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Romano v. Hudson City School District Board of Education

United States District Court, N.D. Ohio, Eastern Division

April 26, 2018




         Before the Court is the motion of plaintiff Trisha Romano for leave to file a second amended complaint. (Doc. No. 49 [“Mot.”].) Defendants have filed a brief in opposition. (Doc. No. 57 [“Opp'n”].) Plaintiff has filed a reply. (Doc. No. 58 [“Reply”].)[1] For the reasons set forth herein, plaintiff's motion to amend is granted in part and denied in part.

         I. BACKGROUND

         The original complaint was filed on March 30, 2017 by plaintiff Trisha Romano and her husband, Matthew Romano, who is a licensed attorney and was representing himself; Trisha Romano had separate counsel. The complaint (Doc. No. 1) set forth the following claims against the defendants: § 1983 First Amendment retaliation (Count I); age discrimination under Ohio law (Count II); aiding and abetting unlawful discrimination under Ohio law (Count III); and retaliation under Ohio law (count IV). The original complaint was amended, with leave, on October 9, 2017, after the Court granted plaintiffs' motion to extend the deadline to amend by two months. The first amended complaint (Doc. No. 17) added claims of age discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”) (Counts V and VI).

         On November 10, 2017, Trisha Romano's counsel moved to withdraw and new counsel moved to be substituted in place of the withdrawing counsel. Neither motion gave any reason for the withdrawal and substitution. The Court granted both motions on November 13, 2017.

         Immediately prior to this substitution of counsel, the parties were involved in a discovery dispute relating to depositions. The dispute had been referred by the Court to the assigned magistrate judge, who issued orders resolving it after conferring with counsel.[2] The substitution of counsel was permitted with the caveat that new counsel would be bound by the magistrate judge's scheduling orders. (See non-document order dated November 13, 2017.)

         At the time of substitution, a little less than six weeks remained until the non-expert (fact) discovery cut-off of December 22, 2017, which had been set by the Court. (See Doc. No. 10, Case Management Plan and Trial Order.) In a joint status report filed on October 16, 2017, the parties indicated that they had agreed amongst themselves to extend that deadline to January 12, 2018, and that plaintiffs would shortly file a motion seeking the Court's approval of that extension. (See Doc. No. 19, Joint Status Report.) No motion to extend was ever filed and, in their opposition to plaintiff's instant motion, defendants properly argue that the motion to amend was filed “approximately two weeks after the close of fact discovery.” (Opp'n at 954.) Despite plaintiff's position in her reply that “discovery had not yet closed at the time [she] filed her second motion to amend[]” on January 2, 2018 (Reply at 1117), this is not correct. The parties never sought, and the Court never granted, any extension of the December 22, 2017 non-expert (fact) discovery deadline.

         Contemporaneously with the instant motion for leave to file a second amended complaint, plaintiff Matthew Romano moved to voluntarily dismiss himself and all of his claims. Following discussion with the Court at the status conference on January 11, 2018, the parties agreed to the dismissal of Matthew Romano and all of his claims, with prejudice. This was subsequently memorialized. (See Doc. No. 55.) At that same status conference, as reflected in the minutes, “the Court advised that it will permit plaintiff Trisha Romano to amend her complaint to remove any section 1983 claim and to retain only the federal and state age discrimination and retaliation claims.” (Minute Order, 1/11/2018, emphasis added.) Defendants opposed the amendment on the grounds that it would not simply “streamline[] the factual and legal issues” as plaintiff claimed (see Mot. at 893), but instead would change plaintiff's liability theories after fact discovery had closed. The Court set up a briefing procedure in the hope that plaintiff and her new counsel would redraft the complaint in a way that would accomplish plaintiff's stated purpose to “streamline” the complaint.[3]

         Following the January 11th status conference, plaintiff Trisha Romano chose to proceed with her motion to file her originally-proposed second amended complaint which she insists “does not add any new parties, nor . . . any new claims[, ]” but will, instead, “streamline[] the factual and legal issues . . . [by] omit[ting] [her] 42 U.S.C. § 1983 claims . . . under the First Amendment[.]” (Mot. at 893.)


         Ordinarily, leave to amend is governed by Fed.R.Civ.P. 15(a)(2), which provides that leave should be “freely given when justice so requires.” It is this rule that plaintiff relies upon. (Mot. at 894.) But, as properly pointed out by defendants in their opposition, once the Court has filed a pretrial scheduling order under Fed.R.Civ.P. 16 establishing a timetable for amending pleadings, that schedule may be modified “only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4).

         “The primary measure of Rule 16's ‘good cause' standard is the moving party's diligence in attempting to meet the case management order's requirements.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (internal citations and quotation marks omitted). “Another relevant consideration is possible prejudice to the party opposing the modification.” Id. (citation omitted).

         Plaintiff attempts to justify her belated, post-discovery request to file a second amended complaint by arguing that, since it does not add any new parties or claims, but rather eliminates a substantive claim, a party, and several substantive allegations, defendants could not possibly be prejudiced by the amendment or even object to it. But defendants correctly argue that, in the proposed second amended complaint, plaintiff “recasts and rephrases numerous allegations, adds new allegations that are contrary to obtained evidence, and deletes allegations that are fully supported by obtained evidence, in an attempt to radically alter [her] prior factual theories of this case.” (Opp'n at 950-51.)

         Plaintiff also attempts to justify her belated, post-discovery request to further amend her complaint by arguing that amendment is necessary due to her “present counsel's view of the issues.” (Reply at 1110.) Because plaintiff retained new counsel after the deadline for amending pleadings and after the non-expert (fact) discovery cutoff, ...

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