G.M. v. Lakeview Local School District

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

G.M., a minor, efc., et al., )

) CASE NO. 4:19CV2486

Plaintiffs, )

)

v. ) JUDGE BENITA Y. PEARSON

)

LAKEVIEW LOCAL SCHOOL )

DISTRICT, et al., ) MEMORANDUM OF OPINION

) AND ORDER

Defendants. ) [Resolving ECF No. 21]

Pending is Plaintiffs’ Motion for Leave to File First Amended Complaint /nstanter (ECF

No. 21), filed on July 16, 2020. Plaintiffs attached the Proposed First Amended Complaint (ECF

No. 21-1) to the motion. The Court has been advised, having reviewed the record, the

parties’ briefs, and the applicable law. For the reasons below, the motion is denied.

1.

On October 24, 2019, Plaintiffs Nail Majid, Amany Ahmad, and G.M. filed a Complaint

(ECF No. 1) alleging 11 claims against Defendants Lakeview Local School District, Lakeview

Local School District Board of Education, Kara Kasula (math teacher), Alex Dean (student

teacher), and Nancy Sandrella (school nurse).

On March 11, 2020, the Court conducted a Telephonic Case Management Conference

and subsequently entered a Case Management Plan (“CMP”) (ECF No. 15). The CMP provides,

in pertinent part:

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14. The cutoff to amend pleadings and add parties is May 1, 2020. Also

see Fed. R. Civ. P. 15(a) (requiring a showing that an amendment is proper). The

cutoff date, however, is merely a time limitation -- not a blanket leave. A party

must still demonstrate that an amendment is proper under Rule 15(a). Absent

written consent of the adverse party, the party seeking to amend at least must alert

the Court and the adverse party to the substance of the proposed amendment by

filing a Motion for Leave with an accompanying memorandum of law addressing

the requirements of Rule 15(a). In all cases, the party seeking leave of Court to

amend must certify that prior notice of the proposed amendment was given and

the adverse party withheld consent.'

ECF No, 15 at PageID #: 105.

II.

Plaintiffs filed their Motion for Leave three days after conducting the deposition of

Ashley Handrych, who was (and remains) the principal of Lakeview Middle School on the date

of the incident at issue in this action. Because a Fed. R. Civ. P. 16 order has been entered,

however, the Court can consider whether Plaintiffs have satisfied the more liberal standards of

Rule 15(a) only if Plaintiffs make the showing required by Rule 16(b) for modification of a

scheduling order. See Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003); S&W Enters.,

L.L.C. v. Southtrust Bank of Ala., N.A., 315 F.3d 533, 536 (Sth Cir. 2003); W. Va. Housing Dev.

Fund v. Ocwen Tech. Xchange, Inc., 200 F.R.D. 564, 566-68 (S.D.W.Va. 2001).

Leave to amend a complaint should be freely given when justice so requires after a

responsive pleading has been filed. Rule 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962);

Kottmyer v. Maas, 436 F.3d 684, 692 (6th Cir. 2006), It is an abuse of discretion for the district

' ECF No. 21 contains a certification at PageID #: 125.

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court to deny a plaintiff leave to amend his complaint without any justifying reason. Foman, 371

U.S. at 182.

Ii.

The within motion for leave to amend is problematic for several reasons. Chief among

them are (1) the motion fails to establish good cause for modification of the scheduling order and

(2) allowing Plaintiffs to file their proposed amended complaint would be futile.

This case exemplifies what can happen when you wait three months to start discovery.

As stated above, the cutoff date to amend pleadings and add parties was May 1, 2020 — almost 11

weeks before the within motion was filed.” The CMP (ECF No. 15) adopted the cutoff date to

amend pleadings and add parties recommended by the parties. See Discovery Plan (ECF No. 13)

at PageID #: 97, §] 7(f).’ The cutoff was set in compliance with Local Rule 16.3(b)(2)().

A.

Plaintiffs have not shown good cause for an extension of the cutoff date. They do not

dispute that their Motion for Leave to File First Amended Complaint Jnstanter (ECF No. 21) was

* Plaintiffs’ Motion for Leave was filed six days after the Court denied the

parties’ Joint Motion for Extension of Case Management Deadlines (ECF No. 19). The

Court stated it would not enlarge an already-sufficient-schedule. Order (ECF No. 20) at

PageID #: 119. This was consistent with what the Court told counsel during the June 29,

2020 Telephonic Status Conference. The Court also notes that ECF No. 19 did not set

forth a request for an extension of the cutoff for joinder of new parties and the

amendment of pleadings.

° The parties also agreed during their Fed. R. Civ. P. 26(f) conference that there

would be no discovery of electronically-stored information. See ECF No. 13 at PageID #:

96, 7(b); ECF No. 15 at PageID #: 102, 1.9.

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filed after the Fed. R. Civ. P. 16 cutoff to amend the pleadings had passed. According to Rule

16(b)(4), when the Court has entered a scheduling order that limits the time to join other parties

and to amend the pleadings, “[a] schedule may be modified only for good cause and with the

judge’s consent.” In Jnge v. Rock Financial Corp., 281 F.3d 613 (6th Cir. 2002), the Sixth

Circuit stated that good cause is primarily measured by the movant’s “diligence in attempting to

meet the case management order’s requirements.” Jd. at 625 (quoting Bradford v. DANA □□□□□□

249 F.3d 807, 809 (8th Cir. 2001)). Prejudice to the party opposing the modification is not an

express component of Rule 16, however, the Sixth Circuit has stated that a district court must

consider prejudice to the non-moving party when it decides whether or not to amend a scheduling

order. Leary, 349 F.3d at 909; Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994), Ifthe

Court determines that the movant satisfies the requirements of Rule 16(b), then the Court must

determine whether the moving party has satisfied the requirements of Rule 15. /d. At this stage

of the proceedings, Rule 15 asks the question whether leave should be freely given because

justice so requires.

Plaintiffs assert they exercised diligence in attempting to meet the scheduling order

because they deposed Handrych on July 14, 2020. See ECF No. 21 at PageID #: 122-23. The

Court is not persuaded. Normally, “[a] party may not seek discovery from any source before the

parties have conferred as required by Rule 26(f),” unless “authorized .. . by court order.” Fed. R.

Civ. P. 26(d)(1). More than 21 days after the summons and complaint are served on a party,

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however, an “early” request under Fed. R. Civ. P. 34 may be delivered. Pursuant to Rule 26(f)

and Local Rule 16.3(b)(3), a meeting was held in the case at bar on January 3, 2020. See ECF

No. 13 at PageID #: 94. Therefore, the parties had four months to conduct discovery to

determine if an amendment was necessary.

The Court must also consider prejudice to the non-moving party when it decides whether

to amend a scheduling order. Leary, 349 F.3d at 909. Here, Plaintiffs posit that there is no

prejudice in allowing the amendment. ECF No. 21 at PageID #: 123. The longer the period of an

unexplained delay, the less prejudice needs to be shown. Phelps, 30 F.3d at 662. As in the case

at bar, amendments that add burden, expense, or complexity to discovery or the trial may

constitute prejudice. /d. at 662-63. According to Defendants, Plaintiffs’ accusations that

Defendants “willfully” destroyed the video recorded on the date of the incident at issue would, at

a minimum, require additional fact witnesses regarding the school’s IT system operated by a

third-party contractor, the set up and operation of the cameras, and school record-retention

policies and practices. ECF No. 23 at PageID #: 166-67.

Plaintiffs had multiple opportunities in November 2018 (when they met with Handrych)

to request that the video* of G.M. and Dean sitting and talking at a table in an open common area

of the school be preserved. Plaintiffs now seek to add spoliation-type claims because a school

surveillance system automatically recorded over video footage from the date of the incident by

* The video had no audio capability or feed. See ECF No. 23 at PageID #: 161,

162, 170.

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routine operation of the electronic system.. The Proposed First Amended Complaint (ECF No.

21-1) alleges new claims for (1) recklessness against Handrych; (2) spoliation of evidence and

violations of Ohio Rev Code § 149.351 against Handrych, the School District, and Board of

Education; and (3) a cause of action under Ohio Rev. Code § 2307.60 against Sandrella and

Handrych for tampering with and falsifying public documents in violation of Ohio Rev. Code §§

2913.42 and 2921.13,’ accompanied by a demand for punitive damages. The Court finds that the

Motion for Leave to add Handrych because of newly acquired evidence that was discerned at her

deposition fails to establish good cause for modification of the scheduling order. See Morrocco

yv. Northwest Engineering Co., 310 F.2d 809 (6th Cir. 1962).

B.

Under Rule 15, “[fJutility, alone, can constitute a satisfactory ground for denying a

motion for leave to amend.” Phillips vy. Smith, No. 5:09CV1848, 2010 WL 2291143, at *2 (N.D.

Ohio June 2, 2010) (Pearson, J.). Allowing Plaintiffs in the case at bar to file their proposed

amended complaint would be futile. Miller vy. Calhoun County, 408 F.3d 803, 817 (6th Cir.

2005) (“Amendment of a complaint is futile when the proposed amendment would not permit the

complaint to survive a motion to dismiss.”).

Plaintiffs’ proposed claim for recklessness against Handrych does not state a valid claim

under Ohio law. See Brown vy. Whirlpool, 996 F. Supp.2d 623, 643 (N.D. Ohio 2014) (Carr, J.)

> There is a typographical error at PageID #: 145, J 166 of the Proposed First

Amended Complaint (ECF No. 21-1). Ohio Rev. Code § 2913.21 regards misuse of

credit cards. Because credit cards are not at issue, the correct statute apparently is Ohio

Rev. Code § 2921.13. However, Plaintiffs do not address either statute in their

memoranda (ECF Nos. 21 and 25).

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(“Ohio law does not recognize a stand-alone cause of action for recklessness. ... Because there

is no cause of action for recklessness under Ohio law, I will dismiss claims 7 and 8 with

prejudice.”); Ward v. Cty. of Cuyahoga, 721 F. Supp.2d 677, 694 (N.D. Ohio 2010) (Gaughan,

J.) (The Court agrees with defendants that ‘reckless and wanton conduct’ is not a separate cause

of action under Ohio law. ... Accordingly, defendant [ ] is entitled to summary judgment... .”).

Next, Plaintiffs propose a new claim for spoliation of evidence and violations of Ohio

Rev Code § 149.351 against Handrych, the School District, and Board of Education. However,

“Ohio courts have held that political subdivisions are immune from intentional torts such as...

spoliation of evidence... .” Baez v. City of Cleveland, No. 1:19CV0623, 2019 WL 7282092, at

*A4 (N.D. Ohio Dec. 27, 2019) (Parker, M.J.).

An action for a violation of Ohio Rev Code § 149.351—public records law can only be

brought by one “who is aggrieved” by the destruction of a public record. One cannot be

“agerieved” unless one first “made a request with the goal of accessing the public records.”

Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 309-10 (2011). Defendants assert “Plaintiffs

haven’t alleged that they ever submitted a public-records request for the video.” ECF No. 23 at

PageID #: 171 (emphasis added). On January 23, 2019, Plaintiffs did, however, request from

Defendants “[a]ny and all video or audio recordings related to the events of November 2,

2018....” ECF No. 25-3 at PageID #: 231. By that time, the video, that was automatically

overridden in November 2018, did not exist. See Quinn v. Retort, No. 4:18CV2615, slip op. at 2

(N.D. Ohio Oct. 9, 2019) (Pearson, J.) (citing State ex rel. Toledo Blade Co. v. Sencea Cty Bd. of

Commrs., 120 Ohio St.3d 372, 378 (2008) (holding that in cases in which public records are

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properly disposed of in accordance with a duly adopted records-retention policy, there is no

entitlement to those records under the Public Records Act, Ohio Rev. Code § 149.43)).

Finally, Handrych testified that she didn’t destroy any record, but merely failed to

preserve video that was automatically overridden 17 days after its creation. See Excerpts from

Deposition of Ashley Handrych (ECF No. 23-1). While the Proposed First Amended Complaint

includes the bare allegation that Sandrella and Handrych falsified, destroyed, or concealed

records “to cover up their unlawful acts” (ECF No. 21-1 at PageID #: 145, § 166), there are no

allegations of “defraud[ing]” or “deception” under Ohio Rev. Code § 2913.01. Conclusory

allegations of a “cover up” do not satisfy Ohio Rev. Code § 2913.42 or the plausibility standard

in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) or Ashcroft v. Igbal, 556 U.S. 662

(2009).

IV.

For the reasons set forth herein and those that have been articulated in the memorandum

of the points and authorities on which Defendants rely in opposition to the motion (ECF No. 23),

Plaintiffs’ Motion for Leave to File First Amended Complaint /nstanter (ECF No. 21) is denied.

IT IS SO ORDERED.

September 16, 2020 /s/ Benita Y. Pearson

Date Benita Y. Pearson

United States District Judge