Glover v. Kirsher et al

Filing 39

ORDER granting 33 Motion for Leave to Supplement Complaint to the extent that, within fourteen days, plaintiff shall file an amended complaint with his medical records, as described in this order, attached as exhibits. The motion is denied to the extent that plaintiff seeks to submit interrogatories. Signed by Magistrate Judge Terence P Kemp on 12/4/2014. (agm1) (This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

:

Plaintiff,

:
:

v.
Dr. Kirsher, et al.,

Case No. 2:13-cv-976
JUDGE GREGORY L. FROST
Magistrate Judge Kemp

:

Defendants.

:
ORDER

Plaintiff Barnett Glover has filed a motion for leave to
supplement his complaint.

In his motion, Mr. Glover states that

he would like to add as exhibits to his complaint some medical
records he recently obtained.

He also states that he would like

to submit a copy of the interrogatories he has received from the
defendants.

He does not indicate whether he seeks to make the

interrogatories an exhibit to the complaint.

He has not provided

copies of either the medical records or the interrogatories.
Defendants have not responded to this motion.
To the extent that Mr. Glover seeks to add exhibits to his
complaint, the Court construes his motion as a motion for leave
to amend the complaint.

Consequently, the Court will consider

the motion under Fed.R.Civ.P. 15.
I.

Legal Standard

Fed.R.Civ.P. 15(a)(2) states that when a party is required
to seek leave of court in order to file an amended pleading,
“[t]he court should freely give leave when justice so requires."
The United States Court of Appeals for the Sixth Circuit has
spoken extensively on this standard, relying upon the decisions
of the United States Supreme Court in Foman v. Davis, 371 U.S.
178 (1962) and Zenith Radio Corp. v. Hazeltine Research, Inc.,
401 U.S. 321 (1971), decisions which give substantial meaning to

the phrase "when justice so requires."

In Foman, the Court

indicated that the rule is to be interpreted liberally, and that
in the absence of undue delay, bad faith, or dilatory motive on
the part of the party proposing an amendment, leave should be
granted.

In Zenith Radio Corp., the Court indicated that mere

delay, of itself, is not a reason to deny leave to amend, but
delay coupled with demonstrable prejudice either to the interests
of the opposing party or of the Court can justify such denial.
Expanding upon these decisions, the Court of Appeals has
noted that:
[i]n determining what constitutes prejudice, the
court considers whether the assertion of the new
claim or defense would: require the opponent to
expend significant additional resources to conduct
discovery and prepare for trial; significantly
delay the resolution of the dispute; or prevent
the plaintiff from bringing a timely action in
another jurisdiction.
Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994) (citing
Tokio Marine & Fire Insurance Co. v. Employers Insurance of
Wausau, 786 F.2d 101, 103 (2d Cir. 1986)).

See also Moore v.

City of Paducah, 790 F.2d 557 (6th Cir. 1986); Tefft v. Seward,
689 F.2d 637 (6th Cir. 1982).

Stated differently, deciding if

any prejudice to the opposing party is “undue” requires the Court
to focus on, among other things, whether an amendment at any
stage of the litigation would make the case unduly complex and
confusing, see Duchon v. Cajon Co., 791 F.2d 43 (6th Cir. 1986)
(per curiam), and to ask if the defending party would have
conducted the defense in a substantially different manner had the
amendment been tendered previously.

General Electric Co. v.

Sargent and Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990); see also
Davis v. Therm-O-Disc, Inc., 791 F. Supp. 693 (N.D. Ohio 1992).
The Court of Appeals has also identified a number of
additional factors which the District Court must take into
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account in determining whether to grant a motion for leave to
file an amended pleading.

They include whether there has been a

repeated failure to cure deficiencies in the pleading, and
whether the amendment itself would be an exercise in futility.
Robinson v. Michigan Consolidated Gas Co., 918 F.2d 579 (6th
Cir.1990); Head v. Jellico Housing Authority, 870 F.2d 1117 (6th
Cir.1989).

The Court may also consider whether the matters

contained in the amended complaint could have been advanced
previously so that the disposition of the case would not have
been disrupted by a later, untimely amendment.
II.

Id.

Analysis

In light of the absence of any objection by defendants, the
Court finds no prejudice would result from making Mr. Glover’s
medical records part of the complaint.

Although Mr. Glover has

not provided copies of the medical records he intends to include,
the Court notes that he describes the records as evidence he
needs to fully litigate his claims.
relate to one discrete incident.

The claims in his complaint

Specifically, the claims relate

to the medical care he received after severing his right ring
finger at the knuckle in a “punch press machine” while working at
the Chillicothe Correctional Institution.

Consequently, to the

extent that Mr. Glover seeks to amend his complaint to add as
exhibits the records of his medical care arising from this
specific event, his motion will be granted.

Mr. Glover will be

directed to file an amended complaint consistent with this order
within fourteen days.
With respect to the issue of interrogatories from the
defendants, however, Fed.R.Civ.P. 5(d)(1) provides, in part, that
“discovery requests and responses must not be filed until they
are used in the proceeding or the court orders filing:
depositions, interrogatories, ....”

To the extent that Mr.

Glover would like to rely on these interrogatories in connection
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with a dispositive motion either that he intends to file or in
opposition to such a motion by defendants, he will be permitted
to file the interrogatories then.

However, Mr. Glover should

file them as exhibits to any motion or response; the
interrogatories should not be submitted as independent filings.
III.

Conclusion

For the reasons set forth above, plaintiff’s motion to
supplement his complaint, construed as a motion for leave to
amend (Doc.33), is granted in part and denied and part.

The

motion is granted to the extent that, within fourteen days,
plaintiff shall file an amended complaint with his medical
records, as described in this order, attached as exhibits.

The

motion is denied to the extent that plaintiff seeks to submit
interrogatories.
IV. Motion for Reconsideration
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. 14-01,
pt. IV(C)(3)(a).

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 even if a motion for
reconsideration has been filed unless it is stayed by either 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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