Gay

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRENT GAY,

Plaintiff,

v. Civil Action 2:25-cv-652

Judge Edmund A. Sargus, Jr.

Magistrate Judge Kimberly A. Jolson

UNION LOCAL SCHOOL

DISTRICT, et al.,

Defendants.

OPINION & ORDER

Before the Court is Plaintiff’s Motion for Leave to Amend (Doc. 58). For the following

reasons, the Motion is GRANTED.

I. BACKGROUND

This case is about a physical altercation between two adult men at a high school football

game. As told by the operative complaint, Plaintiff and his wife attended the Union Local Jets’

football game against the Barnesville Shamrocks on October 25, 2025. (Doc. 40 at ¶ 20). At

halftime, Union Local was losing badly—to the point that Plaintiff and his wife decided to leave

the game. (Id. at ¶ 21). As Plaintiff exited the stands, he spoke to one of the assistant coaches,

Defendant Butler, whom he had known for years. (Id. at ¶¶ 21–23). Plaintiff asked Butler if he

had “watch[ed] any film this week”—a self-described sarcastic criticism of Union Local’s

coaches’ lack of preparation. (Id. at ¶¶ 25, 33). According to Plaintiff, Butler walked over to him

and began “lunging at and hitting [Plaintiff] hard in the collarbone with both hands.” (Id. at ¶ 34).

Then, Butler “grabbed [Plaintiff] by the coat, pulling it up and bunching it around his throat . . .

forc[ing] him back[.]” (Id. at ¶ 35). A different coach attempted to break up the fight. (Id. at

¶ 36). All three fell to the ground, where Plaintiff suffered additional kicks to his ribs and back.

(Id.). A police officer intervened and handcuffed Plaintiff. (Id. at ¶ 37). Once the officer allowed

Plaintiff to leave, his wife drove him to the hospital. (Id. at ¶¶ 40–45). He suffered abrasions and

contusions to his face and ribs. (Id. at ¶ 47).

Plaintiff brought this litigation against both Butler and the Union Local School District

Board of Education (the “Board”). (Id. at ¶¶ 11–12). Against the Board, he alleges Monell liability

under 42 U.S.C. § 1983 and reckless hiring, training, supervision, discipline, staffing, and retention

under state law. (Id. at ¶¶ 100–112, 145–149). Plaintiff also alleges Butler violated his First

Amendment right to free speech under 42 U.S.C. § 1983. (Id. at ¶¶ 113–120). He further raises

several causes of action against Butler under state law, including civil liability for criminal acts,

civil assault, civil battery, and the intentional infliction of emotional distress. (Id. at ¶¶ 121–144,

150–154). Plaintiff seeks declaratory relief, as well as compensatory and punitive damages and

attorney fees. (Id. at 27–28).

Almost immediately after filing this case, Plaintiff amended his complaint. (Doc. 3). A

few months later, the Court granted Plaintiff’s request to extend the parties’ deadline to amend the

pleadings to November 14, 2025. (Doc. 27). The Court subsequently granted him leave to amend

twice more—with the latter amendment merely correcting an inadvertent oversight. (Docs. 30,

31, 38, 39). In the meantime, the parties engaged in discovery. Upon the parties’ request, the

Court set the deadline to complete fact discovery to June 30, 2026. (Doc. 53). At that time, the

Court warned the parties that it would not extend the deadline further. (Id.). Still, a couple weeks

before the fact discovery deadline, Plaintiff asked to amend his complaint once again. (Doc. 58).

He wants to add many new factual allegations, as well as First Amendment facial and as-applied

challenges to spectator policies in Union Local’s athletic department handbook against the Board.

(Id.; see also Doc. 58-2 at 40 (proposed amendment also adding a request to enjoin Defendants

from enforcing the policies)). Both Defendants oppose. (Docs. 62, 63). This matter is ready for

consideration. (Docs. 58, 62, 63, 66).

II. STANDARD

Under Rule 15, when a party seeks leave of court to amend a pleading, “[t]he court should

freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). This rule “reinforce[s] the

principle that cases ‘should be tried on their merits rather than the technicalities of pleadings.’”

Inge v. Rock Finan. Corp., 388 F.3d 930, 936 (6th Cir. 2004) (quoting Moore v. City of Paducah,

790 F.2d 557, 559 (6th Cir. 1986)). In interpreting this Rule, “[i]t should be emphasized that the

case law in this Circuit manifests liberality in allowing amendments to a complaint.” Parchman

v. SLM Corp., 896 F.3d 728, 736 (6th Cir. 2018) (citation modified).

In the absence of any apparent or declared reason—such as 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, futility of amendment, etc.—the leave sought

should, as the rules require, be “freely given.”

Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 640–41 (6th Cir. 2018) (quoting Foman v.

Davis, 371 U.S. 178, 182 (1962)). Trial courts enjoy broad discretion in deciding motions for

leave to amend. See Gen. Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990).

Yet, “[o]nce a pleading deadline has passed, litigants must meet the higher threshold for

modifying a scheduling order found in Rule 16(b)” before considering the proposed amendment

under Rule 15. Shane v. Bunzl Distribution USA, Inc., 275 F. App’x 535, 536 (6th Cir. 2008)

(citing Leary v. Daeschner, 349 F.3d 888, 906–07 (6th Cir. 2003)). “[T]he touchstone of the good

cause inquiry under Rule 16(b) is whether the moving party acted diligently in attempting to meet

the deadline set forth in the pretrial order.” Permasteelisa CS Corp. v. Airolite Co., LLC, No. 2:06-

cv-0569, 2007 WL 1683668, at *2 (S.D. Ohio June 8, 2007). The Court must also consider “the

potential prejudice” to the other parties. Leary, 349 F.3d at 909.

III. DISCUSSION

The Court begins by considering Plaintiff’s request to amend the case schedule under Rule

16 before evaluating his proposed amendment under Rule 15.

A. Rule 16

Plaintiff’s deadline to amend his complaint was November 14, 2025. (Doc. 27). As

described above, the first question the Court must answer in considering a modification to the case

schedule is whether Plaintiff acted diligently in attempting to meet this deadline. The second

question is whether the amendment would prejudice Defendants. In both respects, the timeline of

discovery matters here.

1. Diligence

Plaintiff served the Board with his first request for production on October 23, 2025. (Doc.

62-2). On May 8, 2026, the Board supplemented its responses and produced a November 2010

athletic department handbook containing the Spectator Code of Conduct that forms the basis for

Plaintiff newly proposed claims. (Doc. 58-4; see also Doc. 58-5). Then on May 21 and 22,

Plaintiff asked Union Local’s former athletic director, Nick Nardo, and Defendant Butler about

the Spectator Code of Conduct at their depositions. (Docs. 58-6, 58-7). One week later—the day

of the Board’s 30(b)(6) deposition—Plaintiff informed Defendants he intended to amend his

complaint. (Doc. 58 at 4). Two weeks after that, Plaintiff filed the Motion at bar. (See generally

id.).

Plaintiff argues that this sequence of events evidences diligence because he was delayed in

discovering the Spectator Code of Conduct due to circumstances beyond his control. (Doc. 58 at

5). In other words, because the Board did not produce the athletic handbook until May, he could

not have asked to amend based on the handbook’s contents by the original amendment deadline in

November. (Id. (citing Permasteelisa CS Corp. v. Airolite Co., LLC, No. 2:06-CV-0569, 2007

WL 1683668 (S.D. Ohio June 8, 2007)). Plaintiff further justifies not filing his Motion until after

he deposed Nardo and Butler because he was waiting to obtain the information he needed to meet

the federal pleading standard. (Id. at 6).

The Board sees things differently. The Board admits that the athletic handbook was only

discovered as it was preparing for depositions. (Doc. 63 at 3 (stating “prior to its discovery inside

a binder on a shelf in the athletic office,” administrators were not aware of the handbook)). But

the Board submits Plaintiff’s delay of more than a month in between learning of the handbook’s

existence and his Motion does not constitute diligence. (Id. at 5). Additionally, the Board argues

that many of Plaintiff’s new factual allegations do not rely on the policies from the athletic

handbook, and there is no reason he could not have alleged them sooner. (Id. at 5, 7–8 (noting

some of Plaintiff’s new factual allegations incorporate other policies Plaintiff received as part of

the Board’s initial disclosures and others include screenshots of texts that do not reference the

Spectator Code of Conduct or the athletic handbook)).

Defendant Butler likewise contests Plaintiff’s purported diligence. According to Butler,

Plaintiff could have discovered the policies underlying his proposed amendment when the Board

provided its initial disclosures. (Doc. 62 at 6). As part of those disclosures, the Board provided

Plaintiff pages of the Ohio High School Athletic Association’s policy describing “sportsmanship

responsibilities” for parents and adult fans and the Board’s policies related to school-community

relations, public conduct on school district property, and public complaints. (See Doc. 62-1 at 7,

10–13). In Butler’s view, Plaintiff should have further inquired into the existence of local policies

or codes of conduct after receiving these disclosures. (Doc. 62 at 7 (also noting Plaintiff’s

subsequent requests for production requested only policies provided to staff about free speech and

interactions with spectators)). He also argues that an October 2024 video of the Board’s

superintendent addressing public criticism of coaches should have put Plaintiff on notice that a

related formal policy may exist. (Id. at 9). Butler finally suggests that if Plaintiff had scheduled

depositions of “key fact witnesses” sooner, he would have discovered the information underlying

his proposed amendment before May. (Id. at 8–9). In essence, Butler argues Plaintiff’s situation

is one of his own making. (Id. at 11–12).

Nonetheless, the Court finds Plaintiff was diligent in attempting to meet the deadline to

amend set forth in the pretrial order. This Court has noted “if a party is delayed in discovering the

basis for amending its pleadings due to circumstances beyond its control, it may use that delay as

a basis for arguing that a Rule 16(b) order deadline should be extended.” Permasteelisa CS Corp.,

2007 WL 1683668, at *2 (citing Noyes v. Kelly Services, 488 F.3d 1163 (9th Cir. 2007)). Here, it

is uncontested that the Board did not provide Plaintiff with a copy of the athletic handbook or the

Spectator Code of Conduct until months after the amendment deadline passed. (See Doc. 63 at 3).

This is a circumstance beyond Plaintiff’s control. Cf. Burke v. Ohio Dep’t of Rehab. & Correction,

No. 2:21-CV-48, 2023 WL 4199108 (S.D. Ohio June 26, 2023) (finding no good cause for a late

filed amendment where the delay in discovery was created by the plaintiff’s actions). Further,

even if Plaintiff propounded discovery requests more specific to a code of conduct for adult fans

before the amendment deadline, it is unlikely the Board would have produced the Spectator Code

of Conduct. At the time the Board produced the athletic handbook, the Board had only just found

it in preparing for depositions. (Doc. 63 at 3). It is unclear how Plaintiff was meant to divine that

the handbook existed when the Board was not even aware of it until recently.

Additionally, the Court declines, as Defendant Butler suggests, to deny Plaintiff’s Motion

because he deposed witnesses at the tail-end of discovery. While deposing witnesses earlier may

have resulted in the handbook being discovered and disclosed sooner, under the circumstances the

Court will not hold Plaintiff to the standard of hindsight. Cf. Permasteelisa CS Corp., 2007 WL

1683668, at *2 (rejecting a similar argument and noting the plaintiff “delayed taking certain

depositions until document discovery was complete, which is a reasonable way in which to

proceed”). The Court is also not persuaded by the Board’s argument that Plaintiff lacked diligence

because he did not seek leave to amend until a month after he knew of the Spectator Code of

Conduct. (Doc. 63 at 5). One month is not so long. And the Court has no reason to doubt

Plaintiff’s assertion that his choice to wait until after depositions to add the new claims was an

attempt at responsible pleading. (Doc. 66 at 9–10); see also Fed. R. Civ. P. 11(b)(2) (noting that

by presenting a pleading to the Court, an attorney certifies that to the best of her knowledge,

information, and belief that claims are warranted by existing law).

The Court acknowledges some new allegations contained in Plaintiff’s proposed

amendment reference policies Plaintiff had access to before May 8 or otherwise, on their face, do

not concern the Spectator Code of Conduct. (See, e.g., Doc. 58-3 at ¶¶ 54–65). But nothing in

Rule 16 requires the Court to analyze the diligence underlying each individual line of a proposed

amendment. And the bulk of the redlines in the proposed amendment readily relate to the new

First Amendment claims. (See, e.g., id. at ¶¶ 95–102, 151–187). On balance and considering all

the circumstances, Plaintiff was diligent enough to justify modifying the case schedule under Rule

16. Cf. Ousley v. CG Consulting, LLC, 339 F.R.D. 455, 460 (S.D. Ohio 2021) (finding Rule 16’s

good cause standard met even though the parties disputed when plaintiff discovered the

information underlying the proposed amendment where the timeline showed the plaintiff was

“diligent enough”).

2. Prejudice

Diligence, while the primary consideration, is not the end of the Rule 16 good cause

inquiry. The Court must also consider the prejudice Defendants would face if the case schedule

were modified. Again, the timeline informs the Court’s analysis.

Plaintiff asked for leave to amend 210 days after his deadline to do so. (See Doc. 27). In

the intervening months, Defendant Butler filed a motion for judgment on the pleadings (Doc. 44),

and the parties engaged in substantial discovery, including depositions. Additionally, the fact

discovery deadline passed as the Court waited for the parties to brief the Motion at bar. (See Doc.

53).

Defendants cite the expiration of the discovery deadline as indicative of prejudice. Both

say an amendment will necessitate more discovery, with the Board specifying that “at minimum”

it would “need to conduct discovery regarding whether the Handbook was ever even adopted by

the Board, whether its terms have been enforced, and whether it has been superseded by OHSAA

and other Board polices[.]” (Doc. 63 at 5; see also Doc. 62 at 14). Defendants also state that they

will be prejudiced by the inevitable extensions to other case schedule deadlines—including the

discovery deadline—that will follow the amendment. (Doc. 63 at 5–6, 9–10; Doc. 62 at 15).

In response, Plaintiff argues that Defendants overstate their case. Plaintiff first contests

that any other deadline in the case schedule would need to be shifted should he be granted leave

to amend. (Doc. 66 at 13). He then suggests that Defendants should have begun to conduct

discovery related to his unalleged claims when Plaintiff gave them notice he wanted to amend on

May 29. (Id. at 14). He also contends that the discovery the Board claims it needs can be easily

obtained from its own staff rather than obtained via a more costly and time-consuming subpoena

or discovery device. (Id. at 13 (also arguing Defendant Butler does not need any more discovery)).

Plaintiff’s attempts to minimize the prejudice Defendants would face as a result of a late-

stage amendment are not compelling. Cf. Shane v. Bunzl Distribution USA, Inc., 275 F. App’x

535, 537 (6th Cir. 2008) (“[A]llowing amendment after the close of discovery creates significant

prejudice[.]”) (citation omitted). Plaintiff is not in a position to unilaterally proclaim that neither

Defendant should need to use discovery mechanisms to defend against his new factual allegations

and claims. It is likewise odd that Plaintiff faults Defendants for not engaging in this discovery

before the Court even granted him permission to amend. And, it is disingenuous for Plaintiff to

insist that no other deadline will need to be extended as a result of the amendment, when the

discovery deadline has already passed and the other case schedule deadlines are fast approaching.

The fact remains that allowing Plaintiff to amend at this point will increase the time and cost of

this litigation.

At the same time, the Court is hesitant to say that Defendants would be so unduly

prejudiced by the case schedule modification that prejudice outweighs Plaintiff’s diligence. See

E.E.O.C. v. U-Haul Int’l, Inc., 286 F.R.D. 322, 325 (W.D. Tenn. 2012) (“Prejudice to the non-

moving party is a relevant consideration [in a 16(b) analysis], ‘but the main focus should remain

on the moving party’s exercise of diligence.’”) (quoting Cooke v. AT&T Corp., No. 2:05-cv-374,

2007 WL 188568, at *2 (S.D. Ohio Jan. 22, 2007)). Plaintiff’s new claims and factual allegations

are not so different from what is in the operative complaint that the new discovery will be overly

burdensome. Ultimately, a bit more discovery generally does not change the Court’s good cause

finding. Ousley, 339 F.R.D. at 460. This is especially true in light of the Court’s ability to

minimize prejudice as much as possible by reopening discovery for brief time and holding the

parties to tight case deadlines.

Therefore, pursuant to its “broad discretion in deciding motions for leave to amend,” the

Court finds that Plaintiff has exercised enough diligence and prejudice to Defendants can be

tempered. Rule 16(b)’s good cause requirement is satisfied.

B. Rule 15

The Court’s analysis does not end at Rule 16. The Court must still consider whether

Plaintiff should be granted leave to amend under Rule 15. As noted above, the Court should freely

give leave when justice so requires. Fed. R. Civ. P. 15(a)(2). Plaintiff submits there is good cause

to grant him leave to amend because Defendants will not be prejudiced. (Doc. 58 at 5).

Additionally, Plaintiff says if the Court bars his amendment, he will file a new case and move to

consolidate that one with this action. (Id.). So judicial economy is furthered by permitting the

amendment now. (Id.).

Still, Defendants contend justice does not require allowing Plaintiff to amend so late. They

both again cite to the prejudice they would face if the amendment were granted, and they argue

Plaintiff’s amendment would be futile. (Doc. 62 at 13–17; Doc. 63 at 9–17). The Court briefly

considers each.

1. Prejudice

The Court addressed the majority of Defendants’ prejudice arguments above. To reiterate,

the Court does not find that Defendants would be so unduly prejudiced by the amendment’s impact

on discovery or the case schedule that prejudice overcomes the liberal policy in favor of

amendment.

Yet, Defendant Butler further claims he would be prejudiced by an amendment because it

would necessarily moot out his fully briefed motion for judgment on the pleadings. (Doc. 62 at

14–15). Plaintiff responds that he offered to stipulate to “protect [the motion for judgment on the

pleadings] from the effects of an amended complaint, in which that same motion would just be

deemed to apply to the new complaint.” (Id. at 14 (stating the offer “still stands”)). But apparently

Defendant Butler did not agree.

Courts have found the existence of a fully briefed pleadings motion an insufficient reason

to deny amendment. See, e.g., Bear v. Delaware Cnty., No. 2:14-CV-43, 2015 WL 1954451, at

*2 (S.D. Ohio Apr. 28, 2015) (finding prejudice adequately addressed by the party re-filing their

existing brief in conjunction with a short supplement); City of Gallatin v. Gallatin Data Centers,

LLC, No. 3:24-CV-00868, 2025 WL 4663941, at *5 (M.D. Tenn. Apr. 14, 2025) (noting that the

fact a pending motion for judgment on the pleadings must be refiled following amendment “is

simply a function of the rules and does not standing alone without other aggravating circumstances

constitute sufficient prejudice to deny a motion for leave to amend”); cf. Mays v. Columbus Police

Dept., No. 2:20-CV-1060, 2021 WL 4453638, at *4 (S.D. Ohio Sept. 29, 2021) (denying a

plaintiff’s request to amend when summary judgment motions had been filed), report and

recommendation adopted, No. 2:20-CV-1060, 2021 WL 5231885 (S.D. Ohio Nov. 10, 2021),

aff’d, No. 21-4119, 2022 WL 17228814 (6th Cir. Oct. 6, 2022). So too here, Defendant Butler has

several options to address his mootness concerns, particularly in light of the fact that Plaintiff’s

amendment does not allege any new causes of action against him. These include—but are not

limited to—discussing the stipulation described above or re-filing his existing motion with a short

supplement addressing the new factual allegations.

For these reasons, the Court again finds prejudice an inadequate reason to deny Plaintiff’s

Motion.

2. Futility

Finally, the Court is unmoved by Defendants’ futility arguments. At this stage, the

Undersigned must determine only “whether the futility of an amendment is so obvious that it

should be disallowed.” Bear, 2015 WL 1954451, at *3; see also Brown v. Worthington Steel, Inc.,

211 F.R.D. 320, 323 (S.D. Ohio 2002) (discussing that courts will not “ordinarily consider the

merits of a proposed amended complaint in ruling on a motion for leave to amend unless it appears

to be frivolous”). On its face, Plaintiff’s amended complaint clears this low hurdle. (Doc. 58-2).

Further evaluating Defendants’ arguments would require the Undersigned to address the merits of

Plaintiff’s claims. Moraine Prop., LLC v. Ethyl Corp., No. 3:07-cv-229, 2009 WL 10679543, at

*1 (S.D. Ohio June 22, 2009) (noting procedural complications that arise when parties raise futility

arguments for a magistrate judge’s ruling). The better course is to permit amendment and allow

Plaintiff’s claims to be tested on dispositive motions before the District Judge. Bear, 2015 WL

1954451, at *3 (saying “it is the better exercise of discretion to permit the amendment” and allow

the parties to brief motions to dismiss); Durthaler v. Accts. Receivable Mgmt., Inc., No. 2:10-cv-

1068, 2011 WL 5008552, at *4 (S.D. Ohio Oct. 20, 2011) (noting the Court “has the discretion to

grant a party leave to amend a complaint, even where the amended pleading might ultimately be

dismissed”). In sum, futility does not justify denying Plaintiff leave to amend.

***

All told, the Court finds that Plaintiff has met his burden under both Federal Rule of Civil

Procedure 16 and 15 to modify the case schedule and file an amendment. Plaintiff’s Motion for

Leave to Amend (Doc. 58) is GRANTED. Plaintiff is ORDERED to file a clean copy of the

Third Amendment Complaint on or before July 20, 2026.

Additionally, Plaintiff and Defendant Butler are ORDERED to confer on the offered

stipulation concerning Butler’s pending motion for judgment on the pleadings. If they do not file

a stipulation within seven (7) days, the Court intends to deny Butler’s motion (Doc. 44) as moot.

The parties are advised that should either Defendant file a motion to dismiss or motion for

judgment on the pleadings in response to Plaintiff’s Third Amended Complaint, the Court intends

to expedite briefing.

Finally, the parties are ORDERED to confer on an amended case schedule. The parties

are ORDERED to propose the same in a joint status report within seven (7) days. The proposed

schedule should envision efficient, realistic deadlines. The parties should also include a deadline

for mediation. The parties are WARNED that the Court will grant no further extensions to the

schedule it ultimately adopts.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Amend (Doc. 58).

Plaintiff is ORDERED to file a clean copy of his Third Amended Complaint on or before July

20, 2026. The parties are ORDERED to confer on deadlines moving forward and file a joint status

report proposing a case schedule within seven (7) days.

IT IS SO ORDERED.

Date: July 16, 2026 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE