In Re: Ohio Execution Protocol Litigation

Filing 952

DECISION AND ORDER NOTICE OR MOTION TO AMEND - The Court's prior Order (ECF No. 908) is VACATED. Plaintiff Tibbetts and Ottes Joint OCPA Supplement is deemed filed December 30, 2016. Plaintiffs shall file the Joint OCPA Supplement separately s o that it acquires its own docket number. This ruling is without prejudice to Defendants' position that this Court lacks jurisdiction to adjudicate the OCPA claims against the added parties and any other matter which might properly be raised on a motion under Fed. R. Civ. P. 12(b). Defendants' time to file such a motion is sua sponte extended to and including February 6, 2017. This Order terminates ECF No. 876.. Signed by Magistrate Judge Michael R. Merz on 1/27/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: OHIO EXECUTION
PROTOCOL LITIGATION,
:

Case No. 2:11-cv-1016
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

This Order relates to Plaintiffs Tibbetts and Otte.

DECISION AND ORDER NOTICE OR MOTION TO AMEND

This case is before the Court on the “Notice of by [sic] Plaintiffs Tibbetts and Otte of
Amending their Fourth Amended Complaints with an OCPA [Ohio Corrupt Practices Act] Cause
of Action Against Individual Defendants or Alternatively, Motion for Leave to Amend (ECF No.
876). The amendment seeks to add individual capacity claims against Defendants Richard
Theodore and Execution Team Members 17, 21, 31, and 32, already sued in their official
capacities.
In its initial ruling on the Motion, the Court found that “adding these individual capacity
claims at this point in the litigation is the functional equivalent of joining new parties, a process
which, under Fed. R. Civ. P. 21, requires court permission.” (Order, ECF No. 908, PageID
30411.) The Court therefore elected to treat the instant Motion as a motion to amend and
provided for further briefing. Id.

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Having determined that the Ohio Attorney General could properly represent these
persons in their individual capacities, the Attorney General opposed the motion to amend (ECF
No. 933). Plaintiffs then filed a Reply in support (ECF No. 947).
Plaintiffs first argue the Court was in error in ruling that Fed. R. Civ. P. 21 trumps Fed.
R. Civ. P. 15 under these circumstances. Id. at PageID 32110, citing Broyles v. Corr. Med.
Servs., No. 08-1638, 2009 U.S. App. LEXIS 5494 (6th Cir. Jan. 23, 2009); and Peguese v. PNC
Bank, N.A., 306 F.R.D. 540, 546 (E.D. Mich. 2015).
This authority persuades the Court that its prior ruling was in error. In Broyles the Sixth
Circuit concluded a district court had abused its discretion in striking an amended pro se
complaint, filed within the time allowed by Fed. R. Civ. P. 15(a), because it added a new party
without court permission under Fed. R. Civ. P. 21. Although Broyles is not a published opinion,
it was a unanimous decision by three active circuit judges who remain on the court today. While
noting that there was no published authority, the court cited its own precedent that interpreted
Fed. R. Civ. P. 15 to provide an “absolute right” to amend.
Judge Lawson in Peguese gives an even more detailed analysis. Noting Broyles, he also
cites the trend in other circuits in the same direction. 340 F.R.D. at 545-46. He also cites the
leading civil procedure treatise for the proposition that an amendment of right may properly add
parties. Id. at 544, citing Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d, §
1474 (1990).
Accordingly, the Court’s prior Order (ECF No. 908) is VACATED. Plaintiff Tibbetts
and Otte’s Joint OCPA Supplement is deemed filed December 30, 2016. Plaintiffs shall file the
Joint OCPA Supplement separately so that it acquires its own docket number. This ruling is
without prejudice to Defendants’ position that this Court lacks jurisdiction to adjudicate the

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OCPA claims against the added parties and any other matter which might properly be raised on a
motion under Fed. R. Civ. P. 12(b). Defendants’ time to file such a motion is sua sponte
extended to and including February 6, 2017. This Order terminates ECF No. 876.

January 27, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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