noting that “a district court cannot grant summary judgment in favor of a movant simply because the adverse party has not responded,” and holding that “the situation should be [no] different in the context of a motion to dismiss for failure to state a claim”
How later courts described this case
- noting that “a district court cannot grant summary judgment in favor of a movant simply because the adverse party has not responded,” and holding that “the situation should be [no] different in the context of a motion to dismiss for failure to state a claim”
- noting that “a four-year statute of limitations applies” to § 1981 claims
- affirming trial court’s finding that “counsel’s neglect in not checking the docket was not excusable”
- affirming trial court’s conclusion that claims against new defendants did not relate back to date of original pleading “[s]ince the New Defendants were added to the complaint and not even plausibly substituted for an original named defendant”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
ANGELA L. JOHNSON, )
)
Plaintiff, )
)
v. ) No. 2:18-cv-02509-SHM-cgc
)
BAPTIST MEMORIAL HEALTH CARE )
CORPORATION and BAPTIST )
MEMORIAL MEDICAL GROUP, INC., )
)
Defendants. )
)
ORDER
This is an employment discrimination and retaliation case.
Before the Court are three motions. The first motion is
Defendant Baptist Memorial Medical Group, Inc.’s (“BMMG”) July
26, 2019 Motion to Dismiss Plaintiff’s Amended Complaint. (ECF
No. 43.) BMMG argues that Plaintiff Angela Johnson’s claims
under Title VII of the Civil Rights Act of 1964 (“Title VII”),
as amended, 42 U.S.C. §§ 2000e, et seq., are time-barred.
Johnson responded on September 18, 2019. (ECF No. 49.) BMMG
replied on October 2, 2019. (ECF No. 54.)
The second motion is BMMG’s October 2, 2019 Motion to Strike
Johnson’s Late-Filed Response to BMMG’s Motion to Dismiss (BMMG’s
“First Motion to Strike”). (ECF No. 54.) Johnson responded on
October 15, 2019. (ECF No. 61.) BMMG replied on October 24,
2019. (ECF No. 67.)
The third motion is BMMG’s October 22, 2019 Motion to Strike
Johnson’s Sur-Reply and Memorandum in Support (BMMG’s “Second
Motion to Strike”). (ECF No. 64.) Johnson has not filed a
response, and the time to do so has passed.
For the following reasons, the Court GRANTS BMMG’s Motion
to Dismiss. The Court GRANTS BMMG’s First Motion to Strike.
The Court GRANTS BMMG’s Second Motion to Strike.
I. Background
BMMG is a subsidiary of Baptist Memorial Health Care
Corporation (“BMHCC”). (Am. Compl., ECF No. 41 ¶ 7.) Johnson
is a former BMMG employee. (Id.) She worked for BMMG as a
Patient Finance Representative from August 2013 to July 2016.
(Id. ¶¶ 8, 17.)
On October 28, 2015, Johnson filed a Charge of
Discrimination with the U.S. Equal Employment Opportunity
Commission (the “EEOC”) alleging that she had been denied a
promotion because of her race. (Id. ¶ 12.) The October 28,
2015 Charge of Discrimination listed BMMG as the respondent.
(Id. Ex. 1.) On April 26, 2018, the EEOC sent Johnson a Notice
of Suit Rights based on this Charge of Discrimination. (Id.
¶ 13.)
On July 7, 2016, Johnson filed a second Charge of
Discrimination with the EEOC alleging that she had been
retaliated against for filing the October 28, 2015 Charge of
Discrimination. (Id. ¶¶ 14-18.) The July 7, 2016 Charge of
Discrimination listed BMHCC as the respondent. (Id. Ex. 3.) On
May 22, 2018, the EEOC sent Johnson a Notice of Suit Rights based
on this Charge of Discrimination. (Id. ¶ 19.)
On July 24, 2018, Johnson filed a Complaint against BMHCC
alleging race-based discrimination and retaliation in violation
of: (1) Title VII; (2) Section 1981 of the Civil Rights Act of
1866, as amended, 42 U.S.C. § 1981; and (3) the Fourteenth
Amendment of the United States Constitution. (ECF No. 1 at 1-
2.) On July 12, 2019, Johnson filed an Amended Complaint adding
BMMG as a defendant. (ECF No. 41.)
BMMG moves to dismiss Johnson’s Title VII claims as time-
barred.1 (ECF No. 43.) BMMG moves to strike Johnson’s untimely
response to BMMG’s Motion to Dismiss. (ECF No. 54.) BMMG moves
1 BMMG states in its motion that it moves to dismiss Johnson’s § 1981
claims as well. (ECF No. 43 at 1.) In its memorandum of law, BMMG
does not discuss Johnson’s § 1981 claims and argues only that
Johnson’s Title VII claims are time-barred. (See ECF No. 43-1.)
Johnson’s § 1981 claims are governed by a separate statute of
limitations, which BMMG does not address. See Barrett v. Whirlpool
Corp., 556 F.3d 502, 511 (6th Cir. 2009) (noting that “a four-year
statute of limitations applies” to § 1981 claims); Tartt v. City of
Clarksville, 149 F. App’x 456, 461 n.2 (6th Cir. 2005) (noting that
§ 1981 claims “are not governed by the same EEOC restrictions and
statutes of limitations as Title VII claims”). The Court
understands BMMG’s Motion to Dismiss to be directed only to
Johnson’s Title VII claims.
to strike Johnson’s sur-reply to its Motion to Dismiss. (ECF
No. 64.)
II. Jurisdiction
The Court has federal-question jurisdiction. Under 28
U.S.C. § 1331, United States district courts have original
jurisdiction “of all civil actions arising under the
Constitution, laws, or treaties of the United States.” Johnson
alleges that BMMG violated Title VII, 42 U.S.C. § 1981, and the
Fourteenth Amendment of the United States Constitution. Those
claims arise under the Constitution and laws of the United
States.
III. Standard of Review
A. Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) allows dismissal
of a complaint that “fail[s] to state a claim upon which relief
can be granted.” A Rule 12(b)(6) motion permits the “defendant
to test whether, as a matter of law, the plaintiff is entitled
to legal relief even if everything alleged in the complaint is
true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (citing
Nishiyama v. Dickson Cty., 814 F.2d 277, 279 (6th Cir. 1987)).
A motion to dismiss tests only whether the plaintiff has pled a
cognizable claim and allows the court to dismiss meritless cases
that would waste judicial resources and result in unnecessary
discovery. See Brown v. City of Memphis, 440 F. Supp. 2d 868,
872 (W.D. Tenn. 2006).
When evaluating a motion to dismiss for failure to state a
claim, the Court must determine whether the complaint alleges
“sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The “[f]actual allegations must be
enough to raise a right to relief above [a] speculative level.”
Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d
545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555).
A claim is plausible on its face if “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
556). A complaint need not contain detailed factual allegations.
However, a plaintiff’s “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do
not suffice.” Id.
B. Motion to Strike
Granting or denying a motion to strike is within the sound
discretion of the trial court. Seay v. Tenn. Valley Auth., 339
F.3d 454, 480 (6th Cir. 2003). The Federal Rules of Civil
Procedure do not contemplate motions to strike documents other
than pleadings. Fox v. Mich. State Police Dep’t, 173 F. App’x
372, 375 (6th Cir. 2006); cf. Fed. R. Civ. P. 12(f) (providing
that “[a] court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous
matter”). “[T]rial courts make use of their inherent power to
control their dockets . . . when determining whether to strike
documents or portions of documents [other than pleadings].” Zep
Inc. v. Midwest Motor Supply Co., 726 F. Supp. 2d 818, 822 (S.D.
Ohio 2010) (citing Anthony v. BTR Auto Sealing Sys., 339 F.3d
506, 516 (6th Cir. 2003)).
“District courts have broad discretion in interpreting,
applying, and determining the requirements of their own local
rules.” Pearce v. Chrysler Grp., L.L.C. Pension Plan, 615 F.
App’x 342, 349-50 (6th Cir. 2015) (citing S.S. v. E. Ky. Univ.,
532 F.3d 445, 451 (6th Cir. 2008)). “The district court does
not have to accept every filing submitted by a party.” Ross,
Brovins & Oehmke, P.C. v. Lexis Nexis Grp., a Div. of Reed
Elsevier Grp., PLC, 463 F.3d 478, 488 (6th Cir. 2006). A court
acts within its discretion when it strikes a filing for, inter
alia, untimeliness or a failure to comply with the local rules.
See Ordos City Hawtai Autobody Co. v. Dimond Rigging Co., 695 F.
App’x 864, 870-72 (6th Cir. 2017) (affirming trial court’s
striking of response brief because of failure to comply with
local rules); Ross, 463 F.3d at 488-89 (affirming trial court’s
striking of reply brief because party failed to request the
necessary leave to file); Jones v. Northcoast Behavioral
Healthcare Sys., 84 F. App’x 597, 598-99 (6th Cir. 2003)
(affirming trial court’s striking of untimely memoranda of law).
IV. Analysis
A. BMMG’s First Motion to Strike
BMMG moves to strike Johnson’s response to BMMG’s Motion to
Dismiss. (ECF No. 54.) BMMG filed its Motion to Dismiss on
July 26, 2019. (ECF No. 43.) Under the Local Rules of the U.S.
District Court for the Western District of Tennessee (the “Local
Rules”), Johnson had 28 days to respond. LR 12.1(b). Johnson
filed her response 26 days late, on September 18, 2019. (ECF
No. 49.)
When a filing deadline has passed, a court “may, for good
cause, extend the time,” but only “on motion made after the time
has expired if the party failed to act because of excusable
neglect.” Fed. R. Civ. P. 6(b)(1). Johnson filed no motion to
extend time. She filed her response late and did not explain
why.
In her response to BMMG’s First Motion to Strike, Johnson
attempts to explain her delay. She says she missed the Court’s
automatic email notification about BMMG’s Motion to Dismiss
because her counsel’s “server had a malfunction,” and that,
“[o]nce the malfunction was discovered and corrected, she got a
notice in this case for [BMMG’s] Motion to Dismiss.” (ECF No.
61 at 1-2.) Johnson argues that this constitutes excusable
neglect. (Id.)
In this Circuit, missing an email is not an excuse for
missing a deadline. “[P]arties have an affirmative duty to
monitor the dockets to keep apprised of the entry of orders.”
Yeschick v. Mineta, 675 F.3d 622, 629 (6th Cir. 2012) (affirming
trial court’s finding that “counsel’s neglect in not checking
the docket was not excusable”). The same goes for other docket
events, like the entry of a motion. Failure to keep up with
what happens in a case is not excusable neglect. See EEOC v.
Indi’s Fast Food Rest., Inc., No. 3:15-cv-00590, 2016 WL 7473130,
at *5-6 (W.D. Ky. Dec. 28, 2016) (declining to consider late-
filed reply brief because “counsel’s non-receipt of emails d[id]
not relieve his responsibility to monitor the Court’s docket and
keep apprised of developments within his active cases” and did
not “constitut[e] excusable neglect”); Moncier v. Jones, 939 F.
Supp. 2d 854, 861-62 (M.D. Tenn. 2013) (finding that “Plaintiff’s
failure to respond to [a] motion to dismiss as a result of his
computer difficulties d[id] not constitute excusable neglect”);
Dumas v. Hurley Med. Ctr., No. 10-cv-12661, 2013 WL 12309315, at
*2 (E.D. Mich. Aug. 7, 2013) (declining to consider plaintiff’s
late-filed objections to magistrate judge’s report and
recommendation and noting that “[e]mail notification is a
convenience, but its existence does not excuse Plaintiff from
her duty to actively log-on to the CM/ECF system and check the
docket”); see also Dudek v. Greektown Casino, LLC, No. 13-cv-
12471, 2014 WL 526225, at *2 (E.D. Mich. Feb. 10, 2014) (“[A]n
attorney’s ‘failure to respond to [a dispositive motion] or to
request an extension of time to file a response thereto is
inexcusable neglect.’”) (alterations in original) (quoting
Kendall v. Hoover Co., 751 F.2d 171, 175 (6th Cir. 1984)).
Johnson did not move for an extension of time to respond to
BMMG’s Motion to Dismiss. Her belated explanation does not
justify her delayed response. The Court GRANTS BMMG’s First
Motion to Strike and will not consider Johnson’s untimely
response to BMMG’s Motion to Dismiss.
B. BMMG’s Second Motion to Strike
BMMG moves to strike Johnson’s sur-reply to BMMG’s Motion
to Dismiss. (ECF No. 64.) On October 2, 2019, BMMG filed a
reply to Johnson’s response to BMMG’s Motion to Dismiss (BMMG’s
“MTD Reply”). (ECF No. 54.) BMMG’s MTD Reply was combined with
its First Motion to Strike. (See id. at 1-2 (First Motion to
Strike), 3-5 (MTD Reply).) On October 15, 2019, Johnson
responded to BMMG’s MTD Reply and BMMG’s First Motion to Strike
in the same filing. (ECF Nos. 61, 61-1.)2 On pages 1-2 of ECF
No. 61 and pages 1-3 of ECF No. 61-1, Johnson responds to BMMG’s
First Motion to Strike. On pages 2-5 of ECF No. 61 and pages 3-
7 of ECF No. 61-1, Johnson responds to BMMG’s MTD Reply.
Johnson’s responses to BMMG’s MTD Reply function as a sur-
reply. Under the Local Rules, a moving party may reply to a
response to a motion to dismiss without the Court’s leave. LR
12.1(c). Otherwise, “reply memoranda may be filed only upon
court order granting a motion for leave to reply. Such motion
for leave must be filed within 7 days of service of the response.”
LR 7.2(c). Johnson did not seek leave to file a sur-reply to
BMMG’s MTD Reply. Her sur-reply is unauthorized. See Bey v.
Terminix Int’l, L.P., No. 17-cv-02597, 2018 WL 3552348, at *4
(W.D. Tenn. July 24, 2018) (striking plaintiff’s filing in
response to defendant’s motion to dismiss because the “document
is in fact a sur-reply filed to Defendant’s Partial Motion to
Dismiss” and noting that “Local Rule 12.1 does not authorize the
filing of a sur-reply to a motion to dismiss, and Plaintiff has
not obtained leave of court to do so”); Price v. ReconTrust Co.,
N.A., No. 12-cv-02170, 2013 WL 12284475, at *1 n.5 (W.D. Tenn.
Feb. 19, 2013) (striking a plaintiff’s “unauthorized sur-reply”
2 ECF No. 61 is Johnson’s “Response” to BMMG’s First Motion to Strike
and MTD Reply. ECF No. 61-1 is Johnson’s “Memorandum of Law in
Opposition” to BMMG’s First Motion to Strike and MTD Reply.
and noting that “[t]his Court’s local rules do not contemplate
the filing of sur-reply briefs in support of motions to
dismiss”).
The Court will not consider the portions of ECF No. 61 (on
pages 2-5) and ECF No. 61-1 (on pages 3-7) that constitute
Johnson’s unauthorized sur-reply to BMMG’s MTD Reply. Johnson
did not seek the necessary leave to file those portions. The
Court GRANTS BMMG’s Second Motion to Strike.
C. BMMG’s Motion to Dismiss
BMMG moves to dismiss Johnson’s Title VII claims as time-
barred.3 (ECF No. 43.) BMMG argues, inter alia, that, because
Johnson’s response to its Motion to Dismiss was inexcusably late,
“Defendant’s MTD should be granted without further
consideration.” (ECF No. 54 at 2.) The law is to the contrary.
The Local Rules provide that “[f]ailure to respond timely to any
motion, other than one requesting dismissal of a claim or action,
may be deemed good grounds for granting the motion.” LR
7.2(a)(2) (emphasis added). The Sixth Circuit has held that a
3 In its reply brief, BMMG argues in the alternative that there was
not good cause for the Court to allow Johnson to file her Amended
Complaint. (ECF No. 54 at 4-5.) The Court will not consider an
argument for dismissal raised for the first time on reply. “[R]eply
briefs reply to arguments made in the response brief -- they do not
provide the moving party with a new opportunity to present yet
another issue for the court’s consideration.” Scottsdale Ins. Co.
v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (emphasis in original)
(quoting Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed.
Cir. 2002)).
court may not grant a dispositive motion simply because the
opposing party failed to respond. See Carver v. Bunch, 946 F.2d
451, 455 (6th Cir. 1991) (noting that “a district court cannot
grant summary judgment in favor of a movant simply because the
adverse party has not responded,” and holding that “the situation
should be [no] different in the context of a motion to dismiss
for failure to state a claim”). Even when a motion to dismiss
is unopposed, “the district court is required to examine the
movants’ motion on the merits.” Burse v. Gene Reed Ford, 966
F.2d 1451 (6th Cir. June 17, 1992) (unpublished table opinion)
(citing Carver, 946 F.2d at 455). The Court will consider the
merits of BMMG’s Motion to Dismiss.
1. Title VII’s 90-Day Time Limitation
BMMG argues that Johnson’s Title VII claims are time-barred.
(ECF No. 43-1 at 4-6.) Title VII provides that, before filing
a lawsuit against her employer, an aggrieved employee must file
a charge of discrimination with the EEOC. 42 U.S.C. § 2000e-
5(e); Williams v. CSX Transp. Co., 643 F.3d 502, 507-08 (6th
Cir. 2011). The EEOC investigates the charge and decides whether
to take further action, such as filing a civil suit against the
employer. 42 U.S.C. § 2000e-5(b), (f)(1); EEOC v. Frank’s
Nursery & Crafts, Inc., 177 F.3d 448, 455-56 (6th Cir. 1999).
If the EEOC does not take further action, it sends the employee
a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1); Logan v. MGM
Grand Detroit Casino, 939 F.3d 824, 828 (6th Cir. 2019). Once
the employee receives the right-to-sue letter, she must file
suit against her employer within 90 days. 42 U.S.C. § 2000e-
5(f)(1). This 90-day limit is “strictly enforced.” Graham-
Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552,
557 (6th Cir. 2000); see also Disena v. TS Emp’t Inc., No. 16-
2269, 2017 WL 4124889, at *2 (6th Cir. May 11, 2017) (affirming
dismissal of untimely Title VII claim that was filed six months
after plaintiff received right-to-sue letter from the EEOC).
“Absent compelling equitable considerations, a court should not
extend [Title VII’s] limitations by even a single day.” Graham-
Humphreys, 209 F.3d at 561.
Johnson received her two right-to-sue letters -- for her
discrimination and retaliation claims, respectively -- on April
26, 2018, and May 22, 2018. (ECF No. 41 ¶¶ 13, 19.) She timely
filed suit against BMHCC, the parent entity of her employer BMMG,
on July 24, 2018. (ECF No. 1.) Johnson waited almost another
year, until July 12, 2019, to add BMMG as a defendant. (ECF No.
41.) Johnson’s failure to file her Title VII claims against
BMMG within Title VII’s 90-day limit bars those claims. They
are untimely. See Anderson v. Tenn. Quadel Consulting Corp.,
No. 16-cv-02652, 2017 WL 3431398, at *3 (W.D. Tenn. Aug. 9, 2017)
(finding that Title VII claims would be “obviously time-barred”
where plaintiff failed to sue the correct defendant until 10
months after he received a right-to-sue letter from the EEOC);
Bondwe v. Mapco, Inc., No. 3:13-cv-0419, 2013 WL 6051764, at *2
(M.D. Tenn. Nov. 15, 2013) (noting that Title VII plaintiff’s
amended complaint naming correct defendant was untimely because
it was filed “one day after the limitations period had expired”).
2. “Relation Back” Under Rule 15(c)(1)(C)
Although Johnson’s Title VII claims against BMMG were not
timely filed, they are not time-barred if they “relate back” to
the date of Johnson’s original, timely Complaint. See Handy v.
Gannett Satellite Info. Network, Inc., No. 3:06-cv-0331, 2007 WL
1975575, at *5-6 (M.D. Tenn. July 6, 2007) (finding that
substitution of correct defendant for misidentified party that
took place after Title VII’s 90-day limit had expired was timely
because the substitution “relate[d] back to the timing of the
original [complaint]”). Rule 15(c)(1)(C) of the Federal Rules
of Civil Procedure governs the “relation back” of an amended
complaint that “changes the party or the naming of the party
against whom a claim is asserted.” Fed. R. Civ. P. 15(c)(1)(C).
Under Rule 15(c)(1)(C), an amendment that “changes the
party” will relate back to the date of the original complaint
if: (1) the claim asserted in the amendment arises out of the
conduct, transaction, or occurrence set out or attempted to be
set out in the original complaint; (2) the new party received
notice of the suit within 90 days of the filing of the original
complaint such that it will not be prejudiced in defending the
merits of the case; and (3) the new party knew or should have
known within 90 days of the filing of the original complaint
that, but for a mistake in the identity of the proper party, the
action would have been brought against her. Fed. R. Civ. P.
15(c)(1); Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 544-
45 (2010); Jones v. Yancy, No. 07-cv-02263, 2016 WL 10590155, at
*4 n.4 (W.D. Tenn. Dec. 12, 2016).
The Court need not consider whether Johnson’s Amended
Complaint meets the requirements of Rule 15(c)(1)(C). The
Amended Complaint has a threshold defect: it added BMMG as an
additional defendant rather than changing the defendant from
BMHCC to BMMG. (Compare ECF No. 1 with ECF No. 41.) “[A]n
amendment which adds a new party creates a new cause of action
and there is no relation back to the original filing for purposes
of limitations.” Asher v. Unarco Material Handling, Inc., 596
F.3d 313, 318 (6th Cir. 2010) (quoting In re Kent Holland Die
Casting & Plating, Inc., 928 F.2d 1448, 1449 (6th Cir. 1991));
see also Lester v. Wow Car Co., 675 F. App’x 588, 592-93 (6th
Cir. 2017) (affirming trial court’s conclusion that claims
against new defendants did not relate back to date of original
pleading “[s]ince the New Defendants were added to the complaint
and not even plausibly substituted for an original named
defendant”). The substitution of a correct defendant for a
misidentified party will relate back to the date of the original
pleading if the requirements of Rule 15(c)(1)(C) are met. See
Reed v. U.S. Bancorp, No. 1:12-cv-344, 2013 WL 1249231, at *5-7
(E.D. Tenn. Mar. 26, 2013) (finding that amended complaint
related back to date of original complaint where plaintiff sought
“leave to amend her complaint to completely remove” the
misidentified defendant “and assert her claims only against” the
proper party).
In her motion for leave to file her Amended Complaint,
Johnson asked the Court to allow her to add BMMG as a defendant.
(ECF No. 38 at 2.) The Amended Complaint contains two counts,
each naming BMMG and BMHCC. (ECF No. 41 ¶¶ 5-6, 24-36.) In her
response to a separate, pending filing in this case -- BMHCC’s
Motion for Summary Judgment -- Johnson argues that BMHCC should
be considered a “joint employer” with BMMG. (ECF No. 50 at 9.)
Johnson’s addition of BMMG as a defendant was a substantive
change in her case, not a technical correction to a pleading
mistake. Her Amended Complaint does not relate back to the date
of her original Complaint. See In re Biozoom, Inc. Sec. Litig.,
93 F. Supp. 3d 801, 811-12 (N.D. Ohio 2015) (amended pleading
did not “relate back” because it “involve[d] adding both new
Defendants and new Plaintiffs” rather than “the substitution of
plaintiffs or defendants”); Hiler v. Extendicare Health Network,
Inc., No. 5:11-cv-192, 2013 WL 756352, at *4 (E.D. Ky. Feb. 26,
2013) (amended pleading did not “relate back” because the
defendants it named were “newly added parties, resulting not in
substitution or a party change but rather an enlargement of the
defendant roster”); DeBois v. Pickoff, No. 3:09-cv-230, 2011 WL
1233665, at *10-11 (S.D. Ohio Mar. 28, 2011) (amended pleading
did not “relate back” because it “add[ed] three new defendants”
rather than effecting a “one-for-one substitution”).
In her October 15, 2019 sur-reply to BMMG’s MTD Reply,
Johnson asserts that her decision to sue BMHCC instead of BMMG
was a mistake. She argues that “there was a misidentification
of the parties,” she “intended to bring a cause of action against
[BMMG] but for the mistaken identity,” and “[BMMG] should be
substituted for [BMHCC].” (ECF No. 61 at 3; ECF No. 61-1 at 3-
4.) Those arguments form part of Johnson’s unauthorized sur-
reply to BMMG’s MTD Reply. The Court will not consider them.
See supra, at 9-11. Even if the Court were to consider Johnson’s
sur-reply arguments, however, her assertions in the sur-reply
conflict with the Amended Complaint, which contains counts
against BMMG and BMHCC. (ECF No. 41 ¶¶ 5-6, 24-36.)
BMMG’s Motion to Dismiss Johnson’s Title VII claims is
GRANTED. As pled, those claims do not relate back to Johnson’s
original Complaint and are time-barred.
V. Conclusion
For the foregoing reasons, BMMG’s First Motion to Strike is
GRANTED. BMMG’s Second Motion to Strike is GRANTED. BMMG’s
Motion to Dismiss is GRANTED.
So ordered this 7th day of November, 2019.
/s/ Samuel H. Mays, Jr.
Samuel H. Mays, Jr.
UNITED STATES DISTRICT JUDGE