Smith v. H & H Samuels Properties, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

BRANDON SMITH, )

)

Plaintiff, )

)

)

v. ) No. 2:19-cv-2870-SHM-dkv

)

H & H SAMUELS PROPERTIES, )

LLC, )

)

Defendant. )

ORDER GRANTING MOTION TO AMEND AND DENYING MOTION TO DISMISS

Plaintiff Brandon Smith brings this action against

Defendant H & H Samuels Properties, LLC under the Americans

with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (2018)

(the “ADA”), and its implementing regulations, the ADA’s

Accessibility Guidelines, 28 C.F.R. Part 36 (the “ADAAG”).

Before the Court are Defendant’s Motion to Dismiss for Failure

to State a Claim (the “Motion to Dismiss”), (D.E. No. 17), and

Plaintiff’s Motion for Leave to File an Amended Complaint (the

“Motion to Amend”), (D.E. No. 19). The motions are ripe for

consideration. (See D.E. Nos. 18, 22, 23.) For the following

reasons, the Motion to Amend is GRANTED, and the Motion to

Dismiss is DENIED AS MOOT.

I. Background

Plaintiff filed the complaint on December 18, 2019. (D.E.

No. 1.) He alleges that he was denied access to and/or

enjoyment of the strip mall facility located at 756-766 Mt.

Moriah St., Memphis, TN 38117. (Id. ¶¶ 9, 12.) He alleges that

strip mall falls within the scope of the ADA requirements. (Id.

at ¶¶ 16-20.) The complaint outlines specific ADA and ADAAG

violations that Plaintiff claims discriminated against him and

others with disabilities. (Id. at ¶ 25(a)-(k).)

On April 19, 2020, Defendant filed the Motion to Dismiss.

(D.E. No. 17.) The Motion to Dismiss alleges that Defendant

owns only a portion of the strip mall in question and that

Defendant is not liable for many of the violations alleged in

the complaint. (D.E. No. 17-1 at 51-56.) The Motion to Dismiss

also alleges that Plaintiff is precluded from litigating the

remaining violation by the doctrine of issue preclusion based

on the settlement reached in Renee Guibao v. Gibson’s Donuts

Inc. and H & H Samuels Properties, LLC, Case No. 2:17-02135-

JPM-egb (“Guibao”). (Id. at 56-63.)

On May 17, 2020, Plaintiff filed his Motion to Amend.

(D.E. No. 19.) The proposed amendment would add a second

defendant, the owner of the remaining portion of the strip

mall, and make changes to the remainder of the complaint’s

allegations. (See D.E. No. 19-1.) Defendant opposes the Motion

to Amend arguing that it would cause undue delay and that it

would be futile. (See D.E. No. 22.)

II. Jurisdiction

Plaintiff’s ADA claim is a federal question over which the

Court has jurisdiction pursuant to 28 U.S.C. § 1331.

III. Standard of Review

A. Rule 15(a)(2)

“The [C]ourt should freely give leave [to amend] when

justice so requires.” Fed.R.Civ.P. 15(a)(2). The Supreme Court

has emphasized that, 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 leave sought

should, as the rules require, be ‘freely given.’” Foman v.

Davis, 371 U.S. 178, 182 (1962). The relevant questions in the

prejudice inquiry are whether the amendment would “require the

opponent to expend significant additional resources to conduct

discovery and prepare for trial” or “significantly delay the

resolution of the dispute.” See Phelps v. McClellan, 30 F.3d

658, 662-63 (6th Cir. 1994). “Amendment of a complaint is

futile when the proposed amendment would not permit the

complaint to survive a motion to dismiss.” Miller v. Calhoun

Cty., 408 F.3d 803, 817 (6th Cir. 2005) (citing Neighborhood

Dev. Corp. v. Advisory Council on Historical Pres., 632 F.2d

21, 23 (6th Cir. 1980)).

B. Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure

requires 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.

IV. Analysis

Defendant argues that the Motion to Amend should be denied

because it will create undue delay and because it is futile.

Undue delay alone, even if present, would not be sufficient to

deny the Motion to Amend. The proposed amendment withstands a

Rule 12(b)(6) analysis. It would not be futile.

A. Undue Delay

Defendant argues that the motion to amend will create

undue delay because Plaintiff should have known the owner of

the strip mall and so could have included the proper parties

from the outset of the litigation. (D.E. No. 17-1 at 51-52.)

However, undue delay alone, without significant prejudice to

the defendant, is an insufficient reason to deny a motion to

amend. Moore v. City of Paducah, 790 F.2d 557, 562 (6th Cir.

1986) (holding it was abuse of discretion to deny amendment

because of undue delay where there was only “relatively light

prejudice” to defendant); see Wade v. Knoxville Utilities Bd.,

259 F.3d 452, 459 (6th Cir. 2001) (“[D]elay alone was not

sufficient reason to deny the amendment . . . .”).

The prejudice to the Defendant is relatively light. There

are no new claims that would require substantial resources to

conduct discovery. There would be no substantial delay in the

resolution of the dispute because a defendant has been added.

Although Plaintiff did not move to amend until after the filing

of a motion to dismiss, that would not create undue prejudice.

See Doe v. Denison University, 2:16-cv-143, 2016 WL 3166003, at

*2 (S.D. Ohio June 7, 2016) (holding that the cost and

inconvenience of having to re-file a motion to dismiss after an

amended complaint was not undue prejudice); see also Moore, 790

F.2d at 562 (holding that an amendment filed three years into

case and after dispositive motions had been filed was only

“relatively light prejudice”).

Defendant would not be unduly prejudiced by amendment.

B. Futility

Defendant argues that the Motion to Amend would be futile

because as amended the complaint would fail to withstand

Defendant’s arguments in the Motion to Dismiss. Defendant makes

two relevant arguments. First, it argues that some of the

allegations contained in the complaint are based on factual

inaccuracies. Second, it argues that the remaining issue raised

in the complaint is barred by the doctrine of issue preclusion.

1. The Factual Inaccuracies

Resolution of the alleged factual inaccuracies is not

appropriate at this stage in the litigation because the Court

must accept the allegations in the complaint as true. See

Dobronski v. Selectquote Ins. Srvs., 462 F. Supp. 3d 784, 788-

89 (E.D. Mich. 2020) (holding that factual disputes should not

be resolved during the futility of amendment analysis because

they are more appropriate for resolution during the summary

judgment stage); cf. Compass Homes, Inc. v. Trinity Health

Grp., Ltd., 2:13-cv-00647, 2014 WL 12656502, at *5 (S.D. Ohio

Oct. 6, 2014) (holding affirmative defense not appropriate for

resolution in futility analysis because it is better suited for

summary judgment).

2. Issue Preclusion

The doctrine of issue preclusion bars a party or privy to

a prior litigation resolved on the merits from re-litigating an

issue. United States v. Vasilakos, 508 F.3d 401, 406 (6th Cir.

2007) (citing Montana v. United States, 440 U.S. 147, 153

(1979)) (“Collateral estoppel precludes relitigation of issues

between parties or their privies previously determined by a

court of competent jurisdiction.”). “Privity is limited to ‘a

successor in interest to the party, one who controlled the

earlier action, or one whose interests were adequately

represented.’” Id. (quoting Sanders Confectionary Prods., Inc.

v. Heller Financial, Inc., 973 F.2d 474, 481 (6th Cir. 1992)).

Adequate representation requires, inter alia, that “either the

party understood herself to be acting in a representative

capacity or the original court took care to protect the

interests of the nonparty.” Taylor v. Sturgell, 553 U.S. 880,

900 (2008) (narrowing the adequately represented exception to

the principle that every person should get his or her own day

in court).

Defendant cites language in the Guibao complaint that

purports to demonstrate that the plaintiff in Guibao understood

herself to be acting in a representative capacity. (D.E. No.

17-1 at 62-63.) The relevant language speaks to the

representation of all persons with disabilities; however, no

class certification was sought or granted, (see Guibao, No.

2:17-02135-JPM-egb D.E. Nos. 1-26), which weighs against the

Guibao plaintiff’s having an understanding that she represented

all persons with disabilities, see Pelt v. Utah, 539 F.3d 1271,

1289 (10th Cir. 2008) (holding that decision not to bring a

class action evidenced that plaintiffs intended not to

represent non-parties). None of the protections for class

members was present in that litigation. (See Guibao, No. 2:17-

02135-JPM-egb D.E. Nos. 1-26.) Under similar circumstances,

this Circuit has refused to apply issue preclusion because the

Supreme Court has narrowly circumscribed the adequate

representation exception to the rule against non-party

preclusion. See Amos v. PPG Indus., Inc., 699 F.3d 448, 452-53

(6th Cir. 2012) (recognizing the effect of Taylor in narrowing

the adequate representation exception).

Amendment would not be futile. The Motion to Amend is

GRANTED.

C. The Motion to Dismiss

Because the Motion to Amend is GRANTED, the Motion to

Dismiss is DENIED AS MOOT. The Motion to Dismiss refers to the

original complaint, which will no longer be operative once

Plaintiff files his amended complaint to comply with this

Order. See Clark v. Johnston, 413 F. App’x 804, 811 (6th Cir.

2011) (“When a pleading is amended pursuant to Federal Rule of

Civil Procedure 15(a), the amended pleading supersedes the

original pleading, i.e., the original pleading no longer

performs any function in the case and any subsequent motion

made by an opposing party should be directed at the amended

pleading . . . .”) (internal quotations omitted); see also

Durbin v. AmeriCredit Financial Srvs., Inc., 466 F. Supp. 3d

743, 746 n.3 (W.D. Ky. 2020) (“The filing of the First Amended

Complain rendered moot the many motions to dismiss the

Complaint.”).

V. Conclusion

For the foregoing reasons, the Motion to Amend is GRANTED,

and the Motion to Dismiss is DENIED AS MOOT. Plaintiff is

DIRECTED to file his First Amended Complaint within fourteen

(14) days of the entry of this Order.

SO ORDERED this _6th__ day of January, 2021.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE