United States District Court, M.D. Tennessee, Northeastern Division
Crenshaw
ORDER
BARBARA D. HOLMES, UNITED STATES MAGISTRATE JUDGE.
Pending
before the Court are several motions, all of which other than
the dispositive motions, are addressed below, although not in
order of chronology of filing.
1.
Plaintiff's motion (Docket No. 29), filed on March 2,
2018, for extension of time to file a response to
Defendants' motions to dismiss is GRANTED. Plaintiff
filed a response by the requested extended deadline, and,
although not entirely clear, it appears that Plaintiff's
response is an omnibus one to both motions to dismiss (Docket
Nos. 10 and 13). Accordingly, no other response shall be
permitted.
2.
Plaintiff is reminded of and ordered to comply with the
Clerk's instruction that ECF filings must be printed
directly to PDF via a PDF writer and not scanned, and must be
text searchable. Failure to comply with this requirement in
the future will require refiling, which may result in
untimely filings.
3. On
March 26, 2018, Defendants filed a so-called consent motion
(Docket No. 34) for extension of time to file a reply in
support of their respective motions to dismiss, which is
GRANTED.[1] Defendants may file a reply by no later
than April 4, 2018.
4. On
March 28, 2018, Defendants filed another unopposed motion
(Docket No. 35), this time for a stay of discovery pending
the Court's decision on Defendant's motions to
dismiss, which is CONDITIONALLY GRANTED as provided herein.
As a preliminary matter, the Court notes that if Plaintiff is
permitted to file an amended complaint, the amended complaint
is thereafter the operative pleading, in connection with
which any motions to dismiss would have to be refiled. This
will further extend the time for resolution of any motions to
dismiss, but is a technicality that cannot be avoided if
Plaintiff's requested amendment is permitted. Further, an
indefinite stay is undesirable because of the
unpredictability of when the Court's workload will allow
for resolution of any particular motion, and also because of
the Court's expectation that, absent extraordinary
circumstances, cases will be disposed of on the merits by no
later than three (3) years from the commencement date.
Discovery is therefore STAYED until September 30,
2018.
5. The
initial case management conference currently set for April 9,
2018, is RESCHEDULED for Wednesday,
October 24, 2018, at 10:00 a.m. in Courtroom
764, U.S. Courthouse, 801 Broadway. The parties shall
otherwise comply with the requirements of the notice setting
the initial case management conference (Docket No. 9) for the
preparation and filing of a proposed initial case management
order (and emailing in Word format to Ms. Cox) prior to the
rescheduled initial case management conference. The
parties' proposed initial case management order shall
take into consideration that a target trial date must be
within three (3) years of February 8, 2018.
6. On
March 21, 2018, Plaintiff filed a motion for leave to amend
his complaint (Docket No. 31), which is reserved pending
response as provided herein. The proposed amendment was not
filed within the time during which an amendment is permitted
as a matter of course under Rule 15(a)(1). Any response in
opposition to Plaintiff's motion to amend shall therefore
be filed by no later than April 4, 2018.
Although it appears from Defendants' motion to extend the
time deadline for filing a reply in support of their motions
to dismiss that they anticipate opposing the motion to amend,
if Defendants do not oppose the motion, they should file a
notice of no opposition as expeditiously as possible
following review of this Order. In anticipation that
Defendants intend to argue that Plaintiff's amended
complaint is futile, the Court takes this opportunity to
address that issue. While the Court is not pretermitting any
arguments that Defendants might make, if the primary basis
for Defendants' opposition to the filing of the amended
complaint is futility based on a contention that the proposed
amended complaint still fails to state a claim, the
undersigned Magistrate Judge is disinclined to undertake a
Rule 12(b)(6) analysis in the context of a motion for leave
to amend. The undersigned concurs with other courts in this
circuit that have commented on the inelegant nature of the
futility argument in such a context:
There is some conceptual difficulty presented when the
primary basis for a party's opposition to the filing of
an amended pleading is that the pleading is futile,
i.e. that it fails to state a claim upon which
relief can be granted. A Magistrate Judge cannot ordinarily
rule on a motion to dismiss, see 28 U.S.C. §
636(b)(1)(A), and denying a motion for leave to amend on
grounds that the proposed new claim is legally insufficient
is, at least indirectly, a ruling on the merits of that claim
.... Consequently, rather than determining the actual legal
sufficiency of the new claim, in many cases it will suffice
to determine if there is a substantial argument to be made on
that question and, if so, to allow the amended pleading to be
filed with the understanding that a motion to dismiss for
failure to state a claim may follow.
Durthaler v. Accounts Receivable Mgmt., Inc., No.
2:10-cv-1068, 2011 WL 5008552, at *4 (S.D. Ohio Oct. 20,
2011). See also Vanburen v. Ohio Dep't of Pub.
Safety, No. 2:11-cv-1118, 2012 WL 5467526, at *4 (S.D.
Ohio Nov. 9, 2012) (holding that due to this
“procedural roadblock, ” the better course would
be to allow amendment of the complaint with the understanding
that a motion to dismiss may follow filing of the amended
complaint); Research Inst. at Nationwide Children's
Hosp. v. Trellis Bioscience, LLC, No. 2:15-cv-3032, 2017
WL 1487596, at *3 (S.D. Ohio Apr. 26, 2017) (same). Indeed,
“it is usually a sound exercise of discretion to permit
the claim to be pleaded and to allow the merits of the claim
to be tested before the District Judge by way of a motion to
dismiss.” Durthaler, 2011 WL 5008552, at *4.
See also Greenwald v. Holstein, No. 2:15-cv-2451,
2016 WL 9344297, at *5 (S.D. Ohio Feb. 3, 2016) (same). This
approach is also the most conceptually and intellectually
consistent with the view that motions to amend are
non-dispositive proceedings. See, e.g., Gentry v. The
Tennessee Board of Judicial Conduct, 2017 WL 2362494, at
*1 (M.D. Tenn. May 31, 2017) (“Courts have uniformly
held that motions to amend complaints are non-dispositive
matters that may be determined by the magistrate judge and
reviewed under the clearly erroneous or contrary to law
standard of review …”) (citations omitted);
Chinn v. Jenkins, 2017 WL 1177610 (S.D. Ohio March
31, 2017) (order denying motion to amend is not dispositive);
Young v. Jackson, 2014 WL 4272768, at *1 (E.D. Mich.
Aug. 29, 2014) (“A denial of a motion to amend is a
non-dispositive order.”); Hira v. New York Life
Insurance Co., at **1-2, 2014 WL 2177799 (E.D. Tenn. May
23, 2014) (magistrate judge's order on motion to amend
was appropriate and within his authority because motion to
amend is non-dispositive); United States v. Hunter,
2013 WL 5280251, at *1 (S.D. Ohio Oct. 29, 2013) (stating
that a magistrate judge's orders denying petitioner's
motions to amend a petition pursuant to 28 U.S.C. § 2855
were non-dispositive).[2]
All
other matters not disposed of herein are reserved.
It is
...