Rushing v. Shelby County Schools

Filing 55

ORDER striking (40) motion for leave to file amended complaint; granting (48) motion to consolidate cases; denying as moot (9) motion to dismiss; denying as moot (25) motion to reset/extend deadlines; and adopting (42) Report and Recommendations re m otion for TRO and denying (27) motion for TRO in case 2:16-cv-02662-SHM-cgc; denying as moot (7) motion to dismiss in case 2:17-cv-02331-SHM-cgc and administratively closing case 2:17-cv-02331-SHM-cgc. Signed by Judge Samuel H. Mays, Jr on 08/07/2017. Associated Cases: 2:16-cv-02662-SHM-cgc, 2:17-cv-02331-SHM-cgc(Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

TAMMY RUSHING,
Plaintiff,
v.
SHELBY COUNTY SCHOOL SYSTEM,
Defendant.

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No. 2:16-cv-02662-SHM

ORDER

Before the Court are five motions.

First, on September 8,

2016, Defendant Shelby County School System1 (“SCSS”) filed a motion to dismiss in part the Complaint filed by Plaintiff Tammy
Rushing (the “Partial Motion to Dismiss”).

(Mot. to Dismiss

Pl.’s Title VII Claim and Mem. of Law in Supp. of Def.’s Partial
Mot. to Dismiss, ECF No. 9.)

On December 9, 2016, Rushing filed

a response to the Partial Motion to Dismiss (the “Response to
Partial Motion to Dismiss”).

(Pl.’s Resp. to Def.’s Mot. to

Dismiss Pl.’s Title VII Claim, ECF No. 24.)

SCSS has not filed

a reply in support of the Partial Motion to Dismiss, and the
time to do so has passed.
1

L.R. 12.1(c).

SCSS has represented that Rushing has incorrectly identified
the proper defendant in this action, and that the proper defendant is the Shelby County Board of Education.
(See, e.g., Mot.
to Dismiss 1 n.1.) Following the caption in the Complaint, the
Court will refer to the defendant as SCSS.

Second, on April 4, 2017, Rushing filed a motion seeking to
reset or extend all existing case deadlines (the “Deadline-Reset
Motion”).

(Pl.’s Mot. to Reset/Extend All Deadlines, Mem. in

Supp., and Certificate of Consultation, ECF No. 25.)

SCSS filed

a response to the Deadline-Reset Motion (the “Deadline-Reset Response”) on April 17, 2017.

(Def. Shelby Cty. Bd. of Educ.’s

Resp. in Opp’n to Pl.’s Mot to Reset/Extend All Deadlines, ECF
No. 31.)

Rushing filed a reply in support of the Deadline-Reset

Motion (the “Deadline-Reset Reply”) on May 1, 2017.

(Pl.’s Re-

ply to Def.’s Resp. in Opp’n to Pl.’s Mot. to Reset/Extend All
Deadlines, ECF No. 39.)
Third, on April 13, 2017, Rushing filed a motion requesting
a temporary restraining order (the “TRO Motion”).

(Pl.’s Mot.

for TRO, Mem. in Supp., and Cert. of Consultation, ECF No. 27.)
The Court referred the TRO Motion to Magistrate Judge Charmiane
Claxton on April 14, 2017.

(Order of Reference, ECF No. 28

(“TRO Order of Reference”).)

SCSS filed a response to the TRO

Motion (the “TRO Response”) on April 18, 2017.

(Def. Shelby

Cty. Bd. of Educ.’s Resp. in Opp’n to Pl.’s Mot. for TRO, ECF
No. 32.)

Magistrate Judge Claxton held a hearing on the TRO Mo-

tion on April 18, 2017.
(“TRO Hr’g Minutes”).)

(See, e.g., Minute Entry, ECF No. 34
On May 12, 2017, Magistrate Judge Clax-

ton issued a report and recommendation addressing the TRO Motion
(the “Report”).

(R. & R., ECF No. 42.)

2

Neither party has filed

objections to the Report, and the time to do so has passed.
(See, e.g., id. at 7 (setting deadline for objections).)
Fourth, on May 11, 2017, Rushing filed a motion for leave
to file an amended complaint.

(Pl.’s Mot. for Leave to File

Proposed Am. Compl., ECF No. 40 (“Mot. for Leave”); see also
Pl.’s

Proposed

Compl.”).)

Am.

Compl.,

ECF

No.

40-1

(“Proposed

Am.

On May 17, 2017, Rushing filed a notice that she was

striking the Motion for Leave.

(Notice Striking Mot. for Leave

to Amend, ECF No. 43 (“Amendment-Mot. Notice”).)

SCSS has not

filed a response to the Motion to Leave, and the time to do so
has passed.

L.R. 7.2(a)(2).

Fifth, on June 9, 2017, Rushing filed a motion (the “Consolidation Motion”) to consolidate this action with a second action filed in this Court, Case No. 2:17-cv-02331.

(Pl.’s Mot.

for Consolidation, Mem. in Supp., and Certificate of Consultation, ECF No. 48.)

SCSS filed a response to the Consolidation

Motion (the “Consolidation Response”) on June 23, 2017.

(Def.

Shelby Cty. Sch. Sys.’s Resp. to Pl.’s Mot. for Consolidation,
ECF No. 54.)
For

the

following

reasons,

the

Motion

for

Leave

is

STRICKEN, the Consolidation Motion is GRANTED, the Motion to
Dismiss is DENIED as moot, the Deadline-Reset Motion is DENIED
as moot, the Report is ADOPTED, and the TRO Motion is DENIED.

3

I.

BACKGROUND
Rushing filed the Complaint on August 12, 2016.

plaint

makes

numerous

allegations

about

Rushing’s

The Comemployment

with SCSS during the 2015–16 school year, when Rushing worked at
Treadwell Middle School in Memphis.

(See generally Compl. ¶¶ 9–

41.)
The Complaint asserts three causes of action.
52.)

(Id. ¶¶ 42–

Count One alleges that SCSS “intentionally[,] willfully

and knowingly discriminated against [Rushing] . . . based upon
unlawful disability discrimination in violation of the Americans
with Disabilities Act of 1990 [(“ADA”)] . . . and in violation
of Title VII . . . .”

(Id. ¶ 43.)

Count Two asserts that Rush-

ing has a cause of action pursuant to 42 U.S.C. § 1983 based on
a deprivation of her Fourteenth Amendment due-process rights.
(Id. ¶ 47.)

Count Three asserts that SCSS is liable “for retal-

iatory discharge and intentional employment discrimination” pursuant to section 50-1-304 of the Tennessee Code.

(Id. ¶ 49.)

SCSS filed the Partial Motion to Dismiss on September 8,
2016.

SCSS filed its answer to the Complaint the same day.

(Answer and Affirmative Defenses, ECF No. 8.)
On December 7, 2016, the Court held a scheduling conference
and entered a scheduling order after consulting with the parties.

(See, e.g., Scheduling Order, ECF No. 23 (“December

Scheduling Order”).)

2016

In relevant part, the scheduling order set

4

a deadline of January 31, 2017, for the parties to amend their
pleadings and join parties; a deadline of April 1, 2017, for
Rushing to disclose her expert witnesses; a deadline of June 14,
2017, to complete discovery; a deadline of August 17, 2017, to
file any dispositive motions; and a trial date of January 16,
2018.

(Id. at 1–2.)

On December 9, 2016, Rushing filed the Re-

sponse to Partial Motion to Dismiss.
Rushing filed the Deadline-Reset Motion on April 4, 2017.
In relevant part, Rushing says that she has “just received a
right to sue on [a] second EEOC charge,” that she needs to amend
the Complaint, and that amendment would “require a new Scheduling Order” altering the remaining case deadlines.

(Deadline-

Reset Mot. ¶¶ 7–8.)
On April 13, 2017, Rushing filed the TRO Motion.
Motion makes various allegations about SCSS conduct.
¶¶ 6–29; see also Rep. 2–4 (summarizing allegations).)

The TRO
(TRO Mot.
The TRO

Motion seeks “a temporary restraining order, restraining and enjoining [SCSS] and any of [SCSS’s] employees from contacting
[Rushing]

in

any

way . .

.

until . . .

[Rushing’s]

treatment

provider finds she has sufficiently recovered to return from
FMLA leave to her place of employment.”

(TRO Mot. 9.)

The

Court referred the TRO Motion to Magistrate Judge Claxton on
April 14, 2017.

(TRO Order of Reference.)

5

On April 17, 2017, SCSS filed the Deadline-Reset Response.
On April 18, 2017, SCSS filed the TRO Response.

The same day,

Magistrate Judge Claxton held a hearing on the TRO Motion.
Hr’g Minutes.)

(TRO

On May 1, 2017, Rushing filed the Deadline-Reset

Reply.
On May 11, 2017, Rushing filed the Motion for Leave.

The

Motion for Leave represents that Rushing filed a (second) EEOC
charge on December 14, 2016, and that she received a right-tosue letter addressing that charge on February 13, 2017.
for Leave ¶ 2.)

(Mot.

The Motion states that Rushing “desires to

amend her original Complaint to include the second charge and
other related causes of action.”

(Id. ¶ 3.)

Rushing’s Proposed Amended Complaint is attached to the Motion for Leave.

Paragraphs 12 through 78 of the Proposed Amend-

ed Complaint contain allegations about the 2015–16 school year.
(Proposed Am. Compl. ¶¶ 12–78.)

Those paragraphs repeat many of

the factual allegations made in the Complaint, but they include
additional allegations about the 2015–16 school year.
id. with Compl. ¶¶ 9–41.)

(Compare

The Proposed Amended Complaint also

contains more than three hundred paragraphs of allegations about
the 2016–17 school year (Proposed Am. Compl. ¶¶ 79–419), during
which Rushing worked at the A.B. Hill Elementary School in Memphis (id. ¶ 79).

The Proposed Amended Complaint names an addi-

6

tional defendant: Dr. Angela Brown, the principal at A.B. Hill
Elementary School during the 2016–17 school year.

(Id. ¶ 3.)

The Proposed Amended Complaint asserts twelve causes of action.

(See generally id. ¶¶ 429–64.)

Counts One, Two, and

Three in the Proposed Amended Complaint restate Counts One, Two,
and Three in the Complaint.
¶¶ 42–52.)

(Compare id. ¶¶ 429–39 with Compl.

Count Four alleges a claim under Title VII based on

a second charge of discrimination that Rushing filed with the
Equal
2016.

Employment

Opportunity

Commission

(“EEOC”)

in

December

Rushing alleges that SCSS “has intentionally interfered”

with her rights under the Family Medical Leave Act (“FMLA”),
“has intentionally discriminated against [her] . . . based on
disability discrimination,” has retaliated against her for engaging in protected activities, and has “subjected [her] to a
hostile environment on a daily basis.”

(Proposed Am. Compl.

¶¶ 441–43.)
Count Five asserts that Rushing has a cause of action pursuant to 42 U.S.C. § 1983 based on SCSS’s allegedly depriving
her of “constitutionally guaranteed rights to due process under
the Fourteenth Amendment.”2

(Id. ¶ 445.)

2

Count Six asserts that

The relationship between this § 1983 claim and the § 1983 claim
in Count Two is unclear.
Count Two asserts that Rushing “has
lost her job” and that she “had property rights to her job.”
(Proposed Am. Compl. ¶ 434.) Count Five appears to be more expansive. It states that SCSS denied Rushing
7

SCSS

violated

(“IDEA”).

the

Individuals

(Id. ¶ 447.)

with

Disabilities

Act

of

1975

Count Seven asserts that SCSS violated

Section 504 of the Rehabilitation Act of 1983.

(Id. ¶ 448.)

Count Eight asserts that SCSS violated the FMLA.

(Id. ¶¶ 451–

53.)

Counts Nine and Ten assert that SCSS is liable to Rushing

under sections 49-2-301(b)(1)(H) and 49-2-301(b)(1)(BB) of the
Tennessee Code.

(Id. ¶¶ 455, 457.)

Count Eleven asserts that

SCSS violated section 50-1-304 of the Tennessee Code, a part of
the Tennessee Public Protection Act.

(Id. ¶¶ 459–60.)

Count

Twelve asserts a claim against SCSS and Brown for intentional
and negligent infliction of emotional distress.

(Id. ¶¶ 462–

64.)
On May 12, 2017, Magistrate Judge Claxton entered the Report addressing the TRO Motion.
Motion be denied.

She recommended that the TRO

(Report 7.)

her right to due process including but not
limited to: termination of her tenure without notice and opportunity to be heard, conducting
disciplinary
“hearings”
without
adequate notice . . . , and allowing said
“hearings” to exceed the initial scope of
said “hearings,” and allowing the hearing
officer to investigate further, including
interviewing witnesses after the conclusion
of said “hearings,” without notice and opportunity for Plaintiff to be present and to
cross examine said witnesses.
(Id. ¶ 445.)
8

The same day, Rushing commenced a new action.
No. 1 in 17-02331 (“Compl. in 17-02331”).)3

(Compl., ECF

The complaint in

Case No. 17-02331 is similar to the Proposed Amended Complaint,
with two major differences.

First, Paragraphs 19 through 57 of

the Proposed Amended Complaint, alleging various facts about the
2015–16 school year, do not appear in the complaint in Case No.
17-02331.

Second, Counts One through Three of the Proposed

Amended Complaint do not appear in the complaint in Case No. 1702331.

For all practical purposes, the complaint in Case No.

17-02331 is an attempt to assert in a new complaint the claims
associated

with

the

events

underlying

Rushing’s

second

EEOC

charge.
On May 17, 2017, Rushing filed a Notice Striking Motion for
Leave to Amend.

(Amendment-Mot. Notice.)

The notice states

that Rushing’s Proposed Amended Complaint in this action is unnecessary because Rushing “has filed a second and separate Complaint” in Case No. 17-02331.
On

(Id.)

June 9, 2017, SCSS and Brown filed a motion seeking

partial dismissal of the complaint in Case No. 17-02331 and additional time to answer the rest of that complaint.

(Mot. and

Mem. of Facts and Law in Supp. of Defs.’ Mot. to Dismiss Pl.’s
Title VII and IDEA Claims Pursuant to Fed. R. Civ. P. 12(b)(6)
3

References to “17-02331” are to filings in Rushing v. Shelby
County School System, Case No. 2:17-cv-02331 (W.D. Tenn.).
9

and

to

Extend

the

Time

to

Respond

to

the

Remainder

of

the

Compl., ECF No. 7 in 17-02331 (“Partial Mot. to Dismiss 17-02331
Compl.”).)
tion.

The same day, Rushing filed the Consolidation Mo-

Invoking Rule 42(a),4 that motion seeks consolidation of

this case and Case No. 17-02331 “for all purposes.”
tion Mot. ¶ 7.)

(Consolida-

Rushing asks the Court “to merge the cases,

such that briefings and rulings may apply to both cases, and
there will be one trial, not two.”

(Id.)

On June 14, 2017, after a request by Rushing, the Court
held a status conference.

(Minutes, ECF No. 51; see also Pl.’s

Mot. for Extension of Discovery and All Other Deadlines 2, ECF
No. 49 (requesting status conference).)

After that conference,

the Court entered an Amended Scheduling Order.
(“June 2017 Scheduling Order”).)

(ECF No. 53

That Order, inter alia, set a

written-discovery deadline of August 31, 2017; a dispositivemotion deadline of September 29, 2017; and a trial date of February 20, 2018.

(Id. at 1.)

On June 23, 2017, SCSS filed the Consolidation Response.
On July 21, 2017, Rushing filed a response to the Motion to Dismiss 17-02331 Complaint.

(Pl.’s Resp. in Opp’n to Defs.’ Mot.

to Dismiss Pl.’s Title VII and IDEA Claims, ECF No. 12 in 1702331.)
4

References to “Rule __” are to the Federal Rules of Civil Procedure.
10

II.

JURISDICTION
The Court has jurisdiction over the Complaint’s federal-law

claims.

Under 28 U.S.C. § 1331, U.S. district courts have orig-

inal jurisdiction “of all civil actions arising under the Constitution,

laws,

or

treaties

of

the

United

States.”

The

Complaint asserts that SCSS (1) discriminated against Rushing in
violation of the ADA, (2) discriminated against Rushing in violation of Title VII of the Civil Rights Act (“Title VII”), and
(3) denied Rushing her Fourteenth Amendment due-process rights.
(Compl. ¶¶ 42–47.)

Those claims arise under the Constitution or

laws of the United States.5
The

Court

has

supplemental

jurisdiction

state-law claims under 28 U.S.C. § 1367.

over

Rushing’s

Those claims derive

from a “common nucleus of operative fact” with the federal-law
claims.

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725

(1966); Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576, 588
(6th Cir. 2016); see also 28 U.S.C. § 1367(a).
III. ANALYSIS
A.

Motion for Leave

Less than a week after filing the Motion for Leave, Rushing
filed the Amendment-Motion Notice.
5

The Notice contends that,

Because the Court has jurisdiction over Rushing’s federal-law
claims under 28 U.S.C. § 1331, it need not address Rushing’s
statement that the Court also has jurisdiction under 42 U.S.C.
§ 2000e-5(f)(3) and 28 U.S.C. § 1343.
11

because Rushing has filed a second complaint in the new Case No.
17-2331, “[a]mendment of [the complaint in this action] is . . .
not necessary.”

(Amendment-Mot. Notice 1.)

SCSS has not re-

sponded to the Motion for Leave, and Rushing seeks to strike it.
The Motion for Leave is STRICKEN.
B.

Motion to Consolidate

The Motion to Consolidate asks the Court to consolidate
this case and Case No. 17-02331.
Mot.)

Rushing cites Rule 42(a).

(See generally Consolidation
(Id. ¶ 8.)

Under Rule 42(a),

“[i]f actions before the court involve a common question of law
or fact, the court may: (1) join for hearing or trial any or all
matters at issue in the actions; (2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.”
“‘The party moving for consolidation bears the burden of demonstrating the commonality of law, facts or both in cases sought
to be combined[.]’”

Blasingame v. Church Joint Venture, L.P.,

No. 15-1038, 2015 WL 3952793, at *2 (W.D. Tenn. June 29, 2015)
(alteration

in

Blasingame)

(quoting

Banacki

v.

OneWest

Bank,

FSB, 276 F.R.D. 567, 571 (E.D. Mich. 2011)).
The parties disagree about whether this action and Case No.
17-02331 involve common questions of law or fact.

Rushing ar-

gues that both cases seek relief against SCSS, that “[b]oth cases involve claims under federal employment law,” and that Case
No. 17-02331 “alleges retaliation and other actions, based upon

12

[Rushing’s]

protected

activities

(Consolidation Mot. ¶ 5.)

as

alleged”

in

this

case.

SCSS argues that “the only thing the

two lawsuits share is one common Defendant” and that Rushing has
“fail[ed] to carry her burden of demonstrating the common question of fact and law.”

(Consolidation Resp. 4.)

The two actions involve at least one common question of law
or fact.

SCSS’s filings –– specifically, its partial motions to

dismiss in the two cases –– support this conclusion.

Both the

Complaint in this action and the complaint in Case No. 17-02331
allege that SCSS violated Title VII by discriminating against
Rushing on the basis of disability.
02331 ¶ 375.)

(Compl. ¶ 43; Compl. in 17-

In both cases, SCSS has argued in a partial mo-

tion to dismiss that Title VII cannot ground claims of disability discrimination.

(See Partial Mot. to Dismiss 2–3; Partial

Mot. to Dismiss 17-02331 Compl. 3–4.)

Whether Title VII can

ground disability-discrimination claims is a legal question common to both actions.

Under Rule 42(a), the Court has discretion

to consolidate the actions.
In deciding whether to consolidate cases under Rule 42(a),
a district court should consider the factors listed in Hendrix
v. Raybestos–Manhattan, Inc., 776 F.2d 1492 (11th Cir. 1985).
See, e.g., Carpenter v. GAF Corp., Nos. 90-3460, 90-3461, 1994
WL 47781, at *1 (6th Cir. Feb. 15, 1994) (quoting Hendrix);

13

Cantrell
(same).

v.

GAF

Corp.,

999

F.2d

1007,

1011

(6th

Cir.

1993)

Under Hendrix, a court should consider
whether the specific risks of prejudice and
possible confusion [are] overborne by the
risk of inconsistent adjudications of common
factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the
length of time required to conclude multiple
suits as against a single one, and the relative expense to all concerned of the singletrial, multiple-trial alternatives.

776 F.2d at 1495 (internal quotation omitted).
The

Hendrix

factors

favor

consolidation.

The

specific

risks of prejudice and possible confusion that could result from
consolidation are minimal.

The only “specific risk[]” that SCSS

asserts is “a great potential for confusion and prejudice if
these matters are tried together, as a jury would infer, absent
proof, that Plaintiff’s employment was continuous with [SCSS]
and

the

A.B.

Hill

Elementary

School

employees’

actions

were

somehow related to what Plaintiff contends took place at Treadwell Middle School during the 2015-16 school year.”
tion

Resp.

3.)

Whether

Plaintiff’s

SCSS

(Consolida-

employment

was

continuous is something SCSS can present to the jury at trial.
If the point is material and there is no reasonable factual dispute about it, the parties can offer a stipulation or SCSS can
seek an appropriate jury instruction.

The complaint in Case No.

17-02331 alleges that the events at Treadwell Middle School and

14

the events at A.B. Hill Elementary School were related.

(See,

e.g., Compl. in 17-02331 ¶¶ 71–75 (alleging that Brown, principal at A.B. Hill Elementary, was aware of events that had taken
place at Treadwell).)
rectly at issue.

Whether the events were related is di-

It is not confusing or prejudicial to adjudi-

cate in one action claims against one employer arising from both
school years.
To the extent the Court will handle both cases if they proceed separately, the risk of inconsistent legal decisions is
low.

The Court can decide the legal issues in both cases con-

sistently.
quickly.

Consolidation will not resolve Rushing’s suits more
Rushing does not contemplate a consolidation under

which her second action will proceed on the timeline for the
first action.

She contemplates that the first action will pro-

ceed on an extended timeline with the second action.
The potential for jury trials in these cases raises the
prospect of inconsistent adjudications.

At present, the Court

cannot say that the events of the 2016–17 school year are unrelated to the events of the 2015–16 school year.

Having separate

juries decide the two cases could lead to outcomes based on different views of factual questions common to both cases.
solidated

action

eliminates

that

risk.

Having

both

A concases

proceed as one consolidated matter will reduce the burden on the
parties, witnesses, and available judicial resources.

15

Rushing “seeks consolidation for all purposes” and asks the
Court to “merge the cases, such that briefings and rulings may
apply to both cases.”
is unclear.

(Consolidation Mot. ¶ 7.)

That request

“‘Cases consolidated under Rule 42(a) . . . retain

their separate identity’”; consolidation does not merge suits
into a single action.

Tri-Med Fin. Co. v. Nat’l Century Fin.

Enters., Inc., Nos. 98-3617, 99-3062, 2000 WL 282445, at *8 (6th
Cir. Mar. 6, 2000) (quoting Lewis v. ACB Bus. Servs., Inc., 135
F.3d 389, 412–13 (6th Cir. 1998)); see also Twaddle v. Diem, 200
F. App’x 435, 438 n.4 (6th Cir. 2006) (citing Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496–97 (1933)); Lewis, 135 F.3d at
412–13 (quoting Johnson, 289 U.S. at 496).
quire the entry of a separate judgment.

Each case will re-

9A Charles Alan Wright

et al., Federal Practice & Procedure § 2382 (3d ed. 2008 & 2017
Supp.) (citing cases).
Courts have interpreted Rule 42(a) to authorize “the filing
of a unified or master complaint . . . in cases consolidated
both for pretrial discovery and for trial.”

Id. (citing cases).

This action and Case No. 17-02331 are proceeding on two separate
complaints.

Consolidation will best be achieved if the parties

and the Court proceed based on a unified complaint containing
all of Rushing’s allegations and claims.
The Motion to Consolidate is GRANTED.

This case and Case

No. 17-02331 are consolidated for discovery and trial as one ac-

16

tion under Case No. 16-02662.

Case No. 17-02331 is closed ad-

ministratively; when the Court enters judgment in this case, it
will enter judgment in Case No. 17-02331.

Rushing is ORDERED to

file, within 7 days of the entry of this order, a Unified Complaint combining the allegations and causes of action in the
complaint in Case No. 16-02662 and the complaint in Case No. 1702331.

She may not add allegations beyond those in the two com-

plaints.
C.

Motion to Dismiss

Because

the

Motion

to

Consolidate

is

being

granted

and

Rushing will be filing a Unified Complaint, the Motion to Dismiss is DENIED as moot.

See, e.g., Henry v. Memphis-Shelby Cty.

Airport Auth., No. 15-2641-STA-TMP, 2016 WL 1249617, at *3 (W.D.
Tenn. Mar. 29, 2016) (“Courts in this Circuit routinely deny as
moot motions to dismiss a pleading after a plaintiff subsequently files an amended pleading.”) (citing cases).
fendants

must

answer

or

otherwise

respond

Complaint within 21 days after its filing.
12(a)(1)(A)(i).

to

Any named dethe

Unified

Fed. R. Civ. P.

If the defendants file a motion to dismiss,

that motion may include any arguments asserted in the Partial
Motion to Dismiss in this action or in the Partial Motion to
Dismiss in Case No. 17-02331.
The Court will set a status conference to establish a new
scheduling order based on the Unified Complaint.

17

D.

Deadline-Reset Motion

The Deadline-Reset Motion asks the Court to extend various
deadlines from the December 2016 Scheduling Order.

The motion

states that “[a]ll remaining deadlines” in the case will “need
to be reset, once [Rushing] either (a) amends her Complaint; or
(b) files a separate action . . . .”

(Deadline-Reset Mot. ¶ 8.)

The Court will enter a new scheduling order establishing deadlines for the Unified Complaint.

The Deadline-Reset Motion is

DENIED as moot.
E.

TRO Motion

The TRO Motion asks the Court to “issue a temporary restraining order, restraining and enjoining [SCSS] and any of
[SCSS]’s employees from contacting [Rushing] in any way, including

by

telephone

or

email,

until . . .

[Rushing’s]

treatment

provider finds she has sufficiently recovered to return from
FMLA leave to her place of employment.”

(TRO Mot. 9.)

The mo-

tion also asks that “[a]ny further communications from [SCSS]
regarding [Rushing’s] FMLA leave should be submitted to [Rushing’s] attorney by mail.
Magistrate

Judge

(Id. at 9–10.)

Claxton’s

Report

recommends

that,

as

a

threshold matter, the TRO Motion “be treated as one requesting a
preliminary injunction” because “a motion is properly treated as
one for a preliminary injunction when the adverse party has been
given notice, as is the case here.”

18

(Report 4.)

The Report

cites four factors a court must consider before issuing a preliminary injunction: “(1) whether the movant is likely to prevail

on

the

merits;

(2)

whether

the

movant

would

suffer

an

irreparable injury if the court does not grant a preliminary injunction; (3) whether a preliminary injunction would cause substantial

harm

to

others;

and

(4)

whether

injunction would be in the public interest.”

a

preliminary

(Id. at 5 (citing

Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566,
573 (6th Cir. 2002); Leary v. Daeshner, 228 F.3d 729, 736 (6th
Cir. 2000)).
(Id.)

The Report recommends denying the TRO Motion.

The Report states that the allegations in the TRO Motion

are temporally distinct from the allegations in the Complaint
and address matters not pled in the Complaint.
factor

of

the

preliminary-injunction

test

(Id.)

The first

“weighs so

heavily

against Plaintiff . . . as to prevent the issuance of a preliminary injunction.”

(Id.)

The Report also makes certain recommendations about interaction between SCSS and Rushing:
Although it is recommended that no preliminary injunction shall issue, the Court advises Defendants to make all reasonable
efforts to assist Plaintiff with the treatment plan that her psychiatrist has provided[,] and Plaintiff to understand that
certain communications may be necessary as a
current employee of Defendant and as a
Plaintiff pursuing a case against Defendant.
It appears to the Court that, to the extent
that [any] necessary or important communica-

19

tions may be relayed through Plaintiff’s
counsel or by representatives of [SCSS] not
involved in the allegations in this litigation, it would allow for Plaintiff to follow
her medical treatment plan while [SCSS] also
[complies] with [its] obligations as her employer during the course of this litigation.
(Id. at 6.)
Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of districtcourt duties to magistrate judges.
237

F.3d

598,

602

(6th

Cir.

See United States v. Curtis,

2001)

(citing

Gomez

v.

United

States, 490 U.S. 858, 869–70 (1989)); see also Baker v. Peterson, 67 Fed. App’x 308, 310 (6th Cir. 2003).

“The district

judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”
P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

Fed. R. Civ.

After reviewing

the evidence, the court is free to accept, reject, or modify the
magistrate

judge’s

proposed

U.S.C. § 636(b)(1).

findings

or

recommendations.

28

The district court is not required to re-

view –– under a de novo or any other standard –– those aspects
of the report and recommendation to which no objection is made.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
should

adopt

the

magistrate

judge’s

which no specific objection is filed.

The district court

findings

and

rulings

to

Id. at 151–52.

The Report requires that any objections be filed within
fourteen (14) days after service.

20

(Report 8; see also 28 U.S.C.

§ 636(b)(1) (“Within fourteen days after being served with a
copy [of the magistrate judge’s report], any party may serve and
file written objections to such proposed findings and recommendations as provided by rules of court.”).)

Because no party has

objected, Arn counsels the Court to adopt the Report in its entirety.
with

474 U.S. at 151–52.

the

policies

Adopting the Report is consistent

underlying

§ 636 ––

specifically,

judicial

economy and protecting against the “functions of the district
court [being] effectively duplicated as both the magistrate and
the district court perform identical tasks.”

Howard v. Sec’y of

Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
For the foregoing reasons, the Report is ADOPTED.

The TRO

Motion is DENIED.
IV.

CONCLUSION
The Motion for Leave is STRICKEN.

is GRANTED.
directed.
Partial
DENIED

Rushing is ORDERED to file a Unified Complaint as
Case No. 17-02331 is closed administratively.

Motion
as

The Consolidation Motion

to

moot.

Dismiss
The

and

Report

the

Deadline-Reset

addressing

the

TRO

Motion

The
are

Motion

ADOPTED, and the TRO Motion is DENIED.
So ordered this 7th day of August, 2017.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

21

is