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Johnson v. Kroger Co.

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

July 11, 2019

THE KROGER COMPANY, et al., Defendants.



         This matter is before the Court on Plaintiff's Motion to File First Amended Complaint (Doc. 14). For the following reasons, the Motion is GRANTED in part and DENIED in part.

         I. BACKGROUND

         “This is a civil rights action alleging racial profiling in public accommodations.” (Doc. 1, ¶ 1). Plaintiff is a 63-year-old African-American resident of Delaware, Ohio. (Id., ¶ 2). According to the Complaint, he regularly shopped at his neighborhood Kroger at 801 N. Houk Road (the “North Houk Kroger”) where Defendant Michael Simons was employed as a Senior Loss Prevention Specialist. (Id., ¶¶ 3-4, 7). Defendant The Kroger Company (“Kroger”) “was at all times the relevant owner and operator” of the North Houk Kroger and employed Defendant Simons. (Id., ¶ 3).

         On October 17, 2017, Plaintiff went to the North Houk Kroger to shop for groceries and small gifts for his grandchildren. (Id., ¶ 13). Among other items, Plaintiff looked at several DVDs as potential gifts for two of his granddaughters. (Id., ¶ 15). Plaintiff avers that he ultimately decided not to purchase those DVDs, set them down on a store shelf, and completed his grocery shopping. (Id., ¶ 17).

         After checking out at the register, Defendant Simons approached Plaintiff and accused him of shoplifting DVDs. (Id., ¶¶ 18-20). Plaintiff denied the accusations and walked towards his car. (Id., ¶¶19-20). Defendant Simons followed Plaintiff to his car, took a picture of his license plate, and stated that he was going to have to call law enforcement. (Id., ¶¶ 21-22).

         Defendant Simons followed through and contacted the City of Delaware Police Department. (Id., ¶¶ 36-37). Police officers responded to the North Houk Kroger and met with Defendant Simons. (Id., ¶ 37). He told the officers that Plaintiff had stolen a number of movies and ignored his request to return them. (Id., ¶¶ 38-39). Plaintiff was subsequently arrested and charged with theft. (Id., ¶¶ 40-44). As a result of his arrest, Plaintiff was prohibited from shopping at the North Houk Kroger. (Id., ¶ 46). In March 2018, the charges against Plaintiff were dropped due to insufficient evidence. (Id., ¶ 48).

         On October 15, 2018, Plaintiff filed a four-count Complaint, alleging (1) intentional race discrimination in violation of 42 U.S.C. §§ 1981 and 1982; (2) racial discrimination in violation of the Ohio Civil Rights Act; (3) malicious prosecution; and (4) respondeat superior. (Doc. 1, ¶¶ 52-56). The Court entered a Scheduling Order (Doc. 11) setting the deadline for motions to amend for May 31, 2019. On May 5, 2019, Plaintiff filed his Motion to File First Amended Complaint (Doc. 14). His proposed First Amended Complaint is similar, if not identical, to the original Complaint, “except that it includes two additional stated legal claims at the end.” (Id. at 2). Plaintiff brings additional claims for (1) spoliation of evidence and (2) direct liability for Defendant Kroger. (Doc. 14-1, ¶¶ 57-66). Plaintiff's Motion is ripe for resolution.


         Trial courts enjoy broad discretion in deciding motions for leave to amend. See Gen. Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990). Because Plaintiff timely moved to amend under the Court's scheduling order, (Doc. 11), the Court considers Plaintiff's Motion under Fed.R.Civ.P. 15(a)(2). This rule encompasses a liberal policy in favor of granting amendments and “reinforce[s] the principle that cases ‘should be tried on their merits rather than the technicalities of pleadings.'” Inge v. Rock Finan. Corp., 388 F.3d 930, 936 (6th Cir. 2004) (quoting Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986)). In interpreting this Rule, “[i]t should be emphasized that the case law in this Circuit manifests liberality in allowing amendments to a complaint.” Parchman v. SLM Corp., 896 F.3d 728, 736 (6th Cir. 2018) (citation and internal quotation marks omitted).

In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be “freely given.”

Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 640-41 (6th Cir. 2018) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).


         Defendants contend that Plaintiff's Motion to Amend should be denied because the proposed new claims could not survive a motion to dismiss and ...

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