Cooper v. Sheriff's Office et al

Filing 72

ORDER AND ENTRY: (1) GRANTING PLAINTIFFS MOTION FOR LEAVE (DOC. 69 ); (2) DIRECTING PLAINTIFF TO SEPARATELY FILE THE SECOND AMENDED COMPLAINT WITHIN SEVEN DAYS; AND (3) DIRECTING PLAINTIFFS COUNSEL TO SHOW CAUSE AS TO WHY SANCTIONS SHOULD NOT ISSUE. REPORT AND RECOMMENDATION1 THAT DEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. 68 ) BE DENIED AS MOOT. Signed by Magistrate Judge Michael J. Newman on 8/11/15. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVID O. COOPER,
Plaintiff,

Case No. 3:13-cv-272

vs.
MONTGOMERY COUNTY, OHIO
SHERIFF’S DEPARTMENT, et al.,

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

Defendants.

ORDER AND ENTRY: (1) GRANTING PLAINTIFF’S MOTION FOR LEAVE (DOC. 69);
(2) DIRECTING PLAINTIFF TO SEPARATELY FILE THE SECOND AMENDED
COMPLAINT WITHIN SEVEN DAYS; AND (3) DIRECTING PLAINTIFF’S COUNSEL TO
SHOW CAUSE AS TO WHY SANCTIONS SHOULD NOT ISSUE
***********************************
REPORT AND RECOMMENDATION1 THAT DEFENDANTS’ MOTION FOR JUDGMENT
ON THE PLEADINGS (DOC. 68) BE DENIED AS MOOT

This civil case is presently before the Court on Defendants’ renewed motion for judgment on
the pleadings. Doc. 68. Plaintiff filed a memorandum in opposition to Defendants’ motion. Doc.
70. Plaintiff also moves for leave to file a second amended complaint (doc. 69), which Defendant
opposes (doc. 71). The Court has carefully considered each of these documents and the motions are
now ripe for decision.
Defendants previously filed a motion for judgment on the pleadings on February 26, 2016.
Doc. 52. Despite seeking two extensions of time to respond to the motion for judgment on the
pleadings (docs. 55, 57), Plaintiff -- who at that time was pro se -- failed to file any

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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

opposition and, instead, sought to file a proposed second amended complaint (doc. 58). Following
Plaintiff’s pro se motion for leave to file the proposed second amended complaint, counsel entered an
appearance on Plaintiff’s behalf. See doc. 62. In light of that notice of appearance, the undersigned
granted Plaintiff leave to file a separate second amended complaint drafted by counsel on or before
July 1, 2015. Doc. 65.
Plaintiff’s counsel, however, did not file the second amended complaint on or before July 1,
2015. Further, Plaintiff’s counsel never requested an extension of time to so file. Instead, on July
16, 2015, Plaintiff sought leave to file the second amended complaint. Doc. 69. In the interests of
justice, and for good cause shown, the Court GRANTS Plaintiff’s motion for leave. Doc. 69.
Plaintiff is ORDERED to separately file the second amended complaint within seven (7) days from
the entry of this Order.
Because Plaintiff’s counsel failed to filed the second amended complaint prior to July 1st as
ordered, or seek an extension of time to so file before expiration of that deadline -- and given that,
based upon such failure, Defendants filed the renewed motion for judgment on the pleadings on July
7, 2015 (doc. 68) -- the Court ORDERS Plaintiff’s counsel to SHOW CAUSE, in writing, and
within fourteen (14) days, as to why counsel should not be ordered to reimburse the reasonable
attorney’s fees incurred by Defendants in preparing and filing the renewed motion.
Finally, because Defendants’ motion for judgment on the pleadings is directed to Plaintiff’s
first amended complaint, the undersigned RECOMMENDS that Defendants’ motion (doc. 68) be
DENIED AS MOOT. See Laning v. Doyle, No. 3:14-cv-24, 2014 WL 2805240, at *2 (S.D. Ohio
June 20, 2014) (Rice, J.).

Date:

August 11, 2015

s/ Michael J. Newman
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 extended to

SEVENTEEN days because this Report and Recommendation is being served by one of the methods
of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be extended further by the
Court on timely motion for an extension. Such objections shall specify the portions of the Report
and Recommendation objected to, and shall be accompanied by a memorandum of law in support of
the objections. If the Report and 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. As is made clear
above, this period is likewise extended to SEVENTEEN days if service of the objections is made
pursuant to Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Failure to make objections in accordance
with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985);
United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

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