Opinion
Civil Action 21-10998
10-04-2021
LYNN T. PASLEY, Plaintiff, v. SOUTHWEST COUNSELING SOLUTIONS, ET AL., Defendants.
Mark A. Goldsmith, United States District Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS (ECF NO. 20), AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (ECF NO. 21)
DAVID R. GRAND, UNITED STATES MAGISTRATE JUDGE
On April 22, 2021, pro se plaintiff Lynn Pasley (“Pasley”) commenced this action in which he alleges violations of the Fair Housing Act, 42 U.S.C. § 3601, et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., against ten defendants. (ECF No. 1). Pursuant to 28 U.S.C. § 636(b), all pretrial matters have been referred to the undersigned. (ECF No. 12).
Before the Court are (1) a motion to dismiss filed by defendants Southwest Counseling Solutions (“SCS”), Jamie Ebaugh, Dawn Thompson, Lisa Todd, and Patricia Vineyard (collectively, the “SCS Defendants”) (ECF No. 20); and (2) Pasley's motion for leave to file an amended complaint (ECF No. 21). The Court addresses each in turn.
I. REPORT AND RECOMMENDATION ON THE SCS DEFENDANTS' MOTION TO DISMISS (ECF No. 20)
On August 23, 2021, the SCS Defendants filed a motion to dismiss, seeking dismissal of Pasley's complaint based on insufficient service of process. (ECF No. 20). On September 1, 2021, Pasley filed a response, arguing that the Court should deny the motion, or alternatively allow him to file the correct addresses for the SCS Defendants so that they could be properly served. (ECF No. 22). That same day, he also filed a Motion for Leave to File Amended Complaint, seeking leave to file an amended complaint alleging two additional claims against certain of the defendants. (ECF No. 21).
The Court had directed the U.S. Marshal to serve a copy of the complaint and summons upon each of the defendants. (ECF No. 9).
On September 23, 2021, the Court held an informal telephonic conference with Pasley and counsel for the SCS Defendants, during which the parties agreed to the following means of resolving the pending motions: Pasley will file a single, amended complaint, in accordance with Fed.R.Civ.P. 8, within 14 days of the date of this Order. The SCS Defendants' counsel agreed to accept service of that amended complaint upon its filing, and it was further agreed that the SCS Defendants shall answer or otherwise respond to the amended complaint within 60 days of the amended complaint's filing, as provided in Fed.R.Civ.P. 4(d)(3).
As to the remaining five non-SCS defendants named in the complaint, on August 9, 2021, summons were returned unexecuted to sender as “ATTEMPTED - NOT KNOWN UNABLE TO FORWARD” for defendants Joyce Baker, Henri Briche, and Malissa Sleeman (ECF No. 19, PageID.147-52), and as “INSUFFICIENT ADDRESS UNABLE TO FORWARD” for defendant EJP2 LLC. (Id., PageID.153-54). In addition, there is no indication on the docket that defendant Rock City Management Group has been served, nor that the attempt to serve that defendant was unsuccessful.
Having resolved the service issues with respect to the SCS Defendants as indicated above, the Court RECOMMENDS that the SCS Defendants' motion to dismiss due to insufficient service (ECF No. 20) be DENIED AS MOOT.
II. ORDER GRANTING PASLEY'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (ECF No. 21)
Based on the foregoing, IT IS ORDERED that Pasley's motion for leave to file an amended complaint (ECF No. 21) is GRANTED to the following extent: Pasley must file his amended complaint, in accordance with Fed.R.Civ.P. 8, within fourteen (14) days of the date of this Order. In doing so, the Court reiterates that Pasley must provide the correct addresses(es) for the five unserved non-SCS defendants - Joyce Baker, Henri Briche, EJP2 LLC, Malissa Sleeman, and Rock City Management Group - if he wishes to pursue his claims against them. In the event Pasley fails to do so, his claims may be dismissed without prejudice as to those defendants.
IT IS SO ORDERED.