Davis v. Kroger Co Inc
ORDER denying 38 Motion for Judgment on the Pleadings; adopting Report and Recommendation 49 ; overruling objections to R&R. Signed by Judge Sandra S Beckwith on 2/25/11. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION Anthony A. Davis, Plaintiff, vs. The Kroger Company, Defendant. ) ) ) Case No. 1:09-CV-789 ) ) ) ) ) ) O R D E R This matter is before the Court on Defendant The Kroger Company's ("Kroger") motion for judgment on the pleadings (Doc. No. 38), Magistrate Judge Wehrman's Report and Recommendation of September 15, 2010 (Doc. No. 49) recommending that Kroger's motion to be denied without prejudice to renew, Kroger's objections to that Report and Recommendation (Doc. No. 53), and Kroger's objections (Doc. No. 62) to Magistrate Judge Litkovitz's order of December 30, 2010 (Doc. No. 59) directing the Clerk of Court to file Plaintiff's amended complaint. For the reasons
that follow, Kroger's objections to Magistrate Judge Wehrman's Report and Recommendation and Magistrate Judge Litkovitz's order are not well-taken and they are OVERRULED. The Court ADOPTS Kroger's
Magistrate Judge Wehrman's Report and Recommendation.
motion for judgment on the pleadings is DENIED WITHOUT PREJUDICE TO RENEWAL. Proceeding pro se, Plaintiff Anthony Davis filed a complaint alleging that he was terminated from his job with
Kroger because of his race.
Kroger moved for judgment on the
pleadings on the grounds that the complaint failed to state a claim for relief pursuant to Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Judge Wehrman's Report and Recommendation agreed with
Kroger's motion to the extent he determined that the complaint only contained conclusory allegations of race discrimination. Nevertheless, Judge Wehrman concluded that in light of Plaintiff's pro se status and the nature of the claim, Kroger would not be prejudiced if Plaintiff were permitted to amend his complaint. Plaintiff then filed a motion to amend his complaint
which Judge Litkovitz deemed was moot in light of Judge Wehrman's Report and Recommendation that Plaintiff should be granted leave to amend and directed the Clerk of Court to file his amended pleading. Kroger appreciates Judge Wehrman's Report and Recommendation to the extent that he found that the original complaint does not state a claim for relief, but objects to granting Plaintiff leave to amend. Kroger's basic contention is
that despite Plaintiff's pro se status, he had sufficient time and evidentiary materials at his disposal such that he should have filed an Iqbal-compliant complaint the first time and, therefore, should not be granted leave to amend. objects to Judge Kroger then
Litkovitz's order directing the filing of
Plaintiff's amended complaint. 2
This Court reviews Judge Wehrman's Report and Recommendation de novo since it concerns a dispositive matter. Fed. R. Civ. P. 72(b). The Court agrees with Judge Wehrman that
Plaintiff should have at least one opportunity to amend his complaint. Rule 15 states that the trial court should "freely give" leave to amend "when justice so requires." 15(a)(2). Fed. R. Civ. P.
The thrust of Rule 15 "is to reinforce the principle
that cases should be tried on their merits rather than on the technicalities of pleadings." (6th Cir. 1982). Tefft v. Seward, 689 F.2d 637, 639
Delay that is not intended to harass the
defendant is not in itself a permissible reason to refuse leave to amend. Id. at 639 n.2. Furthermore, there must be "at least
some significant showing of prejudice to the opponent" if the motion is to be denied. 562 (6th Cir.1986). Moore v. City of Paducah, 790 F.2d 557,
The case law of this Circuit manifests Id. Absent
"liberality in allowing amendments to a complaint."
undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, or if allowing the amendment would be futile, a court should grant leave to amend. Thiokol
Corp. v. Department of Treasury, 987 F.2d 376, 383 (6th Cir. 1993) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Kroger's opposition to Judge Wehrman's Report and Recommendation is not justified. 3 Kroger does not argue that it
will suffer any prejudice if Plaintiff is permitted to amend his complaint. Kroger in fact does not address any of the factors Given
set forth in Thiokol concerning granting leave to amend.
the complete absence of even an allegation of prejudice to Kroger if Plaintiff is permitted to amend his complaint, Judge Wehrman correctly granted leave to do so. In fact, this case seems
materially indistinguishable from a recent case decided by the Sixth Circuit it which it sua sponte decided that a pro se plaintiff should be permitted to amend a complaint that was deficient under Iqbal. See Brown v. Matauszak, No. 09-2259, 2011
WL 285251, at *4-*8 (6th Cir. Jan. 31, 2001). Accordingly, Kroger's objections to Magistrate Judge Wehrman's Report and Recommendation are not well-taken and OVERRULED. The Court ADOPTS the Report and Recommendation.
Kroger's motion for judgment on the pleadings is DENIED WITHOUT PREJUDICE TO RENEWAL. It necessarily follows, therefore, that
Magistrate Judge Litkovitz correctly directed the Clerk of Court to file Plaintiff's amended complaint. objections to that order are OVERRULED. IT IS SO ORDERED Date February 25, 2011 s/Sandra S. Beckwith Sandra S. Beckwith Senior United States District Judge Accordingly, Kroger's
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