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Romanini v. Atrium at Anna Maria, Inc.

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

May 31, 2019

DENNIS R. ROMANINI, Plaintiff,
v.
ATRIUM AT ANNA MARIA, INC., Defendant.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO. 24]

          BENITA Y. PEARSON, UNITED STATES DISTRICT JUDGE

         Pending 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.

         I. Background

         Plaintiff 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.

         Defendant 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. Id.

         II. Legal Standard

         A. Rule 16(b)

         After 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).

         B. Rule 15(a)

         Because 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 the amendment.

         Rule 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) (citation omitted).

         III. Analysis

         Plaintiff 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 625.

         Rather, 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 ...


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