Zang et al v. Zang et al

Filing 129

REPORT AND RECOMMENDATIONS re #103 MOTION for Leave to File SECOND AMENDED LEAD COMPLAINT filed by Plaintiff Javier Luis. It is RECOMMENDED THAT Plaintiff's motion be DENIED, whether construed as a motion for leave for Mr. Luis to add his name as a Plaintiff in Lead Case 1:11-cv-00884, or whether construed as a motion to further amend his prior complaint in Case 1:12-cv-00629. Objections to R&R due by 11/15/2013. Signed by Magistrate Judge Stephanie K. Bowman on 10/29/2013. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Lead Case No. 1:11-cv-884
CATHERINE J. ZANG, et al.,
Plaintiffs

Dlott, J.
Bowman, M.J.

v.

JOSEPH ZANG, et al.,
Defendants
-----------------------------------------------------------------------JAVIER LUIS,

Case No. 1:12-cv-629
Plaintiff,

Dlott, J.
Bowman, M.J.

v.

JOSEPH ZANG, et al.,
Defendants.

REPORT AND RECOMMENDATION
On November 15, 2012, the above two cases were consolidated for pretrial
purposes only, with any “dispositive motions, including but not limited to motions to
dismiss or motions for summary judgment” to be filed under the original case number to
which the motion pertained. (Docs. 43, 49 in Lead Case No. 1:11-cv-884)). After the
pretrial consolidation order was entered, pro se Plaintiff Javier Luis, who is a named
plaintiff only in Case No. 1:12-cv-629, was permitted to file motions in Lead Case No.
1:11-cv-884 in order to comply with the consolidation instructions. This Report and
Recommendation addresses Mr. Luis’s motion for leave to file an amended complaint in
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Lead Case No. 1:11-cv-884, in light of the recent settlement of Plaintiff Luis’s claims in
Case No. 1:12-cv-629. 1
I.

Relevant Procedural Background

On March 5, 2013, the undersigned filed a Report and Recommendation (“R&R”)
recommending that the motion of Defendant Awareness Technologies to dismiss all
claims filed against it by Plaintiff Luis in Case No. 1:12-cv-629 be granted. (Doc. 109 in
Case No. 1:12-cv-629). Because that R&R pertains only to the dispositive motion filed
in Case No. 1:12-cv-629, the R&R also was filed only in that case. Plaintiff Luis filed
objections to that R&R, which objections remain pending before the presiding district
judge.
On May 1, 2013, Plaintiff Luis purported to file an “amended complaint” in Case
No. 1:12-cv-629, in which he attempted to assert new claims against Awareness
Technologies and other newly identified Defendants. (Doc. 121 in Case No. 1:12-cv629). On August 1, 2013, the undersigned granted Defendant Awareness Technologies’
motion to strike that pleading as improperly filed on procedural grounds, because
Plaintiff had failed to first file a motion seeking leave of court. The undersigned further
noted that the tendered amended complaint reiterated claims against Awareness
Technologies, as to which the undersigned had already recommended dismissal.
Moreover, the tendered amended complaint appeared to greatly expand the pending
litigation to the prejudice of all Defendants, with unrelated claims against newly
identified defendants. (Doc. 142 in Case No. 1:12-cv-629).

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For the same reasons the amended complaint was stricken in Case No. 1:12-cv-629 on procedural
grounds, Mr. Luis’s motion for leave to amend in this Lead Case No. 1:11-cv-884 could be denied by
Order. However, this R&R has been filed because a portion of the analysis could be considered to be
dispositive in nature.

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On August 7, 2013, apparently in response to the Court’s August 1 Order in his
companion case, No. 1:11-cv-884, Mr. Luis filed a “motion for leave to file a second
amended complaint” in Lead Case No. 1:11-cv-884. As previously stated, Mr. Luis is
not and has never been a Plaintiff in that case.

On August 21, 2013, Defendant

Awareness Technologies filed a response in opposition to Plaintiff’s motion for leave to
amend his complaint. (Doc. 117 in Lead Case No. 1:11-cv-884). On August 23, 2013,
Mr. Luis filed a reply memorandum in support of his motion to amend. (Doc. 118 in
Lead Case No. 1:11-cv-884). On August 28, 2013, Defendants Joseph Zang Custom
Builders, Joseph O. Zang, Mary Zang, and Zang General Contractors filed an additional
response in opposition to Plaintiff Luis’s motion to amend. (Doc. 120 in Lead Case
1:11-cv-884).
Between August and September, 2013, the undersigned filed a series of Orders
in Case No. 1:12-cv-629 relating to the scheduling of Plaintiff Luis’s deposition in
Cincinnati, Ohio. Plaintiff filed a series of both informal objections, some of which were
heard via telephonic hearings, and formal motions concerning the details of his
deposition. All of Plaintiff’s objections and motions were addressed by the referenced
Orders. (See Docs. 101, 144, 145, 150, 151 in Case No. 1:12-cv-629). On September
6, 2013, Mr. Luis filed under Lead Case No. 1:11-cv-884, an “Objection to Magistrate
Judge’s Order Allowing Videotaping of the Coming Deposition.” (Doc. 127 in Lead
Case No. 1:11-cv-884). On the same date, the Donovan Defendants filed a responsive
motion to strike Plaintiff Luis’s Objection. (Doc. 125 in Lead Case No. 1:11-cv-884).
On September 26, 2013, Plaintiff Luis filed a “Notice of Partial Settlement,”
representing that he had signed a settlement agreement “with the Ohio based

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defendants,” but “not Awareness Technologies or any of the newly added defendants in
the recent Amended Complaint.” Plaintiff filed this “Notice of Partial Settlement” under
Lead Case No. 1:11-cv-884. (Doc. 128). On October 24, 2013, the Court filed an entry
of dismissal with prejudice in the case in which Mr. Luis actually is a Plaintiff, Case No.
1:12-cv-629, reflecting the dismissal of all claims between Mr. Luis and Defendants
Joseph O. Zang, Mary Zang, Joseph Zang Custom Builders, Zang General Contractors,
Inc., Mary Jill Donovan, Michael McCafferty, Mary Jill Donovan, LLC d/b/a Donovan
Law, Joseph C. Zang and Joseph Zang Guilders. (Doc. 154 in Case No. 1:12-cv-629).
II.

Analysis

As the above procedural history demonstrates, the partial consolidation of Case
Nos. 1:11-cv-884 and 1:12-cv-629, while intended to facilitate and expedite related
pretrial proceedings, has at times proved to be a source of confusion. Regardless, at
this point in time several things are clear, including how this Court should address two
pending motions.
First, the motion to strike Plaintiff’s Objection (non-motion), filed by the Donovan
Defendants in Lead Case No. 1:11-cv-884, will be denied as moot by separate order
filed herewith. The motion pertains to a document that ostensibly concerns Plaintiff’s
September deposition, and the Donovan Defendants and Mr. Luis have since resolved
their underlying dispute.
Second, the pending motion to file an amended complaint by pro se litigant
Javier Luis should be denied. Mr. Luis’s last “amended complaint” was disallowed as
procedurally improper in the sole case in which he is a Plaintiff, Case No. 1:12-cv-629.
After that amended complaint was stricken as procedurally improper in Case No. 1:12-

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cv-629, Plaintiff filed a formal motion in which he essentially sought leave to file the
same (disallowed) amended complaint in Lead Case No. 1:11-cv-884. All Defendants
have filed responses in opposition to Mr. Luis’s motion, to which Mr. Luis has filed a
reply memorandum.
Mr. Luis’s motion for leave to amend in Lead Case No. 1:11-cv-884 should be
denied on multiple grounds. The motion should be denied as procedurally improper, to
the extent that it seeks to add Mr. Luis as a party “plaintiff” to a case in which he has
never been a Plaintiff, and which has been consolidated only for purposes of pretrial
proceedings. Additionally, the motion should be denied because Mr. Luis has – since
filing the motion – settled with nearly all of the named Defendants as to which the
“amended” complaint would pertain. Although Mr. Luis has not settled with Defendant
Awareness Technologies, the undersigned has previously recommended dismissal of
that Defendant. (See Doc. 109 in Case No. 1:12-cv-629). If the presiding district judge
adopts that pending R&R, there would be no point in granting Mr. Luis leave to reinstate
already-dismissed claims. Last, to the extent that Mr. Luis still may seek to add new
claims against entirely new governmental entities or other Defendants in Case No. 1:12cv-629, the motion should be denied for the reasons previously stated in the prior order
in that case. (Doc. 142 in Case No. 1:12-cv-629).
III.

Conclusion

For the reasons discussed above, IT IS RECOMMENDED THAT Mr. Javier
Luis’s motion for leave to file a second amended complaint in Lead Case No. 1:11-cv884 be DENIED, whether construed as a motion for leave for Mr. Luis to add his name
as a Plaintiff in Lead Case No. 1:11-cv-884, or whether construed as a motion to further

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amend his prior complaint in Case No. 1:12-cv-629.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CATHERINE J. ZANG, et al.,
Plaintiffs

Dlott, J.
Bowman, M.J.

v.

JOSEPH ZANG, et al.,
Defendants
-----------------------------------------------------------------------JAVIER LUIS,

Case No. 1:12-cv-629
Plaintiff,

Dlott, J.
Bowman, M.J.

v.

JOSEPH ZANG, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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