Saqr v. The University of Cincinnati

          Dlott, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge

         On August 3, 2018, two brothers, Ahmad Saqr and Omar Saqr, filed suit against the University of Cincinnati and the University of Cincinnati College of Medicine (collectively “UC”).^[1] Pursuant to an Order of the presiding district judge, this case has been referred to the undersigned magistrate judge. (Doc. 3). Presently pending is Plaintiffs' motion for leave to file an amended complaint. For the reasons that follow, the undersigned recommends the denial of that motion.

         I. Background

         On February 20, 2019, the undersigned recommended that UC's motion for judgment on the pleadings be granted in part as to multiple claims presented in Plaintiffs' original complaint. (Doc. 11; see also Doc. 15, adopting R&R on March 14, 2019). Soon thereafter, UC filed a second motion for judgment on the pleadings, seeking the dismissal of additional Americans with Disability Act (“ADA”) claims on grounds of sovereign immunity. After allowing oral argument, ^[2] the undersigned recommended granting that motion. (Docs. 19, 30). Days before oral argument was scheduled, however, Plaintiffs moved for leave to file an amended complaint. (Doc. 28). At oral argument, UC stated its intention to file a memorandum in opposition to the proposed amendment.

         For reasons of judicial economy, the undersigned filed the R&R recommending dismissal of the ADA claims as stated in the original complaint without prejudice to Plaintiffs' ability to reinstate those claims if later granted leave to amend. At the same time, the Court entered an Order that permitted (but did not require) Plaintiffs to withdraw and/or refile their then-recently-filed motion for leave to file an amended complaint, so that Plaintiffs could fully consider and incorporate the recommended ruling if desired. An accompanying Order set a deadline of September 30, 2019 by which Plaintiffs were required to withdraw their pending motion to amend and re-file any new motion with a new first amended complaint. The Court explained that if Plaintiffs instead elected to rest on their existing motion for leave to file a first amended complaint, the undersigned would review the tendered complaint following the completion of expedited briefing.

         After receipt of the September 23 R&R and Order, Plaintiffs chose to rest on their existing motion for leave to file an amended complaint. UC filed a response in opposition to that motion, to which Plaintiffs filed a reply on October 11, 2019. Based upon new matters presented by Plaintiffs in their reply, UC was granted leave to file a sur-reply.

         Plaintiffs' original complaint alleged that Defendants violated the Americans with Disabilities Act, the Rehabilitation Act, and Title VI as well as related state laws, when UC's Performance and Advancement Committee recommended Plaintiffs' respective dismissals from UC's medical school program and those recommendations were upheld by an appeal panel. As stated, in two prior R&Rs, the undersigned recommended granting two motions to dismiss various claims filed by Plaintiffs. The first of those R&Rs has been adopted by the presiding district judge, but the second R&R remains pending.

         In the February 2019 R&R adopted by the Court, the undersigned recommended the dismissal of Plaintiffs' ADA claims Counts I and II (all ADA claims except for the portion of Count I that sought injunctive relief), Count III (Rehabilitation Act claims), Count IV (state discrimination claim), Count VI (Title VI retaliation claim); and Count VII (state breach of contract claim), as well as the dismissal of “the portion of Count V in which Plaintiff Omar [Saqr] asserts a Title VI discrimination claim.” Thus, after the first R&R was adopted, the only remaining claims were Plaintiff Ahmad's Title VI discrimination claim and both Plaintiffs' claims for injunctive and declaratory relief under the ADA.

         However, in the second R&R filed on September 23, 2019, the undersigned further recommended the dismissal of Plaintiffs' claims for declaratory and injunctive relief under Title II of the Americans with Disabilities Act based upon UC's assertion of sovereign immunity. (Doc. 30). The more recent R&R noted that the recommended dismissal of all other claims left “only a single claim …alleging Title VI discrimination” by Plaintiff Ahmed Saqur. However, the R&R expressly stated that “this recommendation is without prejudice to the reinstatement of any appropriate claim for injunctive relief should Plaintiffs subsequently be granted leave to file an amended complaint.” (Id. at 9).

         II. Analysis

         A. Plaintiffs' September 6, 2019 Tendered First Amended Complaint

         Plaintiffs' September 6 motion seeking leave to file a first amended complaint asserts that their “amendments will not substantially change the nature of the case” and that their proposed amended complaint only seeks to restate “the claims that survived Defendant's Motion to Dismiss.” (Id. at 3). Contrary to that assertion, however, a cursory review of the proposed amended complaint reflects the addition of two new individual Defendants, Andrew Filak Jr. and Laura Malosh, both of whom Plaintiff seeks to add in their official capacities. Also in contrast to Plaintiffs' representation that they seek only to restate the claims that survived dismissal, the tendered amended complaint attempts to re-state several previously dismissed claims.

         Plaintiffs' motion to amend their complaint was filed after UC's second motion for judgment had been fully briefed, just days before oral argument on that motion. The proposed addition of the two individual Defendants appears to have been intended to address the deficiency on which UC's motion was based: UC's entitlement to sovereign immunity on all ADA claims and the failure of the original complaint to name any individual Defendants. As the undersigned explained in the September 23 R&R that recommended granting UC's motion and dismissing Plaintiffs' ADA claims for injunctive relief: “Whereas Ex parte Young provides an exception to sovereign immunity when a party is seeking prospective relief against a state official, the exception ‘has no application in suits against States and their agencies, which are barred regardless of the relief sought.'” (Doc. 30 at 7-8, quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)).

         Because Plaintiffs' motion for leave to file an amended complaint was not yet ripe at the time the September 23 R&R was filed, the R&R did not fully address whether the proposed amended complaint cured the deficiency. The undersigned recognized that Plaintiffs proposed to add two individual Defendants. However, the undersigned pointed out that the tendered amended complaint added little more than two individuals names:

The proposed amended complaint identifies the individuals only by name, not by title, and does not allege any specific actions that the individuals took against either of the Plaintiffs other than alleging that they are “agents and decision makers of UC's medical school.” (Doc. 28-1 at ¶6). It is not entirely clear whether the newly proposed individual Defendants would, or would not, have authority to grant the prospective injunctive relief that Plaintiffs seek.

Rather than speculate about whether Plaintiffs' proposed amendment would “moot” the otherwise fully-ripe motion for judgment on the pleadings, the undersigned recommends granting Defendants' motion for judgment at this time, but without prejudice to Plaintiffs' ability to file a new motion for leave to amend, or alternatively to rest on their existing motion. In the interests of judicial economy, a separate Order will be entered this same day that will permit Plaintiffs additional time in which they may either withdraw the current motion and re-file a new ...