Kesterson v. Kent State University, et al

Filing 137

Memorandum Opinion: For all of the foregoing reasons, the magistrate judge's memorandum opinion and order denying Kesterson's request for discovery (Doc. No. 123 ) is affirmed, and Kesterson's motion for leave to amend (Doc. No. 124 ) is denied. Judge Sara Lioi on 5/8/2018. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LAUREN KESTERSON,

PLAINTIFF,
vs.
KENT STATE UNIVERSITY, et al.,

DEFENDANTS.

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CASE NO. 5:16-cv-298

JUDGE SARA LIOI

MEMORANDUM OPINION

This matter is before the Court on the appeal by plaintiff Lauren Kesterson (“Kesterson”)
of the magistrate judge’s February 12, 2018 memorandum opinion and order (Doc. No. 123 [“MJ
MOO”]) resolving the parties’ discovery dispute relating to the production of documents
associated with prior student complaints of sexual harassment, discrimination, or assault on the
campus of defendant Kent State University (“Kent State”). (Doc. No. 127 (Objections [“Obj.”]).)
Kent State filed a response to Kesterson’s appeal. (Doc. No. 131 [“Obj. Res.”].) Kesterson has
also moved for leave to file a second amended complaint (“SAC”). (Doc. No. 124 [“Mot.
Amend”].) Defendants—Kent State, Karen Linder (“Linder”), and Eric Oakley (“Oakley”)
(collectively “defendants”)—oppose Kesterson’s request to amend. (Doc. No. 125 [“Mot.
Amend Opp’n”].)
I. BACKGROUND
At the time of the filing of the first amended complaint (“FAC”), Kesterson was a student
at Kent State and a former member of Kent State’s softball team. Kesterson claimed that
defendants violated her constitutional and statutory rights by their mishandling of a report she
made to Linder, her softball coach and then-Kent State employee, regarding an alleged sexual

assault perpetrated against her by another student-athlete, Linder’s son. Claim 1 of the FAC
raises a sexual discrimination and retaliation claim against Kent State under Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”). Claim 2 raises an equal
protection claim against Linder and Oakley. Plaintiff raises two more claims against the
individual defendants: Claim 3 sets forth a First Amendment prior restraint claim, and Claim 4
alleges First Amendment retaliation. (Doc. No. 20 (FAC).)
The factual predicate for these claims was set forth in detail in the Court’s March 15,
2017 memorandum opinion resolving Kent State’s motion to strike and the motions to dismiss
filed by Linder and Oakley, and familiarity with this ruling is presumed. (See Doc. No. 34
[“MO”].) Briefly, it is sufficient to note that the facts that give rise to this lawsuit begin with a
2012 encounter between Kesterson and Linder’s son, Tucker. At the time of the incident,
Kesterson and Tucker were both student athletes at Kent State. Kesterson claims that Tucker
raped her while the two were spending time together in Tucker’s dorm room. (FAC ¶¶ 27-34.)
Kesterson did not initially report the incident, but, during an exit interview at the end of the 2014
softball season, Kesterson reported the rape to Linder. (Id. ¶¶ 56-71.)
Linder failed to follow Kent State’s official policy requiring all student complaints of
sexual assault and harassment to be promptly reported to the university’s Title IX Office.
Instead, the FAC alleges that Linder engaged in a campaign designed to harass Kesterson and
punish her for raising the complaint against Linder’s son. Kesterson eventually reported the rape,
and Linder’s alleged misconduct, to a representative from Kent State’s Title IX Office, Erin
Barton, in 2015. (Id. ¶¶ 78-80, 90, 113-26.) Shortly thereafter, Linder resigned her position as
Kent State’s softball coach. (Id. ¶ 127.) She was replaced by Oakley, who, according to
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Kesterson, continued Linder’s approach of harassing Kesterson. (See, e.g., id. ¶¶ 156-60.)
Believing that she was being punished and tormented for filing a Title IX complaint, Kesterson
eventually quit the softball team and forfeited her athletic scholarship. (Id. at ¶¶ 169, 171, 17576.)
Kesterson filed the present lawsuit on February 9, 2016 against Kent State and Linder.
Kent State subsequently moved for partial judgment on the pleadings because the complaint
improperly pleaded an equal protection claim against it. (Doc. No. 14.) Linder also moved,
pursuant to Fed. R. Civ. P. 12(b)(6), for dismissal of all claims raised against her. (Doc. No. 15.)
In response, Kesterson moved for leave to file the FAC to remove the equal protection claim
against Kent State and to add a new defendant, Oakley, to the pleadings. Kent State responded
with a motion to strike several paragraphs of the proposed FAC. (Doc. No. 24.)
On March 15, 2017, the Court denied Kent State’s motion to strike and Linder’s motion
to dismiss, and granted, in part, Kesterson’s motion to amend and Oakley’s motion to dismiss.
(MO at 5181.) The Court determined that the case would proceed on Kesterson’s “Title IX claim
against Kent State, her equal protection and First Amendment prior restraint claims against
Oakley in his official capacity, her First Amendment prior restraint claim against Oakley in his
individual capacity, and her equal protection and First Amendment claims against Linder in her
individual capacity.” (Id.)
The parties have engaged in a vigorous, and at times contentious, discovery practice,
requiring intervention by the Court and the magistrate judge on several occasions. (See 7-10-17
Minutes; Doc. No. 57 (referral to magistrate judge); 8-02-17 Minutes; Doc. No. 62 (referral to

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All page numbers are to the page identification number generated by the Court’s electronic docketing system.
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magistrate judge); Doc. No. 63 (notice of discovery dispute).) On December 8, 2017, the Court
referred to the magistrate judge a discovery dispute relating to a request for documents
propounded upon Kent State by Kesterson. (Doc. No. 88.) By her request, Kesterson sought the
production of documents relating to any and all reports of sexual harassment, discrimination, or
assault made over a 17-year period beginning January 1, 2001 at all of Kent State’s campuses.
(MJ MOO at 920 n.1.) After an initial phone conference with the magistrate judge, Kesterson
narrowed her request to all reports made within a 5-year period at Kent State’s main campus.
(Id.)
In supplemental briefing, Kesterson represented that she needed the reports, as part of her
Title IX claim, to show that Kent State’s “approach to dealing with such complaints made
[Kesterson] more vulnerable to experience both the underlying harassment and retaliation for
reporting it.” (Doc. No. 102 at 829-30, footnote omitted.) As support, she claimed that her Title
IX claim against Kent State encompassed the notion that Kent State had adopted an informal
policy that favored perpetrators of sexual harassment. (Id., footnote omitted.)
In a memorandum opinion and order dated February 12, 2018, the magistrate judge ruled,
under Fed. R. Civ. P. 26(b), that Kesterson was not entitled to the documents from prior student
reports of sexual harassment and assault. In support of her decision, the magistrate judge relied,
in part, on Doe v. Univ. of Tenn., 186 F. Supp. 3d 788 (M.D. Tenn. 2016), a case cited by
Kesterson. The magistrate judge noted that in Doe the court separated Title IX claims against
universities into two categories: “before” and “after” claims. While “before” claims involved a
university’s prior practices or prior adoption of a policy that fostered a sexually hostile
environment and made students more vulnerable to sexual assault, “after” claims were limited to
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the university’s conduct occurring after the plaintiff-student was assaulted and in response to that
report. The magistrate judge found that the allegations in Kesterson’s FAC only supported an
“after” claim because they focused on Kent State’s response to Kesterson’s reporting of her
sexual assault. In so ruling, the magistrate judge noted that Kesterson was unable to point to any
allegations in the FAC that would support the theory that Kent State had previously adopted an
informal policy that had any bearing on Kesterson’s subsequent report. (MJ MOO at 925.)
Kesterson now appeals this ruling, and seeks leave to further amend her complaint. (See SAC
appended at Doc. No. 124-1; see also Doc. No. 124-2 (redline comparison of the FAC and
proposed SAC).)
II. KESTERSON’S APPEAL OF THE MAGISTRATE JUDGE’S DISCOVERY RULING
A.

Standard of Review

The Court’s review of an appeal from a magistrate judge’s pre-judgment order on a nondispositive motion is governed by Local Rule 72.3(a), which provides that the Court “shall
consider the appeal and shall set aside any portion of the Magistrate Judge’s order found to be
clearly erroneous or contrary to law.” See also Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A).
“The ‘clearly erroneous’ standard applies only to factual findings made by the Magistrate Judge,
while her legal conclusions will be reviewed under the more lenient ‘contrary to law’ standard.”
Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992) (citations omitted).
“In reviewing a magistrate judge’s decision to determine whether it is ‘contrary to law,’ a
district court is to apply the same standard the Sixth Circuit employs to review a district court’s
ruling on an evidentiary question, which is an ‘abuse of discretion’ standard. An ‘abuse of
discretion’ occurs when a court ‘improperly applies the law or uses an erroneous legal
5

standard.’” Phillips v. Philip Morris Cos., Inc., No. 5:10CV1741, 2013 WL 3291516, at *2 (N.D.
Ohio June 28, 2013) (some internal quotation marks omitted) (quoting JGR, Inc. v. Thomasville
Furniture Indus., Inc., No. 1:96-CV-01780, 2006 WL 45679, at *1 (N.D. Ohio Feb. 24, 2006)
((quoting United States v. Taplin, 954 F.2d 1256, 1258 (6th Cir. 1992))).
“A finding is clearly erroneous ‘when the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed … [T]he test is whether
there is evidence in the record to support the lower court’s finding, and whether its construction
of the evidence is a reasonable one.’” Id. at *2 (some internal quotation marks omitted) (quoting
JGR, Inc., 2006 WL 456479, at *1) ((quoting Heights Cmty. Cong. v. Hilltop Realty, Inc., 774
F.2d 135, 140 (6th Cir. 1985))). This standard does not empower a reviewing court to reverse the
magistrate judge’s finding simply because it would have decided the matter differently in the
first instance. Anderson v. Bessemer City, N.C., 470 U.S. 564, 573, 105 S. Ct. 1504, 84 L. Ed. 2d
518 (1985).
B.

Discussion

It is Kesterson’s position that the magistrate judge’s decision unfairly deprives her of
necessary information for her Title IX claim against Kent State. (Obj. at 1097.) She complains
that the magistrate judge improperly attempted to force her Title IX claim into the “before and
after” scheme discussed in Doe v. Univ. of Tenn., suggesting that the magistrate judge
misunderstood the nature of Kesterson’s claim. (Id. at 1097.) Instead of alleging the creation of a
pre-existing environment that led to her assault, Kesterson maintains that she “is alleging that
Kent State adopted deliberate indifference to sexual misconduct claims as its own unwritten
custom, policy, or practice.” (Id. at 1097-98, emphasis in original.)
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Even putting aside the “before and after” analysis of claims advocated for in Doe v. Univ.
of Tenn., the Court finds that the magistrate judge properly denied Kesterson’s request for
discovery because the request did not seek documents supportive of any claim in the FAC.2 Until
recently, Rule 26(b)(1) of the Federal Rules of Civil Procedure broadly stated that “[p]arties may
obtain discovery regarding any matter, not privileged, which is relevant to the subject matter
involved in the pending action . . . [so long as] the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.” As of December 2015, Rule 26(b)(1)
has been narrowed to only allow discovery “regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case . . ..” The requested
discovery, therefore, must be relevant to one of Kesterson’s claims.
A review of the FAC reveals that Kesterson has failed to allege that Kent State adopted
an unwritten policy of deliberate indifference. The only references to a policy in the FAC are
made in response to Linder’s alleged deliberate refusal to report Kesterson’s assault complaint as
required by Kent State’s established policy. (See, e.g., ¶ 72 [“Had Coach Linder responded to
this complaint in accordance with University policy and as required by Title IX and the United
States Constitution, things would have turned out much differently.”]; ¶ 79 [“Following Ms.
Kesterson’s report in May 2014, Coach Linder did not follow [Kent State’s] policies regarding
sexual harassment.”]; see ¶¶ 80-1, 87, 109, 118, 119, 237, 243, 272, 280, 282-5.) To drive home
the significance of Linder’s intentional refusal to follow Kent State’s policy, the FAC even
highlights a prior incident wherein Linder followed Kent State’s policy and promptly reported
2

The Court notes, however, that Kesterson specifically relied on Doe v. Tenn., both before the magistrate judge, and
on appeal to this Court, in defending her request for discovery. (See Obj. at 1099 [“Doe provides support for the type
of discovery that Ms. Kesterson seeks by showing the viability of her legal claim.”]; Doc. No. 102 (Supplemental
Brief) at 830-31.)
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the sexual assault complaint of another student athlete. (FAC ¶¶ 84-88.)3
Notwithstanding these allegations, Kesterson insists that she has also pled that Kent State
had an unwritten and informal policy of deliberate indifference, specifically citing ¶¶ 193 and
269 of the FAC. (Obj. at 1095 n.2.) Paragraph 193 merely alleges that Kent State’s investigation
into Kesterson’s complaint was “inadequate,” and paragraph 269 provides simply that “Kent
State was deliberately indifferent to the sex-based harassment that Ms. Kesterson reported.”4
Neither paragraph alleges that Kent State’s response to Kesterson’s complaint was consistent
with, or dictated by, an unwritten policy of deliberate indifference.
Kesterson also notes that discovery has uncovered “at least one other incident in which
[Kent State] officials treated another student’s sexual-assault report with deliberate indifference,”
(Obj. at 1098), and points to several paragraphs in her proposed SAC. (Obj. at 1095 n.2, citing
SAC.) This information was not presented to the magistrate judge. As with any other appeal, it is
inappropriate to attack a magistrate judge’s determination with evidence and arguments not
presented to the magistrate judge. Diorio v. TMI Hospitality, No. 4:15-CV-1710, 2017 WL
1399869, at *3 (N.D. Ohio Apr. 19, 2017) (citing Nathan v. Ohio State Univ., No. 2:10-CV-872,
2013 WL 139874, at *4 (S.D. Ohio Jan. 10, 2013) ((citing Murr v. United States, 200 F.3d 895,

Indeed, the heading for this section of the FAC provides “Coach Linder knew exactly what to do when a softball
player reported a rape because she had done it just days earlier when another softball player reported during her exit
meeting that she had been raped.” (FAC at 214.)
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Kesterson’s cite to Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 261 (6th Cir. 2000) as authority for the
proposition that a school is responsible if it has knowledge that its remedial actions are insufficient and fails to act is
unavailing for at least two reasons. First, and foremost, Kesterson did not plead facts to support such a theory of
liability. Second, the facts in Vance are easily distinguishable as they involved repeated complaints by the same
student to a pattern of assaults and degradations for which the school’s continuing responses were ineffective. It was
against this backdrop that the Sixth Circuit held that “where a school district has knowledge that its remedial action
is inadequate and ineffective, it is required to take reasonable action in light of those circumstances to eliminate the
behavior.” Id. at 261. Kesterson’s citation in the FAC to a single incident, alone, does not set forth facts that, if
believed, would establish that Kent State was aware that its remedial efforts were ineffective.
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902 (6th Cir. 2000))). Accordingly, this information cannot be relied upon to demonstrate that
the magistrate judge abused her discretion.5
In fact, if anything, the language in the proposed SAC underscores the fact that Kesterson
did not plead in the FAC the existence of an unwritten university policy. In addition to the
insertion of the word “written” in front of every original reference to Kent State’s policies (see,
e.g., SAC ¶¶ 72, 79, 80, 84), the proposed SAC includes allegations that set forth, for the first
time, the adoption of unwritten policies. (See, e.g., id. ¶ 335 [proposing, in part, the language
“Kent State’s unwritten custom, policy, or practice of failing to enforce or effectively implement
its written policies regarding responding to reports of sexual misconduct made Ms. Kesterson
more vulnerable to the retaliation that Coach Linder inflicted on Ms. Kesterson”]; see id. ¶¶ 214215.) It is clear that Kesterson’s proposed SAC represents an attempt to insert an entirely new
theory of liability into the pleadings.6
Because the FAC fails to allege a claim that Kent State responded to Kesterson’s
complaint in conformity with a pre-existing policy of deliberate indifference, Rule 26(b)(1)
would not support her request for discovery. Accordingly, and for all of the foregoing reasons,
the Court is not left with the definite and firm conviction that the magistrate judge erred, nor

Kesterson also relies on the fact that this Court denied Kent State’s motion to strike several paragraphs in the FAC
relating to the investigation into a complaint made by a Kent State employee as to sexual harassment by a coworker. As the magistrate judge correctly found, this Court did not rule that Kesterson had properly pled the
existence of a prior unwritten policy of deliberate indifference. Instead, by denying the motion to strike, the Court
merely ruled that such claims can exist and that it was inappropriate to determine whether the FAC contained such a
claim on a motion to strike in the absence of a Rule 12(b)(6) motion testing the sufficiency of the pleadings. (MO at
496, citing Damron v. ATM Cent. LLC, No. 1:10-CV-01210-JDB-egb, 2010 WL 6512345, at *2 (W.D. Tenn. Oct.
29, 2010) (“Motions to strike should not be used to decide substantive issues of law or disputed fact[.]”) (citation
omitted).)
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Kent State represents, and the FAC bears out, that, to date, it has reasonably been defending a conventional
deliberate indifference case where an “appropriate person,” namely Linder, had actual knowledge of an instance of
sexual assault, sexual harassment or gender discrimination but responded with deliberate indifference. See
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257-58, 129 S. Ct. 788, 172 L. Ed. 2d 582 (2009).
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does it find that the magistrate judge abused her discretion, in concluding that Kesterson’s
discovery request was improper under Rule 26(b)(1). Kesterson’s appeal from the magistrate
judge’s discovery order is DENIED.
III. KESTERSON’S MOTION TO AMEND
Kesterson also seeks leave to further amend the complaint “to more fully articulate and
clarify the basis for her claims based on information learned through the discovery process.”
(Mot. Amend at 930.) She represents that the proposed amendments do not add new claims or
parties and will require no additional discovery. (Id.) Defendants oppose the motion to amend,
noting that the motion comes several months after the Court’s deadline to amend pleadings and
well after the close of fact discovery, and is based on facts known to Kesterson from the onset of
the litigation. (Mot. Amend Opp’n at 1070.) Collectively they complain that “[a]lthough
[Kesterson] argues that the purpose of the amendment is to conform the pleadings to the
evidence developed in discovery, the amendment is an effort to change the legal theories
underlying [her] claims, and should not be permitted.” (Id.)
A.

Standard of Review

Rule 15(a)(2) governs motions to amend pleadings at the pre-trial stage, and provides that
the court should “freely give leave” to amend pleadings “when justice so requires.” Fed. R. Civ.
P. 15(a)(2). “Nevertheless, denying leave is appropriate in instances of ‘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 amendment, etc.’” Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 458
(6th Cir. 2013) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222
10

(1962)). Under Rule 15(a)(2), “[n]otice and substantial prejudice to the opposing party are
critical factors in determining whether an amendment should be granted.” Wade v. Knoxville
Utils. Bd., 259 F.3d 452, 458-59 (6th Cir. 2001) (quotation marks and citation omitted).
Where “the deadline for amending pleadings established by the Court’s scheduling order
has passed, the Sixth Circuit has made clear that, ‘a plaintiff must first show good cause under
Rule 16(b) for failure earlier to seek leave to amend’ and the Court ‘must evaluate prejudice to
the nonmoving party before [it] will consider whether amendment is proper under Rule 15(a).’”
Bare v. Fed. Express Corp., 886 F. Supp. 2d 600, 605 (N.D. Ohio 2012) (quoting Commerce
Benefits Grp., Inc. v. McKesson Corp., 326 F. App’x 369, 376 (6th Cir. 2009) (further quotation
marks and citation omitted)); see Korn v. Paul Revere Life Ins. Co., 382 F. App’x 443, 449 (6th
Cir. 2010) (recognizing that the Sixth Circuit applies a different standard when reviewing a
decision on a motion to amend filed after the date set forth in the Rule 16 scheduling order)
(citing Leary v. Daeschner, 349 F.3d 888, 905-09 (6th Cir. 2003)).
“In order to demonstrate good cause, the plaintiff must show that the original deadline
could not reasonably have been met despite due diligence and that the opposing party will not
suffer prejudice by virtue of the amendment.” Ross v. Am. Red Cross, 567 F. App’x 296, 306
(6th Cir. 2014) (citing Leary, 349 F.3d at 906). “A plaintiff does not establish ‘good cause’ to
modify a case schedule to extend the deadline to amend the pleadings where she was aware of
the facts underlying the proposed amendment to her pleading but failed, without explanation, to
move to amend the complaint before the deadline.” Id. (citing Leary, 349 F.3d at 908) (observing
that the plaintiffs did not demonstrate good cause for their delay in seeking monetary damages,
but were “obviously aware of the basis of the claim for many months”) (further citations
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omitted). However, to deny a motion to amend, the Court must also find “‘at least some
significant showing of prejudice to the opponent[.]’” Leary, 349 F.3d at 907 (quoting Duggins v.
Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999)) (further quotation marks and citation
omitted).
B.

Discussion

Kesterson filed the present motion to amend on February 12, 2018. Pursuant to the
Court’s Case Management Plan and Trial Order (“CMPTO”), the deadline to add parties or
amend pleadings was June 30, 2017, with non-expert discovery to be completed by January 12,
2018. (Doc. No. 41 (CMPTO) at 600.) At the parties’ request, the Court extended the deadline
for fact discovery to January 31, 2018. (Non-Doc. Order 12-29-17.) Because the present motion
to amend was filed beyond the deadline for amending the pleadings, before the Court can
consider whether to permit a Rule 15(a) amendment, it must consider whether Kesterson has
demonstrated good cause for the delay. According to Kesterson, any delay in seeking leave was
attributed to general difficulties experienced during discovery and, in particular, Kent State’s
delay in responding to document requests. (Mot. Amend at 935.) Yet, she does not identify any
documents belatedly produced by any party that were essential to formulating the allegations she
seeks to inject into the case.7
Instead, a review of that SAC reveals that the factual allegations supporting her proposed
Kesterson also claims that counsel “have been transitioning primary case responsibilities from Ashlie Case
Sletvold to Subodh Chandra given her recent illness and pregnancy complications.” (Id. at 935.) What she fails to
note is that Attorney Chandra has been designated as lead counsel in this case from its inception. The Court
previously granted the parties’ motion to extend fact discovery from January 12, 2018 to January 31, 2018, because
Kesterson’s counsel “with primary responsibility” for this case was experiencing health issues. (Doc. No. 103 at
859.) However, on January 29, 2018, the Court denied Kesterson’s motion to extend all deadlines by three months to
permit Attorney Sletved to transition duties to Attorney Chandra, noting the fact that, as lead counsel, Chandra
should not need time to get up to speed. (Doc. No. 117 at 898) The Court finds the internal staffing decisions of
Kesterson’s counsel is a likewise insufficient reason to justify her substantial delay in seeking leave to amend.
12
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SAC involve information that Kesterson knew from the outset of the litigation. The proposed
amendments center on allegations that, in addition to the previously pled reports made to Linder
in 2014 and to Barton in 2015, Kesterson made four additional “Title IX reports” to employees
of Kent State. (See SAC ¶ 88 [recounting reports made to Jessica Bachkora and Mandee Luers];
¶ 90 [report made to Deborah Keith]; ¶ 101 [October 17, 2014 report to Heather Adams].)
These newly alleged reports, in turn, supply the foundation for Kesterson’s new theory
that Kent State had previously adopted an informal policy of deliberate indifference. According
to the SAC, the fact that Kent State took no action upon Kesterson’s multiple reports to Kent
State staff “suggests that, despite its written policies, Kent State has an unwritten practice or
custom of failing to consistently abide by or effectively implement its written policies regarding
sexual misconduct.” (Id. ¶ 92; see also ¶¶ 101, 104-5, 124, 215, 335.)
Of course, Kesterson was aware when the lawsuit was filed in 2016 (and in 2017 when
she first sought leave to amend) with whom she had spoken regarding the alleged assault. She
was also aware that Kent State did not respond to her regarding her accusations until after she
reported the incident, and Linder’s refusal to take action on her complaint, to Barton in 2015.
The fact that she only now appreciates the potential legal significance of these prior reports does
not excuse the delay in seeking leave to amend. See, e.g., Victory Lane Quick Oil Change, Inc. v.
Hoss, No. 07-14463, 2009 WL 10680591, at *2 (E.D. Mich. Apr. 14, 2009) (“Yet, where a party
misconceives the law, that is not an excuse for the late presentation of an alternative theory of
recovery, and the party must present substantial reasons to allow the late amendment.”) (citing
Troxel Mfg. Co. v. Schwinn Bicycle Co., 489 F.2d 968, 971 (6th Cir. 1973)).
Kesterson also seeks to include other allegations based on facts known to her at the
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beginning of the lawsuit. Specifically, she requests leave to include allegations that Oakley
retaliated against her at a senior meeting on August 30, 2015 and at another meeting, both
attended by Kesterson, when Linder’s departure was announced. (SAC ¶¶ 175, 178, 397, 398.)
She also proposes factual allegations demonstrating that an assistant coach—Jessica Toocheck—
retaliated against her by taking certain specific acts that were known to Kesterson at the time she
filed this action.8 (See id. ¶¶ 178, 179, 199, 398.).
Kesterson has not demonstrated good cause under Rule 16 for failing to raise allegations
involving facts known to her from the inception of the litigation until well after the dates for
amending pleadings and conducting fact discovery had passed. See Ross, 567 F. App’x at 306
(citing Korn, 382 F. App’x at 450; Commerce Benefits Grp., Inc., 326 F. App’x at 376; Shane v.
Bunzl Distrib. USA, Inc., 275 F. App’x 535, 537 (6th Cir. 2008) (holding that the plaintiff did not
demonstrate good cause where he knew of the facts underlying his motion to amend the
complaint for “at least six years prior to his motion” and could have sought leave to plead before
the expiration of the deadline set in the court’s scheduling order)). Moreover, the Court finds that
defendants would suffer prejudice if Kesterson was permitted to further amend her pleadings to
add these allegations at this late date, given that fact discovery has closed, and defendants had
been defending the action on theories of liability different from those set forth in the newest
amended pleading. See Duggins, 195 F.3d at 834 (“Allowing amendment at this late stage in the
litigation would create significant prejudice to the defendants in having to reopen discovery and
In newly proposed paragraph 178, Kesterson alleges that “Coach Toocheck’s ongoing support in the wake of
Coach Linder’s resignation was open and apparent, including at the August 28 meeting when the team was told of
the resignation, at the senior meeting on August 30, and on social media where Toocheck posted that her ‘heart is
absolutely broken for Coach Linder, her former players, her current players and the future flashes . . ..’” Kesterson
offers no explanation why she delayed in raising allegations involving meetings that she attended and actions that
she admits were “open and apparent[.]”
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prepare a defense for a claim quite different from the sex-based retaliation claim that was before
the court.”); Bare, 886 F. Supp. 2d at 607 (“defendant would be prejudiced if it were now
required to defend the case based on plaintiff’s ever-changing theory”).9
Even if the Court were to reach an analysis under Rule 15(a)(2), the same considerations
would compel the conclusion that the amendment should not be permitted. Kesterson indicates
that she is amending to more fully articulate “the precise factual basis for her claims based on
facts discovered or confirmed” during discovery (Mot. Amend at 938). Indeed, “when a case
proceeds to trial on grounds that have been thoroughly vetted by the parties through discovery,
amendments to conform pleadings to those theories are entirely proper.” Kienzle v. Gen. Motors,
LLC, No. 11-11930, 2013 WL 511397, at *6 (E.D. Mich. Feb. 12, 2013). Yet, the amendments
Kesterson is proposing are not merely “factual corrections gleaned during discovery.” 10 See, e.g.,
S.E.C. v. Somers, No. 3:11-CV-165-H, 2013 WL 4045295, at *4 (W.D. Ky. Aug. 8, 2013).
Instead, as set forth above, the proposed amendments represent wholesale changes to the claims
previously asserted and would inject entirely new theories of liability into the case. The prejudice
in requiring defendants to defend on new theories raised after the close of discovery is evident.
See Kienzle, 2013 WL 511397, at *6 (“An amendment to a complaint prejudices a party where
the amendment will require that party to prepare an additional defense strategy and expend
additional resources to defend against new claims.”) (citing Troxel Mfg. Co., 489 F.2d at 971).
9

Even if for some unlikely reason Kent State did not require additional discovery to defend against this new theory
of liability, Kesterson cannot seriously contend that she would not seek additional discovery—specifically, the very
discovery request denied by the magistrate judge, and now by this Court—as the newly-amended pleadings would
arguably support such a request.
10

To be sure, the redline comparison of the FAC and the proposed SAC reflects minor corrections to the facts—
such as a correction indicating that Kesterson is now a former Kent State student. (Doc. No. 124-2 at 1007, ¶ 2; see
id. at 1021, ¶¶ 94-95 (showing the replacement of “and” with “&” and “Women’s” with “Woman” in job titles).
These corrections are unnecessary as they can be addressed on dispositive motions or at trial.
15

Kesterson’s unjustified delay in filing the present motion to amend, based largely on facts known
to Kesterson from the beginning of the litigation, and add new theories after the close of
discovery, compels denial of the motion under Rule 15(a) for undue delay.11 See id. (citations
omitted); see also Wade, 259 F.3d at 458-59 (“When amendment is sought at a late stage in the
litigation, there is an increased burden to show justification for failing to move earlier.”) (citing
Duggins, 195 F.3d at 834).
The Court concludes that Kesterson has not established good cause required for
modification of the CMPTO under Rule 16(b), and that an amendment at this late stage in the
proceedings would unduly prejudice defendants and cause further delays. Accordingly, the
motion to amend is DENIED.
IV. CONCLUSION
For all of the foregoing reasons, the magistrate judge’s memorandum opinion and order
denying Kesterson’s request for discovery (Doc. No. 123) is AFFIRMED, and Kesterson’s
motion for leave to amend (Doc. No. 124) is DENIED.
IT IS SO ORDERED.

Dated: May 8, 2018
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

11

To the extent that Kesterson seeks leave simply to include additional facts to support her existing claims, such an
amendment is unnecessary as Rule 8 does not require a party to plead every fact known to support her claims. See
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (Rule 8 does not
“require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its
face”); see also Fox v. Traverse City Area Pub. Sch. Bd. of Educ., No. 1:07-CV-956, 2008 WL 4590409, at *1
(W.D. Mich. Oct. 9, 2008) (rejecting motion to amend to make the complaint “more precise,” noting that “[i]f
simply learning additional facts during the course of discovery was a sufficient basis, without more, to amend a
complaint, presumably complaints would be amended in virtually every action”).
16