The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
AMBER YOUNG,
Plaintiff,
v. Civil Action 2:20-cv-3971
Judge Sarah D. Morrison
Magistrate Judge Jolson
I LOVE THIS BAR LLC,
et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Leave to File Amended Complaint.
(Doc. 48). For the reasons that follow, Plaintiff’s Motion is GRANTED, and the Clerk shall file
Document Number 68-1 as the Amended Complaint in this matter.
I. BACKGROUND
Plaintiff Amber Young is a former bartender at Defendant I Love This Bar d/b/a Park Street
Cantina (“Park Street”), a nightclub in Columbus, Ohio. (Doc. 1, ¶ 7). Defendant Fadi Michael
owns Defendant Park Street, as well as Defendants I Love Vine LLC d/b/a Granero Lounge
(“Granero”), I Love High LLC d/b/a Short North Julep (“Julep”), Park Street Boys LLC d/b/a
Callahan’s Bar and Rooftop (“Callahan’s”). (Id., ¶¶ 9–10). Plaintiff alleges that Defendants
repeatedly violated the Fair Labor Standards Act (“FLSA”) by, for example, failing to pay their
servers and bartenders overtime or minimum wage. (See generally Doc. 68-1).
Plaintiff filed her Collective and Class Action Complaint on August 5, 2020, (Doc. 1), and
the Court granted conditional certification on April 16, 2021 (Doc. 36). Defendants filed
counterclaims against Plaintiff, alleging that she stole cash from Defendant Park Street’s register,
resulting in her termination. (Doc. 22). Plaintiff moved to dismiss the counterclaims but withdrew
her Motion before it became ripe. (See Docs. 19, 29, 30, 32). Following conditional certification,
the Court set a case schedule with an amendment deadline of June 30, 2021, and a discovery
deadline of April 29, 2022. (Doc. 39).
Roughly one month into discovery, Plaintiff moved for leave to amend to include, inter
alia, an FLSA retaliation claim. (Doc. 48). Defendants noted in opposition that Plaintiff was
simultaneously pursuing a Title VII retaliation claim before the Board of Equal Employment
Opportunity Commission (“EEOC”), and she intended to move to amend for a second time to
include this claim. (Doc. 57 at 7). To avoid piecemeal amendment requests, the Court ordered
Plaintiff to file a status report regarding her Title VII claim. (Doc. 60). Plaintiff quickly informed
the Court that she had received her Right to Sue Letter from the EEOC, and she then filed a revised
proposed first amended complaint. (Docs. 63, 68-1).
Defendants do not oppose Plaintiff’s proposed Title VII retaliation or state law
discrimination claims. (Doc. 71). Nor do they object to her request to add a defendant, Formaggio
LLC (“Formaggio”), another Columbus nightclub owned by Defendant Michael. (See Doc. 57 at
2). They do, however, oppose the addition of Plaintiff’s proposed FLSA retaliation and Ohio civil
recovery claims. (Id.). But, as explained below, Plaintiff has met her burden to add the claims.
II. STANDARD
Trial courts enjoy broad discretion in deciding motions for leave to amend. See Gen. Elec.
Co. v. Sargent & Lundy, 916 F.2d 1119, 1119, 1130 (6th Cir. 1990). “Rule 15 encompasses a
liberal policy in favor of granting amendments and ‘reinforce[s] the principle that cases should be
tried on their merits rather than the technicalities of pleadings.’” Rover Pipeline LLC v. Zwick,
No. 2:19-CV-4698, 2020 WL 3637635, at *1 (S.D. Ohio July 6, 2020) (internal quotation marks
and citation omitted) (quoting Inge v. Rock Fin. Corp., 388 F.3d 930, 936 (6th Cir. 2004)). “In
interpreting this Rule, ‘[i]t should be emphasized that the case law in this Circuit manifests
liberality in allowing amendments to a complaint.’” Zwick, 2020 WL 3637635, at *1 (alteration
in original) (quoting Parchman v. SLM Corp., 896 F.3d 728, 736 (6th Cir. 2018)). Indeed, in the
absence of “‘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,” the Court “should, as the rules
require, . . . ‘freely’” grant leave. Zwick, 2020 WL 3637635, at *1 (internal quotation marks and
citation omitted (quoting Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 640 (6th Cir. 2018)).
III. DISCUSSION
Because Defendants object to Plaintiff’s proposed FLSA retaliation and Ohio civil
recovery claims only, the Court limits its discussion to the same.
A. FLSA Retaliation
Plaintiff wants to add a retaliation claim to this case. She alleges that Defendant Park Street
“filed a meritless Counterclaim against [her] alleging that she stole money from a cash register
owned by Defendant Park Street,” in retaliation for her bringing FLSA claims. (Doc. 68, ¶ 160).
In response, Defendants rely on Rule 15(d) of the Federal Rules of Civil Procedure to say it is
improper to add claims that allegedly occurred after the original pleading. (Doc. 57 at 4–5). But
Defendants’ reliance on Rule 15(d), which governs supplemental pleadings, is misplaced. (See,
e.g., id. (citing The Charter Oak Fire Ins. Co. v. SSR, Inc., No. CV 11-118-HRW, 2015 WL
10890126, at *2 (E.D. Ky. July 13, 2015) (denying motion to supplement pleading to add a party
that became potentially liable after plaintiff filed the original complaint))).
Instead, Rule 15(a) is on point, and it permits an FLSA plaintiff to amend to include a claim
for FLSA retaliation. Important here, “counterclaims can support a retaliation claim when the
counterclaims are baseless, brought in bad faith, brought with a retaliatory motive and lack a
reasonable basis in law and fact, or are designed to deter claimants from seeking legal redress
because of their in terrorem effect.” Viera v. Gen. Auto. Ins. Servs., No. 3:19-CV-00901, 2021
WL 396687, at *7 (M.D. Tenn. Feb. 4, 2021) (quotation marks omitted) (collecting cases and
granting plaintiff leave to amend to include FLSA retaliation claim based on allegedly retaliatory
counterclaim). That is what Plaintiff alleges Defendants did. (See Doc. 68-1, Count VIII)
(asserting that Defendants filed a “meritless” counterclaim against her in retaliation for filing this
lawsuit)). Thus, Defendants’ argument is misplaced.
Defendants’ remaining contention—that Plaintiff will soon seek to amend for a second
time to add her other retaliation claim (Doc. 57 at 7)—is now moot. Plaintiff’s proposed amended
complaint (Doc. 68-1) now includes both her FLSA and Title VII retaliation claims.
In sum, Defendants have not shown that Plaintiff should be denied leave to amend to
include an FLSA retaliation claim.
B. Ohio Civil Recovery
Plaintiff also seeks to amend to include a state law claim under Ohio Revised Code
2307.60, which entitles a person injured by a criminal act to civil damages. (Doc. 68, Count VI).
The underlying criminal act is Defendants’ alleged willful violation of the FLSA. (Id., ¶¶ 145–
48). Defendants respond that Plaintiff delayed in bringing the claims and, regardless, allowing the
claims to proceed now would prejudice them. (Doc. 57 at 6–8).
Regarding delay, Defendants contend that, because this claim is premised upon her existing
FLSA claims, Plaintiff could and should have included it in her original pleading. (Doc. 57 at 6).
The Court does not disagree. But “mere delay, of itself, is not a reason to deny leave to amend[.]”
Permasteelisa CS Corp. v. Airolite Co., LLC, No. 2:06-CV-0569, 2007 WL 1683668, at *3 (S.D.
Ohio June 8, 2007) (citing Foman, 371 U.S. at 182). Rather, “delay coupled with demonstrable
prejudice either to the interests of the opposing party or of the Court can justify such denial.”
Permasteelisa, 2007 WL 1683668, at *3 (citing Foman, 371 U.S. at 182).
Defendants cannot demonstrate that sort of prejudice here. They contend simply that
amendment would require them to engage in “additional investigation into the alleged criminal
conduct.” (Doc. 57 at 8). Yet, as Defendants themselves note, the proposed civil recovery claim
stems from Plaintiff’s existing claims. Thus, Defendants would not be forced “to expend
significant additional resources to conduct discovery.” Permasteelisa, 2007 WL 1683668, at *3
(citing Phelps v. McClellan, 30 F.3d 658, 662–63) (6th Cir. 1994)) (noting that, whether prejudice
is “undue” depends on “whether an amendment at any stage of the litigation would make the case
unduly complex and confusing . . . and ask if the defending party would have conducted the defense
in a substantial[ly] different manner had the amendment been tendered previously”). Further,
discovery has only just begun (see Doc. 39), and this is Plaintiff’s first request to amend.
Defendants, therefore, have not demonstrated that they would be significantly prejudiced by the
addition of this claim.
Briefly, Defendants cursorily accuse Plaintiff of bringing this claim out of retaliation for
Defendants’ counterclaims. (Id. at 5–6). Plaintiff denies any retaliatory motive. (Doc. 59 at 6– 7).
At this point, each side is accusing the other of retaliation. And the Court will not deny amendment
based upon unsupported allegations of bad faith or dilatory intent. See Ziegler v. IBP Hog Mkt.,
Inc., 249 F.3d 509, 519 (6th Cir. 2001) (citing Foman, 371 U.S. at 182) (noting that leave to amend
under Rule 15(a) “should not be denied unless there is evidence of . . . bad faith”).
At base, the federal amendment standard is liberal, and leave to amend should be freely
given. See Fed. R. Civ. P. 15(a). The Court finds that Plaintiff has satisfied that generous standard.
IV. CONCLUSION
For these reasons, Plaintiff’s Motion for Leave to File First Amended Complaint (Doc. 48)
is GRANTED, and the Clerk shall file Document Number 68-1 as the Amended Complaint in this
matter.
IT IS SO ORDERED.
Date: July 13, 2021 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE