Miller v. OPW Fueling Components, Inc. et al
Filing
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ORDER denying 29 Motion for Summary Judgment; denying 31 Motion for Summary Judgment; denying as moot 34 Motion to Strike ; denying as moot 36 Motion for Leave to File. Parties to submit an Amended Scheduling Order within 14 days. Signed by Judge Herman J. Weber on 12/20/11. (do1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES T. MILLER,
Plaintiff
v.
Case No. 1:10-cv-665-HJW
OPW FUELING COMPONENTS, INC., and
RICHARDS INDUSTRIES, INC.,
Defendants
ORDER
This matter is before the Court upon the defendants’ “Motion for Summary
Judgment” (doc. no. 29), the plaintiff’s untimely “Cross-Motion for Summary
Judgment” (doc. no. 31), defendants’ four-part “Motion to Strike”(doc. no. 34), and
plaintiff’s “Motion for Leave to File” his late motion for summary judgment (doc. no.
36). Having carefully considered the record, including the pleadings, the parties’
briefs, and exhibits, the Court will deny all four motions for the following reasons:
Although the discovery period has ended and the deadline for dispositive
motions has passed, both sides in this case are arguing matters that should have
been clarified well before the summary judgment stage and are seeking procedural
advantages from doing so.
For example, defendants ask the Court to strike plaintiff’s argument pertaining
to the misrepresentation claim in Count Two from plaintiff’s combined memorandum
(doc. no. 31 at 24-26). Defendants characterize the plaintiff’s argument as “an
expanded claim” and complain that the amended complaint allegedly did not give
them “fair notice” of the plaintiff’s theory. Defendants are essentially attempting to
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assert a motion to dismiss pursuant to Rule 8. See, e.g., Nafziger v. McDermott Int'l,
Inc., 467 F.3d 514, 522 (6th Cir. 2006) (affirming conditional dismissal under Rule 8
for failure to provide sufficient information to give the defendants “fair notice” of the
claim against them). In Nafziger, the district court gave plaintiffs thirty (30) days to
amend their complaint in order to provide the requisite fair notice. Id. (“This was
a benevolent exercise of the district court's discretion, not an abuse thereof.”)
Defendants also move to strike certain information from plaintiff’s Affidavit
(doc. no. 30), specifically, paragraph 24 where plaintiff indicates: “On July 27, 2010,
I saw Dr. Vuong, who diagnosed me as suffering for (sic) a more serious medical
condition, and prescribed more powerful medications.” Although defendants
complain that plaintiff did not disclose this information in his answer to Interrogatory
No. 6, the defendants have already incorporated such information into their own
proposed findings of fact (doc. no. 32-1, ¶ 41 indicating “On July 27, 2010, the day
after he called in sick, Plaintiff was seen by Dr. Phuong H. Vuong”). Defendants
even discussed Dr. Vuong’s treatment of plaintiff and indicate that Dr. Vuong
“recommended certain medications” (¶ 42), but defendants nonetheless seek to
strike the actual copies of Dr. Vuong’s prescriptions.
On his part, plaintiff responded to the defendants’ motion for summary
judgment with a document that combines an untimely cross-motion for summary
judgment, a supporting memorandum, and a memorandum in opposition to the
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defendants’ motion for summary judgment.1 In that combined document, plaintiff
argues that the defendants (“OPW and Richards”) falsely represented “the terms of
his reinstatement” and “falsely represented that he was employed by Richards rather
than OPW in order to deny him wages and benefits” (doc. no. 31 at 24). Plaintiff
asserts that he has contended from the outset that “Richards was a foreign
corporation not licensed to conduct business in Ohio, and that as a result, Miller was
an employee of OPW and not Richards” (doc. no. 35 at 3). He points out that OPW
paid his wages, but that he was subject to Richards’ less favorable leave policy.
In opposing the motion to strike, plaintiff points to alleged facts in his
Amended Complaint in support of his contention that he sufficiently pleaded his
theory of misrepresentation (doc. no. 35, citing Amended Complaint at ¶¶ 3, 11, 13,
22-26). The record also reflects that plaintiff’s “Requests for Admissions” (doc. no.
31-2 at Request Nos. 1-5, 24-28, 32) arguably refer to his theory of the
misrepresentation claim, as does plaintiff’s answer to Interrogatory 15 (doc. no. 34-1
at 6 indicating that plaintiff actually “returned to work at OPW Fueling Components,
Inc., not Richards Industries”).
The Court need not determine whether plaintiff is “expanding” the theory of
his misrepresentation claim in Count Two or whether defendants simply missed an
adequately-pleaded theory in the Amended Complaint. In fairness to the parties, and
in the interests of justice, the Court will grant the plaintiff additional time to amend
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This practice is disfavored. For clarity’s sake, motions and briefs should
be filed separately.
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his complaint in order to ensure full and fair notice to the defendants regarding the
basis for his misrepresentation claim. Leave to amend the complaint “shall be freely
given when justice so requires.” Fed.R.Civ.P. 15 ; see also, 10A Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2723 (3d ed.
Supp.2005) (“A non-moving party plaintiff may not raise a new legal claim for the
first time in response to the opposing party's summary judgment motion. At the
summary judgment stage, the proper procedure for plaintiffs to assert a new claim
is to amend the complaint in accordance with Rule 15(a).”).
Discovery will also be reopened for a limited period of time, which will enable
the defendants to conduct any further discovery on the amended misrepresentation
claim, and thus, avoid any alleged “unfair surprise.” The parties are reminded of
their ongoing obligation under the civil rules to supplement their discovery
responses. Fed.R.Civ.P. 26, 37. Upon completion of discovery, the parties may file
revised motions for summary judgment anew.
Accordingly, the respective “Motions for Summary Judgment” (doc. nos. 29,
31) are DENIED, without prejudice; plaintiff’s “Motion for Leave to File” (doc. no. 36)
and defendants’ four-part “Motion to Strike”(doc. no. 34) are DENIED as moot; the
parties are directed to file a joint proposed “Amended Scheduling Order” for the
Court’s approval within fourteen days of this Order.
IT IS SO ORDERED.
s/Herman J. Weber
Herman J. Weber, Senior Judge
United States District Court
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