# Smith v. H & H Samuels Properties, LLC

> District Court, W.D. Tennessee · January 6, 2021

URL: https://www.frixlaw.com/law-library/cases/10440443

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** January 6, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10440443

## How later opinions describe it (automated extraction)

- holding that an amendment filed three years into case and after dispositive motions had been filed was only “relatively light prejudice”
- holding that decision not to bring a class action evidenced that plaintiffs intended not to represent non-parties
- recognizing the effect of Taylor in narrowing the adequate representation exception

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10440443. Public record. Not legal advice.