United States District Court, N.D. Ohio, Eastern Division
DENNIS R. ROMANINI, Plaintiff,
ATRIUM AT ANNA MARIA, INC., Defendant.
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. PEARSON, UNITED STATES DISTRICT JUDGE
is Defendant's motion for leave to amend its answer and
insert an additional defense. ECF No. 24. Plaintiff
opposes the amendment, insisting it is futile. ECF No.
26. For the reasons stated herein, the motion for leave
to amend is denied.
alleges that Defendant unlawfully terminated him from his
position as Director of Dining because of his age. ECF
No. 1. In discovery, Defendant learned that, just after
his discharge, Plaintiff sent his former coworker an
allegedly threatening text message stating, among other
things, “[I] better not hear that you said anything
about me . . . I'll wait for your ass in the fucking
parking lot Pal that's how I am.” ECF No.
26-2 at PageID#: 134.
proposes to amend its answer to account for this discovery.
ECF No. 24. It argues that, even if it is found
liable for unlawful termination, Plaintiff's remedies
should be limited in light of the threatening text message
because he would have been promptly terminated in any event.
the cutoff to amend pleading stated in the scheduling order
has passed, a party “must first show good cause under
Rule 16(b) for failure earlier to seek leave to amend before
a court will consider whether amendment is proper under Rule
15(a).” Leary v. Daeschner, 349 F.3d 888, 909
(6th Cir. 2003). The Sixth Circuit explained that 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). In addition
to the movant's diligence, the Court should also consider
the possible prejudice to the opponent. Id.
(internal citations omitted).
the time to amend pleadings as a matter of course has passed,
Defendant may amend only with Plaintiff's consent or with
the Court's leave. Fed.R.Civ.P. 15(a). Plaintiff opposes
15(a) of the Federal Rules of Civil Procedure directs the
Court to grant leave to amend “when justice so
requires[, ]” and in practice the burden is usually on
the party opposing the amendment to demonstrate why the
amendment should not be permitted. Fed.R.Civ.P. 15(a);
Foman v. Davis, 371 U.S. 178, 182 (1962). Denial may
be appropriate, however, when there is “undue delay in
filing, lack of notice to the opposing party, bad faith by
the moving party, repeated failure to cure deficiencies by
previous amendment, undue prejudice to the opposing party,
and futility of the amendment.” Seals v. Gen.
Motors Corp., 546 F.3d 766, 770 (6th Cir. 2008)
does not meaningfully posit that Defendant was indiligent in
moving for leave to amend or that it could reasonably have
been expected to do so earlier. For that reason, Rule 16
poses no hurdle to amendment. See Inge, 281 F.3d at
Plaintiff principally argues that, pursuant to Rule 15,
Defendant's motion for leave to amend should be denied
because the proposed amendment is futile. A proposed
amendment is futile if the amendment could not withstand a
motion to strike under Rule 12(f). See Rose v. Hartford
Underwriters Ins. Co.,203 F.3d 417, 420 (6th Cir. 2000)
Under Rule 12(f), “[t]he court may strike from a
pleading an insufficient defense . . . .” The ...