United States District Court, M.D. Tennessee, Nashville Division
WISCHERMANN PARTNERS, INC., WISCHERMANN HOSPITALITY EMPLOYER LLC Plaintiffs/Counter-Defendants
NASHVILLE HOSPITALITY CAPITAL LLC Defendant/Counter-Plaintiff
BARBARA D. HOLMES UNITED STATES MAGISTRATE JUDGE
pending is the motion filed by Defendant Nashville
Hospitality Capital, LLC for leave to file an amended answer
and counterclaims (Docket No. 53). Plaintiffs filed a
response in opposition (Docket No. 57). Defendant then filed
a motion for leave to file a reply (Docket No. 59).
Defendant's motion for leave to file a reply (Docket No.
59) is GRANTED.
reasons that follow, Defendant's motion for leave to file
an amended complaint and counterclaims (Docket No. 53) is
GRANTED. However, the motion is granted on the express
condition that no further extensions of discovery will be
given as a result of the amended answer and counterclaims. By
separate order, the Court is granting the extensions of
discovery requested by the parties. Any remaining discovery,
including any related to the amended answer and
counterclaims, must be completed within the extended
deadlines, which there is adequate time to do if the parties
focus their attention to this case.
the Court would ordinarily direct the Clerk to file the
amended pleading, because of the volume of the proposed
answer and counterclaims, the Court directs that Defendant
file its amended answer and counterclaims (as found at Docket
No. 53-1) within three (3) business days of the date of entry
of this Order. Plaintiff shall thereafter have fourteen (14)
days from the filing of Defendant's amended answer and
counterclaims to respond to Defendant's counterclaims.
of the Federal Rules of Civil Procedure, which governs the
Court's consideration of the pending motion, states that
leave to amend a pleading should be “freely given when
justice so requires.” Fed.R.Civ.P. 15(a). The reason
behind such policy is “to reinforce the principle that
cases ‘should be tried on their merits rather than the
technicalities of pleadings.'” Moore v. City of
Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (quoting
Tefft v. Seward, 689 F.2d 637, 639 (6th Cir. 1982)).
However, the Supreme Court has indicated that while the
moving party “ought to be afforded an opportunity to
test [its] claim on the merits, ” one or more of the
following conditions may negate this directive: undue delay,
bad faith, dilatory motive, repeated failure to cure
deficiencies by previous amendments, undue prejudice to the
opposing party, or futility of the proposed amendment.
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227,
230, 9 L.Ed.2d 222 (1962). Nevertheless, the determination as
to whether justice requires permission to amend the pleading
is within the district court's “sound
discretion.” Moore, 790 F.2d at 559 (internal
crux of Plaintiffs' opposition focuses solely on the
purported futility of Defendant's proposed claims against
Paul Wischermann individually. The Sixth Circuit has made
clear that any analysis of the futility of proposed
amendments is equivalent to the analysis undertaken as part
of a Rule 12(b)(6) motion. See Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 421 (6th Cir. 2000)
(“[A] proposed amendment is futile only if it could not
withstand a Rule 12(b)(6) motion to dismiss.”). The
policy behind the futility argument is to prevent the
expenditure of unnecessary effort and resources by both the
parties and the court. See, e.g., Matlock v. Rose,
731 F.2d 1236, 1240-41 (6th Cir. 1984) (“[T]he concern
for judicial economy, under the circumstances of this case,
is particularly advanced through the futility
doctrine.”). However, judicial economy is only served
in this case if the undersigned concludes, and the District
Judge concurs after review, that Defendant's claims
against Wischermann individually cannot possibly succeed on
their merits. Even that outcome requires an expenditure of
judicial resources by two judges.
courts in this circuit 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).
review of the parties' filings, the Court finds that
there is at least a substantial argument about the merits of
Defendant's proposed claims against Wischermann.
Defendant may therefore plead the claims and Plaintiffs may
test the legal sufficiency of the claims by an appropriate
motion, if they so choose.
foregoing reasons, Defendant's motion for leave to file
an amended complaint and counterclaims (Docket No. 53) is
GRANTED. Defendant shall file its amended answer and
counterclaims (as found at Docket No. 53-1) ...