United States District Court, S.D. Ohio, Eastern Division, Columbus
A. Sargus, Jr. District Judge
DECISION AND ORDER DENYING SECOND MOTION TO
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
action on a Motion to Vacate under 28 U.S.C. § 2255 is
before the Court on Defendant's second Motion to Amend
(ECF No. 508).
motion to amend is a nondispositive pretrial motion which is
within the decisional authority of a Magistrate Judge in the
first instance. Monroe v. Houk, No. 2:07-cv-258,
2016 U.S. Dist. LEXIS 38999 (S.D. Ohio, Mar. 23,
2016)(Sargus, C.J.); McKnight v. Bobby, 2017 U.S.
Dist. LEXIS 63861 (S.D. Ohio Apr. 27, 2017)(Dlott, D.J.).
Magistrate Judge has previously held in this case, the
standards of Fed.R.Civ.P. 15 are to be applied to evaluating
motions to amend in a § 2255 case (ECF No. 503). The
general standard for considering a motion to amend under
Fed.R.Civ.P. 15(a) was enunciated by the United States
Supreme Court in Foman v. Davis, 371 U.S. 178
If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits. 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 any allowance of the amendment, futility of
amendment, etc. -- the leave sought should, as the rules
require, be "freely given."
371 U.S. at 182. See also Fisher v. Roberts, 125
F.3d 974, 977 (6th Cir. 1997)(citing Foman
considering whether to grant motions to amend under Rule 15,
a court should consider whether the amendment would be
futile, i.e., if it could withstand a motion to dismiss under
Rule 12(b)(6). Hoover v. Langston Equip. Assocs.,
958 F.2d 742, 745 (6th Cir. 1992); Martin v. Associated
Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986);
Marx v. Centran Corp., 747 F.2d 1536 (6th Cir.
1984); Communications Systems, Inc., v. City of
Danville, 880 F.2d 887 (6th Cir. 1989); Roth Steel
Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th
Cir. 1983); Neighborhood Development Corp. v. Advisory
Council, 632 F.2d 21, 23 (6th Cir. 1980); United
States ex rel. Antoon v. Cleveland Clinic Found., 978
F.Supp.2d 880, 887 (S.D. Ohio 2013)(Rose, J.); William F.
Shea, LLC v. Bonutti Reseach Inc., 2011 U.S. Dist. LEXIS
39794, *28 (S.D. Ohio March 31, 2011) (Frost, J.).
Magistrate Judge denied Defendant's prior Motion to Amend
because it sought to add a claim under a new Supreme Court
decision which has not been held to apply retroactively. Here
the difficulty is Defendant's undue delay in seeking
original six Grounds for Relief read:
Ground One: Ineffective Assistance of
Supporting Facts: Appellate counsel failed
to develop McShan's double jeopardy claim based on the
reimpaneling [sic] of the jury.
Ground Two: Reempaneling the jury was a
violation of the Double Jeopardy Clause Supporting
Facts: The Court erred by reempanelling the jury,
resulting in a void first ...