Opinion
Case No. 3:12-cv-326
03-04-2013
TERESA L. O'MALLEY, Plaintiff, v. NAPHCARE, INC., et al., Defendants.
District Judge Walter H. Rice
Magistrate Judge Michael J. Newman
REPORT & RECOMMENDATION AND ORDER
Attached hereto is a NOTICE to the parties regarding objections to the Court's Report & Recommendation contained herein.
This matter is presently before the Court upon two motions: (1) Defendant NaphCare Inc.'s ("NaphCare") motion to dismiss (doc. 7); and (2) pro se Plaintiff's motion for leave to file her amended complaint (doc. 9). Both motions are ripe for ruling.
The Court notes that NaphCare filed no opposition to Plaintiff's motion.
I. Plaintiff's Motion for Leave to Amend
Rule 15 provides, in part, "a party may amend its pleadings with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). The decision to grant or deny leave to amend lies within the discretion of the District Court. Foman v. Davis, 371 U.S. 178, 182 (1962). "A court need not grant leave to amend, however, where amendment would be 'futile.'" Miller v. Calhoun Cnty., 408 F.3d 803, 817 (6th Cir. 2005) (quoting Foman, 371 U.S. at 182)). Courts find futility "when the proposed amendment would not permit the complaint to survive a motion to dismiss." Id. Thus, courts may deny leave to amend when a proposed amendment fails to "state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b).
Although the grounds discussed above may warrant denial of leave to amend in certain circumstances, Rule 15(a) sets forth a "liberal policy of permitting amendments to ensure the determination of claims on their merits." Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987) (quoting Tefft v. Seward, 689 F.2d 637, 639 (6th Cir. 1982)). Here, Plaintiff has asserted an additional claim, additional facts, and has changed the named parties in her amended complaint. As such, while it would be possible to litigate whether the proposed amendment states a claim or claims, the Court finds that it is more efficient at this early juncture in the litigation to allow the amendment and permit NaphCare to renew its motion to dismiss if it continues to believe the amended complaint fails to state a claim.
Therefore, with the liberal policy of Rule 15(a) in mind, Plaintiff's unopposed motion for leave to amend (doc. 13) is GRANTED. Defendants may file any appropriate motion directed to the amended complaint not later April 15, 2013 -- the date set by the Court's Scheduling Order. See doc. 14. Briefing on any such motion shall be in accordance with S. D. Ohio Civ. R. 7.2.
II. NaphCare's Motion to Dismiss Plaintiff's Initial Complaint
An amended complaint supersedes the original pleading rendering motions to dismiss moot. Yates v. Applied Performance Techs., Inc., 205 F.R.D. 497, 499 (S.D. Ohio 2002). Consequently, the Court RECOMMENDS that NaphCare's pending motion to dismiss (doc. 7) be DENIED AS MOOT since it is addressed to a pleading which is no longer operative. NaphCare's motion should be DENIED WITHOUT PREJUDICE and subject to renewal, if appropriate, for the reasons more fully set forth above.
III. Order and Recommendation
Based upon the foregoing, it is therefore ORDERED:
1) Plaintiff's motion for leave to amend (doc. 13) is GRANTED;Additionally, the Court RECOMMENDS:
2) The Clerk shall detach the "First Amended Complaint" from Plaintiff's motion and docket it as such.
1) NaphCare's motion to dismiss Plaintiff's initial complaint (doc. 7) be DENIED AS MOOT, and WITHOUT PREJUDICE.
Michael J. Newman
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within fourteen days after being served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is automatically extended to seventeen days because this Report is being served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report & Recommendation objected to and shall be accompanied by a memorandum in support of the objections. If the Report & Recommendation is based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).