Boxill et al v. O'Grady et al
OPINION AND ORDER granting 29 Plaintiffs' Motion for Leave to File First Amended Complaint within seven days and granting 31 Motion to Set a Case Management Conference. Signed by Magistrate Judge Terence P. Kemp on 3/29/2017. (er)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Andrea Boxill, et al.,
Case No. 2:16-cv-126
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
James P. O’Grady, et al.,
OPINION AND ORDER
This matter is before the Court on plaintiff Andrea Boxill’s
motion for leave to file a first amended complaint.
James P. O’Grady, Carrie Glaeden, James E. Green, Emily Shaw,
Judge Michael T. Brandt, and the Franklin County Municipal Court
have filed a response.
No reply has been filed and the motion is
now ripe for decision.
For the following reasons, the motion for
leave to amend will be granted.
Ms. Boxill and her co-plaintiff Teresa Barry filed this
civil rights action on February 10, 2016, alleging various claims
including a First Amendment retaliation claim and a claim for the
denial of their Equal Protection rights.
Both plaintiffs were
employed in some capacity by the Franklin County Municipal Court.
Prior to filing this action, Ms. Barry filed her own complaint in
Case No. 2:14-cv-2693 against some of the same defendants named
in this case including Mr. O’Grady, Ms. Glaeden, Mr. Green, and
Ms. Shaw and alleging First Amendment retaliation.
In the current case, plaintiffs filed an amended complaint
without defendants’ consent or leave of Court on May 17, 2016.
The Court struck this filing by Opinion and Order dated October
See Doc. 27.
In doing so, the Court stated
Any motion for leave to file, or stipulate-to
Amended Complaint, shall be filed by November 10, 2016.
In drafting a proposed amended complaint, Plaintiff
shall take into consideration Judge Sargus’s discussion
of the propriety of continued litigation of identical
claims advanced by Plaintiff Barry in Barry v. O’Grady,
et al. See ECF No. 111 in Case No. 2:14-cv-2693. To
that end, any motion for leave to file an amended
complaint in this case shall specifically discuss
whether the proposed amended complaint has dropped
those identical claims.
Consistent with the Court’s previous order, Ms. Boxill filed her
motion for leave to amend on November 2, 2016.
Motion for Leave to Amend
In her motion, Ms. Boxill explains that the proposed first
amended complaint seeks to remove Ms. Barry as a named plaintiff
and the Franklin County Municipal Court as a defendant.
this, she states that her purpose in seeking to amend is to make
modest pleading changes relating to her claims, including
specifically “a more specific time line and nature of
According to Ms. Boxill, she sought defendants’
consent to the filing but they declined without specifics.
Based on their response to the motion, defendants’
objections can be characterized as follows.
First, they disagree
that the filing of an amended complaint under Rule 15 was the
proper vehicle to dismiss Ms. Barry’s claims in this case and
suggest that a properly signed notice of voluntary dismissal
under Rule 41 was more appropriate.
Further, they assert that,
if the intention of the proposed amendment is to withdraw Ms.
Barry’s claims, the language of the proposed amended complaint
continues to read as if Ms. Barry is a plaintiff.
this, they contend that Ms. Boxill’s request to make modest
pleading changes is untimely.
Turning first to defendants’ procedural argument, “Rule 41
does not speak to dismissal of claims, and an amendment pursuant
to Rule 15 is the appropriate way to dispose of fewer than all
claims against a defendant.
See Mgmt. Investors v. United Mine
Workers of Am., 610 F.2d 384, 394-95 (6th Cir. 1979).”
City of Detroit, 217 Fed.Appx. 491, 496 (6th Cir. 2007).
“However, it is not unusual for motions styled as Rule 41 motions
or motions to dismiss to be construed as Rule 15 motions for
leave to amend.”
Id. at 497, citing Gronholz v. Sears, Roebuck &
Co., 836 F.2d 515, 518 (Fed.Cir. 1987); Wakefield v. Northern
Telecom, Inc., 769 F.2d 109, 114 (2d Cir. 1985).
As this Court
has previously stated:
A request to withdraw an existing count of a complaint
as part of a motion to amend overlaps conceptually with
the provisions of Rule 41(a)(2), which requires the
permission of the court, or a stipulation, to dismiss a
complaint after an answer to the complaint has been
filed. As explained by the court in Innovation
Ventures, LLC v. N2G Distributing, Inc., 2009 WL
6040220, *2 (E.D. Mich. July 10, 2009)
The discretion to allow a party to withdraw a
count in a complaint as part of a motion to amend
appears to have similar limits to the discretion
of the court to reach the same conclusion under
Rule 41. Rule 41 does include the discretion to
dismiss a matter with prejudice and that is not an
See also Chambers v. Time Warner, Inc., 2003 WL
1107790, at *2 (S.D.N.Y. March 12, 2003) (“[A] Rule
15(a) amendment eliminating a claim is the same as a
Rule 41(a) voluntary dismissal of the claim” and is
subject to the same standard of review.); 6 Charles
Alan Wright et al., Federal Practice and Procedure §
1479 (2012) (“[T]he same considerations are relevant to
dropping [a] claim regardless of which rule [41(a) or
15(a)] is invoked.”).
Within the context of Rule 41(a)(2), an “abuse of
discretion is found only where the defendant would
suffer ‘plain legal prejudice’ as a result of a
dismissal without prejudice.” Bridgeport Music, Inc.
v. Universal-MCA Music Publ’g., Inc., 583 F.3d 948, 953
(6th Cir. 2009) quoting Grover by Grover v. Eli Lilly
and Co., 33 F.3d 716, 718 (6th Cir. 1994). In
considering whether prejudice would result, courts look
to such factors as “‘the defendant’s efforts and
expense of preparation for trial, excessive delay and
lack of diligence on the part of the plaintiff in
prosecuting the action, insufficient explanation for
the need to take a dismissal, and whether a motion for
summary judgment has been filed by the defendant.’”
Id. quoting Grover at 718.
Greene v. Ab Coaster Holdings, Inc., 2012 WL 2342927, *7 (S.D.
Ohio June 20, 2012).
As the above discussion illustrates, the Court’s analysis
will be the same with respect to the current motion regardless of
the procedural vehicle employed.
However, because Ms. Boxill is
not seeking to dismiss the entire action, the Court will apply
the standard applicable to motions for leave to amend.
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
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
[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
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
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
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.
It is with
these standards in mind that the instant motion to amend will be
The parties’ dispute does not warrant much discussion.
the extent that defendants raise any significant objection to the
proposed first amended complaint, their concerns arise from Ms.
Boxill’s apparent failure to remove from the proposed amended
complaint all references to Ms. Barry as a plaintiff and all
allegations relating to the claims that she currently is pursuing
through her independent action.
Specifically, defendants cite
the caption, and Paragraphs 25, 27, 30, 34, and 53 as either
expressly identifying Ms. Barry as “Plaintiff” or indicating the
Further, they cite Paragraphs 18 through
21, 24 through 30, 32 through 36, 42 and 45 as referring
individually to Ms. Barry and reiterating Ms. Barry’s allegations
in Case No. 14-cv-2693.
The Court agrees from its review of the proposed amended
complaint that this information has not been deleted consistent
with Ms. Boxill’s intent as explained in her motion or the
Court’s previous discussion.
This can be easily remedied,
however, and the Court does not find it a sufficient reason for
denying Ms. Boxill leave to amend her complaint.
Court will not permit Ms. Boxill to file her amended complaint as
Instead, she will be directed to file a first amended
complaint consistent with the representations in her motion with
specific attention to deleting the information noted above.
With respect to the issue of “modest pleading changes” or
“refinements of the facts pleaded” cited by Ms. Boxill as the
secondary purpose of the proposed amended complaint, she does not
identify such changes other than to note Paragraphs 40 and 41.
Defendants have not objected to any specific changes, having
limited their objection to what they perceive as Ms. Boxill’s
delay in seeking to make them.
In light of the liberal standard
of Rule 15 and the fact that no deadline for amending the
complaint has been set, the Court finds defendants’ arguments
Moreover, defendants have not cited to any
prejudice they will suffer if these amendments are allowed.
Consequently, the motion for leave to amend will not be denied on
V. Motion to Set Case Management Conference
Ms. Boxill also has moved for a preliminary pretrial
conference to be scheduled in this case, indicating that she is
ready to undertake discovery.
Defendants have not objected to
the motion to the extent it seeks to schedule a conference.
Rather, they contend that, given their motion to dismiss Ms.
Boxill’s claims on grounds of qualified immunity, they should not
be subjected to discovery prior to a ruling on their motion.
Despite their opposition, defendants have not moved to stay
Moreover, that is an issue to be addressed separately
from scheduling a pretrial conference.
Boxill’s motion will be granted.
Based on the foregoing, the motion for leave to file a first
amended complaint (Doc. 29) is granted.
Plaintiff shall file a
first amended complaint consistent with this order within seven
The motion to set a case management conference (Doc. 31)
The Clerk shall schedule a preliminary pretrial
conference for a date approximately five weeks from the date of
MOTIONS 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,
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
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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