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United States v. McShan

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

January 10, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
FREDERICK A. McSHAN, Defendant.

          Edmund A. Sargus, Jr. District Judge

          DECISION AND ORDER DENYING SECOND MOTION TO AMEND

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This 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).

         A 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.).

         As the 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 (1962):

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 standard).

         In 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.).

         The 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 amendment.

         McShan's original six Grounds for Relief read:

Ground One: Ineffective Assistance of Appellate Counsel
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 ...

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