IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAWN SNELLING, et al.,

Plaintiffs,

vs. Civil Action 2:11-CV-983

Judge Sargus

Magistrate Judge King

ATC HEALTHCARE SERVICES, INC.,

et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Plaintiff’s Motion For Leave

to Amend Complaint (“Plaintiff’s Motion to Amend”), Doc. No. 23. That

motion also asks that Defendant’s Motion for Judgment on the Pleadings

be stayed pending resolution of Plaintiff’s Motion to Amend. For the

following reasons, Plaintiff’s Motion to Amend is GRANTED. 

Plaintiff’s request to stay is DENIED as moot. 

I. BACKGROUND

Plaintiff Dawn Snelling, acting on behalf of herself and a class

of plaintiffs, seeks unpaid overtime compensation under the Fair Labor

Standards Act, 29 U.S.C. § 201, et seq., and the Ohio Minimum Fair

Wage Standards Act, Ohio R.C. § 4111.03. Complaint, Doc. No. 1, ¶ 1. 

On May 24, 2012, defendants ATC Healthcare Services Inc., and

Nursemate, Inc., filed a motion for partial judgment on the pleadings,

seeking dismissal of the Complaint “to the extent that it seeks relief

as a Collective Action under 29 U.S.C. § 216(b) of the Fair Labor

Standards Act (FLSA).” Defendants’ ATC Healthcare Services, Inc. and

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Nursemate, Inc. Combined Partial Motion for Judgment on the Pleadings

(“Defendants’ Motion for Judgment on the Pleadings”), Doc. No. 14, p.

1. 

On June 12, 2012, plaintiff filed Plaintiff’s Motion to Amend,

seeking leave to amend the Complaint “to provide additional factual

support” for her claims. Plaintiff’s Motion to Amend, p. 2. 

Plaintiff’s new allegations include alleged similarities between

herself and similarly situated people and actions allegedly taken by

defendants or taken by plaintiff and similarly situated people. 

Plaintiff alleges, inter alia, that she and similarly situated people

“provided nursing care to the various prisons throughout the state of

Ohio,” had “the same or similar [job duties] at each prison facility,”

and had a “Sunday through Saturday” work week. See Amended Complaint,

attached to Plaintiff’s Motion to Amend as Exhibit A, at ¶¶ 40-41, 44. 

According to the proposed Amended Complaint, defendants reduced the

overtime rate of plaintiff and similarly situated people “to an amount

below one and one-half times regular pay,” defendants reduced hourly

rates “for the sole reason of reducing . . . overtime rates to an

amount less than one and one-half times their regular pay,” and

defendants told plaintiff and similarly situated people “that if they

wanted to get their overtime pay they would have to sue and wait

several years to get it.” Id. at ¶¶ 53-54, 57. The proposed Amended

Complaint further alleges that plaintiff is aware of at least 12 other

nurses who were not paid the proper overtime rate by defendants, that

defendants have admitted to failing to properly pay overtime, and that

defendants have started sending checks to employees for “unpaid

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overtime.” Id. at ¶¶ 60, 62-63. 

Defendants oppose plaintiff’s motion, arguing that the proposed

amendment would be futile. Defendants ATC Healthcare Services, Inc.

and Nursemate, Inc.’s Memorandum in Opposition to Plaintiff’s Combined

Motion for Leave to Amend Complaint and Motion to Stay Defendants’

Partial Motion for Judgment on the Pleadings (“Defendants’ Response”),

Doc. No. 27, p. 1. Specifically, defendants argue that the proposed

Amended Complaint alleges only legal conclusions and does not contain

factual allegations of persons similarly situated to plaintiff. Id.

at 2-3. 

II. STANDARD

Plaintiffs’ Motion to Amend is governed by Rule 15(a) of the

Federal Rules of Civil Procedure, which provides that a “court should

freely give leave [to amend] when justice so requires.” Fed. R. Civ.

P. 15(a)(2). “The thrust of Rule 15 is to reinforce the principle

that cases should be tried on their merits rather than the

technicalities of pleadings.” Tefft v. Seward, 689 F.2d 637, 639 (6th

Cir. 1982) (citing Conley v. Gibson, 355 U.S. 41, 48 (1957)). The

grant or denial of a request to amend a complaint is left to the broad

discretion of the trial court. Gen. Elec. Co. v. Sargent & Lundy, 916

F.2d 1119, 1130 (6th Cir. 1990). In exercising its discretion, the

trial court may consider such factors as “undue delay, bad faith or

dilatory motive on the part of a 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). 

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“A proposed amendment is futile if the amendment could not

withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford

Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing

Thiokol Corp. v. Dep’t of Treasury, Revenue Div., 987 F.2d 376, 382-83

(6th Cir. 1993)). A motion to dismiss under Rule 12(b)(6) attacks the

legal sufficiency of the complaint. See Roth Steel Prods. v. Sharon

Steel Co., 705 F.2d 134, 155 (6th Cir. 1983). In determining whether

dismissal on this basis is appropriate, a complaint must be construed

in the light most favorable to the plaintiff, and all well-pleaded

facts must be accepted as true. See Bower v. Fed. Express Corp., 96

F.3d 200, 203 (6th Cir. 1996); Misch v. Cmty. Mut. Ins. Co., 896 F.

Supp. 734, 738 (S.D. Ohio 1994). The United States Supreme Court has

explained that “once a claim has been stated adequately, it may be

supported by showing any set of facts consistent with the allegations

in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546

(2007). However, a plaintiff’s claim for relief “requires more than

labels and conclusions, and a formulaic recitation of the elements of

a cause of action will not do.” Id. at 555. “Factual allegations

must be enough to raise a right to relief above the speculative

level . . . .” Id. Accordingly, a complaint must be dismissed – and

amending a complaint is futile – if the complaint does not plead

“enough facts to state a claim to relief that is plausible on its

face.” Id. at 570.

III. DISCUSSION

Defendants’ sole argument against leave to amend the Complaint is

that the proposed amendment would be futile. See Defendants’

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Response, p. 1. Referring to arguments made in their motion for

judgment on the pleadings, defendants argue that the proposed Amended

Complaint contains only legal conclusions and lacks factual

allegations that support the existence of persons similarly situated

to plaintiff. Id. at 2-3. Thus, according to defendants, the

proposed Amended Complaint does not state a cognizable collective

cause of action. Id. at 1-2. 

Defendants do not argue – either here or in Defendants’ Motion

for Judgment on the Pleadings – that plaintiff has failed to

sufficiently plead the claims asserted on her own behalf.1 Notably,

the new allegations in the proposed Amended Complaint are not limited

to the collective cause of action and they often address plaintiff’s

individual claims and the class claims within the same paragraph. See

Amended Complaint, attached to Plaintiff’s Motion to Amend as Exhibit

A, at ¶¶ 52-57 (each alleging that plaintiff and similarly situated

people either took the same action or had the same action taken

against them by defendants). Because defendants do not argue that all

claims are futile, and because the new allegations appear to apply to

both plaintiff’s individual claims and the collective claims, the

Court cannot conclude that the proposed amendment would be futile.2

Additionally, there is no indication that defendants would be

1

Defendants’ Motion for Judgment on the Pleadings does not seek

dismissal of all of plaintiff’s claims; rather, it seeks dismissal of the

Complaint “to the extent that it seeks relief as a Collective Action under 29

U.S.C. § 216(b) of the Fair Labor Standards Act (FLSA).” Defendants’ Motion

for Judgment on the Pleadings, p. 1.

2In so holding, the Court expresses no opinion as to the validity of

plaintiff’s claims or whether plaintiff has stated a claim for relief as a

collective action under 29 U.S.C. § 216(b) of the Fair Labor Standards Act.

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prejudiced by the proposed amendment. There is no suggestion of bad

faith on the part of plaintiff, this is the first amendment sought by

plaintiff, and plaintiff does not seek to assert new claims or to add

parties. There is also no indication that plaintiff’s new factual

allegations will unfairly recast the essential nature of the case. 

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

Furthermore, granting Plaintiff’s Motion to Amend should not affect

the discovery completion date or other case deadlines. 

Accordingly, Plaintiff’s Motion to Amend, Doc. No. 23, is

GRANTED. The Clerk is DIRECTED to file plaintiff’s Amended Complaint,

which is attached to Plaintiff’s Motion to Amend, Doc. No. 23, as

Exhibit A.

In light of the foregoing, Plaintiff’s Motion to Stay, Doc. No.

23, is DENIED as moot. With the filing of the Amended Complaint,

Defendant’s Motion for Judgment on the Pleadings, Doc. No. 14, and

Plaintiff’s Motion for Leave for Partial Dismissal with Prejudice,

Doc. No. 13, are both now moot. The Clerk is DIRECTED to remove Doc.

No. 13 and Doc. No. 14 from the Court’s pending motions list. 

October 10, 2012 s/ Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

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