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