The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DONOVAN D. BARROW, Civil Action No. 1:19-cv-1089
Plaintiff, Black, J.
Bowman, M.J
vs.
WESTROCK, INC.,
Defendant.
ORDER AND REPORT AND RECOMMENDATION
This civil action is now before the Court on Defendant WestRock’s motion to strike
Plaintiff’s response in opposition to Defendant’s reply in support of its motion to dismiss
Plaintiff’s Complaint. (Doc. 24). Also, before the Court is Defendant’s motion to dismiss
Plaintiff’s complaint for failure to state a claim (Doc. 9) and Plaintiff’s motion to amend his
complaint. (Doc. 32)
Here, Plaintiff’s complaint asserts he was “hired as an independent contractor
(Doc. 3 at p. 1), and makes various references to said “contract” work for WestRock
throughout the Complaint. (Id. at pp. 2, 4, 9). Plaintiff’s independent contractor status is
also confirmed by an “Independent Contractor Consulting Agreement” (“Agreement”)
between Plaintiff’s consulting company and one of Defendant’s third-party staffing
vendors, AdeptSource.
As such, Defendant filed a motion to dismiss Plaintiff’s complaint pursuant to Fed.
R. Civ. P. 12(b)(6) asserting, inter alia, that Plaintiff fails to state a claim under Title VII
and the ADA due to his independent contractor status and the lack of any allegations
demonstrating an employment relationship with WestRock. In the alternative, to the
extent that the Court finds that Plaintiff has stated a claim for relief, Defendant seeks to
strike Plaintiff’s attempt at class certification under Rule 23. (Doc. 9).
Plaintiff filed a memorandum contra to Defendant’s motion to dismiss. Plaintiff’s
opposition repeatedly references his “contract” work for WestRock, the extensions of his
“assignment/project,” and “the ending of the contract.” (Doc. 17. at pp. 12, 15, 16, 17).
His opposition also states that the work he performed was pursuant to an agreement
between WestRock and AdeptSource. (Id. at. p. 15). Defendant filed its reply based on
Plaintiff’s consistent allegations, admissions and arguments that he was one of
WestRock’s independent contractors. Thereafter, without leave of court, Plaintiff filed a
response to Defendants reply. In this unauthorized sur-reply, Plaintiff asserted for the
first time that he was an employee of the Employment Agency AdeptSource and therefore
should be “considered an employee” under Title VII with the Defendant. (Doc. 22) Thus,
Plaintiff raises a new legal issue for the first time. Based on the foregoing, Defendant
now asks the Court to strike Plaintiff’s sur-reply and not to consider it for purposes of
determining Defendant’s Motion to Dismiss.
In support of its motion to dismiss, Defendant notes that it is well established in the
Sixth Circuit that a non-moving party cannot raise a new legal theory for the first time in
response to an opposing party’s motion to dismiss. See Tucker v. Union of Needletrades,
Indus., & Textile Employees, 407 F.3d 784, 788 (6th Cir. 2005). Notably, allowing such
conduct would severely prejudice the moving party, not only by effectively squandering
hours of time and resources expended by the non-moving party and its counsel, but by
denying the non-moving party an effective opportunity to properly consider and respond
to the arguments. See In re Keithley Instruments, Inc., 599 F. Supp. 2d 908, at pp. 912-
916 (N.D. Ohio).
Defendant further notes that this Court’s local rules also state that a sur-reply to a
motion may only be permitted “upon leave of court for good cause shown.” Loc. R. Civ.
P. 7.2. Plaintiff did not request leave of court to file his sur-reply. Nor has he provided
good cause for his failure to do so. However, upon careful review and in the interests of
justice, the undersigned finds that Defendant’s motion to strike is not well-taken.
When a plaintiff proceeds pro se, the court will “hold [the complaint] to less
stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S.
519, 520 (1972). The court will consider documents filed after the complaint “as part of
the pleadings.” Flournoy v. Seiter, No. 98–3535, 1987 WL 24129 (6th Cir. Dec. 7, 1987)
(unpublished). However, a court cannot “create a claim which [a plaintiff] has not spelled
out in his pleading.” Brown v. Matauszak, 415 Fed.Appx. 608, 615 (6th Cir.2011) (quoting
Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.1975)).
In order to state a claim upon which relief can be granted, Plaintiff’s complaint must
contain allegations that address “all the material elements to sustain a recovery under
some viable legal theory.” Lewis v. ACB Bus. Services, Inc., 135 F.3d 389, 406 (6th
Cir.1998). In order to state a claim under Title VII or ADA the Plaintiff must allege that he
is an employee and not an independent contractor of the Defendant. Here, Plaintiff's
allegations in the complaint, along with his allegations in his sur-reply, state a facially
plausible claim for a violation under the Title VII and the ADA.
The Court recognizes that new factual allegations raised in an opposition
memorandum generally should not be considered because they were not part of the initial
complaint. However, given that the pro se plaintiff has alleged factually coherent claims,
the Court will not dismiss the complaint at this time, and instead, will give plaintiff the
opportunity to amend his complaint to include supporting factual allegations for his Title
VII and ADA claims. Nash v. Georgetown Police Dep't, No. 1:13–CV–741–HJW, 2014
WL 794761, at *1 (S.D.Ohio Feb. 27, 2014) (citing Fed.R.Civ.P. 15(a)(2)). See also Brown
v. Matauszak, 415 Fed.Appx. 608, 615 (6th Cir.2011) (Sixth Circuit has recognized that
“at least three circuits have held that if a complaint is vulnerable to a motion to dismiss, a
district court must first permit the plaintiff to file a curative amendment, even if the plaintiff
does not seek leave to amend.”).
As such, Plaintiff’s motion to amend his complaint is well-taken.
For these reasons, it is herein ORDERED that 1) Defendant’s motion to strike
(Doc. 24) is DENIED; 2) Plaintiff’s motion to amend (Doc. 32) is GRANTED; and 3)
Plaintiff shall filed his amended complaint containing the supporting factual allegations
contained in his sur-reply relating to his Title VII and ADA claims within 30 days of this
Order.
It is further RECOMMENDED that Defendant's motion to dismiss Plaintiff's
complaint (Doc. 9) should be DENIED at this time, subject to refiling, if necessary, if
Plaintiff’s amended complaint fails to cure the deficiencies raised in Defendant’s motion.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DONOVAN D. BARROW, Civil Action No. 1:19-cv-1089
Plaintiff, Black, J.
Bowman, M.J
vs.
WESTROCK, INC.,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on
timely motion by either side for an extension of time. All objections shall specify the
portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in
support of the objections. A party shall respond to an opponent’s objections within
FOURTEEN DAYS after being served with a copy of those objections. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).