IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Kelley Craig-Wood,

Plaintiff,

v. Case No. 2:10-cv-906

Time Warner NY Cable LLC,

Defendant.

OPINION AND ORDER

This matter is before the court on plaintiff’s motion to

reconsider the magistrate judge’s order (Doc. 20) denying

plaintiff’s motion for leave to file a second amended complaint

(Doc. 18). This is an employment discrimination action brought by

plaintiff Kelley Craig-Wood against defendant Time Warner NY Cable

LLC, her former employer. Plaintiff’s first amended complaint

asserted claims of race and age discrimination, including disparate

treatment and harassment, under federal and state law. On August

6, 2011, plaintiff moved for leave to file a second amended

complaint to allege a retaliatory discharge claim under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. 

In his order of October 6, 2011, the magistrate judge noted

that the motion to amend was filed almost two months after June 10,

2011, the deadline for motions to amend specified in the pretrial

scheduling order. Doc. 20, p. 2. The magistrate judge indicated

that where, as here, the deadline established by the court’s

scheduling order had passed, the plaintiff must first show good

cause under Fed.R.Civ.P. 16(b) for her failure to timely move to

amend, and further, the court must evaluate prejudice to the

nonmoving party before considering whether amendment is proper

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under Fed.R.Civ.P. 15(a). Doc. 20, p. 3 (citing Commerce Benefits

Group, Inc. v. McKesson Corp., 326 Fed.Appx. 369, 376 (6th Cir.

2009)). The magistrate judge observed that the focus is primarily

on the diligence of the movant, and that the absence of prejudice

to the nonmoving party is not the equivalent of good cause. Doc.

20, p. 4 (citing Deghand v. Wal-Mart Stores, 904 F.Supp. 1218, 1221

(D. Kan. 1995) and Inge v. Rock Financial Corp., 281 F.3d 613 (6th

Cir. 2002)). After determining that plaintiff argued solely that

defendant was not prejudiced by the delay and essentially offered

no explanation for her failure to move to amend before the

deadline, the magistrate judge concluded that plaintiff failed to

exercise due diligence in moving for leave to amend after the

deadline and denied the motion to amend. Doc. 20, pp. 4-5.

Pursuant to 28 U.S.C. §636(b)(1)(A), a district judge may

designate a magistrate judge to hear and determine any

nondispositive pretrial matter pending before the court. “A judge

of the court may reconsider any pretrial matter under this

subparagraph (A) where it has been shown that the magistrate

judge’s order is clearly erroneous or contrary to law.” 

§636(b)(1)(A); see also Fed.R.Civ.P. 72(a) (in regard to

nondispositive pretrial matters, the district judge “must consider

timely objections and modify or set aside any part of the order

that is clearly erroneous or is contrary to law”); United States v.

Raddatz, 447 U.S. 667, 673 (1980)(review by the district court of

the magistrate’s determination of a nondispositive motion is on a

“clearly erroneous or contrary to law” standard). The ruling of a

magistrate judge on a nondispositive motion “remains binding except

to the extent that the district court modifies or sets aside any

part of the order that is clearly erroneous or contrary to law.” 

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Bell v. Ameritech Sickness and Accident Disability Benefit Plan,

399 Fed.Appx. 991, 997 n. 5 (6th Cir. 2010). This standard

provides considerable deference to the determinations of the

magistrate judge. Geiger Brothers Mechanical Contractors v.

Lockheed Martin Utility Servs., Inc., No. C-2-98-109, 2000 WL

1456916 at *1 (S.D.Ohio Sept. 19, 2000). A motion for leave to

amend a complaint is a nondispositive motion. Oakland County v.

Federal National Mortgage Ass’n, 276 F.R.D. 491, 493 n. 1

(E.D.Mich. 2011).

The magistrate judge applied the correct legal standard in

ruling on plaintiff’s motion to amend. Once the scheduling order’s

deadline passes, a plaintiff first must show good cause under Rule

16(b) for failure to seek leave to amend within the deadline before

a court will consider whether amendment is proper under Rule 15(a). 

Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003). The

magistrate judge correctly concluded that plaintiff failed to offer

any reason whatsoever for failing to comply with the scheduling

order.

In her motion for reconsideration, plaintiff states for the

first time that she was in the process of trying to resolve

problems with the nonpayment of benefits under her COBRA continuing

healthcare coverage, and did not want to “tip her hand” concerning

the possibility of a COBRA claim by moving to amend within the

deadline. She also notes that she received a right-to-sue letter

dated May 10, 2011, regarding her retaliatory discharge claim. 

Plaintiff argues that since she had ninety days under Title VII in

which to bring suit on this claim, she could move to amend to

assert that claim within ninety days regardless of the amendment

deadline in the scheduling order.

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These arguments were not made to the magistrate judge, and he

did not have the opportunity to consider them. The Sixth Circuit

has held that the Magistrate Judge Act “absent compelling reasons

... does not allow parties to raise at the district court stage new

arguments or issues that were not presented to the magistrate.” 

Murr v. United States, 200 F.3d 895, 902 n. 1 (6th Cir. 2000). A

party’s failure to raise an issue before the magistrate constitutes

waiver. Id. Plaintiff had the opportunity to file a reply brief

to defendant’s opposition to her motion to amend and to advance the

reasons for her lack of diligence which are set forth in her motion

for reconsideration. However, she did not file a reply. Plaintiff

has failed to demonstrate any compelling reasons for her failure to

make these arguments to the magistrate judge.

Even if this court were to consider plaintiff’s new arguments,

she has still failed to show good cause for her failure to comply

with the scheduling order’s deadline for amendments. She claims

that she was in the process of trying to work out problems with her

receipt of healthcare benefits. However, the documents she has

submitted reveal that her healthcare plan was administered by Time

Warner Cable Connections Healthcare and the TW Cable Health and

Welfare Fund, not Time Warner NY Cable LLC, the defendant in this

case. Yet another document dated June 5, 2011, prior to the

deadline for amendment, is from ADP Benefit Services. Plaintiff

ultimately received her healthcare benefits. Plaintiff does not

explain why she would have had to discuss her efforts to obtain

health care benefits from entities other than the defendant in

seeking to amend her complaint to assert a retaliatory discharge

claim.

Plaintiff’s argument that she could ignore the amendment

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deadline as long as she moved to amend within ninety days of her

receipt of the right-to-sue letter is also unavailing. If

plaintiff wanted to add her retaliatory discharge claim to the

other claims already asserted in this case, she was required to do

so within the procedural framework governing this case. Cf.

Mallory v. Noble Correctional Inst., 45 Fed.Appx. 463, 468 (6th

Cir. 2002)(lack of a right-to-sue letter did not excuse counsel’s

failure to adhere to the discovery deadline or to move for a stay

of discovery pending receipt of the letter). She received the

right-to-sue letter a month before the deadline. If she needed

additional time to consider her options regarding the retaliatory

discharge claim in light of the right-to-sue letter, she could have

moved to extend the deadline for filing a motion to amend on that

ground. Instead, she allowed the deadline to pass without seeking

an extension, then offered no reason for doing so in her motion to

amend.

The court finds that the decision of the magistrate judge was

not clearly erroneous or contrary to law, and that plaintiff has

waived her arguments concerning her failure to comply with the

court’s scheduling order by failing to present them to the

magistrate judge. Even if the court considers the reasons advanced

by plaintiff in her motion for reconsideration, plaintiff has

failed to show good cause under Rule 16(b) for failure to seek

leave to amend within the deadline. Plaintiff’s motion for

reconsideration (Doc. 26) is denied.

Date: February 2, 2012 s/James L. Graham 

 James L. Graham

 United States District Judge 

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