Opinion

Johnson v. Baptist Memorial Health Care Corporation

Court
District Court, W.D. Tennessee
Filed
Nov 7, 2019
Cited by
0 cases
Authority
More cited than 29.7%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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