United States District Court, S.D. Ohio, Eastern Division
L. Graham Judge.
ORDER AND REPORT AND RECOMMENDATION
CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.
Bishop Edwin Mall, who is proceeding without the assistance
of counsel, brings this action against several defendants,
alleging that he was wrongfully terminated on the basis of
his race, ethnicity, faith, religion, and age, and in
violation of the Labor Management and Relations Act of 1947.
This matter is before the Court on Plaintiff's Motion for
Leave to Serve Additional Interrogatories, Demand for Jury
Trial, and Prayer to Allow Join [sic] Additional
Parties (ECF No. 60). For the following reasons,
Plaintiff's Motion is GRANTED IN PART
and DENIED IN PART, and it is
RECOMMENDED that Plaintiff's demand for
a jury trial be GRANTED.
LEAVE TO SERVE ADDITIONAL INTERROGATORIES
Motion seeks leave to serve in excess of 25 interrogatories
(including subparts) on Defendants Larry J. Merlo, Brett
McCarty, Edward Thomas, Regina Wheat, and Ohio CVS Stores,
LLC (the “CVS Defendants”). The draft
interrogatories attached to Plaintiffs' Motion indicated
that they are “for all CVS Defendants: All for each.
Every interrogatory with [illegible] for each Defendant to
respond.” (ECF No. 60-1.) Although Plaintiff's
interrogatories are labeled seriatim 1 through 12, when
subparts are considered, the Court counts approximately 37
separate interrogatories. (Id.)
Rule of Civil Procedure 33(a) provides that “[u]nless
otherwise stipulated or ordered by the court, a party may
serve on any other party no more than 25 written
interrogatories, including all discrete subparts.”
Fed.R.Civ.P. 33(a)(1). The CVS Defendants object that
Plaintiff has made no showing of why discovery beyond that
provided by Rule 33 should be permitted. The Undersigned
courts have broad discretion to determine the proper scope of
discovery. See Fed. R. Civ. P. 26(b)(2). The Court
“must limit the frequency or extent of discovery
otherwise allowed by these rules . . . if it determines that
. . . the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less
expensive.” Fed.R.Civ.P. 26(b)(2)(C)(i). To determine
whether a party should be permitted to serve additional
discovery requests, “the Court looks to whether the
benefits of the expansion outweighs the burden of the extra
discovery.” Pettus-Brown v. Phelps, No.
2:18-CV-082, 2018 WL 5960821, at *5 (S.D. Ohio Nov. 14,
2018), report and recommendation adopted, No.
2:18-CV-82, 2019 WL 132346 (S.D. Ohio Jan. 8, 2019) (quoting
Martin v. Posey, No. 2:15-CV-2294, 2017 WL 412876,
at *4 (S.D. Ohio Jan. 31, 2017)). “A party requesting
leave to serve additional discovery requests must make a
‘particularized showing' to establish a need for
those additional requests.” Id. (quoting
St. Ann v. McLean, No. 5:15-CV-11770, 2017 WL
5732991, at *2 (E.D. Mich. Nov. 28, 2017) (collecting
Plaintiff has not offered any explanation as to why
additional interrogatories are necessary. Although he
conclusorily states that “the discovery sought is not
unreasonably cumulative or duplicative” and
“cannot be obtained from any other source, ” he
does not provide any supporting facts. See,
e.g., Snead v. Mohr, No. 2:12-CV-00739,
2014 WL 8140893, at *1 (S.D. Ohio Mar. 11, 2014) (denying
leave to serve excess interrogatories in the absence of
sufficient information to determine whether further
interrogatories are necessary). Plaintiff also suggests in
his Reply that, contrary to the statement on the first page
of his interrogatories, certain of the interrogatories are
directed only to certain of the CVS defendants, and therefore
it is not the case that any one defendant must answer more
than 25 interrogatories. (Reply 2, ECF No. 70.) However, if
this is this case, then Plaintiff would not have required
leave to serve excess interrogatories in the first instance.
absence of information that would allow the Court to
determine whether excess interrogatories are warranted (or
even requested), Plaintiff's request for leave to serve
additional interrogatories is DENIED.
LEAVE TO AMEND COMPLAINT TO ADD DEFENDANTS
seeks to amend his Complaint to add CVS Pharmacy Inc. and
United Food and Commercial Workers Union, Local 1059 (the
“Union”) as defendants. The CVS Defendants oppose
the addition of CVS Pharmacy Inc. as futile because Plaintiff
was never employed by that entity. (CVS Defs. Resp. 4-5, ECF
No. 69.) Likewise, Defendant Cara McKnight opposes the
addition of the Union as futile because Plaintiff's
claims are barred by the statute of limitations borrowed from
the National Labor Relations Act, 29 U.S.C. §
160(b). (McKnight Resp. 4-5, ECF No. 62.)
Federal Rule of Civil Procedure 15(a)(2), the Court should
give leave for a party to amend its pleading “when
justice so requires.” Fed.R.Civ.P. 15(a)(2). “The
thrust of Rule 15 is to reinforce the principle that cases
should be tried on their merits rather than the
technicalities of pleadings.” Teft v. Seward,
689 F.2d 637, 639 (6th Cir. 1982) (citations omitted);
Oleson v. United States, 27 Fed.Appx. 566, 569 (6th
Cir. 2001) (internal quotations omitted) (noting that courts
interpret the language in Rule 15(a) as conveying “a
liberal policy of permitting amendments to ensure the
determination of claims on their merits”).
“Nevertheless, leave to amend ‘should be denied
if the amendment is brought in bad faith, for dilatory
purposes, results in undue delay or prejudice to the opposing
party, or would be futile.'” Carson v. U.S.
Office of Special Counsel, 633 F.3d 487, 495 (6th Cir.
2011) (quoting Crawford v. Roane, 53 F.3d 750, 753
(6th Cir. 1995)). A court may deny a motion for leave to
amend for futility if the amendment could not withstand a
motion to dismiss. Riverview Health Inst. LLC v.
Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir.
2010); Midkiff v. Adams Cnty. Reg'l Water Dist.,
409 F.3d 758, 767 (6th Cir. 2005).
forth above, Defendants' opposition to adding CVS
Pharmacy Inc. and the Union as additional defendants are
based on the futility of Plaintiff's claims against these
entities. Because “denying a motion for leave to amend
on grounds that the proposed [complaint] is legally
insufficient is, at least indirectly, a ruling on the
merits” of the claims presented in the complaint, this
Court has recognized the “conceptual difficulty
presented” when a Magistrate Judge, who cannot by
statute ordinarily rule on a motion to dismiss, is ruling on
such a motion. Durthaler v. Accounts Receivable Mgmt.,
Inc., 2:10-cv-1068, 2011 WL 5008552, at *4 (S.D. Ohio
Oct. 20, 2011) (recognizing the “conceptual difficulty
presented”); 28 U.S.C. § 636(b)(1)(A) (“[A]
judge may designate a magistrate judge to hear and determine
any pretrial matter pending before the court, except a motion
. . . to dismiss for failure to state a claim upon which
relief can be granted . . . .”).
light of this procedural impediment, the Court concludes that
the better course would be to permit Plaintiff to amend his
Complaint with the understanding that CVS Pharmacy Inc. and
the Union are free to challenge the claims through a motion
to dismiss. See Durthaler, 2011 WL 5008552 at *4
(“[I]t is usually a sound exercise of discretion to
permit the claim to be pleaded and to allow the merits of the
claim to be tested before the District Judge by way of a
motion to dismiss.”); Morse/Diesel, Inc. v.
Fidelity & Deposit Co. of Md., 715 F.Supp. 578, 581
(S.D.N.Y. 1989) (“The trial court has the discretion to
grant a party leave to amend a complaint, even where the
amended pleading might ultimately be ...