# Esper v. Enlow

> District Court, M.D. Tennessee · October 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10438987

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** October 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE

DELANEY ESPER et. al. )
) Case No. 3:23-cv-00116
v. ) Judge Richardson
) Magistrate Judge Holmes
RICHARD ENLOW et al. )

MEMORANDUM ORDER1

Pending before the Court is Plaintiff’s amended motion to amend complaint (Docket No.
49), to which Defendants filed a response in opposition (Docket No. 52). For the reasons discussed
below, Plaintiff’s amended motion to amend (Docket No. 49) is GRANTED. The Clerk is directed
to separately file the amended complaint, which is presently found at Docket No. 49-1. Once filed,
the amended complaint is the legally operative complaint, Parry v. Mohawk Motors of Mich., Inc.,
236 F.3d 299, 306 (6th Cir. 2000), which renders moot Defendants’ motions for partial judgment
on the pleadings. (Docket No. 36 and 38.) The Clerk is therefore directed to TERMINATE those

1 Although the Sixth Circuit has not directly addressed whether a motion to amend is a
dispositive or non-dispositive motion, most of the district courts in the Sixth Circuit, including this
Court, consider an order on a motion to amend to be non-dispositive. See, e.g., Gentry v. The
Tennessee Board of Judicial Conduct, No. 3:17-cv-00020, 2017 WL 2362494, at *1 (M.D. Tenn.
May 31, 2017) (“Courts have uniformly held that motions to amend complaints are non-dispositive
matters that may be determined by the magistrate judge and reviewed under the clearly erroneous
or contrary to law standard of review …”) (citations omitted); Chinn v. Jenkins, Case No. 3:02-
cv-512, 2017 WL 1177610, at *2 (S.D. Ohio March 31, 2017) (order denying motion to amend is
not dispositive); Young v. Jackson, No. 12-cv-12751, 2014 WL 4272768, at *1 (E.D. Mich. Aug.
29, 2014) (“A denial of a motion to amend is a non-dispositive order.”); Hira v. New York Life
Insurance Co., No. 3:12-CV-373, 2014 WL 2177799, at **1-2 (E.D. Tenn. May 23, 2014)
(magistrate judge’s order on motion to amend was appropriate and within his authority because
motion to amend is non-dispositive); United States v. Hunter, No. 3:06-cr-062, 3:12-cv-302, 2013
WL 5820251, at *1 (S.D. Ohio Oct. 29, 2013) (stating that a magistrate judge’s orders denying
petitioner’s motions to amend a petition pursuant to 28 U.S.C. § 2855 were non-dispositive). See
also Elliott v. First Fed. Comm. Bank of Bucyrus, 821 Fed.Appx. 406, 412-13 (6th Cir. 2020)
(referring generally to motion for leave to amend as non-dispositive motion).
motions without prejudice to refiling as motions for partial judgment on the pleadings as to the
amended complaint, but not for partial dispositive relief on any other basis.2 Further, Defendants
shall answer or otherwise respond to the amended complaint as directed by Rule 15(a)(3) of the
Federal Rules of Civil Procedure.3
Background4

This is a fairly standard motor vehicle accident case brought in this Court based on diversity
jurisdiction. (Docket No. 1.) Shortly after the case was commenced, Defendant Wipeout Logistics
moved to strike from the complaint allegations of Defendant Richard Enlow’s supposed attempt
to bribe an on-scene witness. (Docket No. 15.) The motion to strike was ultimately denied. (Docket
No. 32.) Defendants Wipeout Logistics and Richard Enlow also moved for early partial judgment
on the pleadings (Docket Nos. 36 and 38), seeking dismissal of Plaintiffs’ punitive damages
claims. As of the date of Plaintiffs’ motion for leave to amend, the motions for partial judgment
on the pleadings remained pending.
Plaintiffs request leave to amend their complaint to correct what they describe as

“transcription” and numbering errors (Docket No. 49) and to include an additional factual
allegation and claim based on body cam video footage purportedly obtained from the investigating
law enforcement department. (Id.) Defendants oppose the amendment, largely on grounds that the

2 Specifically, if Defendants now wish to seek partial summary judgment based on the
crash data report submitted at Docket No. 53, or any other evidentiary basis, they must first file a
motion for leave.

3 Unless otherwise noted, all references to rules to are to the Federal Rules of Civil
Procedure.

4 Given the pendency of partially dispositive motions, the prior motion to strike, and the
briefing of the instant motion for leave to amend, familiarity with this case is presumed. The
underlying facts and procedural background are therefore only recited as necessary to give context
to or explanation for the Court’s ruling.
proposed amended complaint and the claims asserted by Plaintiffs are subject to dismissal or at
least partial dismissal for the same reasons as the original complaint, and therefore futile, which
warrants denial of the motion to amend. (Docket No. 52.) Defendants also reiterate their
opposition to Plaintiffs’ characterizations of the conduct of Defendant Richard Enlow as a

supposed attempt to bribe an on-scene witness, to Plaintiffs’ claims of negligence per se, and to
Plaintiffs’ request for punitive damages. (Id.) In support of their opposition, Defendants refer to
dash cam footage (id. at 2) and a crash site data report. (Docket No. 53.)

Legal Standards and Analysis

The Court’s consideration of the pending motion is governed by Rule 15, which states that
leave to amend a pleading should be “freely given when justice so requires.” Fed. R. Civ. P. 15(a).
This mandate follows the principle that a plaintiff’s claims ought to be decided on the merits
“rather than the technicalities of pleadings.” Moore v. City of Paducah, 790 F.2d 557, 559 (6th
Cir. 1986) (quoting Tefft v. Seward, 689 F.2d 637, 639 (6th Cir. 1982)) (cleaned up). Sixth Circuit
precedent clearly “manifests liberality in allowing amendments to a complaint.” Newberry v.
Silverman, 789 F.3d 636, 645 (6th Cir. 2015) (quoting Janikowski v. Bendix Corp., 823 F.2d 945,
951 (6th Cir. 1987)) (cleaned up). Absent “any apparent or declared reason,” such as undue delay,
bad faith or dilatory motive, repeated failure to cure deficiencies by prior amendments, undue
prejudice to the opposing party, or futility of the amendment, “the leave should, as the rules require,
be freely given.” Leary v. Daeschner, 349 F.3d 888, 905 (6th Cir. 2003 (quoting Foman v. Davis,
371 U.S. 178, 182 (1962) (cleaned up). Granting permission to amend a pleading is within the
district court’s sound discretion. Moore, 790 F.2d at 559 (internal citations omitted). For the
reasons discussed below, the Court finds that Rule 15’s liberal standard of allowing amendments
is not overcome by any other considerations under the circumstances of this case, including futility
or bad faith.
The crux of Defendants’ opposition focuses on the purported futility of Plaintiff’s proposed
amended complaint. Defendants also contend that Plaintiffs’ proposed amendments are made in

bad faith because the punitive damages and negligence claims are, according to Defendants,
baseless, given that Plaintiffs are in possession of “incontrovertible evidence” that Plaintiff
Delaney Esper was traveling “at 1.2 miles per hour at the time of the September 26, 2022
collision.” (Docket No. 52 at 5.) Defendants’ arguments are largely a rehash of their motion to
strike and their pending motions for partial judgment on the pleadings, except that they now raise
the issue of viability of Plaintiffs’ claims based on outside evidence, including a crash data retrieval
report. (Docket No. 53.)
A proposed amendment is futile when it would not survive a motion to dismiss under Rule
12(b)(6) and the Sixth Circuit has made clear that any analysis of the futility of proposed
amendments is equivalent to that undertaken in consideration of a Rule 12(b)(6) motion. Rose v.

Hartford Underwriters Ins. Co., 203 F.3d 417, 421 (6th Cir. 2000). In connection with a motion
to amend, the “Court’s role is to evaluate only whether the futility of an amendment is so obvious
that it should be disallowed.” Oro Capital Advisors, LLC v. Borro Construction Co., LLC, Case
Nos. 2:19-cv-5087, 2:20-cv-4894, 2022 WL 3026862, at *10 (S.D. Ohio Aug. 1, 2022) (internal
citations omitted) (cleaned up).
“Courts in this circuit recognize that futility arguments in the context of a motion to amend
are functionally dispositive and present something of a conceptual difficulty when raised before a
magistrate judge who, by statute, cannot ordinarily rule on dispositive motions.” Local Spot, Inc.
v. Lee, Case No. 3:20-cv-00421, 2020 WL 7554214, at *4 (M.D. Tenn. Dec. 14, 2020) (citing
Durthaler v. Accounts Receivable Mgmt., Inc., No. 2:10-cv-1068, 2011 WL 5008552, at *4 (S.D.
Ohio Oct. 20, 2011) (cleaned up); see also Vanburen v. Ohio Dep’t of Pub. Safety, No. 2:11-cv-
1118, 2012 WL 5467526, at *4 (S.D. Ohio Nov. 9, 2012) (holding that due to this “procedural
roadblock,” the better course would be to allow amendment of the complaint with the

understanding that a motion to dismiss may follow filing of the amended complaint). This is
particularly true where, as here, the parties have raised the same or similar legal issues in
dispositive motions that are concurrently pending before the District Judge. Under these
circumstances, “[a]llowing Defendants’ substantive legal arguments to be addressed in a single
decision is the most efficient course of action and will guard against inconsistent results in different
procedural contexts.” Local Spot, 2020 WL 7554214, at *4.5
Further, the Court finds scarce support for Defendants’ argument that Plaintiffs have acted
in bad faith. Defendants’ argument for bad faith is, in many ways, a reiteration of their argument
of futility, and for the reasons explained above, lacks merit. As importantly, or perhaps even more
so, the Court is disinclined to determine the sufficiency of merits evidence, as implicitly urged by

Defendants, in the context of a motion to amend. See e.g. Max Rack, Inc. v. Hoist Fitness Sys.,
Inc., No. 2:05-CV-784, 2008 WL 11345928, at *2 (S.D. Ohio Jan. 9, 2008) (not necessary for
court to review evidence in following Rule 15’s direction to resolve cases on the merits rather than
the technicalities of pleadings).
In addition to the efficiencies discussed above and the lack of bad faith by Plaintiffs, the
Court finds no other apparent reasons to deny the motion for leave to amend under Rule 15(a)(2).

5 To be clear, allowance of the amendment should not be construed as a determination that
Defendants’ arguments for partial judgment on the pleadings are without merit. The undersigned
expresses no opinion on the merits of those arguments, including implicitly by granting Plaintiffs’
motion to amend.
Specifically, the Court does not find that Plaintiffs have made repeated prior efforts to cure
deficiencies. Further, the Court finds neither any undue delay in Plaintiffs’ requested leave to
amend, as the motion was filed within the deadline for amendment motions, nor any resulting
prejudice to Defendants. When considering the issue of prejudice, a court must ask whether

allowing the amendment would “require the opponent to expend significant additional resources
to conduct discovery or prepare for trial” or cause considerable delay in resolving the dispute.
Phelps v. McClennan, 30 F.3d 658, 662-63 (6th Cir. 1994) (citations omitted); see also Dassault
Systemes, SA v. Childress, 663 F.3d 832, 842 (6th Cir.) (delay and increased costs from having to
litigate a dispute are not sufficient prejudice). The Court finds no such circumstances here.
Moreover, the Court acknowledges the well-settled principle that “federal courts have a
strong preference for trials on the merits.” Clark v. Johnson, 413 F.App’x 804, 819 (6th Cir. 2011).
There being no compelling reasons to deny the motion for leave to amend under Rule 15(a)(2), the
Court will allow the amendment.6
Conclusion

For all these reasons, Plaintiffs’ motion for leave to amend (Docket No. 49) is granted. The
Clerk is directed to separately file the amended complaint, which is presently found at Docket No.
49-1. Once filed, the amended complaint is the legally operative complaint, Parry v. Mohawk
Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir. 2000), which renders moot Defendants’ motions
for partial judgment on the pleadings. (Docket No. 36 and 38.) The Clerk is therefore directed to
terminate those motions without prejudice to refiling as motions for partial judgment on the

6 The Court also notes that the time to seek leave to amend has now expired, which
minimizes, if not eliminates, the prospect of additional amendments.
pleadings as to the amended complaint, but not for partial dispositive relief on any other basis.’
Further, Defendant shall answer or otherwise respond to the amended complaint as directed by
Rule 15(a)(3) of the Federal Rules of Civil Procedure.
It is SO ORDERED.

c □□ D. HOLMES
United States Magistrate Judge

7 Expansion of a partially dispositive pleadings motion to include evidentiary-based
arguments may result in summary denial of the motion as violative of the Court’s orders. See Fed.
R. Civ. P. 16(f). Specifically, if Defendants now wish to seek partial summary judgment based on
the crash data report submitted at Docket No. 53, or any other evidentiary basis, they must first
file a motion for leave to do so.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10438987. Public record. Not legal advice.