Mullan v. Penske Automotive Group, Inc. et al

Filing 13

Opinion and Order. Plaintiff's Motion for Leave to Amend (Related doc # 7 ) is granted. Amended Complaint shall be filed by 8/18/2017. Defendant Whit Ramonat's Motion for Judgment on the Pleadings (Related doc # 5 ) is denied as moot. Upon filing of the Amended Complaint, the case will be remanded to the Lake County Common Pleas Court. No sanctions in the form of fees and costs will be awarded to Defendants. Judge Christopher A. Boyko on 8/11/2017. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

LISA MULLAN,
Plaintiff,
vs.
PENSKE AUTOMOTIVE
GROUP, INC., et al.,
Defendants.

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CASE NO. 1:16CV2989
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the pending Motions filed on behalf of
Plaintiff and Defendants.
I. BACKGROUND
On November 3, 2016, Plaintiff, Lisa Mullan, filed a Complaint in the Lake County
Court of Common Pleas against Penske Automotive Group and Whit Ramonat, alleging
gender discrimination in employment and retaliation under Ohio Revised Code 4112, as well
as defamation.
On December 14, 2016, Defendants removed the action on the basis of diversity
jurisdiction. Plaintiff is an Ohio citizen. Penske is a Delaware corporation with its principal

place of business in Michigan. Ramonat is a citizen of Michigan. The amount in controversy
exceeds $75,000 because Plaintiff seeks damages in excess of $25,000 on each of her four
claims, plus punitive damages and attorney fees.
Defendants filed their Answer on December 21, 2016; and on the same date,
Defendant Ramonat filed a Motion for Judgment on the Pleadings. Ramonat argues that
Plaintiff’s Complaint fails to state any valid claims against him. There are no allegations that
Ramonat participated in any employment-related decision regarding Plaintiff. The Complaint
only alleges that Ramonat was the Executive Vice President in charge of the Cleveland
market.
In response, Plaintiff moves to amend her Complaint to: (1) add Honda of Mentor and
PAG Mentor A1, Inc. as Defendants; (2) remove Whit Ramonat as a Defendant; and (3)
clarify and accurately identify the proper parties and their involvement in the conduct
underlying her discrimination and retaliation claims. Plaintiff further asserts that the
amendment will destroy diversity jurisdiction; so, the case should be remanded to state court.
II. LAW AND ANALYSIS
Standard of Review
Motion for Judgment on the Pleadings
After the pleadings are closed, but within such time as not to delay the trial, any party
may move for judgment on the pleadings. Fed.R.Civ.P. 12(c). In this jurisdiction, “[t]he
standard of review for a judgment on the pleadings is the same as that for a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) . . . . We ‘construe the complaint in the light
most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and

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determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims
that would entitle relief.’” Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d
383, 389 (6th Cir.2007) (citations omitted). A Rule 12(c) motion “is granted when no
material issue of fact exists and the party making the motion is entitled to judgment as a
matter of law.” Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th
Cir.1991).
Motion for Leave to Amend
Rule 15(a) of the Federal Rules of Civil Procedure provides that when a party, not
entitled to amend as a matter of course, seeks leave to amend their complaint, the court should
give leave freely when justice so requires. In Foman v Davis, the Supreme Court further held
that if a plaintiff’s claims rest upon facts that may be a proper subject for relief, then he
should be given the chance to test his claims on the merits. 371 U.S. 178, 182 (1962).
Further, the Court held that “in the absence of any apparent or declared reason - such as
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.- the leave sought
should, as the rules require, be freely given.” Id.
As to the Motion for Judgment on the Pleadings, Plaintiff concedes that Whit Ramonat
was incorrectly named as a Defendant in this case. (ECF DKT #7 at 2).
With regard to Plaintiff’s Motion for Leave to File an Amended Complaint and for
Remand, Defendants raise no substantive objections. Rather, Defendants ask that any order
permitting amendment and/or remand should include an award of attorney fees and costs for

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Plaintiff’s “inexcusable failure” to identify the necessary parties in this case, i.e., her
employers as listed on her paychecks. Defendants note that because Plaintiff failed to
conduct proper pre-suit investigation, she incorrectly named Ramonat and did not name the
appropriate parties. These failures inevitably led Defendants to file for removal and caused
needless increased litigation expenditures.
Plaintiff offers her Affidavit (ECF DKT #7-3) to explain that the mistaken
identification of her employer in the Complaint resulted from documents and information in
her possession during her employment: (1) the Penske Automotive Employee Handbook; (2)
websites indicating each dealership as a “Penske Automotive Dealership;” (3) work email
address ending with “@Penskeautomotive.com;” (4) expense and travel reports on Penske
letterhead; and (5) employee nametags identifying the dealership as Penske Automotive
Group. Plaintiff now acknowledges, upon reconsideration, that the two Ohio entities, Honda
of Mentor and PAG Mentor A1, Inc., are the appropriate employer-Defendants.
Plaintiff further asserts that, if the Court grants leave to amend, the case should be
remanded to state court. “If at any time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). “If after
removal the plaintiff seeks to join additional defendants whose joinder would destroy subject
matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the
State court.” 28 U.S.C. § 1447(e).
III. CONCLUSION
The Court holds that Plaintiff did not act in bad faith or with a dilatory purpose and
that Defendants have not been unduly prejudiced. Therefore, the Court grants Plaintiff’s

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Motion (ECF DKT #7) for Leave to Amend. The Amended Complaint shall be filed on or
before August 18, 2017.
The Motion (ECF DKT #5) of Defendant, Whit Ramonat, for Judgment on the
Pleadings is denied as moot.
Immediately upon the filing of the Amended Complaint, because there will no longer
be complete diversity between Plaintiff and Defendants, the captioned case will be remanded
to the Lake County Common Pleas Court.
No sanctions in the form of fees and costs will be awarded to Defendants. Although
the Court finds that Plaintiff should have been more diligent and more thorough in her presuit investigation, the negligent litigation conduct was not to such a degree as to warrant the
imposition of monetary sanctions.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: August 11, 2017

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