O'Malley v. NaphCare Inc

Filing 48

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO CORRECT AND ADD AFFIDAVIT (DOC. 47 ). Signed by Magistrate Judge Michael J Newman on 05/19/14. (pb1)

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

Case No.: 3:12-cv-326

vs.
NAPHCARE, INC., et al.,

Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
CORRECT AND ADD AFFIDAVIT (DOC. 47)
This is a civil case for which Plaintiff has been afforded multiple opportunities to amend
her complaint. In response to Plaintiff’s third amended complaint, Defendants have filed a
motion to dismiss. Doc. 42. This dispositive motion has been fully briefed, and is now before
the Court for review and decision. Subsequent to the briefing on the motion to dismiss, Plaintiff
now moves to correct a clerical error in her memorandum in opposition and also to add an
affidavit of an individual, Juahara Devon Kniess. Doc. 47. In the motion, Plaintiff’s counsel
advises the Court that Defendants consent to the correction of the clerical error but challenge the
appropriateness of including the Kniess affidavit in the Court’s consideration of the pending
motion to dismiss. Id. at PageID 434.
For good cause shown, Plaintiff’s motion is GRANTED with respect to the correction of
the clerical error, and her memorandum in opposition is SO AMENDED. Recognizing, on the
other hand, that the dismissal motion before the Court was filed under Rule 12(b)(6), and that
documents attached to a memorandum in opposition may not be considered in a 12(b)(6) review,
see Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008), Plaintiff’s
request to add the affidavit is DENIED.

IT IS SO ORDERED.
May 19, 2014

s/ Michael J. Newman
United States Magistrate Judge