IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Melody Ward, :

Plaintiff, :

v. : Case No. 2:11-cv-575

American Pizza Company, et al., : JUDGE MICHAEL H. WATSON

 Magistrate Judge Kemp

 :

Defendants. 

OPINION AND ORDER

This matter is before the Court to consider several pending

motions. The majority of these motions have been filed by

plaintiff Melody Ward and include a “motion to order defendant to

produce documents” (#17), two motions for judicial review (#19

and #26), and a motion for default judgment (#31). Ms. Ward also

has filed two amendments to her complaint (#20 and #27). Also

pending is a motion to compel filed by defendant America Pizza

Company (#23). For the following reasons, the motion to compel

will be granted and all other motions will be denied.

 I. Background 

 Ms. Ward worked as a delivery driver for American Pizza from

September, 2008 until September, 2009. She filed this employment

discrimination case under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§2000e et seq., asserting that she was denied

health insurance, given fewer hours to work and ultimately fired

due to her age and sex. In her complaint, in addition to

American Pizza, Ms. Ward named as defendants Pamela Carter, John

Fife, Andy Sikes, and Kevin Snyder. By order dated March 6, 2012,

this Court dismissed the individual defendants because they were

not “employers” within the meaning of Title VII. 

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Melody Ward, :

Plaintiff, :

v. : Case No. 2:11-cv-575

American Pizza Company, et al., : JUDGE MICHAEL H. WATSON

 Magistrate Judge Kemp

 :

Defendants. 

OPINION AND ORDER

This matter is before the Court to consider several pending

motions. The majority of these motions have been filed by

plaintiff Melody Ward and include a “motion to order defendant to

produce documents” (#17), two motions for judicial review (#19

and #26), and a motion for default judgment (#31). Ms. Ward also

has filed two amendments to her complaint (#20 and #27). Also

pending is a motion to compel filed by defendant America Pizza

Company (#23). For the following reasons, the motion to compel

will be granted and all other motions will be denied.

 I. Background 

 Ms. Ward worked as a delivery driver for American Pizza from

September, 2008 until September, 2009. She filed this employment

discrimination case under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§2000e et seq., asserting that she was denied

health insurance, given fewer hours to work and ultimately fired

due to her age and sex. In her complaint, in addition to

American Pizza, Ms. Ward named as defendants Pamela Carter, John

Fife, Andy Sikes, and Kevin Snyder. By order dated March 6, 2012,

this Court dismissed the individual defendants because they were

not “employers” within the meaning of Title VII. 

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II. Ms. Ward’s Motion to Produce Documents and Motions 

for Judicial Review 

Although from a review of the docket it appears that Ms.

Ward has filed three separate motions, two of these motions -

Docs. #19 and #26 seeking judicial review - are identical. The

gist of these motions, along with the motion to produce (#17),

while certainly less than clear, appears to be the same. Ms.

Ward is seeking certain documents from her personnel file which

she believes will demonstrate that American Pizza “has fabricated

dates upon dates and shuffled paper work from agency to another

adding and omitting as needed.” See Doc. #17. Further, she

contends that “the production of documents will show evidence of

fraud in.” See Docs. #19 and #26. Not only is Ms. Ward seeking

such documents, she wants the Court to review these documents.

American Pizza has responded to each of Ms. Ward’s filings

individually. With respect to the motion to produce documents,

American Pizza contends that this motion should be denied for

several reasons. First, American Pizza argues that Ms. Ward has

not issued any discovery requests so that, to the extent her

motion is intended as a motion to compel, it does not comply with

the Federal Rules of Civil Procedure. Further, American Pizza

asserts that it produced many documents in its initial

disclosures and Ms. Ward has not provided any evidence in support

of her falsification claims. Additionally, American Pizza

maintains that Ms. Ward’s motion is moot because it has

identified and obtained original documents and has provided Ms.

Ward with dates for her inspection. American Pizza makes similar

arguments in response to the motions for judicial review.

The Court agrees that Ms. Ward’s motion to produce documents

should be denied for the reasons cited by American Pizza. Ms.

Ward does not dispute that she has not served any discovery

requests on American Pizza. No formal discovery requests are

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II. Ms. Ward’s Motion to Produce Documents and Motions 

for Judicial Review 

Although from a review of the docket it appears that Ms.

Ward has filed three separate motions, two of these motions -

Docs. #19 and #26 seeking judicial review - are identical. The

gist of these motions, along with the motion to produce (#17),

while certainly less than clear, appears to be the same. Ms.

Ward is seeking certain documents from her personnel file which

she believes will demonstrate that American Pizza “has fabricated

dates upon dates and shuffled paper work from agency to another

adding and omitting as needed.” See Doc. #17. Further, she

contends that “the production of documents will show evidence of

fraud in.” See Docs. #19 and #26. Not only is Ms. Ward seeking

such documents, she wants the Court to review these documents.

American Pizza has responded to each of Ms. Ward’s filings

individually. With respect to the motion to produce documents,

American Pizza contends that this motion should be denied for

several reasons. First, American Pizza argues that Ms. Ward has

not issued any discovery requests so that, to the extent her

motion is intended as a motion to compel, it does not comply with

the Federal Rules of Civil Procedure. Further, American Pizza

asserts that it produced many documents in its initial

disclosures and Ms. Ward has not provided any evidence in support

of her falsification claims. Additionally, American Pizza

maintains that Ms. Ward’s motion is moot because it has

identified and obtained original documents and has provided Ms.

Ward with dates for her inspection. American Pizza makes similar

arguments in response to the motions for judicial review.

The Court agrees that Ms. Ward’s motion to produce documents

should be denied for the reasons cited by American Pizza. Ms.

Ward does not dispute that she has not served any discovery

requests on American Pizza. No formal discovery requests are

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attached to her motions, and nowhere in any of her other filings

is there a copy of any formal discovery requests served on

American Pizza. Before moving the Court for an order directing

American Pizza to produce any discovery, Ms. Ward must first

serve American Pizza with a request for discovery. See

Fed.R.Civ.P. 37(a)(3)(B). Moreover, Ms. Ward does not dispute

American Pizza’s representations that it has produced certain

documents to her and provided her with dates upon which original

documents would be produced for her inspection, or that she has

not taken American Pizza up on its offer for her to inspect

documents. 

Ms. Ward’s motions for judicial review will be denied for

essentially the same reasons. While American Pizza is correct

that the precise relief Ms. Ward seeks through these motions is

unclear, she may be requesting something in the nature of an in

camera review of the documents she seeks. However, absent the

assertion of some legal privilege (and none has been made here),

the Court will not review documents in camera at this stage of

the proceedings. See Thomas & Marker Const. Co. v. Wal-Mart

Stores, Inc., 2008 WL 3200642, *3 (S.D. Ohio August 6,

2008)(Rose, J.). It appears that Ms. Ward may be asking that the

Court make some determination as to the legal effect of any

alleged discrepancy between documents she may have received and

documents she is seeking, but it would not be appropriate for the

Court to review these or any other discovery documents in the

absence of some legitimate dispute about their authenticity, and

none exists on this record. 

III. Motion for Default Judgment

 Ms. Ward has filed a motion captioned as “‘Default

Judgment’”: negligence Request: Magistrate Kemp’s venue.” In

this filing, Ms. Ward again requests the Court’s “help in

overseeing original documents APC contains.” The primary focus

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attached to her motions, and nowhere in any of her other filings

is there a copy of any formal discovery requests served on

American Pizza. Before moving the Court for an order directing

American Pizza to produce any discovery, Ms. Ward must first

serve American Pizza with a request for discovery. See

Fed.R.Civ.P. 37(a)(3)(B). Moreover, Ms. Ward does not dispute

American Pizza’s representations that it has produced certain

documents to her and provided her with dates upon which original

documents would be produced for her inspection, or that she has

not taken American Pizza up on its offer for her to inspect

documents. 

Ms. Ward’s motions for judicial review will be denied for

essentially the same reasons. While American Pizza is correct

that the precise relief Ms. Ward seeks through these motions is

unclear, she may be requesting something in the nature of an in

camera review of the documents she seeks. However, absent the

assertion of some legal privilege (and none has been made here),

the Court will not review documents in camera at this stage of

the proceedings. See Thomas & Marker Const. Co. v. Wal-Mart

Stores, Inc., 2008 WL 3200642, *3 (S.D. Ohio August 6,

2008)(Rose, J.). It appears that Ms. Ward may be asking that the

Court make some determination as to the legal effect of any

alleged discrepancy between documents she may have received and

documents she is seeking, but it would not be appropriate for the

Court to review these or any other discovery documents in the

absence of some legitimate dispute about their authenticity, and

none exists on this record. 

III. Motion for Default Judgment

 Ms. Ward has filed a motion captioned as “‘Default

Judgment’”: negligence Request: Magistrate Kemp’s venue.” In

this filing, Ms. Ward again requests the Court’s “help in

overseeing original documents APC contains.” The primary focus

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of this filing, however, appears to be a request for default

judgment against American Pizza because defense counsel

electronically mailed unredacted documents to her. According to

Ms. Ward, she had requested that such documents be sent to her

only through the U.S. mail to protect her from potential identity

theft.

In response, American Pizza contends that, although it was

not obligated to, it redacted personally identifying information

before transmitting its initial disclosures to Ms. Ward via email. In support of this position, it has attached its initial

disclosure pleading, its redaction log, and its cover letter to

Ms. Ward. Ms. Ward has not filed a reply. 

Ms. Ward’s filing suggests that what she is asking for is a

default judgment as a discovery sanction under Fed.R.Civ.P. 37. 

The Court of Appeals has described entry of a default judgment as

the most severe discovery sanction available. See Grange Mutual

Cas. Co. v. Mack, 270 Fed.Appx. 372, 376 (6th Cir. 2008). As the

court explained in Grange, such a sanction should be considered

only when “1) the disobedient party acted in wilful bad faith; 2)

the opposing party suffered prejudice; 3) the court warned the

disobedient party that the failure to cooperate could result in a

default judgment; and 4) less drastic sanctions have been

attempted.” Vogerl v. Elliott, 2010 WL 4683950, *2 (S.D. Ohio

September 9, 2010) citing Grange at 276. None of the above

criteria supporting an entry of default judgment are present

here, and the Court will decline to impose any discovery sanction

on American Pizza, let alone the most severe sanction available. 

IV. Amendments to Complaint

Only Ms. Ward’s first proposed “amendment to complaint” is

reflected on the Court’s docket as a motion to amend. The second

filing, which is identical in content to the first, is reflected

on the docket simply as an amended complaint. American Pizza has

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of this filing, however, appears to be a request for default

judgment against American Pizza because defense counsel

electronically mailed unredacted documents to her. According to

Ms. Ward, she had requested that such documents be sent to her

only through the U.S. mail to protect her from potential identity

theft.

In response, American Pizza contends that, although it was

not obligated to, it redacted personally identifying information

before transmitting its initial disclosures to Ms. Ward via email. In support of this position, it has attached its initial

disclosure pleading, its redaction log, and its cover letter to

Ms. Ward. Ms. Ward has not filed a reply. 

Ms. Ward’s filing suggests that what she is asking for is a

default judgment as a discovery sanction under Fed.R.Civ.P. 37. 

The Court of Appeals has described entry of a default judgment as

the most severe discovery sanction available. See Grange Mutual

Cas. Co. v. Mack, 270 Fed.Appx. 372, 376 (6th Cir. 2008). As the

court explained in Grange, such a sanction should be considered

only when “1) the disobedient party acted in wilful bad faith; 2)

the opposing party suffered prejudice; 3) the court warned the

disobedient party that the failure to cooperate could result in a

default judgment; and 4) less drastic sanctions have been

attempted.” Vogerl v. Elliott, 2010 WL 4683950, *2 (S.D. Ohio

September 9, 2010) citing Grange at 276. None of the above

criteria supporting an entry of default judgment are present

here, and the Court will decline to impose any discovery sanction

on American Pizza, let alone the most severe sanction available. 

IV. Amendments to Complaint

Only Ms. Ward’s first proposed “amendment to complaint” is

reflected on the Court’s docket as a motion to amend. The second

filing, which is identical in content to the first, is reflected

on the docket simply as an amended complaint. American Pizza has

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responded to both filings, and Ms. Ward has not filed a reply. 

Because these filings are identical, they will be addressed

together. 

Ms. Ward has not attached a proposed amended complaint to

either of these filings. Rather, to the extent that she is

attempting to propose any amendments at all, she appears to do so

in narrative form in the body of these filings. The gist of

these filings is unclear. On one hand, it appears that Ms. Ward

seeks to amend her complaint to add a claim under Ohio Revised

Code §4123.90 for workers’ compensation retaliation and a claim

under §4112.02 for disability discrimination. However, the

Court’s review of the original complaint reveals that much of the

language contained in Ms. Ward’s proposed amendments is virtually

identical to language set forth in the original complaint, which,

the Court notes, also is set forth in narrative form. 

Additionally, both Ohio Revised Code sections cited in Ms. Ward’s

proposed amendments are cited in her original complaint. 

 On the other hand, in the final sentence of her filings,

Ms. Ward states, “Please review my amended complaint to workers

compensation retaliation in addition to discrimination based on

age and sex.” The meaning of this sentence and Ms. Ward’s

intention is unclear. The Court notes that Ms. Ward cites Title

VII in her original complaint and in the EEOC Charge attached to

it. However, the original complaint does not refer to the ADEA

with respect to an age discrimination claim, although such a

claim is mentioned in the EEOC charge form. Regardless, there

are no specific factual allegations relating to age or sex

discrimination anywhere in the filings Ms. Ward has identified as

“amended complaints” . 

 American Pizza contends that Ms. Ward’s proposed amendments

were filed after the deadline for amendments to pleadings and are

therefore untimely. Further, it argues that Ms. Ward’s filings

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responded to both filings, and Ms. Ward has not filed a reply. 

Because these filings are identical, they will be addressed

together. 

Ms. Ward has not attached a proposed amended complaint to

either of these filings. Rather, to the extent that she is

attempting to propose any amendments at all, she appears to do so

in narrative form in the body of these filings. The gist of

these filings is unclear. On one hand, it appears that Ms. Ward

seeks to amend her complaint to add a claim under Ohio Revised

Code §4123.90 for workers’ compensation retaliation and a claim

under §4112.02 for disability discrimination. However, the

Court’s review of the original complaint reveals that much of the

language contained in Ms. Ward’s proposed amendments is virtually

identical to language set forth in the original complaint, which,

the Court notes, also is set forth in narrative form. 

Additionally, both Ohio Revised Code sections cited in Ms. Ward’s

proposed amendments are cited in her original complaint. 

 On the other hand, in the final sentence of her filings,

Ms. Ward states, “Please review my amended complaint to workers

compensation retaliation in addition to discrimination based on

age and sex.” The meaning of this sentence and Ms. Ward’s

intention is unclear. The Court notes that Ms. Ward cites Title

VII in her original complaint and in the EEOC Charge attached to

it. However, the original complaint does not refer to the ADEA

with respect to an age discrimination claim, although such a

claim is mentioned in the EEOC charge form. Regardless, there

are no specific factual allegations relating to age or sex

discrimination anywhere in the filings Ms. Ward has identified as

“amended complaints” . 

 American Pizza contends that Ms. Ward’s proposed amendments

were filed after the deadline for amendments to pleadings and are

therefore untimely. Further, it argues that Ms. Ward’s filings

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are procedurally defective and should be stricken from the record

in this case.

With respect to Ms. Ward’s proposed amendments, although

motions to amend are evaluated under the standards in Fed. R.

Civ. P. 15(a), which states that leave to amend shall be given

freely when justice so requires, that rule cannot be read in

isolation. Rather, as the Court of Appeals has recently pointed

out in Leary v. Daeschner, 349 F.3d 888 (6th Cir. 2003), Rules

15(a) and 16(b) must be read together. Fed.R.Civ.P. 16(b)

requires the Court, in each civil action which is not exempt from

that rule, to “enter a scheduling order that limits the time” to,

inter alia, file motions, identify expert witnesses, and complete

discovery. The rule further provides that “[a] schedule shall

not be modified except upon a showing of good cause ....”

Consequently, the Court is permitted to examine the standard

factors governing amendments of the complaints under Rule 15(a)

only if it is satisfied that any prior date for the filing of a

motion for leave to amend either has been met or is properly

extended under the good cause provisions of Rule 16(b). 

In its pretrial order of October 12, 2011, the Court

established October 18, 2011, as the deadline for any amendments

to the pleadings, the date recommended by the parties in their

Rule 26(f) report. Ms. Ward’s proposed amendments were filed on

November 23, 2011, and again on January 25, 2012. Without

question, Ms. Ward’s filings were made well after the deadline. 

Consequently, the Court must consider whether she has established

good cause for a modification of the Court’s pretrial order.

Although the Court has broad discretion to modify its own

pretrial orders, it must be remembered that “[a]dherence to

reasonable deadlines is ... critical to maintaining integrity in

court proceedings,” Rouse v. Farmers State Bank, 866 F.Supp.

1191, 1199 (N.D. Iowa 1994), and that pretrial scheduling orders

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are procedurally defective and should be stricken from the record

in this case.

With respect to Ms. Ward’s proposed amendments, although

motions to amend are evaluated under the standards in Fed. R.

Civ. P. 15(a), which states that leave to amend shall be given

freely when justice so requires, that rule cannot be read in

isolation. Rather, as the Court of Appeals has recently pointed

out in Leary v. Daeschner, 349 F.3d 888 (6th Cir. 2003), Rules

15(a) and 16(b) must be read together. Fed.R.Civ.P. 16(b)

requires the Court, in each civil action which is not exempt from

that rule, to “enter a scheduling order that limits the time” to,

inter alia, file motions, identify expert witnesses, and complete

discovery. The rule further provides that “[a] schedule shall

not be modified except upon a showing of good cause ....”

Consequently, the Court is permitted to examine the standard

factors governing amendments of the complaints under Rule 15(a)

only if it is satisfied that any prior date for the filing of a

motion for leave to amend either has been met or is properly

extended under the good cause provisions of Rule 16(b). 

In its pretrial order of October 12, 2011, the Court

established October 18, 2011, as the deadline for any amendments

to the pleadings, the date recommended by the parties in their

Rule 26(f) report. Ms. Ward’s proposed amendments were filed on

November 23, 2011, and again on January 25, 2012. Without

question, Ms. Ward’s filings were made well after the deadline. 

Consequently, the Court must consider whether she has established

good cause for a modification of the Court’s pretrial order.

Although the Court has broad discretion to modify its own

pretrial orders, it must be remembered that “[a]dherence to

reasonable deadlines is ... critical to maintaining integrity in

court proceedings,” Rouse v. Farmers State Bank, 866 F.Supp.

1191, 1199 (N.D. Iowa 1994), and that pretrial scheduling orders

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are “the essential mechanism for cases becoming trial-ready in an

efficient, just, and certain manner.” Id. at 1198. In

evaluating whether the party seeking modification of a pretrial

scheduling order has demonstrated good cause, the Court is

mindful that “[t]he party seeking an extension must show that

despite due diligence it could not have reasonably met the

scheduled deadlines.” Deghand v. Wal-Mart Stores, 904 F.Supp.

1218, 1221 (D. Kan. 1995). The focus is primarily upon the

diligence of the movant; the absence of prejudice to the opposing

party is not equivalent to a showing of good cause. Tschantz v.

McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995). Of course,

“[c]arelessness is not compatible with a finding of diligence and

offers no reason for a grant of relief.” Dilmer Oil Co. v.

Federated Mut. Ins. Co., 986 F.Supp. 959, 980 (D.S.C. 1997). 

Further, although the primary focus of the inquiry is upon the

moving party’s diligence, the presence or absence of prejudice to

the other party or parties is a factor to be considered. Inge v.

Rock Financial Corp., 281 F.3d 613 (6th Cir. 2002). The Court of

Appeals has made it clear that this standard applies to any

deadline set in a Rule 16 order, such as a date by which motions

to amend the pleadings must be made (see Inge, supra), a

discovery cutoff date (see Commerce Benefits Group v. McKesson

Corp., 326 Fed. Appx. 2369 (6th Cir. May 20, 2009)), or a date

for filing summary judgment motions (see Andretti v. Borla

Performance Industries, 426 F.3d 824 (6th Cir. 2005)). It is

with these standards in mind that Ms. Ward’s motions will be

decided. 

Ms. Ward has not addressed the issue of good cause in terms

of Rule 16(b) in either of her filings. She does, however, state

in the first sentence of these filings she made them “[a]fter

reviewing discovery and defendant Interrogatory an amendment to

the initial complaint....” To the extent that this statement can

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are “the essential mechanism for cases becoming trial-ready in an

efficient, just, and certain manner.” Id. at 1198. In

evaluating whether the party seeking modification of a pretrial

scheduling order has demonstrated good cause, the Court is

mindful that “[t]he party seeking an extension must show that

despite due diligence it could not have reasonably met the

scheduled deadlines.” Deghand v. Wal-Mart Stores, 904 F.Supp.

1218, 1221 (D. Kan. 1995). The focus is primarily upon the

diligence of the movant; the absence of prejudice to the opposing

party is not equivalent to a showing of good cause. Tschantz v.

McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995). Of course,

“[c]arelessness is not compatible with a finding of diligence and

offers no reason for a grant of relief.” Dilmer Oil Co. v.

Federated Mut. Ins. Co., 986 F.Supp. 959, 980 (D.S.C. 1997). 

Further, although the primary focus of the inquiry is upon the

moving party’s diligence, the presence or absence of prejudice to

the other party or parties is a factor to be considered. Inge v.

Rock Financial Corp., 281 F.3d 613 (6th Cir. 2002). The Court of

Appeals has made it clear that this standard applies to any

deadline set in a Rule 16 order, such as a date by which motions

to amend the pleadings must be made (see Inge, supra), a

discovery cutoff date (see Commerce Benefits Group v. McKesson

Corp., 326 Fed. Appx. 2369 (6th Cir. May 20, 2009)), or a date

for filing summary judgment motions (see Andretti v. Borla

Performance Industries, 426 F.3d 824 (6th Cir. 2005)). It is

with these standards in mind that Ms. Ward’s motions will be

decided. 

Ms. Ward has not addressed the issue of good cause in terms

of Rule 16(b) in either of her filings. She does, however, state

in the first sentence of these filings she made them “[a]fter

reviewing discovery and defendant Interrogatory an amendment to

the initial complaint....” To the extent that this statement can

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be read as suggesting that the results of discovery have prompted

her need to amend her complaint after the established deadline,

the Court is not persuaded. First, although Ms. Ward mentions

discovery, as discussed above, she has not undertaken any

discovery in this case. To the extent that by the term

“discovery,” Ms. Ward is referring to American Pizza’s initial

disclosures, the record indicates that these disclosures were

sent to Ms. Ward by electronic and regular mail on September 27,

2011, a date well in advance of the October 18, 2011, deadline. 

See Doc. #32, Exhs. A-C. Further, as noted above, Ms. Ward’s

proposed amendments are virtually identical to statements made in

her original complaint. Finally, to the extent that Ms. Ward may

be attempting to add sex and age discrimination claims, the

language of her original complaint, the EEOC form attached to

that document, or both, make reference to information suggesting

that Ms. Ward was aware of these potential claims at the time she

filed her original complaint on July 6, 2011. 

For all of these reasons, Ms. Ward has not met the good

cause requirement of Rule 16(b), and her motions to amend her

complaint will be denied. Consequently, the Court need not

address whether Ms. Ward has satisfied the requirements of Rule

15(a). However, the Court notes that, had an analysis under Rule

15(a) been warranted, it is not at all clear that Ms. Ward’s

proposed amendments would have succeeded. Absent any specific

factual allegations to support any proposed amended claims, it is

unlikely that Ms. Ward’s filings would have survived a challenge

to their sufficiency, and leave to amend may be denied based on

the futility of any proposed amendments. Finally, because Ms.

Ward’s second filing is reflected on the Court’s docket as an

amended complaint rather than a motion, it will be stricken from

the record in this case as having been filed without leave of

court. 

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be read as suggesting that the results of discovery have prompted

her need to amend her complaint after the established deadline,

the Court is not persuaded. First, although Ms. Ward mentions

discovery, as discussed above, she has not undertaken any

discovery in this case. To the extent that by the term

“discovery,” Ms. Ward is referring to American Pizza’s initial

disclosures, the record indicates that these disclosures were

sent to Ms. Ward by electronic and regular mail on September 27,

2011, a date well in advance of the October 18, 2011, deadline. 

See Doc. #32, Exhs. A-C. Further, as noted above, Ms. Ward’s

proposed amendments are virtually identical to statements made in

her original complaint. Finally, to the extent that Ms. Ward may

be attempting to add sex and age discrimination claims, the

language of her original complaint, the EEOC form attached to

that document, or both, make reference to information suggesting

that Ms. Ward was aware of these potential claims at the time she

filed her original complaint on July 6, 2011. 

For all of these reasons, Ms. Ward has not met the good

cause requirement of Rule 16(b), and her motions to amend her

complaint will be denied. Consequently, the Court need not

address whether Ms. Ward has satisfied the requirements of Rule

15(a). However, the Court notes that, had an analysis under Rule

15(a) been warranted, it is not at all clear that Ms. Ward’s

proposed amendments would have succeeded. Absent any specific

factual allegations to support any proposed amended claims, it is

unlikely that Ms. Ward’s filings would have survived a challenge

to their sufficiency, and leave to amend may be denied based on

the futility of any proposed amendments. Finally, because Ms.

Ward’s second filing is reflected on the Court’s docket as an

amended complaint rather than a motion, it will be stricken from

the record in this case as having been filed without leave of

court. 

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 V. American Pizza’s Motion to Compel

The final pending motion is American Pizza’s motion to

compel. In this motion, American Pizza states that Ms. Ward has

not responded to any outstanding written discovery despite two

requests. American Pizza also notes that Ms. Ward has failed to

provide initial disclosures as required by Fed.R.Civ.P. 26. 

According to American Pizza, it served Ms. Ward with a first set

of interrogatories and a first request for production of

documents on October 20, 2011. Following Ms. Ward’s failure to

respond, American Pizza issued demands for responses by way of

two letters dated November 30, 2011 and December 22, 2011. In

response, on December 28, 2011, Ms. Ward advised American Pizza

to proceed with a motion to compel. 

On January 13, 2012, American Pizza filed its motion to

compel and attached copies of its discovery requests. By order

dated January 18, 2012, the Court directed Ms. Ward to provide

the overdue discovery or face sanctions. On January 25, 2012,

Ms. Ward filed a two-page response to the motion to compel

requesting that it be denied. In this response, Ms. Ward states

that her motions filed October 21 and November 23, Documents #17

and #19, discussed above, were filed in response to American

Pizza’s discovery requests. Further, she states that the

interrogatories have asked for personal information and that she

is concerned about its being disclosed to the public. She also

states, however, that “[a]nswering to their discovery is not an

issue.” Again, she requests that the Court “negotiate the venue,

where such documents can be viewed” by counsel and the Court. 

She also suggests that she has some identity theft concerns over

responding by electronic mail and believes some of the questions

have been asked previously, although she does not identify which

ones. Ms. Ward has not attached any discovery responses to her

filing. 

9

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 V. American Pizza’s Motion to Compel

The final pending motion is American Pizza’s motion to

compel. In this motion, American Pizza states that Ms. Ward has

not responded to any outstanding written discovery despite two

requests. American Pizza also notes that Ms. Ward has failed to

provide initial disclosures as required by Fed.R.Civ.P. 26. 

According to American Pizza, it served Ms. Ward with a first set

of interrogatories and a first request for production of

documents on October 20, 2011. Following Ms. Ward’s failure to

respond, American Pizza issued demands for responses by way of

two letters dated November 30, 2011 and December 22, 2011. In

response, on December 28, 2011, Ms. Ward advised American Pizza

to proceed with a motion to compel. 

On January 13, 2012, American Pizza filed its motion to

compel and attached copies of its discovery requests. By order

dated January 18, 2012, the Court directed Ms. Ward to provide

the overdue discovery or face sanctions. On January 25, 2012,

Ms. Ward filed a two-page response to the motion to compel

requesting that it be denied. In this response, Ms. Ward states

that her motions filed October 21 and November 23, Documents #17

and #19, discussed above, were filed in response to American

Pizza’s discovery requests. Further, she states that the

interrogatories have asked for personal information and that she

is concerned about its being disclosed to the public. She also

states, however, that “[a]nswering to their discovery is not an

issue.” Again, she requests that the Court “negotiate the venue,

where such documents can be viewed” by counsel and the Court. 

She also suggests that she has some identity theft concerns over

responding by electronic mail and believes some of the questions

have been asked previously, although she does not identify which

ones. Ms. Ward has not attached any discovery responses to her

filing. 

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Briefly, by way of background for purposes of the motion to

compel, Fed.R.Civ.P. 33 governs interrogatories to parties. It

states, in relevant part, 

(b)(2) Time to Respond. The responding party must

serve its answers and any objections within 30 days

after being served with the interrogatories. ....

(b)(4) Objections. The grounds for objecting to

an interrogatory must be stated with specificity. Any

ground not stated in a timely objection is waived,

unless the court, for good cause, excuses the failure.

Fed.R.Civ.P. 34 governs document production requests and

provides, in relevant part, 

(b)(2)(A) Time to Respond. The party to whom the

request is directed must respond in writing within 30

days after being served. .... 

(b)(2)(B) Responding to Each Item. For each item or

category, the response must either state that

inspection and related activities will be permitted as

requested or state an objection to the request,

including the reasons.

(b)(2)(C) Objections. An objection to a part of a

request must specify the part and permit inspection of

the rest.

Under Fed.R.Civ.P. 37, a party may file a motion to compel

discovery if the opposing party fails to respond to discovery

requests including interrogatories or requests for production of

documents. Fed.R.Civ.P. 37(a)(1), (a)(3)(B)(iii), (iv). 

Further, the Court must stress that it is important for all

litigants, including those proceeding without counsel, to

understand that the Federal Rules of Civil Procedure authorize

extremely broad discovery. United States v. Leggett & Platt,

Inc., 542 F.2d 655, 657 (6th Cir. 1976), cert. denied 430 U.S.

945 (1977). Fed. R. Civ. P. 26 is liberally construed in favor

of allowing discovery. Dunn v. Midwestern Indemnity, 88 F.R.D.

191, 195 (S.D.Ohio 1980). Any matter that is relevant, in the

10

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Briefly, by way of background for purposes of the motion to

compel, Fed.R.Civ.P. 33 governs interrogatories to parties. It

states, in relevant part, 

(b)(2) Time to Respond. The responding party must

serve its answers and any objections within 30 days

after being served with the interrogatories. ....

(b)(4) Objections. The grounds for objecting to

an interrogatory must be stated with specificity. Any

ground not stated in a timely objection is waived,

unless the court, for good cause, excuses the failure.

Fed.R.Civ.P. 34 governs document production requests and

provides, in relevant part, 

(b)(2)(A) Time to Respond. The party to whom the

request is directed must respond in writing within 30

days after being served. .... 

(b)(2)(B) Responding to Each Item. For each item or

category, the response must either state that

inspection and related activities will be permitted as

requested or state an objection to the request,

including the reasons.

(b)(2)(C) Objections. An objection to a part of a

request must specify the part and permit inspection of

the rest.

Under Fed.R.Civ.P. 37, a party may file a motion to compel

discovery if the opposing party fails to respond to discovery

requests including interrogatories or requests for production of

documents. Fed.R.Civ.P. 37(a)(1), (a)(3)(B)(iii), (iv). 

Further, the Court must stress that it is important for all

litigants, including those proceeding without counsel, to

understand that the Federal Rules of Civil Procedure authorize

extremely broad discovery. United States v. Leggett & Platt,

Inc., 542 F.2d 655, 657 (6th Cir. 1976), cert. denied 430 U.S.

945 (1977). Fed. R. Civ. P. 26 is liberally construed in favor

of allowing discovery. Dunn v. Midwestern Indemnity, 88 F.R.D.

191, 195 (S.D.Ohio 1980). Any matter that is relevant, in the

10

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sense that it reasonably may lead to the discovery of admissible

evidence, and is not privileged, can be discovered. The concept

of relevance during discovery is necessarily broader than at

trial, Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 500-501 (6th

Cir. 1970), and “[a] court is not permitted to preclude the

discovery of arguably relevant information solely because if the

information were introduced at trial, it would be ‘speculative’

at best.” Coleman v. American Red Cross, 23 F.3d 1091, 1097 (6th

Cir. 1994). A district court enjoys broad discretion in managing

discovery. Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993).

Information subject to disclosure during discovery need not

relate directly to the merits of the claims or defenses of the

parties. Rather, it may also relate to any of the myriad of

fact-oriented issues that arise in connection with the

litigation. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351

(1978). On the other hand, the Court has the duty to deny

discovery directed to matters not legitimately within the scope

of Rule 26, and to use its broad discretionary power to protect a

party or person from harassment or oppression that may result

even from a facially appropriate discovery request. See Herbert

v. Lando, 441 U.S. 153, 177 (1979). Additionally, the Court has

discretion to limit or even preclude discovery which meets the

general standard of relevance found in Rule 26(b)(1) if the

discovery is unreasonably duplicative, or the burden of providing

discovery outweighs the benefits, taking into account factors

such as the importance of the requested discovery to the central

issues in the case, the amount in controversy, and the parties’

resources. See Fed. R. Civ. P. 26(b)(2). Finally, the Court

notes that the scope of permissible discovery which can be

conducted without leave of court has been narrowed somewhat by

the December 1, 2000 amendments to the Federal Rules. Rule 26(b)

now permits discovery to be had without leave of court if that

11

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sense that it reasonably may lead to the discovery of admissible

evidence, and is not privileged, can be discovered. The concept

of relevance during discovery is necessarily broader than at

trial, Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 500-501 (6th

Cir. 1970), and “[a] court is not permitted to preclude the

discovery of arguably relevant information solely because if the

information were introduced at trial, it would be ‘speculative’

at best.” Coleman v. American Red Cross, 23 F.3d 1091, 1097 (6th

Cir. 1994). A district court enjoys broad discretion in managing

discovery. Lavado v. Keohane, 992 F.2d 601, 604 (6th Cir. 1993).

Information subject to disclosure during discovery need not

relate directly to the merits of the claims or defenses of the

parties. Rather, it may also relate to any of the myriad of

fact-oriented issues that arise in connection with the

litigation. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351

(1978). On the other hand, the Court has the duty to deny

discovery directed to matters not legitimately within the scope

of Rule 26, and to use its broad discretionary power to protect a

party or person from harassment or oppression that may result

even from a facially appropriate discovery request. See Herbert

v. Lando, 441 U.S. 153, 177 (1979). Additionally, the Court has

discretion to limit or even preclude discovery which meets the

general standard of relevance found in Rule 26(b)(1) if the

discovery is unreasonably duplicative, or the burden of providing

discovery outweighs the benefits, taking into account factors

such as the importance of the requested discovery to the central

issues in the case, the amount in controversy, and the parties’

resources. See Fed. R. Civ. P. 26(b)(2). Finally, the Court

notes that the scope of permissible discovery which can be

conducted without leave of court has been narrowed somewhat by

the December 1, 2000 amendments to the Federal Rules. Rule 26(b)

now permits discovery to be had without leave of court if that

11

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discovery “is relevant to the claim or defense of any party ....” 

Upon a showing of good cause, however, the court may permit

broader discovery of matters “relevant to the subject matter

involved in the action.” Id.

Although Ms. Ward is acting pro se without counsel, this

does not excuse her from producing discovery. In re Family

Resorts of America, Inc., 972 F.2d 347 (Table), 1992 WL 174539,

*3 (6th Cir. July 24, 1992). See also McNeil v. United States,

508 U.S. 106, 113 (1993); Black v. Columbus Public Schools, No.

2:96–cv–326, 2011 WL 1990579, *3 (S.D. Ohio May 23, 2011); Dubard

v. Buckberry, 2011 WL 1542509 (E.D. Mich. April 21, 2011). The

Court of Appeals has made clear that “while pro se litigants may

be entitled to some latitude when dealing with sophisticated

legal issues, acknowledging their lack of formal training, there

is no cause for extending this margin to straightforward

procedural requirements that a layperson can comprehend as easily

as a lawyer.” Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir.

1991). Pro se litigants are not to be accorded any special

consideration when they fail to adhere to readily-comprehended

court deadlines. Id. at 110. 

Ms. Ward’s response to the motion to compel suggests that

she may be confusing her obligation to respond to American

Pizza’s discovery requests with her request that American Pizza

make available original documents - a request to which American

Pizza has agreed. Even if it had not, the obligation to respond

to discovery is independent of any discovery or disclosure

obligation an opposing party may have. See, e.g., Kehoe

Component Sales, Inc. v. Best Lighting Products, Inc., Case No.

2:08-cv-752, 2010 WL596501, *4 (S.D. Ohio February 16, 2010). 

Consequently, to the extent that Ms. Ward may believe that she is

excused from responding to the discovery requests because, as

she sees it, American Pizza has not provided original documents

12

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discovery “is relevant to the claim or defense of any party ....” 

Upon a showing of good cause, however, the court may permit

broader discovery of matters “relevant to the subject matter

involved in the action.” Id.

Although Ms. Ward is acting pro se without counsel, this

does not excuse her from producing discovery. In re Family

Resorts of America, Inc., 972 F.2d 347 (Table), 1992 WL 174539,

*3 (6th Cir. July 24, 1992). See also McNeil v. United States,

508 U.S. 106, 113 (1993); Black v. Columbus Public Schools, No.

2:96–cv–326, 2011 WL 1990579, *3 (S.D. Ohio May 23, 2011); Dubard

v. Buckberry, 2011 WL 1542509 (E.D. Mich. April 21, 2011). The

Court of Appeals has made clear that “while pro se litigants may

be entitled to some latitude when dealing with sophisticated

legal issues, acknowledging their lack of formal training, there

is no cause for extending this margin to straightforward

procedural requirements that a layperson can comprehend as easily

as a lawyer.” Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir.

1991). Pro se litigants are not to be accorded any special

consideration when they fail to adhere to readily-comprehended

court deadlines. Id. at 110. 

Ms. Ward’s response to the motion to compel suggests that

she may be confusing her obligation to respond to American

Pizza’s discovery requests with her request that American Pizza

make available original documents - a request to which American

Pizza has agreed. Even if it had not, the obligation to respond

to discovery is independent of any discovery or disclosure

obligation an opposing party may have. See, e.g., Kehoe

Component Sales, Inc. v. Best Lighting Products, Inc., Case No.

2:08-cv-752, 2010 WL596501, *4 (S.D. Ohio February 16, 2010). 

Consequently, to the extent that Ms. Ward may believe that she is

excused from responding to the discovery requests because, as

she sees it, American Pizza has not provided original documents

12

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she previously requested, she is mistaken. Moreover, she does

not explain how her undisputed failure to review the documents

identified and made available by American Pizza has prevented her

from responding to any of the discovery requests directed to her. 

Instead, she reiterates her request that the Court participate in

the document review process. As explained above, the Court

declines to do so. 

There also is some indication from Ms. Ward’s response that

she does not want any personal information publicly disclosed. 

However, this is not a sufficient reason to fail to provide

discovery. Such personally identifying information simply is not

privileged for purposes of discovery. See generally DeMarco v. C

& L Masonry, Inc., 891 F.2d 1236, 1240 (6th Cir. 1989); Credit

Life Ins. Co. v. Uniworld Ins. Co., 94 F.R.D. 113, 121 (S.D Ohio

1982). Rather, the concern expressed by Ms. Ward more

appropriately is addressed by means of a protective order

pursuant to Fed.R.Civ.P. 26(c). Further, to the extent that Ms.

Ward believes that she already has responded to certain

interrogatories, she has not specifically identified these

interrogatories. 

Ms. Ward has offered no other reason for her failure to

provide discovery nor has she provided any specific objection to

any discovery request. Consequently, the motion to compel will

be granted and Ms. Ward will be directed to provide the requested

discovery to American Pizza within fourteen days. In the event

Ms. Ward remains concerned about privacy issues, she and American

Pizza can agree to a protective order restricting the use of

information over which she has concerns, or she can file a motion

for a protective order designed if an agreed order cannot be

negotiated. 

Finally, Ms. Ward is cautioned that Rule 37(b)(2(A)

authorizes the imposition of sanctions, including dismissal of

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she previously requested, she is mistaken. Moreover, she does

not explain how her undisputed failure to review the documents

identified and made available by American Pizza has prevented her

from responding to any of the discovery requests directed to her. 

Instead, she reiterates her request that the Court participate in

the document review process. As explained above, the Court

declines to do so. 

There also is some indication from Ms. Ward’s response that

she does not want any personal information publicly disclosed. 

However, this is not a sufficient reason to fail to provide

discovery. Such personally identifying information simply is not

privileged for purposes of discovery. See generally DeMarco v. C

& L Masonry, Inc., 891 F.2d 1236, 1240 (6th Cir. 1989); Credit

Life Ins. Co. v. Uniworld Ins. Co., 94 F.R.D. 113, 121 (S.D Ohio

1982). Rather, the concern expressed by Ms. Ward more

appropriately is addressed by means of a protective order

pursuant to Fed.R.Civ.P. 26(c). Further, to the extent that Ms.

Ward believes that she already has responded to certain

interrogatories, she has not specifically identified these

interrogatories. 

Ms. Ward has offered no other reason for her failure to

provide discovery nor has she provided any specific objection to

any discovery request. Consequently, the motion to compel will

be granted and Ms. Ward will be directed to provide the requested

discovery to American Pizza within fourteen days. In the event

Ms. Ward remains concerned about privacy issues, she and American

Pizza can agree to a protective order restricting the use of

information over which she has concerns, or she can file a motion

for a protective order designed if an agreed order cannot be

negotiated. 

Finally, Ms. Ward is cautioned that Rule 37(b)(2(A)

authorizes the imposition of sanctions, including dismissal of

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the action in whole or in part, Fed.R.Civ.P. 37(b)(2)(a)(v), if a

party fails to obey an order to provide or permit discovery. The

sanction of dismissal for failure to cooperate in discovery is

“the sanction of last resort.” Beil v. Lakewood Eng’g and Mfg.

Co., 15 F.3d 546, 552 (6th Cir. 1994); see also Gray Cas. & Sur.

Co. v. Holton, 2011 WL 679930, *2 (W.D Tenn. January 18, 2011). 

In determining whether a plaintiff’s failure to cooperate in

discovery warrants dismissal, courts consider: “(1) whether the

party acted with willfulness, bad faith or fault; (2) whether

prejudice resulted from the discovery violation; (3) whether the

party had been warned that her conduct could lead to extreme

sanctions; and (4) whether less drastic sanctions were previously

imposed or considered.” Holton, 2011 WL 679930 at *2 citing

Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997); Bass v.

Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995); Bank One of

Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990).

While in the Court’s order of January 18, 2012, Ms. Ward was

warned that her failure to provide discovery responses could

result in the imposition of sanctions, she was not warned

specifically that dismissal of this action is a potential

sanction. See Doc. #24. Consequently, through this order the

Court is warning Ms. Ward that her continued failure to respond

to American Pizza’s discovery requests may well result in

sanctions, including the dismissal of this action.

VI. Conclusion

For the reasons stated above, the motion to compel (#23) is

granted. Plaintiff shall respond to American Pizza’s discovery

requests within fourteen days. The remaining motions (#s 17, 19,

20, 26, 27, and 31 are denied. The amended complaint (#27) shall

be stricken from the record in this case.

VII. Appeal Procedure

Any party may, within fourteen days after this Order is

14

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the action in whole or in part, Fed.R.Civ.P. 37(b)(2)(a)(v), if a

party fails to obey an order to provide or permit discovery. The

sanction of dismissal for failure to cooperate in discovery is

“the sanction of last resort.” Beil v. Lakewood Eng’g and Mfg.

Co., 15 F.3d 546, 552 (6th Cir. 1994); see also Gray Cas. & Sur.

Co. v. Holton, 2011 WL 679930, *2 (W.D Tenn. January 18, 2011). 

In determining whether a plaintiff’s failure to cooperate in

discovery warrants dismissal, courts consider: “(1) whether the

party acted with willfulness, bad faith or fault; (2) whether

prejudice resulted from the discovery violation; (3) whether the

party had been warned that her conduct could lead to extreme

sanctions; and (4) whether less drastic sanctions were previously

imposed or considered.” Holton, 2011 WL 679930 at *2 citing

Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997); Bass v.

Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995); Bank One of

Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990).

While in the Court’s order of January 18, 2012, Ms. Ward was

warned that her failure to provide discovery responses could

result in the imposition of sanctions, she was not warned

specifically that dismissal of this action is a potential

sanction. See Doc. #24. Consequently, through this order the

Court is warning Ms. Ward that her continued failure to respond

to American Pizza’s discovery requests may well result in

sanctions, including the dismissal of this action.

VI. Conclusion

For the reasons stated above, the motion to compel (#23) is

granted. Plaintiff shall respond to American Pizza’s discovery

requests within fourteen days. The remaining motions (#s 17, 19,

20, 26, 27, and 31 are denied. The amended complaint (#27) shall

be stricken from the record in this case.

VII. Appeal Procedure

Any party may, within fourteen days after this Order is

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filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge. S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp 

United States Magistrate Judge

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filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge. S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp 

United States Magistrate Judge

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