IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Robert B. Six, et al., Case No.: 2:11-cv-698

Plaintiffs Judge Graham

v. Magistrate Judge Abel

Robert Beegle, et al., 

Defendants.

OPINION AND ORDER

This matter is before the court on motions for judgment on the pleadings, pursuant to Fed.

R. Civ. P. 12(c), filed by two groups of individual defendants: defendants Donald Scott Fitch and

Jonathan Jenkins (doc. 56) and defendants Robert Beegle, Adam Smith, Rick Smith, William

Gilkey, Scott Trussel, and Brian Rhodes (doc. 57). Also before the court is plaintiffs’ motion for

leave to file an amended complaint (doc. 58).

I. Facts

Plaintiffs Robert Six and Bobbi Six are residents of Meigs County, Ohio. Defendants

Fitch and Jenkins are Special Agents with the Ohio Bureau of Criminal Investigation. (Doc. 56

at 2.) Defendants Beegle, Adam Smith, Rick Smith, Gilkey, Trussel, and Rhodes are alleged to

be Meigs and Washington County Sheriff’s Office law enforcement officers. (Doc. 1 ¶¶ 4-5.)

Each of the moving defendants is sued in his individual capacity. Id. Co-defendants are various

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law enforcement officers with the Washington County Sheriff’s Office, the Columbus Division

of Police, and the Ohio Department of Natural Resources. Each co-defendant is also sued in his

or her individual capacity. (Doc. 1 at 4-5.)

Plaintiffs’ complaint alleges the following: On August 5, 2009 plaintiff Robert Six was at

his home in Meigs County, Ohio when defendants came onto his property and into his residence. 

Defendants were on the premises pursuant to a search warrant issued by the Meigs County Court

of Common Pleas. The defendants seized Mr. Six and placed him in a police car. Although it

was an extremely hot summer day, defendants did not roll down the windows or turn on the air

conditioning and Mr. Six was left in the vehicle for several hours. Due to the heat, Mr. Six

became unconscious and required medical treatment. 

While Mr. Six was in the police car, the defendants conducted a search of his property. 

According to the complaint, defendants seized a large number of personal items, including

ammunition and hundreds of firearms. Some of the firearms belonged to each plaintiff. 

Plaintiffs allege that defendants maintained two inventory lists for the items seized–one for

firearms and one for personal property. However, defendants allegedly failed to list numerous

firearms that were seized from the property. Plaintiffs also allege that during the search of the

property, the defendants observed properly tagged deer antlers and wild turkey feathers. 

Defendants allegedly removed the tags and then charged Mr. Six with the crime of possessing

untagged antlers and feathers. The charges stemming from the untagged antlers and feathers

were dismissed by the Meigs County Municipal Court. 

After the search, Mr. Six was charged with aggravated possession of marijuana with a

forfeiture specification seeking to forfeit “approximately three hundred firearms and

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ammunition.” The common pleas court granted the motion to dismiss the forfeiture specification

and ordered the return of the firearms and ammunition to the plaintiffs. The return of the

property was overseen by Steve Jagers of Ohio Valley Investigations who determined that

defendants failed to return some of the seized firearms. Plaintiffs allege that in addition to some

of the documented firearms, defendants seized and failed to return firearms that they failed to

document. 

On August 3, 2011 plaintiffs filed five claims against defendants arising from the search

of plaintiffs’ property: illegal seizure of plaintiffs’ personal property (Claim One), damage of

personal property illegal seized (Claim Two), illegal seizure of Mr. Six’s person (Claim Three),

malicious prosecution in connection with charges brought against Mr. Six related to untagged

dear antlers and turkey feathers (Claim Four), and a conspiracy to illegally seize plaintiffs’

property and to deprive them of various constitutional rights (Claim Five). All of plaintiffs’

claims are brought pursuant to 42 U.S.C. §1983.

In a May 4, 2012 Order, the court granted motions for judgment on the pleadings brought

by defendants Staats, Rhodes, Nohe, Parks, and Roberts. (Doc. 55.) The Court held that the

complaint had failed to allege how each of the moving defendants was personally involved in the

alleged constitutional violations, and granted the moving defendants’ motions to dismiss. 

However, the Court directed the clerk to defer entry of final judgment for the moving defendants,

and granted plaintiffs 20 days to move to amend their complaint. Plaintiffs’ motion to amend

their complaint in an attempt to cure the deficiency identified in the previous order is now before

the court, along with additional motions for judgment on the pleadings.

II. Legal Standard

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A. Motion to Amend

Rule 15(a) of the Federal Rules of Civil Procedure permits a party to amend the

complaint after a responsive pleading has been filed only by leave of the court, but “[t]he court

should freely give leave when justice so requires." FED. R. CIV. P. 15(a)(2). That standard was

construed by the Supreme Court in Foman v. Davis, 371 U.S. 178, 182 (1962):

If the underlying facts or circumstances relied upon by plaintiff may be a proper

subject of relief, he ought to be afforded an opportunity to test his claim on the

merits. 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 the allowance of the amendment, futility of amendment,

etc.--the leave sought should be "freely given." Of course, the grant or denial of

an opportunity to amend is within the discretion of the District Court . . . .

Delay alone is not a ground for denying leave to amend. Dana Corp. v. Blue Cross &

Blue Shield Mut., 900 F.2d 882, 888 (6th Cir. 1990). The party opposing leave to amend must

demonstrate significant prejudice. Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir.

1999); Moore v. City of Paducah, 790 F.2d 557, 562 (6th Cir. 1986). The Court determines

prejudice considering

whether the assertion of the new claim or defense would: require the opponent to

expend significant additional resources to conduct discovery and prepare for trial;

significantly delay the resolution of the dispute; or prevent the plaintiff from

bringing a timely action in another jurisdiction.

Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994). The longer the period of unexplained

delay, the lesser the burden of demonstrating prejudice. Id. Courts have frequently found

prejudice where the amendment is made after the discovery deadline has passed. Duggins, 195

F.3d at 834 (amendment sought after discovery and case dispositive motions deadlines had

passed and while a motion for summary judgment was pending); United States v. Midwest

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Suspension and Brake, 49 F.3d 1197, 1202 (6th Cir. 1995) (Amendment sought one month

before trial); Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir. 1989); Janikowski v. Bendix Corp.,

823 F.2d 945, 952 (6th Cir. 1987). A party who moves to amend late in the lawsuit has "an

increased burden to show justification for failing to move earlier." Wade v. Knoxville Utils. Bd.,

259 F.3d 452, 459 (6th Cir. 2001) (citation omitted). Nonetheless, even amendments made on

the eve of trial are permissible when there is no demonstrable prejudice. United States v. Wood,

877 F.2d 453, 456-57 (6th Cir. 1989) (amendment permitted three weeks before trial). Further,

even if there is prejudice, the Court may fashion a remedy, such as assessing the moving party

the costs of duplicative discovery, which would permit the amendment. See Janikowski, 823

F.2d at 952; Moore v. Paducah, 790 F.2d 557, 562 (6th Cir. 1986); Adkins v. Int’l Union, 769

F.2d 330, 334 (6th Cir. 1985).

In addition to prejudice, futility may provide a basis for denying leave to amend. The

Sixth Circuit has ruled that "[i]t is well settled that the district court may deny a motion for leave

to amend a complaint if such complaint, as amended, could not withstand a motion to dismiss." 

Neighborhood Dev. Corp. v. Advisory Council on Historic Pres., 632 F.2d 21, 23 (6th Cir.

1980); Matthews v. Jones, 35 F.3d 1046, 1050 (6th Cir. 1994). A court 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. See Madison Fund, Inc. v. Denison Mines Ltd., 90 F.R.D. 89,

91 (S.D.N.Y. 1981); Key Pharm., Inc. v. Lowey, 54 F.R.D. 445, 449 n.5 (S.D.N.Y. 1972). 

Normally, the merits of a complaint are best resolved through a motion to dismiss or a motion for

summary judgment. WIXT Television, Inc. v. Meredith Corp., 504 F. Supp. 1003, 1010

(N.D.N.Y. 1980)). However, if there is no set of facts that could be proven under the amendment

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would constitute a valid and sufficient claim, leave should be denied. See Cooper v. American

Emp’rs’ Ins. Co., 296 F.2d 303, 307 (6th Cir. 1961).

B. Judgment on the Pleadings

 A motion for judgment on the pleadings pursuant to Rule 12(c) “should not be granted

unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim

that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See also

Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998) (“The standard of review applicable to a

Rule 12(c) motion is the same as that for a Rule 12(b)(6) motion.”) (citation omitted). All wellpleaded allegations must be taken as true and must be construed most favorably toward the nonmovant. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A motion for judgment on the pleadings

is directed solely to the complaint and any exhibits attached to it. Roth Steel Prods. v. Sharon

Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The merits of the claims set forth in the

complaint are not at issue on a motion for judgment on the pleadings. Consequently, a complaint

will be dismissed pursuant to Fed. R. Civ. P. 12(c) if there is no law to support the claims made,

or if the facts alleged are insufficient to state a claim, or if on the face of the complaint there is an

insurmountable bar to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir.

1978); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). However, the court “need not

accept as true legal conclusions or unwarranted factual inferences.” Morgan v. Church’s Fried

Chicken, 829 F.2d 10, 12 (6th Cir. 1987) (citations omitted).

When the complaint contains well-pleaded factual allegations, “a court should assume

their veracity and then determine whether they plausibly give rise to an entitlement to relief.” 

Iqbal, 556 U.S. at 679. “A claim has facial plausibility when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 678. Though “[s]pecific facts are not necessary,” Erickson, 551 U.S.

at 93, and though Rule 8 “does not impose a probability requirement at the pleading stage,”

Twombly, 550 U.S. at 556, the factual allegations must be enough to raise the claimed right to

relief above the speculative level and to create a reasonable expectation that discovery will reveal

evidence to support the claim. Iqbal, 556 U.S. at 678-79; Twombly, 550 U.S. at 555-56. This

inquiry as to plausibility is “a context-specific task that requires the reviewing court to draw on

its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has

not ‘show[n]’– ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R.

Civ. P. 8(a)(2)).

III. Legal Analysis

A. Amendment of the Complaint

Plaintiffs’ proposed amended complaint is substantially similar to the initial complaint. 

The changes that plaintiffs propose seek to cure the deficiency noted in the Court’s order of May

4, 2012 (doc. 55). In that order, the Court held that the plaintiffs’ complaint “failed to identify a

single action specifically taken by any one of the moving defendants. Plaintiff’s entire complaint

alleges that ‘defendants’ committed each act. There is no allegation that [any individual moving

defendant was] actually present . . . .” (Doc. 55 at 5.) Plaintiffs seek to cure this deficiency with

their amended complaint by changing general allegations about “defendants” into specific

allegations regarding named individual defendants. There are a large number of specific

allegations, and in most cases, many versions of the same allegation are made in the alternative. 

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For example, where the original complaint alleges that “[d]efendants seized the person of Mr. Six

and placed him into the back seat area of a police vehicle,” (doc. 1 ¶ 14), the proposed amended

complaint includes eleven different paragraphs that allege, in the alternative, that eleven different

defendants placed Mr. Six in a police car. (Doc. 58-1 ¶¶ 14, 23, 26, 29, 32, 35, 38, 41, 44, 47,

50). Each of these alternative allegations does what the original complaint failed to do by

alleging “a single action specifically taken” by a specific defendant. For example, paragraph 14

of the proposed amended complaint alleges that “[d]efendant Scott Fitch seized the person of Mr.

Six and placed him into the back seat area of a police vehicle and detained him there for several

hours on a hot day with the windows rolled up.” (Doc. 58-1 ¶ 14.) 

Defendants argue that the proposed amended complaint fails to cure the deficiency

identified in the prior order, and that allowing the amendment would thus be futile. Defendants

Fitch and Jenkins argue that the proposed amended complaint “amounts to nothing more tha[n]

changing the form of Plaintiffs’ Complaint, without altering the substantive deficiency already

identified by the Court.” (Doc. 59 at 3.) Defendant Nohe and four co-movants similarly claim

that “the Proposed Amended Complaint fails to put Defendants on notice as to which claims are

attributed to their personal actions.” (Doc. 60 at 4.) This argument is difficult to square with the

text of the proposed amended complaint. Paragraph 47 of the proposed amended complaint

alleges that “[d]efendant Greg Nohe seized the person of Mr. Six and placed him into the back

seat area of a police vehicle and detained him there for several hours on a hot day with the

windows rolled up.” (Doc. 58-1 ¶ 47.) This allegation clearly puts defendant Nohe on notice

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that plaintiffs allege that he put Mr. Six in a hot car.1

The changes proposed by plaintiffs are more than a shift in form. The plaintiffs seek to

add substance to their complaint where previously it was lacking. Allegations that “defendants”

took some action (for example, putting Mr. Six in a car, an action which ordinarily is not

accomplished by 15 people at once) may leave any specific defendant wondering whether they

are alleged to have taken that specific action. But an allegation that a specific defendant took a

specific action puts that defendant on notice. That the complaint also alleges, in the alternative,

that other defendants took the same action, does not change the fact that the proposed amended

complaint is clear in its allegations against specific defendants. Specific allegations against

specific defendants cure the deficiency identified in the Court’s previous order. 

Moving defendants also argue that the proposed amendment would be futile because the

factual allegations in the proposed amended complaint are implausible. (Doc. 59 at 3; doc. 60 at

4.) For example, movants argue that plaintiffs “allege Defendants Fitch and Jenkins were in two

different places at the same time.” (Doc. 59 at 3.) According to movants, the amendment would

be futile because plaintiffs’ plead inconsistently that Fitch and Jenkins were both outside of

plaintiffs home, putting Mr. Six into a squad car, and inside the home conducting a search. (Doc.

59 at 3-4.) But inconsistent claims are specifically allowed by Federal Rule of Civil Procedure

8(d)(3): “A party may state as many separate claims or defenses as it has, regardless of

consistency.” Furthermore, there is nothing inconsistent about alleging that one person could be

in two different places over the course of a search lasting “several hours.” (Doc. 58-1 ¶ 14.) For

At this stage of litigation, the Court assumes that this allegation has “evidentiary support or . . . will likely

1

have evidentiary support after a reasonable opportunity for further investigation or discovery . . . .” FED. R. CIV.

PRO. R. 11(b)(3).

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these reasons, plaintiffs’ proposed amendments to their complaint would not be futile.2

B. Judgment on the Pleadings

Moving defendants present arguments that each of the five counts in plaintiffs’ complaint

and proposed amended complaint should be dismissed.

i. Illegal Seizure of Property

Defendants argue that plaintiffs’ claims related to the seizure of property, particularly

guns, must fail because seizure of guns is permitted by the search warrant. (Doc. 56 at 5-7; doc.

57 at 6-7; doc. 59 at 5-7; doc. 60 at 5-6.) The search warrant describes the property that may be

seized in detail:

Marijuana or other drugs, in any form or condition, rolling papers, pipes, bongs or

other devices, instruments or things used in the cultivation, preparation/processing

or sale of Marijuana and/or the processing of the same, together with any records .

. . evidencing the cultivation, preparation/processing or distribution of Marijuana

or other illegal drugs relating to the cultivation preparation/processing or sale of

Marijuana, said drugs and contraband, or some part thereof, other illegal drugs,

dangerous drugs or controlled substances, concealed in and at the premises

described herein and above as being the residence, at said location, evidence of

possession, distribution and cultivation of marijuana and drugs in violation of

2925 of the Ohio Revised Code, along with any related evidence.

(Doc. 17-1 at 2.)

This authorization does not mention firearms. Defendants nonetheless make three arguments

that this text nonetheless authorizes the seizure of guns. 

First, defendants argue that the warrant authorizes the seizure of guns by authorizing the

seizure of “various tools, devices, objects or things used in the cultivation,

In addition to these arguments, defendants opposing plaintiffs’ motion to amend make several arguments

2

that are unrelated to the amendment of the complaint, but instead go to the substance of both the initial and proposed

amended complaint. Those arguments that, if supported, would require dismissal of one or more of plaintiffs’ claims

against moving defendants are addressed below.

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preparation/processing or sale of Marijuana . . . .” (Doc. 17-1 at 2.) This argument rests on the

idea that “[g]uns and drugs can go hand in hand.” (Doc. 56 at 6.) Guns and drugs certainly can

go hand in hand, but not all guns are linked to drugs. Evidence may surface that, in this case,

officers conducting the search reasonably believed that the guns at issue were used in the drug

trade, but no such evidence is before the court.

Next, defendants argue that the guns represent “proceeds from the . . . sale of Marijuana .

. . .” (Doc. 17-1 at 2.) Movants argue that “a reasonable, objective law enforcement officer at

this search could conclude that the plaintiffs . . . . used their illegal proceeds to cultivate Mr.

Six’s firearm collection . . . .” (Doc. 56 at 6; see also doc. 57 at 7.) Defendants may be able to

support this claim in subsequent stages of this litigation, but in considering a motion to dismiss,

the court views the evidence in a light most favorable to the plaintiff. Plaintiff alleges that the

seized firearms were unrelated to the drug trade, and that officers lacked probable cause to

believe there was any connection between the guns and the drug trade. (Doc. 58-1 ¶ 96.) None

of plaintiffs’ allegations suggest a connection between the seized guns and drugs.

Finally, defendants argue that the warrant authorized the seizure of the firearms because

they were “evidence of possession, distribution and cultivation of marijuana and drugs . . . .” 

(Doc. 17-1 at 2; see also doc. 59 at 7.) Again, while defendants may present evidence that these

guns were evidence of drug crimes, the court will not accept the proposition promoted by

defendants that guns are necessarily evidence of drugs.

ii. Illegal Seizure of Personal Property by Damaging it

Movants argue that plaintiffs’ second claim fails because “Plaintiffs allege no factual

grounds to support a plausible belief that these Defendants improperly converted their property . .

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. . They do not allege which firearms were taken by which Defendant. They did not allege how,

where, or when these officials took such firearms. They did not allege who was present when the

improper conversion took place.” (Doc. 59 at 9; see also doc. 60 at 5-6.)

Plaintiffs include the same allegations against all fifteen defendants. They allege that

each defendant “failed to return the Plaintiffs’ personal property that he [or she] illegally seized .

. . .” (Doc. 58-1 ¶¶ 67, 71, 75, 79, 83, 87, 98, 101, 106, 110, 114, 118, 122, 126, 130.) Contrary

to movants’ arguments, the facts alleged give rise to a plausible claim that each defendant

“improperly converted their property.” Defendants argue that plaintiffs do not allege which

firearms were taken by which defendant. However, plaintiffs do include two lists of guns that

they allege were inventoried and seized by defendants, but not returned. (Docs. 1-5, 1-6.) True,

plaintiffs do not allocate each gun to a specific defendant, instead, the complaint suggests that

each defendant converted each gun. At this stage of litigation, these allegations in the alternative

are sufficiently specific. Defendants also argue that plaintiffs do not allege “how, where, or

when these officials took such firearms.” (Doc. 59 at 9.) But the proposed amended complaint is

explicit on this point–the guns were taken during the search, plaintiffs allege. 

iii. Illegal Seizure of Mr. Six

Plaintiffs allege that Mr. Six was put “into the back seat area of a police vehicle and

detained . . . there for several hours on a hot day with the windows rolled up. . . . The police

vehicle . . . was not running, there was no air conditioning, no ventilation fan running and . . . it

was extremely and unreasonably hot inside the police cruiser . . . [and] Mr. Six passed out and

became unconscious due to the heat and lack of ventilation while he was being detained in the

police vehicle.” (Doc. 58-1 ¶¶ 14-19.) Plaintiffs further allege that Mr. Six attempted and failed

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to get the attention of defendants to alert them to the conditions under which he was detained. 

(Doc. 58-1 ¶ 21.)

Defendants Fitch and Jenkins argue that these allegations fail to state a claim that

defendants violated Mr. Six’s rights because the defendants did not know of and disregard a

substantial risk of serious harm. (Doc. 59 at 10.) Viewing the allegations in a light most

favorable to the plaintiffs, plaintiffs have alleged a situation in which any reasonable officer

would know that an enclosed car would become unreasonably hot after a number of hours. 

Though Mr. Six alleges he attempted to do so, his claim does not fail because he failed to get the

attention of officers and alert them to the rising heat in the vehicle. This would be a particularly

unreasonable requirement considering that for at least part of the time that he was confined to the

vehicle, Mr. Six alleges that he was unconscious. Defendants attempt to analogize a hot car to

handcuffs that are too tight in order to establish that Mr. Six was required to inform them of the

problem. (Doc. 59 at 11.) This analogy plainly fails. First, a detainee being handcuffed has no

impediment to telling officers that they are too tight, whereas Mr. Six alleges that he was

enclosed in a car as the temperature rose. He alleges that he attempted to alert officers before he

became unconscious, but failed. Second, while it might not be apparent to an officer that a

detainee’s handcuffs are too tight, an officer placing a detainee in a closed squad car on a hot day

has all the information necessary to surmise that temperatures inside the vehicle might rise.

iv. Malicious Prosecution

Defendants Fitch and Jenkins make several arguments that plaintiffs’ claim for malicious

prosecution must fail. (See doc. 56 at 7-8.) However, plaintiffs’ amended complaint only

includes defendants Woods and Shields in the malicious prosecution claim. (Doc. 58-1 at 45.)

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v. Civil Conspiracy

Moving defendants argue that plaintiffs have failed to plead with sufficient specificity to

state a claim for a conspiracy under 42 U.S.C. § 1983. (See doc. 56 at 8-9; doc. 57 at 8-9.) 

Under § 1983, “[a]ll that must be shown is that there was a single plan, that the alleged

coconspirator shared in the general conspiratorial objective, and that an overt act was committed

in furtherance of the conspiracy that caused injury to the complainant.” Hooks v. Hooks, 771

F.2d 935, 944 (6th Cir. 1985). Further, “[i]t is well-settled that conspiracy claims must be pled

with some degree of specificity and that vague and conclusory allegations unsupported by

material facts will not be sufficient to state a claim under § 1983.” Gutierrez v. Lynch, 826 F.2d

1534, 1538 (6th Cir. 1987). Specific allegations must be sufficient to make claim of civil

conspiracy plausible. See Iqbal, 556 U.S. at 679.

Plaintiffs identify five paragraphs in their amended complaint that they argue sufficiently

plead their civil conspiracy claim. (See doc. 62 at 9-10.) Some of these allegations are mere

conclusory statements. For example, in paragraph 172, plaintiffs allege that “[t]he actions taken

by defendants . . . were done as part of a conspiracy in which all of the Defendants participated,

to engage in conduct which violated the constitutional rights of the Plaintiffs.” (Doc. 58-1 ¶

172.) This allegation sets forth no specific facts that would make the bare allegation of

conspiracy plausible. However, of the five paragraphs that plaintiffs argue support their

conspiracy claim, two do include specific allegations. Paragraphs 169 and 170 allege that “[t]he

Defendants[’] actions taken at the Plaintiffs’ . . . property was discussed among the Defendants

and a plan was developed by the Defendants prior to the search and seizure. The illegal seizure

and holding the Plaintiffs’ personal property was discussed among the Defendants and a plan was

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developed by the Defendants prior to the search and seizure.” (Doc. 58-1 ¶¶ 169-70.) These

allegations that defendants met, discussed plans, and agreed to violate plaintiffs’ rights are

sufficient to survive dismissal at this stage.

IV. Conclusion

For the foregoing reasons, plaintiffs’ motion for leave file an amended complaint (doc.

58) is GRANTED. The motions for judgment on the pleadings (docs. 56, 57) are DENIED.

IT IS SO ORDERED.

s/ James L. Graham 

James L. Graham

UNITED STATES DISTRICT JUDGE

Date: August 16, 2012

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