DeCrane v. Eckart et al

Filing 45

Opinion and Order. Plaintiff's Motion for Leave to File Second Amended Complaint (Related doc # 15 ) is granted. Plaintiff shall file his amended pleading by 3/1/2018. Defendants' Motion for Partial Judgment on the Pleadings (Related doc # 13 ) is denied as moot. Judge Christopher A. Boyko on 2/16/2018. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SEAN DeCRANE,
Plaintiff,
vs.
EDWARD ECKART, et al.,
Defendants.

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CASE NO. 1:16CV2647
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #15) of Plaintiff Sean
DeCrane for Leave to File Second Amended Complaint. For the following reasons, the
Motion is granted.
I. FACTUAL BACKGROUND
Plaintiff is a retired City of Cleveland Division of Fire Battalion Chief. He alleges
that Assistant Safety Director Edward Eckart, along with James Votypka and Christopher
Chumita, repeatedly retaliated against him based on the mistaken belief that Plaintiff
disclosed to a reporter that a previous fire chief lacked the required continuing education to
maintain his professional certification. Allegedly, the retaliation included: repeated failures
to promote him; seizing the Fire Training Academy’s records while Plaintiff served as
Director of Training; making false allegations against him about deficient record-keeping;
trying to have him criminally prosecuted; concocting false administrative charges against
him; delaying a state audit that would have cleared him; relaying false information to the
media; ignoring his emails and refusing to meet with him; trying to outsource training

activities; and trying to damage his reputation and career.
On October 31, 2016, Plaintiff filed a Complaint against the City, Eckart, Votypka and
Chumita for: (1) First and Fourteenth Amendment Retaliation under § 1983; (2) False Light
Invasion of Privacy (Eckart); and (3) a state-law claim for Intimidation under R.C. § 2921.03
(Eckart, Votypka and Chumita).
After the City dismissed the pending administrative charges, Plaintiff filed an
Amended and Supplemental Complaint updating his allegations on January 31, 2017.
Defendants answered.
On April 21, 2017, the individual Defendants moved for Partial Judgment on the
Pleadings, arguing that the Intimidation claim against them cannot be maintained because
Plaintiff did not plead that Defendants were charged with or convicted of the state-law crime
of Intimidation. (ECF DKT #13).
Plaintiff has opposed the Motion for Partial Judgment on the Pleadings and has
moved, on May 18, 2017, for Leave to File a Second Amended Complaint. (ECF DKT #15).
Plaintiff seeks to add a claim for Civil Liability for Criminal Acts under R.C. § 2307.60.
Defendants oppose the Motion for Leave to Amend on the basis of futility, i.e., Eckart,
Votypka, and Chumita have not been charged with, plead guilty to, or been convicted of any
criminal offense related to this matter. They argue that absent such evidence, a party cannot
maintain a claim under Ohio Rev. Code § 2307.60.

II. LAW AND ANALYSIS

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Motion to Amend
Fed.R.Civ.P. 15(a)(2) reads in part, “The court should freely give leave [to amend]
when justice so requires.” However, this liberal amendment policy is not without limits. The
Sixth Circuit has observed: “A motion to amend a complaint should be denied if the
amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice
to the opposing party, or would be futile.” Colvin v. Caruso, 605 F.3d 282, 294 (6th
Cir.2010) (citing Crawford v. Roane, 53 F.3d 750, 753 (6th Cir.1995)).
Delay, by itself, “does not justify denial of leave to amend.” Morse v. McWhorter,
290 F.3d 800 (6th Cir.2002). In addition, when discovery is in the early stages, any prejudice
from entertaining an amended pleading is minimal. Addressing the contention that an
amendment might necessitate another dispositive motion, the Sixth Circuit also noted that
“another round of motion practice ... does not rise to the level of prejudice that would warrant
denial of leave to amend.” Morse, 290 F.3d at 801.
“In determining what constitutes prejudice, the court considers whether the assertion
of the new claim or defense would: require the opponent to expend significant additional
resources to conduct discovery and prepare for trial; significantly delay the resolution of the
dispute; or prevent the plaintiff from bringing a timely action in another jurisdiction.” Phelps
v. McClellan, 30 F.3d 658, 663 (6th Cir.1994).
“A proposed amendment is futile if the amendment could not withstand a Rule
12(b)(6) motion to dismiss.” Cicchini v. Blackwell, 127 F.App’x 187, 190 (6th Cir. 2005)
citing Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 518 (6th Cir. 2001).
R.C. § 2307.60 provides:

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(A)(1) Anyone injured in person or property by a criminal act has, and may
recover full damages in, a civil action unless specifically excepted by law, may
recover the costs of maintaining the civil action and attorney’s fees if
authorized by any provision of the Rules of Civil Procedure or another section
of the Revised Code or under the common law of this state, and may recover
punitive or exemplary damages if authorized by section 2315.21 or another
section of the Revised Code.
Plaintiff’s proposed Fourth Claim alleges that “Defendants Eckart, Votypka, and
Chumita committed criminal acts, including but not limited to intimidation in violation of
Ohio Rev. Code § 2921.03(A), which constitutes a third-degree felony under Ohio Rev. Code
§ 2921.03(B); “that Plaintiff “suffered injuries and losses to his person and property;” and that
“Defendants Eckart, Votypka, and Chumita are liable to [Plaintiff] for reasonable attorneys’
fees, court costs, and other expenses incurred in maintaining this civil action.” (ECF DKT
#15-1). This claim and the preceding four hundred paragraphs encompassing extensive
factual recitations satisfy Rule 15's liberal amendment policy.
In the instant situation, the Court believes that all of the key factors to be considered
weigh in favor of allowing Plaintiff to amend. Moreover, the Court acknowledges the wellsettled principle that “federal courts have a strong preference for trials on the merits.” Clark
v. Johnston, 413 F.App’x 804, 819 (6th Cir. 2011). Defendants’ own briefing contends that
Plaintiff lacks evidence that the individual Defendants were ever charged or convicted of the
criminal offense of Intimidation. Thus, the dispute over the viability of Plaintiff’s claim is
more appropriately addressed through dispositive motion practice and not at the pleading
stage of the litigation.

III. CONCLUSION

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Therefore, the Motion (ECF DKT #15) of Plaintiff Sean DeCrane for Leave to File
Second Amended Complaint is granted. Plaintiff shall file his amended pleading on or before
March 1, 2018. In light of this ruling, the Motion (ECF DKT #13) of Defendants for Partial
Judgment on the Pleadings is denied as moot.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: February 16, 2018

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