O'Malley v. NaphCare Inc

Filing 21

REPORT AND RECOMMENDATIONS - it is therefore ORDERED: 1) Plaintiffs motion for leave to amend (doc. 13 ) is GRANTED. 2) Plaintiff's amended complaint shall be filed on or before April 19, 2013. Additionally, the Court RECOMMENDS: 1) NaphC are's motion to dismiss Plaintiff's initial complaint (doc. 7 ) be DENIED AS MOOT, and WITHOUT PREJUDICE to refile on or before May 16, 2013. Objections to R&R due by 4/26/2013. Signed by Magistrate Judge Michael J Newman on 4/9/13. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TERESA L. O’MALLEY,
:

Case No. 3:12-cv-326

:

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Plaintiff,
vs.

NAPHCARE, INC.,

:

Defendant.

REPORT & RECOMMENDATION1 AND ORDER

This matter is presently before the Court upon two motions: (1) Defendant NaphCare
Inc.’s (“NaphCare”) motion to dismiss (doc. 7); and (2) Plaintiff’s motion for leave to file an
amended complaint (doc. 13), filed while she was proceeding pro se. Both motions, having been
fully briefed, are ripe for decision. See docs. 10, 12, 15, 18.
I. Plaintiff’s Motion for Leave to Amend
Rule 15 provides, in part, that “a party may amend its pleadings with the opposing party’s
written consent or the court’s leave.

The court should freely give leave when justice so

requires.” Fed. R. Civ. P. 15(a)(2). The decision to grant or deny leave to amend lies within the
discretion of the District Court. Foman v. Davis, 371 U.S. 178, 182 (1962). “A court need not
grant leave to amend, however, where amendment would be ‘futile.’” Miller v. Calhoun Cnty.,
408 F.3d 803, 817 (6th Cir. 2005) (quoting Foman, 371 U.S. at 182)).
Although denial of leave to amend is warranted in certain circumstances, Rule 15(a) sets
forth a “liberal policy of permitting amendments to ensure the determination of claims on their

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Attached hereto is a NOTICE to the parties regarding objections to the Court’s Report &
Recommendation contained herein.

merits.” Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987) (quoting Tefft v. Seward, 689
F.2d 637, 639 (6th Cir. 1982)). Moreover, allegations in a pro se complaint are to be construed
liberally. See, e.g., Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 2007).
Plaintiff was proceeding pro se at the time she filed her motion for leave to amend, but is
now represented by counsel.2

Plaintiff’s proposed amendment asserts additional facts and

claims, and also names additional Defendants. See doc. 13-2. However, the Court notes sua
sponte that the proposed amendment names Karina Carlisle and Gary Blair as Defendants, and
adding these parties could destroy the Court’s subject matter jurisdiction premised upon the
diversity of the parties. Ms. Carlisle and Mr. Blair both appear to work at the Montgomery
County, Ohio Jail; if either are an Ohio resident, like Plaintiff, complete diversity amongst the
parties would not exist and the Court would no longer have subject matter jurisdiction under 28
U.S.C. § 1332. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) (“diversity
jurisdiction does not exist unless each defendant is a citizen of a different State from each
plaintiff”) (emphasis in original).
Plaintiff’s proposed amendments and decision to include additional defendants were done
without the advice of her new counsel. Therefore, at this early juncture in the litigation, and
being mindful of the Rule 15(a) liberal pleading standard, it is appropriate to allow Plaintiff and
her counsel TEN DAYS in which to file a new amended complaint. NaphCare may renew its
motion to dismiss if it continues to believe Plaintiff’s amended complaint fails to state a claim.3
As such, Plaintiff’s motion for leave to amend (doc. 13) is GRANTED. Plaintiff’s amended
complaint shall be filed on or before April 19, 2013. NaphCare may file any appropriate motion
2

On March 27, 2013, counsel entered an appearance on Plaintiff’s behalf. See doc. 19.
The Court notes that Plaintiff’s original complaint, accompanied by a request to proceed in
forma pauperis, is deemed to have been filed on October 4, 2012, the date on which the Court received
the complaint. See White v. Rockafellow, No. 98-1242, 1999 U.S. App. LEXIS 8183, at *4-5 (6th Cir.
Apr. 27, 1999); Dean v. Veterans Admin. Reg’l Office, 943 F.2d 667, 671 (6th Cir. 1991).
3

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directed to the amended complaint not later than May 16, 2013. See doc. 14. Briefing on any
such motion shall be in accordance with S. D. Ohio Civ. R. 7.2.
II. NaphCare’s Motion to Dismiss Plaintiff’s Initial Complaint
An amended complaint supersedes the original pleading, thus rendering motions to
dismiss moot. Yates v. Applied Performance Techs., Inc., 205 F.R.D. 497, 499 (S.D. Ohio 2002).
Consequently, the Court RECOMMENDS that NaphCare’s pending motion to dismiss (doc. 7)
be DENIED AS MOOT since it is addressed to a pleading which is no longer operative.
NaphCare’s motion should be DENIED WITHOUT PREJUDICE and subject to renewal, if
appropriate, for the reasons more fully set forth above.
III. Order and Recommendation
Based upon the foregoing, it is therefore ORDERED:
1) Plaintiff’s motion for leave to amend (doc. 13) is GRANTED; and
2) Plaintiff’s amended complaint shall be filed on or before April 19, 2013.
Additionally, the Court RECOMMENDS:
1) NaphCare’s motion to dismiss Plaintiff’s initial complaint (doc. 7) be
DENIED AS MOOT, and WITHOUT PREJUDICE to refile on or before
May 16, 2013.
April 9, 2013

s/ Michael J. Newman
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after being served
with this Report and Recommendation.

Pursuant to Fed. R. Civ. P. 6(d), this period is

automatically extended to seventeen days because this Report is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(B), (C), or (D) and may be extended further
by the Court on timely motion for an extension. Such objections shall specify the portions of the
Report & Recommendation objected to and shall be accompanied by a memorandum in support
of the objections. If the Report & Recommendation is based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party’s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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