“failure to raise an argument in [an] appellate brief [forfeits] the argument on appeal.”
How later courts described this case
- “failure to raise an argument in [an] appellate brief [forfeits] the argument on appeal.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
R.S., et al.,, CASE NO. 3:20 CV 2791
Plaintiffs,
v. JUDGE JAMES R. KNEPP II
CHARMAINE WEST, et al.,
MEMORANDUM OPINION AND
Defendants. ORDER
INTRODUCTION
Currently pending before the Court is Plaintiffs R.S. and T.H.’s Motion for Leave to File
an Amended Complaint. (Doc. 77). Defendants Lucas County Children Services employees
Charmaine West, Susan Hickey, Rebecca Von Sacken, and Courtney Mowery filed a response in
partial opposition. (Doc. 78).
For the reasons discussed below, the Court grants in part and denies in part Plaintiffs’
motion.
BACKGROUND
Plaintiffs’ First Amended Complaint contained 23 claims for relief arising out of abuse
suffered by Plaintiffs while placed in foster care. (Doc. 49). As is relevant here, against West,
Hickey, Von Sacken and Mowery, Claim 1 asserted a due process claim under 42 U.S.C. § 1983;
Claims 2 through 4 asserted state-law negligence, negligence per se, and conspiracy; and Counts
22 and 23 asserted false imprisonment and failure to report. See id.
Defendants West, Hickey, Von Sacken, Mowery, Lucas County Children Services and
the Board of Commissioners of Lucas County, and Board member Laura Lloyd-Jenkins filed a
Motion for Judgment on the Pleadings seeking dismissal of all claims asserted against them in
the First Amended Complaint. See Doc. 60. In a Memorandum Opinion and Order, this Court
granted that motion in its entirety. (Doc. 70). Therein, the Court found, inter alia, (1) the
individual Defendants were entitled to qualified immunity on Plaintiffs’ Fourteenth Amendment
substantive due process claims; and (2) the individual Defendants were entitled to state-law
statutory immunity from the Ohio law claims of negligence, negligence per se, conspiracy, false
imprisonment, and failure to report. See id.
The Court subsequently declined to exercise supplemental jurisdiction over the remaining
state law claims (against other non-moving Defendants) and dismissed them without prejudice.
(Doc. 73).
Plaintiffs appealed. The Sixth Circuit Court of Appeals reversed as to the § 1983
substantive due process claim against West, Hickey, Von Sacken, and Mowery. R.S. v. Lucas
Cnty. Children Servs., 2022 WL 17730531 (6th Cir.). In so doing, it noted:
Plaintiffs choose to pursue this one claim on appeal and do not challenge the
district court’s dismissal of their remaining claims, including their claim that
LCCS’s official policy or custom caused their harm. See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978). Although Plaintiffs’ statement of issues
generally refers the district court's grant of immunity to “Appellees” from their §
1983 claims, Plaintiffs only assign error to the district court’s dismissal of
their DeShaney claim against the individual LCCS employees. Because issues not
raised in an opening appellate brief are forfeited, see Scott v. First S. Nat’l Bank,
936 F.3d 509, 522 (6th Cir. 2019), we address only [ ] Plaintiffs’ DeShaney claim
and the district court’s grant of qualified immunity to the individual LCCS
employees.
Id. at *3 n.1.
The Proposed Second Amended Complaint seeks to reassert the § 1983 claim upon which
the Sixth Circuit reversed; the state law claims against West, Hickey, Von Sacken, and Mowery;
and state law claims against other Defendants that were previously dismissed without prejudice
following dismissal of the federal claim. See Doc. 77-1.
STANDARD OF REVIEW
Federal Civil Rule 15(a)(2) provides that “a party may amend its pleading only 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). Thus, courts freely permit a party to amend its
complaint
[i]n the absence of any apparent or declared reason—such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, [or] futility of amendment....
Foman v. Davis, 371 U.S. 178, 182 (1962).
DISCUSSION
Plaintiffs move for leave to file their Second Amended Complaint. (Doc. 77). They assert
the amendment is appropriate given the Sixth Circuit’s reversal. They further contend reasserting
the state law claims dismissed without prejudice is appropriate now that the federal law claim
remains. Finally, Plaintiffs note R.S. has reached the age of majority and thus identify him as a
party plaintiff bringing his own claims.
Defendants West, Hickey, Von Sacken, and Mowery filed a response in limited
opposition. (Doc. 78). They assert the Second Amended Complaint’s reassertion of Claims 2-4
and 22-23 (the state law claims) against them is futile because those claims did not survive the
Motion for Judgment on the Pleadings, and Plaintiffs did not appeal the dismissal of those
claims. The Court agrees.
The state law claims against West, Hickey, Von Sacken, and Mowery in the proposed
Second Amended Complaint mirror those asserted in the First Amended Complaint. Compare
Doc. 49, at 20-23, 26-27 with Doc. 77-1, at 19-21, 24-25. The Sixth Circuit expressly noted that
it would “address only [ ] Plaintiffs’ DeShaney claim and the district court’s grant of qualified
immunity to the individual LCCS employees” because Plaintiffs “choose to pursue this one
claim on appeal and do not challenge the district court’s dismissal of their remaining claims”.
2022 WL 17730531, at *3 n.1 (emphasis added). As the court noted, “issues not raised in an
opening appellate brief are forfeited”. Id. (citing Scott v. First S. Nat’l Bank, 936 F.3d 509, 522
(6th Cir. 2019)); see also Radvansky v. City of Olmsted Falls, 395 F.3d 291, 311 (6th Cir. 2005)
(“failure to raise an argument in [an] appellate brief [forfeits] the argument on appeal.”).
By not appealing the portion of this Court’s prior judgment dismissing the state law
claims, Plaintiffs forfeited their right to do so. They may not now reassert them as that portion of
the previously-issued final judgment stands. As such, amendment to include these claims against
West, Hickey, Von Sacken, and Mowery would be futile.
As such, the Court grants Plaintiffs’ motion in part and denies it in part. Plaintiffs may
file their proposed Second Amended Complaint, striking Counts 2-4 and Counts 22-23 as
asserted against West, Hickey, Von Sacken, and Mowery.
CONCLUSION
For the foregoing reasons, good cause appearing, it is
ORDERED that Plaintiffs’ Motion for Leave to File their Second Amended Complaint
(Doc. 77) be, and the same hereby is, GRANTED IN PART and DENIED IN PART as set forth
herein; and it is
FURTHER ORDERED that Plaintiffs shall file an Amended Complaint consistent with
the determination herein or before March 17, 2023.
s/ James R. Knepp II
UNITED STATES DISTRICT JUDGE