F. et al v. Perry County Children and Family Services et al

Filing 62

OPINION AND ORDER granting 57 Motion to Stay; granting 58 Motion for Leave to File. Signed by Magistrate Judge Kimberly A. Jolson on 12/22/2016. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
M.F., a minor, et al.,
Plaintiffs,
v.

Civil Action 2:15-cv-2731
Judge Michael H. Watson
Magistrate Judge Jolson

PERRY COUNTY CHILDREN
AND FAMILY SERVICES, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendant Judge Luann Cooperrider’s Amended
Motion to Stay Discovery Directed to Judge Cooperrider (Doc. 57) and Plaintiffs’ Motion for
Leave to File Third Amended Complaint. (Doc. 58). For the reasons that follow, the Motions
are GRANTED.
I.

BACKGROUND
Plaintiffs, two minor children identified as M.F. and H.F. and their mother, Karisma

Ferreira, filed the instant case on August 17, 2015, alleging that M.F. and H.F. were sexually
abused while in foster care. (See Doc. 1). According to Plaintiffs, Michelle Siemer, a respite
caregiver for M.F. and H.F. while the children were in foster care, suspected the abuse. (Id. at
¶¶15, 20). Plaintiffs allege that Ms. Siemer attempted to report the abuse to Perry County Court
of Common Pleas Judge Luann Cooperrider and Perry County Children Services but they failed
to respond to her concerns. (Id. at ¶¶21, 23–27).
With leave of Court, Plaintiffs filed a First Amended Complaint on November 10, 2015,

correcting the name and address of two Defendants. (Doc. 17; see also Doc. 41). On February
29, 2016, Plaintiffs moved for leave to file a Second Amended Complaint, arguing that
amendment was necessary because the identities of John Does previously named as Defendants
had been discovered and they had realized a claim against Defendant Cooperrider. (See Doc.
29). According to the Preliminary Pretrial Order entered by the Court on December 2, 2015, the
deadline for motions for leave to amend the pleadings were to be filed, if at all, by February 29,
2016. (Doc. 25 at 2). Plaintiffs were within the time allowed for amendment and the Court
ultimately granted Plaintiffs’ Motion for Leave to File a Second Amended Complaint. (See Doc.
31).
On June 6, 2016, Defendant Cooperrider filed a Motion to Dismiss the Second Amended
Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 44 at 1).
Notably, Defendant Cooperrider alleged that she was absolutely immune from suit, and thus
Plaintiffs’ claims against her failed as a matter of law. (Id. at 3). That Motion is still pending.
Plaintiffs filed the instant Motion for Leave to File a Third Amended Complaint on
November 14, 2016. (Doc. 57). Defendants filed their Response in Opposition on November
29, 2016. (Doc. 59). Plaintiffs did not file a Reply but the Motion is now ripe for consideration.
Defendant Cooperrider’s Motion to Stay Discovery, filed on November 16, 2016 (Doc. 58), has
also been fully briefed and is now ripe.
II.

DISCUSSION
a. Motion to Stay Discovery as to Defendant Cooperrider (Doc. 57)
Defendant Cooperrider argues that discovery should be stayed as to her based on her

alleged judicial immunity. (Doc. 57 at 4). As is the case with other forms of official immunity,

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“judicial immunity is an immunity from suit, not just from ultimate assessment of damages.”
Mireles v. Waco, 502 U.S. 9, 11 (1991). The Supreme Court has recognized its protection is
necessary to shield judges, and other public officers, “from undue interference with their duties
and from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806
(1982). This judicial immunity is overcome in only two circumstances: (1) actions not taken in
the judge’s judicial capacity and (2) actions taken in the complete absence of all jurisdiction.
Mireles, 502 U.S. at 11-12.
Plaintiffs attempt to argue that Defendant Cooperrider is not entitled to immunity because
their claim is not being brought under 42 U.S.C. §1983. (Doc. 60). Regardless of whether or not
that argument is correct, the intricacies of Defendant Cooperrider’s immunity are not at issue.
Rather, the question is whether discovery directed at Defendant Cooperrider should be stayed
until the Court has ruled on her Motion to Dismiss and determined the merits of her judicial
immunity claim. In support of the stay, Defendant Cooperrider argues that if discovery directed
at her “is allowed to continue prior to an immunity decision, [she] would be forced to participate
and the well-founded bases for non-participation where immunity is asserted would be
thwarted.” (Doc. 57. at 3). The Court agrees.
The Sixth Circuit has explained that because judicial immunity is designed to protect
judges “from the burdens of discovery” until the applicability of immunity is resolved, “the court
is further obligated, upon application, not only to refrain from proceeding to trial but to stay
discovery until that issue is decided.” Kennedy v. City of Cleveland, 797 F.2d 297, 299 (6th Cir.
1986); see also Denton v. Twyford, 142 F.R.D. 140, 141 (S.D. Ohio 1992) (holding that when
Defendant claims that “plaintiff has failed to allege acts that are outside the scope of the

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defendant’s immunity” then “discovery should be stayed until the immunity issue is decided”).
Since the immunity issue has not yet been decided by the Court, a stay is necessary. If the Court
allowed discovery to proceed as to Defendant Cooperrider, the potential protection of absolute
judicial immunity “would be substantially vitiated.” Novel v. Lowe, 2014 WL 559088, at *2
(S.D. Ohio 2014) (holding that Defendant’s immunity, “if applicable, would be ‘substantially
vitiated’ absent a stay.”).

Therefore, Defendant Cooperrider’s Motion to Stay Discovery

Directed to Judge Cooperrider will be granted.
b. Motion for Leave to File Third Amended Complaint (Doc. 58)
Rule 15(a)(2) of the Federal Rules of Civil Procedure—which Plaintiffs assert applies—
provides that when a party seeks leave of court to file an amended pleading, “[t]he court should
freely give leave when justice so requires.” This rule, which allows a liberal policy in favor of
granting amendments, “reinforce[s] the principle that cases ‘should be tried on their merits rather
than the technicalities of pleadings.’” Inge v. Rock Finan. Corp., 388 F.3d 930, 936 (6th Cir.
2004) (quoting Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986)).
Plaintiffs fail to recognize, however, that they are outside the timeframe for amendment
allowed by the Court in its December 2, 2015 Order. (Doc. 25). “Once a pleading deadline has
passed, litigants must meet the higher threshold for modifying a scheduling order found in Rule
16(b).” Shane v. Bunzl Distrib. USA, Inc., 275 Fed. Appx. 535, 536 (6th Cir. 2008). Under Rule
16, the Court must consider whether good cause exists for Plaintiffs’ failure to seek leave to
amend within the deadline, and also evaluate “the potential prejudice to the nonmovant.” Leary
v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003).

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Plaintiffs allege the new causes of action they seek to add were not discovered until a
witness testified that she destroyed documents relating to the case in a deposition on October 6,
2016. (Doc. 58 at 3). In response, Defendants do not argue against amendment, but rather focus
their argument on the fact that the new claims are “wholly unnecessary, redundant, and
unsupported by Ohio law.” (Doc. 59 at 1). The Court construes these arguments as Defendants
way of suggesting amendment is futile since Plaintiffs will ultimately fail on the merits. “At this
stage of the litigation, [however,] this Court is charged with determining whether the futility of
an amendment is so obvious that it should be disallowed.” Bear v. Delaware Cnty., Ohio, No.
2:14-CV-43, 2015 WL 1954451, at *3 (S.D. Ohio Apr. 28, 2015). The proposed amended
complaint meets this low bar and the Court finds good cause exists.
Plaintiffs argue that amendment will not prejudice Defendants because, among other
reasons, “there is no discovery deadline.” (Doc. 58 at 6). While this is incorrect since the
Court’s December 2, 2015 Order (set the discovery deadline for September 30, 2016 (Doc. 25),
the Court agrees with Plaintiffs that “little additional discovery has to be conducted on these new
issues.” (Doc. 58 at 6). Defendants do not allege any prejudice that might occur as a result of
the amendment and the limited additional discovery that may be necessary.

The Court,

therefore, does not believe Defendants will suffer substantial or unfair prejudice by virtue of the
amendment. See Leary, 349 F.3d at 906. Accordingly, Plaintiffs Motion for Leave To File
Third Amended Complaint will be gratned.
III.

CONCLUSION
For the reasons stated, Defendant’s Motion to Stay Discovery Directed to Judge

Cooperrider (Doc. 57) and Plaintiffs’ Motion for Leave to File Third Amended Complaint (Doc.

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58) are GRANTED. The Clerk is directed to file Exhibit 1 to Document 58 as the Third
Amended Complaint. Any additional discovery necessary as a result of the Third Amended
Complaint shall be completed by January 31, 2016.
IV.

MOTION TO RECONSIDER
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. See 28 U.S.C. § 636(b)(1)(A);
Fed. R. Civ. P. 72(a); 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 after. 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 Civ. R. 72.3.
IT IS SO ORDERED.

Date: December 22, 2016

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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