, there is no evidence of undue delay, bad faith, undue prejudice or that
amendment will be futile. In her response, Plaintiff only raises the sole issue of
futility as the basis for denying Defendants’ present motion. However, Plaintiff’s
Response fails to address the proposed claim that Defendants’ actually advance.
Rather, Plaintiff spends her brief discussing the legality of making and using an
audio recording, which is not at issue here, as well as federal wiretapping law,
which is also not relevant to Defendants’ proposed counterclaim. Plaintiff has
failed in her burden to demonstrate that amendment should be denied. Nurriddin v.
Goldin, 382 F. Supp. 2d 79, 91 (D.C. Cir. 2005) (non-movant bears the burden of
showing why amendment should be disallowed).

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IV.

CONCLUSION
For the reasons articulated above, Defendants’ Motion for Leave to Amend

Answer Adding Counterclaim [#23] is GRANTED.
SO ORDERED.

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
February 20, 2018, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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