United States District Court, S.D. Ohio, Western Division
Stephanie K. Bowman Magistrate Judge.
DECISION AND ENTRY ADOPTING IN PART THE REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc.
Timothy S. Black United States District Judge.
case is before the Court pursuant to the Order of General
Reference to United States Magistrate Judge Stephanie K.
Bowman. Pursuant to such reference, the Magistrate Judge
reviewed the pleadings filed with this Court and, on October
26, 2017, submitted a Report and Recommendations (R&R).
(Doc. 206). Plaintiff filed objections on November 9,
2017. (Doc. 207).
reviewing the R&R and Plaintiff's objections, this
Court concurs with the Magistrate Judge's conclusion that
Plaintiff's motion for leave to file a fourth amended
complaint should be denied for procedural
reasons. Although Fed.R.Civ.P. 15(a) requires that
leave to amend “shall be freely given when justice so
requires, ” a review of the circumstances leading to
this amendment causes the Court to conclude that justice
clearly does not require permitting an additional amendment.
Defendants would be substantially prejudiced by this new
filing, which constitutes undue delay. Plaintiff's
proposed fourth amended complaint is heavily based on legal
principles stated in an FCC declaratory ruling issued July
10, 2015 that Plaintiff argues supports his claim that
Defendants can be held liable for various violations of the
Federal Telephone Consumer Protection Act, Ohio Telemarketing
Act, and Ohio Consumer Sales Practices Act. (Doc. 207, at 6).
However, his motion to file a fourth amended complaint was
not filed until July 12, 2017-two years after the allegedly
impactful FCC declaratory ruling and more than four years
after his third amended complaint was filed. (Doc. 199).
While delay itself is not a sufficient reason to deny a
motion for leave to amend, excessive delay may be considered
as a factor in finding that leave to amend a complaint should
be denied, along with bad faith, repeated failure to cure
deficiencies in the complaint, undue prejudice to the
opposing party, and futility of the amendment. See Forman
v. Davis, 371 U.S. 178, 182 (1962).
argues that it would have been illogical to expect him to
amend his complaint to reflect the 2015 FCC ruling earlier
than now because a ruling on Defendant's motion to
dismiss Plaintiff's third amended complaint was held in
abeyance from August 5, 2014 to June 5, 2017 while a petition
for a declaratory FCC ruling filed by Plaintiff which could
have been pertinent to this case was pending. However, an
analysis of the docket indicates that Plaintiff was an
extremely active filer in this case even while his FCC
petition was being reviewed up until the Court issued a
complete stay on the case on August 20, 2015, more than a
month after the 2015 FCC ruling. (Doc. 178). Plaintiff made
several filings throughout the abeyance, including various
motions for sanctions and motions related to discovery as
well as regular status reports regarding his pending FCC
petition. It is clear from the docket that Plaintiff has
consistently remained an active advocate in this case.
claims that “[i]f that R&R [recommending denial of
the third amended complaint] were rejected, the complaint
would not need to be amended.” (Doc. 207, at 3). This
argument lacks merit. Plaintiff was aware that the Magistrate
Judge had recommended dismissal of several claims from the
third amended complaint as early as March 20, 2014. (Doc.
91). If, as Plaintiff now argues, an FCC declaratory ruling
issued July 10, 2015 had “dramatically expanded the
circumstances under which someone other than a physical
caller may be held liable by the TCPA” (Doc. 199, at 3)
and accordingly given Plaintiff additional grounds to support
his claims, Plaintiff, who has been actively participating in
this litigation for years regardless of the abeyance, should
have made a filing amending his complaint to add these
grounds for relief. For Plaintiff to say that informing the
Court and Defendants of additional grounds for relief was
only necessary in the event that his previous claims were
dismissed smacks of gamesmanship rather than a good-faith
effort to put Defendants on notice of the legal basis for the
claims against them.
are clearly prejudiced by Plaintiff's attempt to file a
fourth amended complaint. Several defendants who were
dismissed from the case by this Court's previous Order
(see Doc. 195) would be added back into the case by
the proposed fourth amended complaint. (Doc. 199-1, at 1).
These defendants will have to incur additional significant
time and expense in defending the new claims and revised
legal basis for those claims raised in the new complaint.
Defendants could have been put on notice of Plaintiff's
view that the 2015 FCC Declaratory ruling provided support
for his claims more than two years ago, which could have
dramatically changed the parties' litigation strategy.
Under these circumstances, the Court concurs with the R&R
that the extreme prejudice caused to Defendants by a fourth
amended complaint at this stage of the litigation is too
great to grant Plaintiff's motion. This Court accordingly
adopts that portion of the R&R recommending denial of
Plaintiff's motion for leave to amend for procedural
R&R also recommended in the alternative that
Plaintiff's motion for leave to amend his complaint be
denied for substantive reasons, as the proposed amendment
would be futile. (Doc. 206, at 9-14). This Court, having
already ruled that the motion should be dismissed for
procedural reasons, need not and does not address this
portion of the R&R (hence this Court adopts the R&R
in part only).
has been a long and contentious case, with over 200 filings
in over five years, and vigorous advocacy from both sides,
while being unable to progress beyond the filing of
complaints and motions to dismiss. It is time for the
remaining claims to progress in a more substantive fashion.
The Court agrees with the Magistrate Judge's conclusion
that this case should be “brought to a final conclusion
at the earliest opportunity.” (Doc. 206, at 14).
Whether that occurs through a voluntary resolution of the
parties or through trial is not the decision of this Court.
However, the claims at this point are set, and it is time to
get on with it.
for the reasons stated above, 1) Plaintiff's motion to
amend the complaint (Doc. 199) is DENIED;
Plaintiff's request for further sanctions against
Defendants (Doc. 203) is DENIED;
Magistrate Judge shall call a conference of the remaining
parties in this case at her convenience to discuss moving the
case forward. If the parties at that conference cannot
consent to court-facilitated mediation or trial before the
Magistrate Judge pursuant to 28 U.S.C. §636(c), this
Court at that time will schedule the remaining claims for