Uzi v. Fitness International, LLC

Filing 94

REPORT AND RECOMMENDATIONS re 58 Plaintiff's Motion for Leave to File Second Amended Complaint, 69 Plaintiff's Amended Motion for Leave to File Second Amended Complaint. IT IS RECOMMENDED that Plaintiff's motions for leave to ame nd the complaint 58 69 be DENIED. (*SEE FOOTNOTE, PAGE 4*) In light of this recommendation, Defendant's pending motion to strike Plaintiff's most recent leave to amend 75 is DENIED as MOOT. Objections to R&R due by 10/3/2017. Signed by Magistrate Judge Stephanie K. Bowman on 9/19/2017. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UZI ORA,
Plaintiff,

Case No. 1:16-cv-875

vs.

Barrett, J.
Bowman, M.J.

FITNESS INTERNATIONAL, LLC,
Defendant.

REPORT AND RECOMMENDATION
This civil action is now before the Court on Plaintiff’s motions for leave to amend
his complaint. (Docs. 58, 69). Upon careful consideration, the undersigned finds that
Plaintiff’s motions for leave to amend are not well-taken.
A. Background and Facts
Plaintiff’s current complaint is based upon an alleged statutory violation of Title II
of the Civil Rights Act of 1964, 42 U.S.C. §2000a et seq., i.e. the “public
accommodations” provision, and an alleged statutory violation of Ohio Revised Code §
4122.02(G), i.e. the “public accommodations” section of the Ohio Civil Rights
Commission against one defendant, Fitness International LLC. Plaintiff’s claims arise
out of the revocation of his membership to LA Fitness in Cincinnati, Ohio. Notably,
Plaintiff alleges that LA Fitness discriminated against him based on his national origin.
Plaintiff now seeks to amend his complaint to add a count for racial discrimination
in violation of 42 U.S.C. § 1981, retaliation in violation of O.R.C. § 4112.02(I),
conspiracy in violation of O.R.C. § 4112.02(J), breach of contract under Ohio common

law, and negligence under Ohio common law. Additionally, Plaintiff is seeking to add
multiple individual defendants.
B. Standard of Review
Rule 15(a) of the Federal Rules of Civil Procedure provides that “[t]he court
should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Rule 15 reinforces “the principle that cases ‘should be tried on their merits rather than
the technicalities of pleadings.’” Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.
1986) (quoting Tefft v. Seward, 689 F.2d 637, 639 (6th Cir.1982)). The grant or denial of
a request to amend a complaint is left to the broad discretion of the trial court. Gen’l
Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990). In exercising this
discretion, the trial court may consider such factors as “undue delay, bad faith or dilatory
motive on the part of a movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment [and] futility of the amendment[.]” Foman v. Davis, 371 U.S. 178, 182
(1962). See also Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1001 (6th Cir.
2005).
“Amendment of a complaint is futile when the proposed amendment would not
permit the complaint to survive a motion to dismiss.” Miller v. Calhoun Cnty., 408 F.3d
803, 817 (6th Cir. 2005). To survive a motion to dismiss, a complaint must contain
sufficient factual allegations to state a claim that is plausible. Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

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C. Plaintiff’s motions for leave to amend are not well-taken (Docs.58, 69)
As noted above, Plaintiff’s seeks to amend his complaint to add a count for racial
discrimination in violation of 42 U.S.C. § 1981, retaliation in violation of O.R.C. §
4112.02(I), conspiracy in violation of O.R.C. § 4112.02(J), breach of contract under
Ohio common law, and negligence under Ohio common law. Additionally, Plaintiff is
seeking to add multiple individual defendants, including corporate counsel for LA
Fitness. Plaintiff’s proposed amendments would cause undue delay and are also futile.
Notably, Plaintiff has failed to alleged sufficient facts to state a claim under §
1981. In order to state a claim for relief under 42 U.S.C. § 1981, a plaintiff must allege
facts in support of the following prima facie elements: (1) the plaintiff is a member of a
racial minority; (2) the defendant intended to discriminate on the basis of race; and (3)
the discrimination concerned one or more of the activities enumerated in § 1981 (i.e, the
right to make and enforce contracts; sue and be sued; give evidence, etc.). Johnson v.
Harrell, 142 F.3d 434 (unpubl.), 1998 WL 57356, at *2 (6th Cir.Feb.2, 1998); Burton v.
Plastics Research Corp., 134 F.Supp.2d 881, 886 (E.D.Mich.2001). Here, Plaintiff has
failed to include any facts or allegations to show intentional or purposeful discrimination
by Defendant.
Similarly, Plaintiff also fails to alleged sufficient facts to state a claim for
retaliation. In that regard, to set forth “a prima facie case . . . for retaliation [arising from
the claimant's] participation in a protected activity under R.C. 4112.02(I), [the claimant's]
pleading must sufficiently set forth facts establishing the following four elements: (1)
claimant engaged in a protected activity; (2) claimant's engagement in the protected
activity was known to the opposing party; (3) the opposing party thereafter took adverse

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action against the claimant; and, (4) there exists a causal connection between the
protected activity and the adverse action.” Hughes v. Miller, 181 Ohio App.3d 440, at ¶
29. Notably, Plaintiff fails to alleged that he was engaged in a protected activity as
defined by the Ohio Revised Code.
Plaintiff’s proposed state law claims for breach of contract and negligence would
also be futile, as Plaintiff has failed to include sufficient allegations in support of either
claim.
Additionally, Plaintiff’s request to add additional defendants is also not well-taken.
As noted by Defendant, naming individual employees does not provide Plaintiff with any
greater damages and Fitness International has the ability to pay any settlement or
judgment. Even assuming there would be a settlement or judgment naming individual
employees only complicates this matter and does not provide Plaintiff with any
additional advantages or opportunities. Moreover, to the extent Plaintiff seeks to add
Defendant’s corporate counsel as a party defendant, attorneys are immune from claims
relating to his or her performance as an attorney by third parties. Scholler v. Scholler,
10 Ohio St.3d 98, 103, 462 N.E.2d 158, 163 (1984); citing Petrey v. Simon (1983), 4
Ohio St.3d 154, 157, 158-159, 447 N.E.2d 1285. Corporate counsel is also entitled to
attorney client privilege and work product immunity under Ohio law.
For these reasons, it is herein RECOMMENDED that Plaintiff’s motions for leave
to amend the complaint (Docs. 58, 69) be DENIED. 1
/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

1

In light of this recommendation, Defendant’s pending motion to strike Plaintiff’s most recent leave to
amend (Doc. 75) is DENIED as MOOT.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UZI ORA,
Plaintiff,

Case No. 1:16-cv-875

vs.

Barrett, J.
Bowman, M.J.

FITNESS INTERNATIONAL, LLC,
Defendant.
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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