Richardson v. OP&CMIA et al

Filing 41

ORDER denying # 35 Motion to transfer and denying # 36 Motion to Amend/Correct signed by Magistrate Judge Terence P Kemp on 8/23/2013 (wh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Stanley T. Richardson,

:
Case No. 2:12-cv-0793

Plaintiff,

:
JUDGE GREGORY L. FROST

v.

:
Magistrate Judge Kemp

OP & CMIA, et al.,
Defendants.

:
:
ORDER

This case is before the Court to consider plaintiff’s
motions to transfer and to amend (Doc. 35 and 36).

For the

following reasons, both motions will be denied.
Mr. Richardson amended his complaint in April of this year.
It is currently subject to a motion to dismiss.

He has responded

to that motion.
In the two motions which are the subject of this order,
which are almost identical, Mr. Richardson asks for leave to
amend again to clarify his allegations.

However, he does not

explain what clarifications he has in mind, nor did he attach a
proposed amended complaint.

Defendants have opposed both

motions, noting these facts and also arguing that since the
amended complaint is, in their view, subject to dismissal, any
clarification of it would simply be futile.
There is no question that Rule 15(a) generally favors
allowing parties to amend their pleadings in order to promote the
goal of deciding cases on their merits.

However, in Bliss v.

Corrections Corp. of America, 8 Fed. Appx. 320 (6th Cir. March
15, 2001), the Court of Appeals dealt with a similar situation
and found that Rule 15(a) did not require the court to permit an
amendment.

In upholding the trial court’s denial of the

plaintiff’s motion for leave to file an amended complaint, the
Court of Appeals said:
[Plaintiff] failed to demonstrate the need for
amendment or otherwise explain his reasons for
requesting leave to amend. [He] did not indicate how
amendment would cure the deficiencies of his complaint,
... or tender a proposed amended complaint for the
district court's review. Under these circumstances,
justice does not require that amendment occur.
This Court has followed that same practice.

For example, as

noted in Rogers v. Isler, 2005 WL 3776350, *1 (S.D. Ohio June 20,
2005), the District Judge had “denied plaintiffs' motion for
leave to amend the complaint on the ground that plaintiffs had
not tendered the proposed amended complaint.”

See also Nuovo v.

Ohio State University, 2009 WL 2591687, *2 (S.D. Ohio Aug. 20,
2009)(describing the Magistrate Judge’s “practice ... to consider
a motion for leave to amend a pleading only when the proposed
amended complaint is tendered with the motion”).

Otherwise, the

Court cannot properly evaluate whether any of the proposed new
claims, or clarifications of existing claims, would be futile, or
whether they would cause some prejudice to the opposing party.
Mr. Richardson will not be harmed by the denial of his
motions.

If he simply wishes to clarify his prior complaint, he

has had ample opportunity to explain that pleading in the
response he filed to defendants’ motion to dismiss.

Further, a

ruling on that motion will be a strong indication of whether any
further amendments would be futile.

Finally, if his amended

complaint does survive the motion in whole or in part, he will
then be in a better position to determine if any further
amendment is needed, and he may make such a motion and attach his
proposed amended complaint to that motion.

As the record now

stands, however, he has not demonstrated good reason to amend his
complaint yet again, and the Court denies his two motions (Docs.

2

35 and 36) which request leave to do so.
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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