Sanchez Gomez v. Thompson Brothers Drywall, Inc. et al

Filing 38

REPORT AND RECOMMENDATIONS re 27 Plaintiff's SEALED MOTION for Leave to File an Amended Complaint. It is RECOMMENDED that Plaintiff's motion be DENIED. Objections to R&R due by 5/8/2014. Signed by Magistrate Judge Stephanie K. Bowman on 4/21/2014. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHRISTIN SANCHEZ GOMEZ,
Plaintiff,

Case No. 1:12-cv-799

vs.

BERTELSMAN, J.
BOWMAN, M.J.

THOMPSON BROTHERS DRYWALL,
INC., et al.,
Defendants.

REPORT AND RECOMMENDATION
This civil action is before the Court on Plaintiff’s sealed motion for leave to
amend the complaint to substitute AL. Neyer, LLC for Defendant “Doe 1, unknown
general contractor” (Doc. 27) and the parties’ responsive memoranda (Docs. 31, 33, 34,
36). The instant motion has been referred to the undersigned for disposition. (Doc. 35).
Upon careful review, the undersigned finds that Plaintiff’s motion is not well-taken.
I. Background and Facts
Plaintiff filed this action on October 26, 2012, alleging claims under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.; the Ohio Constitution, Art. II, §
34a; the Ohio Minimum Fair Wage Standards Act, R.C. 4111 et seq,; and the Ohio
Prompt Pay Act, R.C. 4113.15.

The complaint named as defendants: Thompson

Brothers Drywall, Inc.; Robert Thompson (collectively “the Thompson Defendants”);
Geronimo Maya, d/b/a Tavales Drywall (“Maya”); John Doe 1, a general contractor; and
John Doe 2, a bonding company.

The Court entered a scheduling order on January 16, 2012 (Document # 10),
which required the complaint to be amended by February 28, 2013. Subsequently, the
parties modified the scheduling order by agreement twice, but only to extend the time to
complete discovery, to disclose expert information, and to file dispositive motions.
(Docs. 18 and 19). The discovery deadline expired on March 3, 2013. (Doc. 19). On
February 20, 2014, Plaintiff moved to modify the scheduling order (Doc. 23), and the
Court stayed discovery pending a ruling on this motion. (Minute Entry, March 17, 2014).
On February 21, 2014, Plaintiff and the Thompson defendants executed a
confidential settlement agreement. The Court signed and entered an agreed order to
that effect on March 3, 2014. (Doc. 24). The parties are required to report monthly until
the terms of the agreement are fulfilled, at which time the plaintiff must dismiss with
prejudice all of his claims against the Thompson defendants and the John Doe
defendants associated with Thompson Brothers Drywall, Inc.1 Id. The agreement fully
releases and indemnifies the Thompson defendants from all of the plaintiff’s claims.
The claim against Maya, the defendant who hired the plaintiff, has been stayed due to
bankruptcy. (Doc. 32).
Plaintiff now seeks to amend his complaint to substitute Al. Neyer, LLC, as
Defendant John Doe 1, unknown general contractor. Notably, Plaintiff originally alleged
that he worked for Maya and the Thompson defendants on 14 projects in Ohio between
January 2010 and April 2012.

Al. Neyer, LLC, was Thompson Brother’s general

contractor on only one of those construction sites, the Med Pace Facility located at 4820
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The most recent status report was filed on April 3, 2014. The report indicates that Defendant Thompson
Brother’s Drywall, Inc. is complying with the terms of the confidential settlement agreement executed on
February 21, 2014. These defendants anticipate that they will satisfy all of their obligations under the
agreement within 90 days, at which time the plaintiff must dismiss with prejudice all of his claims against
the Thompson defendants and the John Doe defendants associated with Thompson Brothers Drywall,
Inc. (Doc. 37).
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Red Bank Road in Cincinnati. Plaintiff contends that he worked at the Med Pace project
sometime during the month of February 2012. During the time Plaintiff worked on the
Med Pace project, Plaintiff alleges that his work hours were tracked and controlled by
Al. Neyer through its direct daily oversight of the project.
II. Analysis
“Federal Rules of Civil Procedure 15(a)(2) states that the Court should freely give
leave to amend ‘when justice so requires.’ Nevertheless, leave may be denied when
there has been undue delay, bad faith, a repeated failure to cure deficiencies by
previous amendments, undue prejudice to the opposing party, or when the proposed
amendment would be futile.” Hobart v. Waste Management of Ohio, Inc., 923 F.Supp.2d
1086, 1098 (6th Cir. 2013), citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9,
L.Ed. 222 (1962). According to the Supreme Court, prejudice to the opposing party is a
key factor to be considered when deciding whether to grant leave to amend. Zenith
Radio Corp.v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77
(1971). Furthermore, leave to amend should not be granted when the amendment
would be futile, because it would fail to state a claim. See, e.g., Cloke v. United
Brotherhood of Carpenters and Joiners of Am., No. 1:11-cv-677, 2013 U.S. Dist. LEXIS
21703, at *17 (S.D. Ohio Feb. 15, 2013).
Here, the record indicates that Plaintiff’s claims against AL. Neyer have been
released by the March 2014 settlement agreement. As noted above, Plaintiff and the
Thompson Defendants executed a confidential settlement agreement, which the Court
signed, and entered an agreed order on March 3, 2014. The Court stated in relevant
part:

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The parties having notified the Court that a confidential settlement has
been reached. . . the Plaintiff shall dismiss with prejudice all of his claims
against Thompson Brothers Drywall, Inc., Bob Thompson, and the John
Doe Defendants associated with Thompson Bros. Drywall, Inc.

(Doc. 24).
According to Plaintiff’s proposed amended complaint, “Al. Neyer. LLC is a
general contractor that contracted with Thompson Bros. during the applicable liability
period.” (Doc. 27 at 17). Plaintiff further alleges that he worked on the Med Pace
project on February 6, 2012 and February 12, 2012.

Id. at 19.

As the general

contractor for the Med Pace Project, Al. Neyer subcontracted with Thompson Bros. for
the drywall installation and finishing on the project. Such a contractual relationship
shows that Al. Neyer was associated with Thompson Brothers, for purposes of the Med
Pace project.
Plaintiff contends, however, that upon any reading of the Agreement as a whole it
is clear that: 1) the “John Doe Defendants associated with Thompson Bros. Drywall”
and Al. Neyer are mutually exclusive parties, and 2) neither the Thompson Brothers
Defendants nor Plaintiff contemplated that the Agreement would end the litigation
except with regard to the Thompson Brothers Defendants.

Upon review of the

settlement agreement, the undersigned finds that Plaintiff’s contentions are unsupported
and contradicted by the allegations contained in Plaintiff’s motion for leave to file an
amended complaint as outlined above. Notably, the settlement agreement does not
define “associated with,” nor does it state that Al. Neyer and Thompson Bros are
mutually exclusive parties.

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“[W]hen the plain meaning of a term is not defined in the text at issue or is
otherwise unclear,” the courts of this circuit have “turn[ed] to dictionary definitions.”
United States v. Darway, 255 Fed.Appx. 68, 71 (6th Cir.2007); see also Appoloni v.
United States, 450 F.3d 185, 199 (6th Cir.2006) (“Where ... no statutory definitions exist,
a court may refer to dictionary definitions for guidance in discerning the plain meaning of
a statute's language.”). Merriam Webster dictionary defines associated, inter alia, as “to
join or connect together” and/or to bring together or into relationship in any of various
intangible

ways

(as

in

memory

webster.com/dictionary/associate.

or

imagination).

See

http://www.merriam-

Here, Al. Neyer and Thompson Bros. had a

relationship and/or were connected together by the nature of their general
contractor/subcontractor relationship.

Accordingly, based upon the facts alleged by

Plaintiff and the plain meaning of associate, the undersigned finds that Al. Neyer is
“associated with” Thompson Bros. Drywall.

Thus, pursuant to the terms of the

settlement agreement, Plaintiff has released any claims against Al. Neyer (i.e. John Doe
1, Unknown General Contractor), and therefore Plaintiff’s proposed amendment would
be futile.
Moreover, Plaintiff has known or should have known the identity of Al. Neyer for
nearly a year before seeking the instant amendment. Al. Neyer’s memorandum contra
to Plaintiff’s motion for leave to amend lists the following events:
4/26/13: Plaintiff sent a letter to Al. Neyer, the general contractor on a project
where Plaintiff allegedly worked for his employer Defendant Geronimo Maya, a
subcontractor to Thompson Brother Drywall, Inc. (“TBD”) about obtaining information for
the lawsuit.

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7/30/13: Plaintiff issued a subpoena to Al Neyer.
11/15/13: Plaintiff’s counsel reviewed documents from Al. Neyer, including all
correspondence from the project.
(Doc. 31 at 2).
Accordinlgy, Plaintiff’s undue delay in seeking to name Al. Neyer as a Defendant
provides further support that his motion for leave to amend should be denied. See
Hobart, 923 F.Supp.2d at 1098.
III. Conclusion
For the reasons stated herein, IT IS RECOMMENDED that the Plaintiff's Motion
for Leave to File an Amended Complaint (Doc. 27) be DENIED.
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
CHRISTIN SANCHEZ GOMEZ,
Plaintiff,

Case No. 1:12-cv-799

vs.

BERTELSMAN, J.
BOWMAN, M.J.

THOMPSON BROTHERS DRYWALL,
INC., et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report and 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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