Arika Metals, Inc. v. Kobunski

Filing 20

Memorandum Opinion and Order granting defendants' Motion for leave (Related Doc # 16 ) to amend the Answer/Counterclaim and accepts that Amended Answer/Counterclaim attached Instanter. However, Count Seven of the Amended Counterclaim, the claim for abuse of process, is dismissed without prejudice. Judge Donald C. Nugent(C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ARIKA METALS, INC.,
Plaintiff(s),

vs.
ERIN KOBUNSKI,
Defendants.

)
)
)
)
)
)
)
)
)
)

CASE NO.1:12 CV 764
JUDGE DONALD C. NUGENT
MEMORANDUM OPINION
AND ORDER

This case is before the Court on Defendant’s Motion for Leave to File Amended Answer
and Counterclaim.” (ECF # 16).

Plaintiffs oppose the motion, arguing mainly that the cut off

date for amending pleadings, which the parties agreed to, has already passed, and that the added
claim for abuse of process could does not state a claim upon which relief may be granted. (ECF
#19).
Federal Rule of Civil Procedure 15(a) provides that leave to amend a pleading should be
freely allowed “when justice so requires.” In determining whether to permit an amendment, a
court should consider whether there has been undue delay, lack of notice, bad faith, or repeated
failure to cure deficiencies, and whether the amendment would be cause undue prejudice to the
party or would be futile. See, e.g., Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998). The Sixth

Circuit has held that an amended pleading is futile, and should not be permitted, if the amended
claim could not withstand a Fed. R.Civ.P. 12(b)(6) motion to dismiss. See Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000).
The proposed Amendment to the Counterclaim seeks to add claims for discrimination and
retaliation based on the same facts and events that underlie the current counterclaim. Defendant
claims that these claims could not have brought at the time of the filing of the original
answer/counterclaim because those issues had not yet been presented to Equal Employment
Opportunity Commission (“EEOC”) and therefore her administrative remedies on those claims
had not been exhausted. A charge was filed with the EEOC shortly after this lawsuit was filed by
Plaintiff. Plaintiff was timely notified of the charges and was able to respond to the charges
during the administrative proceedings. On September 4, 2012, Defendant received a Notice of
Right to Sue.

The Amendment relating to the discrimination and retaliations charges is justified

and the original failure to include such charges was not the result of undue delay, bad faith, or any
other cause for delay within the control of the Defendant. Further, Plaintiff had notice of the
claims through the EEOC proceedings and will not be prejudiced by the amendment.
However, the Court finds that based on the asserted facts and allegations, allowing an
amendment to the Counterclaim to include a claim for abuse of process would be futile.

A claim

for abuse of process must set forth facts to support three separate elements: (1)Plaintiff
commenced a legal action in proper form and with probable cause; (2) Plaintiff perverted the
proceedings to accomplish an ulterior motive for which it was not designed; and, (3) direct
damage has resulted from the wrongful use of process. See Yaklevich v. Kemp, Schaeffer, and
Rowe Co., L.P.A., 68 Ohio St.3d 294, 626 N.E.2d 115 (Ohio 1994); Dawes v. BAC Home Loans

2

Serv., LP, Case 1:10-cv-0237, 2011 U.S. Dist. LEXIS 66507 (N.D. Ohio April 27, 2011). An
abuse of process case differs from a malicious prosecution case in that an element of the claim is
the existence of a law suit that is properly initiated and backed by probable cause. In this case the
factual allegations asserted by Defendant make it clear that she believes that the case was brought
without probable cause or proper legal basis, not that a proper and legal action was perverted for
an improper purpose. The allegations in the Counterclaim, therefore, are inconsistent with a claim
for abuse of process, and allowing this claim to be included in the Amended Answer/Counterclaim
would appear to be futile.
For these reasons, the Court hereby grants Defendants’ motion to amend the
Answer/Counterclaim and accepts that Amended Answer/Counterclaim attached Instanter.
However, Count Seven of the Amended Counterclaim, the claim for abuse of process, is dismissed
without prejudice. IT IS SO ORDERED.

/s/ Donald C. Nugent
DONALD C. NUGENT
United States District Judge
DATED:

October 18, 2012

3