Opinion
Civil Action 2:05-CV-484.
September 17, 2008
OPINION AND ORDER
Plaintiffs, homeowners, allege that their property has been subjected to flooding by rising surface water from Whims Ditch, the flow of and drainage to which has allegedly been altered by defendants, the City of Columbus, Franklin County, certain home builders and certain landowners. Plaintiffs assert constitutional claims of denial of due process and taking without compensation by the governmental defendants, and claims under state law against the remaining defendants for unreasonable interference. Plaintiffs also assert a mandamus claim against the defendant county. This matter is before the Court on several pending motions. The Court will address each motion in turn.
I. Plaintiffs' Motion to File Supplemental Complaint , No. 258
A. Background
Although plaintiffs have not tendered the proposed pleading, plaintiffs move, pursuant to F.R. Civ. P. 15(d), to file a supplemental Complaint to reflect events that allegedly have occurred since the filing of this lawsuit: 1) the alleged condemnation by the Franklin County Board of Health of a parcel owned by plaintiff Sharen Salyers and occupied by plaintiffs Angela and Chris Bathrick; and 2) the adverse health effects allegedly suffered by plaintiff William Ruggles that may be due to living with mold in his home. Plaintiffs' Motion to File Supplemental Complaint (" Motion to File Supplemental Complaint"), Doc. No. 258, p. 2.
Defendants oppose this motion. Specifically, defendant City of Columbus argues that the allegations sought to be asserted in plaintiffs' proposed supplemental complaint are vague and will impose undue prejudice. Defendant City of Columbus Memorandum Contra to Plaintiffs' Motion to File Supplemental Complaint, Doc. No. 277, pp. 1-2. The City also asserts a futility argument. To the extent that plaintiffs seek to assert a claim of negligence, the City claims immunity; to the extent that plaintiffs seek to assert a claim under 42 U.S.C. § 1983 for taking in violation of due process, such claim is allegedly barred by the applicable statute of limitations. Id. at 2-5.
Defendant Central Ohio Contractors, Inc., also argues that the allegations proposed in the Motion to File Supplemental Complaint are vague and would unreasonably expand the scope of the action. Defendant, Central Ohio Contractors, Inc. Memorandum in Opposition to Plaintiffs' Motions for Leave to File a Supplemental Complaint (Doc. No. 258), Plaintiffs' Motion to Supplemental Expert Reports (Doc. No. 260), and Plaintiffs' Motion for Time to Obtain Reports for Subsequent Claims (Doc. No. 262), Doc. No. 278, p. 1. Central Ohio Contractors, Inc., contends that plaintiffs' purported supplement prejudices defendants in several respects: 1) defendants' motions for liability, due on October 15, 2008, could not address new claims of personal injury; 2) neither the original Complaint nor the prior amended complaints, Doc. Nos. 1, 63, 122, contain claims for personal injury; 3) the assertion of claims based on personal injury would require the re-deposition of all the plaintiffs; and 4) plaintiffs' new allegations significantly alter the scope of the mold experts' examination of the homes and would require an extension of the deadline for experts' reports, currently set for October 31, 2008. See Order, Doc. No. 256.
Defendants Inland Products, Inc., Gary Baas and 800 Frank Road, L.L.C. contend that Central Ohio Contractors, Inc.'s arguments of prejudice are equally applicable to these defendants and incorporate by reference these arguments. See Response of Defendants, Inland Products, Inc., and Gary Baas, Individually and as Trustee, in Opposition to Plaintiffs' Motions for Leave to File a Supplemental Complaint (Doc. No. 258), Plaintiffs' Motion to Supplement Expert Reports (Doc. No. 260), and Plaintiffs' Motion for Time to Obtain Reports for Subsequent Claims (Doc. No. 262), No. 280, and Response of Defendant, 800 Frank Road, LLC., to Plaintiffs' Motions for Leave to File a Supplemental Complaint (Doc. 258), Plaintiffs' Motion to Supplement Expert Reports (Doc. 260) and Plaintiffs' Motion for Time to Obtain Reports for Subsequent Claims (Doc. 262) By Joining in With the Response in Opposition of Defendants, Inland Products, Inc., and Gary Baas, Individually and as Trustee (Doc. 280), Doc. No. 285.
Plaintiffs did not file a reply memorandum to support their Motion to File Supplemental Complaint.
The deadline for filing a reply memorandum was September 13, 2008. See Order, Doc. No. 286.
B. Standard
Rule 15(d) of the Federal Rules of Civil Procedure provides that "[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed.R.Civ.P. 15(d) (2007). The grant or denial of a request to supplement a pleading is left to the sound discretion of the trial court. See Allen v. Reynolds, 895 F.2d 1412, *5 (6th Cir. 1990); McCormack v. Frank, No. 93-5416, 1994 U.S. App. LEXIS 21619, at *15-16 (6th Cir. Aug. 10, 1994). In exercising its discretion, the trial court may consider such factors 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, [and] futility of the amendment." Foman v. Davis, 371 U.S. 178, 182 (1962); Spies v. Voinovich, No. 00-4015, 48 Fed. Appx. 520, 527 (6th Cir. Sept. 30, 2002) (stating that the same standard of review and rationale apply to motions filed pursuant to Fed.R.Civ.P. 15(a) and 15(d)).
A court also may deny a motion to supplement if the supplemental pleading contains a new legal theory or if granting the motion would delay proceedings. See Koukios v. Ganson, No. 99-4060, 2000 U.S. App. LEXIS 21040, at *5 (6th Cir. Aug. 11, 2000); McCormack, 1994 U.S. App. LEXIS 21619, at *15-16 (finding no abuse of discretion in denying motion to supplement where granting motion would require re-opening discovery and further delay of trial).
C. Discussion
Plaintiffs' original Complaint, Doc. No. 1, was filed on May 16, 2005 and the Second Amended Complaint, Doc. No. 122, was filed nearly two years ago. As defendants point out, neither the original Complaint nor the Second Amended Complaint assert claims for personal injury. Defendants previously have deposed plaintiffs and the addition of new claims would require the re-deposition of plaintiffs and a concomitant delay in the proceedings.
The Court concludes that the assertion of a new legal theory at this stage of the proceedings would profoundly alter and expand the scope and nature of plaintiffs' claims and would result in significant delay of this litigation. Accordingly, the Court concludes that the Motion to File Supplemental Complaint, Doc. No. 358, is without merit. See, e.g., Foman, 371 U.S. at 182; Koukios, 2000 U.S. App. LEXIS 21040, at *5; McCormack, 1994 U.S. App. LEXIS 21619, at *15-16.
II. Plaintiffs' Related Motions, Nos. 260 and 262
In connection with their Motion to File Supplemental Complaint, plaintiffs request an opportunity to update the reports of their expert to reflect the events referred in their proposed supplemental complaint. See Plaintiffs' Motion to Supplement Expert's Report, Doc. No. 260. Plaintiffs also request additional time to obtain a specialist to examine plaintiffs to determine any adverse health effects resulting from mold exposure, and additional time for that expert to produce reports. See Plaintiffs' Motion for Time to Obtain Expert Reports for Subsequent Claims, Doc. No. 262. For the reasons discussed supra, the Court denies the Motion to File Supplemental Complaint, which renders moot plaintiffs' requests for an extension.
III. Motion of Defendant City of Columbus for Extension, Doc. No. 268
Defendant City of Columbus requests an extension of the deadlines contained in the Court's Order, Doc. No. 256. See Motion of Defendant City of Columbus for Additional Time to Object or Otherwise Respond to Plaintiffs' Proposed Jury Instructions, for Extension of Other Deadlines Set Forth in the Court's Order of June 30, 2008, and for a Status Conference, Doc. No. 268. As the basis for its motion, the City of Columbus refers to plaintiffs' Motion to File Supplemental Complaint and related motions, the grant of which would alter the scope and nature of plaintiffs' claims. Id. As discussed supra, the Motion to File Supplemental Complaint and plaintiffs' related motions are without merit, rendering moot the request for an extension of time and status conference.
WHEREUPON, in light of the foregoing, Plaintiffs' Motion to File Supplemental Complaint, Doc. No. 258, is DENIED. In addition, Plaintiffs' Motion to Supplement Expert's Report, Doc. No. 260, Plaintiffs' Motion for Time to Obtain Expert Reports for Subsequent Claims, Doc. No. 262, Motion of Defendant City of Columbus for Additional Time to Object or Otherwise Respond to Plaintiffs' Proposed Jury Instructions, for Extension of Other Deadlines Set Forth in the Court's Order of June 30, 2008, and for a Status Conference, Doc. No. 268, are DENIED as moot.