United States District Court, S.D. Ohio, Eastern Division
C. Smith Judge.
ORDER AND REPORT AND RECOMMENDATION
CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court for consideration of
Defendants' Motion to Strike Amended Complaint. (ECF No.
30.) Defendants' Motion to Strike is
GRANTED (ECF No. 30), and Plaintiff's
Amended Complaint (ECF No. 27) is STRICKEN
for failure to comply with Federal Rules of Civil Procedure
15(a) and 16(b)(4).
party may amend its pleading once as a matter of course
within: (A) 21 days after serving it, or (B) . . . 21 days
after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever
is earlier.” Fed.R.Civ.P. 15(a)(1). “In all other
cases, a party may amend its pleading only with the opposing
party's written consent or the court's leave.”
Fed.R.Civ.P. 15(a)(2). Additionally, pursuant to Federal Rule
of Civil Procedure 16(b)(4), “[a] [case] schedule may
be modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4).
Plaintiff improperly filed his Amended Complaint on June 18,
2019, because more than 21 days had lapsed since Defendants
filed their Answer, Plaintiff had not obtained
Defendants' written consent to amend the complaint, and
Plaintiff failed to move for leave of Court to file the
Amended Complaint. Further, the Court's Preliminary
Pretrial Order provided that:
Motions or stipulations addressing the parties or pleadings,
if any, must be filed no later than April 30,
2019. Plaintiff will amend his Complaint to
substitute in the proper names of his John Doe Defendants by
April 30, 2019. The Court also granted
Plaintiff an extension of time to effect service over John
Doe Defendants until May 30, 2019.
(Preliminary Pretrial Order at 1, ECF No. 17.) Accordingly,
if Plaintiff wanted to amend his Complaint after the April
30, 2019 deadline, he was required to file a motion under
Rule 16(b)(4) demonstrating good cause for modifying the case
schedule. Plaintiff failed to do so.
Plaintiff contends that his Amended Complaint should not be
stricken because it merely updates his contact information.
(Pl.'s Resp. to Motion to Strike, ECF No. 36 (contending
that he filed the Amended Complaint “because his
contact information had changed and there were no . . . other
major changes to his Complaint”).) Review of the
Amended Complaint, however, demonstrates that Plaintiff made
substantive changes. (Compare Compl., ECF No. 1
to Amended Compl., ECF No. 27.) For example, he
removed the John Doe Defendants and Defendant McCaffery;
removed his Monell claim; and added new allegations,
including, inter alia, that he received threats from
Defendant Sgt. Robert Cook through the “Text now
App.” (ECF No. 27.) Given that Plaintiff's Amended
Complaint contains different and new allegations, he was
required to move for leave to amend the complaint and was
required to demonstrate good cause for modifying the deadline
to do so. Accordingly, Defendants' Motion to Strike is
GRANTED (ECF No. 30), and Plaintiff's
Amended Complaint is STRICKEN (ECF No. 27).
matter is also before the Court upon Plaintiff's failure
to respond to the Court's June 4, 2019 Show Cause Order
(ECF No. 24). On April 1, 2019, the Court granted Plaintiff
an extension of time to effect service over John Doe
Defendants until May 30, 2019. (ECF No. 17.) Plaintiff failed
to serve the John Doe Defendants by May 30, 2019. On June 4,
2019, the Court issued an order directing Plaintiff to show
cause why the Court should not dismiss the John Doe
Defendants and why the Court should allow an extension of
time to effect service. (ECF No. 24.) To date, Plaintiff has
not sought leave to amend the Complaint to substitute the
real names for the John Doe Defendants nor has he effected
service upon them as required by Federal Rule of Civil
Procedure 4(m). It is therefore RECOMMENDED
that this action be DISMISSED WITHOUT
PREJUDICE against the John Doe Defendants pursuant
to Rule 4(m) for failure to timely effect service of process.
party objects to this Report and Recommendation, that party
may, within fourteen (14) days of the date of this Report,
file and serve on all parties written objections to those
specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s). A Judge of this Court shall make a de
novo determination of those portions of the Report or
specified proposed findings or recommendations to which
objection is made. Upon proper objections, a Judge of this
Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge
with instructions. 28 U.S.C. § 636(b)(1).
parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the
right to have the District Judge review the Report and
Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v.
Walters, 638 F.2d 947 (6th Cir. 1981).