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Gillispie v. City of Miami Township

United States District Court, S.D. Ohio, Western Division, Dayton

July 1, 2019

ROGER DEAN GILLISPIE, Plaintiff,
v.
THE CITY OF MIAMI TOWNSHIP, et al., Defendants.

         ENTRY AND ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATIONS (DOC. 191); OVERRULING, IN PART, PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE'S RECOMMENDATION THAT DEFENDANT MIAMI TOWNSHIP'S SUPPLEMENTAL MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS BE GRANTED, AND THAT DEFENDANT MILLER BE DISMISSED (DOC. 195); OVERRULING OBJECTIONS BY DEFENDANTS MOORE (DOC. 194) AND WOLFE (DOC. 196); GRANTING DEFENDANT ROBERT MILLER'S MOTION TO DISMISS (DOC. 117) AND DISMISSING ALL COUNTS AGAINST DEFENDANT ROBERT MILLER; DENYING DEFENDANTS MOORE AND WOLFE'S JOINT MOTION FOR JUDGMENT ON THE PLEADINGS ON COUNTS VII AND VIII (DOC. 121); DENYING DEFENDANT WOLFE'S RENEWED MOTION TO DISMISS (DOC. 131); AND, DENYING MIAMI TOWNSHIP'S SUPPLEMENTAL MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS (DOC. 123)

          THOMAS M. ROSE, UNITED STATES DISTRICT JUDGE

         This case is before the Court on various Objections (Docs. 194, 195, 196) to the Magistrate Judge's Report and Recommendations (“Report”) (Doc. 191). In the Report, Magistrate Judge Sharon L. Ovington addressed several motions and made the following recommendations.

         First, the Report recommended that this Court grant the Motion to Dismiss filed by Defendant Robert Miller (“Miller”) (Doc. 117) and that all counts against Miller be dismissed. Plaintiff Roger Dean Gillispie (“Plaintiff”) filed an Objection to this recommendation. (Doc. 195.) Miller filed a Response to Plaintiff's Objection. (Doc. 199.)

         Second, the Report recommended that this Court deny the Joint Motion for Judgment on the Pleadings on Counts VII and VIII filed by Defendants Matthew Scott Moore (“Moore”) and Rick Wolfe (“Wolfe”) (Doc. 121). Moore and Wolfe each filed an Objection to this recommendation. (Docs. 194, 196.) Plaintiff filed Responses to Moore's Objection and Wolfe's Objection. (Docs. 204, 205.)

         Third, the Report recommended that this Court deny the Renewed Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) filed by Wolfe (Doc. 131). Wolfe filed an Objection to this recommendation. (Doc. 196.) Plaintiff filed a Response to Wolfe's Objection. (Doc. 205.)

         Fourth, the Report recommended that this Court grant the Supplemental Motion for Partial Judgment on the Pleadings filed by Defendant The City of Miami Township (“Miami Township”) (Doc. 123) and that Count IX against Miami Township be dismissed. Plaintiff filed an Objection to this recommendation. (Doc. 195.) Miami Township filed a Response to Plaintiff's Objection.[1](Doc. 201.)

         This matter is now ripe for review. Each of the motions addressed in the Report were dispositive motions, with respect to at least one claim against at least one party. 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b). Therefore, with respect to the parts of the Report that have been properly objected to by a party, the Court has made a de novo review of the record in this case. Id. The Court addresses each of these recommendations in turn.

         I. Recommendation to Grant the Motion to Dismiss filed by Miller (Doc. 117) and Dismiss All Counts Against Miller

         Plaintiff argues that dismissal of his claims against Miller are not warranted. The Court, however, agrees with Magistrate Judge Ovington's analysis in her Report.

         Plaintiff also argues in his Objections that he should be given leave to amend his Complaint (again). (Doc. 195 at PAGEID # 4096.) Fed.R.Civ.P. 15(a)(2) provides that a party may only amend its pleading with the opposing party's written consent or the court's leave.[2] Fed.R.Civ.P. 7(b)(1) provides that a request for a court order must be made by a motion that fulfills certain requirements. Plaintiff did not file such a motion. Plaintiff's request, which is embedded within his Objection and fails to identify what amendments he would make to his amended complaint, is denied. See Ayer v. Cmty. Mercy Health Partners, No. 3:18-cv-327, 2019 U.S. Dist. LEXIS 71453, at *9-14 (S.D. Ohio Apr. 29, 2019); Alexander v. Eagle Mfg. Co., LLC, 714 Fed.Appx. 504, 510 (6th Cir. 2017) (“a request for leave to amend, almost as an aside, to the district court in a memorandum in opposition to the defendant's motion to dismiss is not a motion to amend”).

         II. Recommendation to Deny the Motion for Judgment on the Pleadings on Counts VII and VIII filed by Moore and Wolfe (Doc. 121)

         Moore and Wolfe argue that the Report erroneously concludes that the allegations in the Amended Complaint do not affirmatively show that the Plaintiff's claims for Intentional Infliction of Emotional Distress (Count VII) and Spoliation[3] (Count VIII) are barred by the statute of limitations. The Court disagrees with Moore and Wolfe's argument and adopts the Report's recommendation.

         III. Recommendation to Deny the Renewed Motion to Dismiss Pursuant to Fed.R.Civ.P. ...


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