Ross v. Teleperformance USA Inc et al

Filing 21

ORDER - IT IS THEREFORE ORDERED THAT: 1. Plaintiff Keesya D. Ross Motion to Amend Complaint (Doc. 9 ) is DENIED as moot; 2. Plaintiff shall file her revised First Amended Complaint with the Court on or before June 14, 2013;3. Defendants Motion for E xtension of Time to File Answer (Doc. 15 ) isDENIED as moot; 4. Defendants Motion to Strike Plaintiffs Application to Enter Default Judgment (Doc. 20 ) is GRANTED; and, 5. The case remains pending on the docket of this Court. Signed by Magistrate Judge Sharon L Ovington on 5/16/2013. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KEESYA D. ROSS,
Plaintiff,

:

TELEPERFORMANCE USA,
INC., et al.,

Case No. 3:13cv00038

:

vs.

:

District Judge Timothy S. Black
Chief Magistrate Judge Sharon L. Ovington

:
:

Defendants.
:

ORDER

On February 6, 2013, Plaintiff Keesya D. Ross brought this case pro se against her
former employer, TPUSA, Inc. (d.b.a. Teleperformance USA), and many of her former
fellow employees, supervisors, or managers. Plaintiff submitted a copy of the Notice of
Right to Sue she received from the United States Equal Employment Opportunity
Commission. (Doc. #2 at 40).
After granting Plaintiff’s Application to Proceed in forma pauperis, the Court
conducted a sua sponte review of Plaintiff’s Complaint to determine whether it, or any
portion of it, should be dismissed because it is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a named defendant who
is immune from such relief. (Doc. #4). On February 13, 2013, the undersigned issued an
Amended Report and Recommendations (Doc. #4) recommending dismissal of Plaintiff’s

Title VII claims against Defendants Mynette Murrell, Troy Naboors, Brian Harris, Brian
Throckmorton, Calbert Duvall, Charles Tyree, Janette Jack, and Chris Stewart. (See
Docs. ##4, 7). No other claims set forth in Plaintiff’s Complaint were recommended to
be dismissed. On March 8, 2013, District Judge Timothy S. Black adopted the Amended
Report and Recommendations and dismissed Plaintiff’s Title VII claims as to Defendants
Murrell, Naboors, Harris, Throckmorton, Duvall, Tyree, Jack and Stewart. (Doc. #7 at 12).
On March 13, 2013, Plaintiff filed a Motion to Amend her Complaint (Doc. #9).
In this Motion, Plaintiff cites to Fed. R. Civ. P. 15(a)(1) and requests leave to file her
“First Amended Complaint and Demand for Jury Trial” (Doc. #9-1), as well as attached
Exhibits D, E, G, H, and I.1 (Docs. ## 9-2 to 9-6). Defendants were served with a copy
of Plaintiff’s original Complaint by the United States Marshals Service on April 17, 2013,
(Doc. #13), and subsequently filed a Motion for Extension of Time to Answer (Doc. #15)
on May 9, 2013. Plaintiff filed a Response in Opposition on May 10, 2013 (Doc. #16), as
well as an Application to Clerk for Entry of Default against Defendants Murrell, Tyree,
Throckmorton, Naboors, and Stewart. (Doc. #17). Defendant Teleperformance thereafter
filed a Reply to Plaintiff’s Response in Opposition (Doc. #18), as well as a Motion to
Strike Plaintiff’s Application to enter Default Judgment (Doc. #20). This case is
presently before the Court upon the above-referenced motions.

1

Plaintiff did not attach an exhibit marked as “Exhibit F.”

2

Turning first to Plaintiff’s Motion to Amend her Complaint (Doc. #9), the Court
notes Plaintiff is correct that, pursuant to Fed. R. Civ. P. 15(a)(1), she may still amend her
Complaint as a matter of course. Plaintiff, however, did not need to seek leave to do so,
and accordingly, her motion requesting leave be provided is moot. See Broyles v.
Correctional Medical Servs., Inc., 2009 U.S. App. LEXIS 5494, *3-4 (6th Cir. 2009)
(finding district court erred by striking plaintiff’s amended complaint because plaintiff
had an “absolute right” to amend the complaint once as a matter of course).
Instead of directing the Clerk of Court to docket Plaintiff’s “First Amended
Complaint and Demand for Jury Trial,” as well as Exhibits D, E, G, H, and I (Docs. #9-2
to 9-6), at this time, the Court believes all parties, as well as the Court’s administration of
this case, would greatly benefit by providing Plaintiff, proceeding pro se, with the
opportunity to clarify and restructure certain portions of what is presently attached, but
not yet filed as, her “First Amended Complaint and Demand for Jury Trial.” (Doc. #9-2).
Specifically, Plaintiff should revise her “First Amended Complaint and Demand
for Jury Trial” so that allegations incorporated only by reference to her original
Complaint (Doc. #2) are removed. In other words, if Plaintiff wishes to include an
allegation from her original Complaint in her First Amended Complaint, she should
restate that allegation in her First Amended Complaint. There should not be references
back to the original Complaint (Doc. #2) Plaintiff seeks to replace. Plaintiff likewise
should appropriately label and re-attach all exhibits she wishes to file with her revised
Amended Complaint.
3

In order for Defendants to be able to properly (and promptly) respond to Plaintiff’s
allegations, Plaintiff should also clarify exactly which claims she is raising against which
Defendants. She is further instructed that she is not permitted to use her Amended
Complaint to again raise claims against Defendants that were previously dismissed by this
Court. See Doc. #7 (dismissing Plaintiff’s Title VII claims against Defendants Murrell,
Naboors, Harris, Throckmorton, Duvall, Tyree, Jack and Stewart). To the extent Plaintiff
seeks to add additional defendants in this matter, she is also reminded it is her
responsibility to take the proper steps to effect timely service of summons and her
Complaint upon such parties.
Upon completion of her desired revisions, Plaintiff may then simply file her
revised First Amended Complaint without the need to seek leave of court to do so.
Again, Plaintiff should note that she is only permitted to amend her Complaint once as a
matter of course, see Fed. R. Civ. P. 15(a)(1), and therefore should use this opportunity to
ensure her revised First Amended Complaint is as clear and concise as possible before
filing with this Court. Making the changes recommended in this Order will assist her in
meeting this objective. Absent an extension of time, Defendants will thereafter respond
to Plaintiff’s revised First Amended Complaint within 14 days after service occurs. See
Fed. R. Civ. P. 15(a)(1)(B)(3).
Due to the anticipated filing of Plaintiff’s revised First Amended Complaint,
Defendant Teleperformance’s Motion for Extension of Time (Doc. #15) and Plaintiff’s
Application to Clerk for Entry of Default against Murrell, Tyree, Throckmorton, Naboors,
4

and Stewart (Doc. #17) are moot. Defendant Teleperformance’s Motion to Strike
Plaintiff’s Application to Clerk for Entry of Default (Doc. #20) is therefore well taken.
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff Keesya D. Ross’ Motion to Amend Complaint (Doc. #9) is
DENIED as moot;

2.

Plaintiff shall file her revised First Amended Complaint with the Court on
or before June 14, 2013;

3.

Defendants’ Motion for Extension of Time to File Answer (Doc. #15) is
DENIED as moot;

4.

Defendants’ Motion to Strike Plaintiff’s Application to Enter Default
Judgment (Doc. #20) is GRANTED; and,

5.

The case remains pending on the docket of this Court.

May 16, 2013
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

5