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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SUNIL NAYYAR, 

 

 Plaintiff, 

 vs. Civil Action 2:12-cv-189 

 Judge Marbley 

 Magistrate Judge King 

MOUNT CARMEL HEALTH SYSTEM, 

et al., 

 Defendants. 

OPINION AND ORDER 

This matter is before the Court on Plaintiff’s Motion to File 

Second Amended Complaint, Doc. No. 29 (“Motion to Amend”). For the 

reasons that follow, the Motion to Amend is GRANTED. 

I. PROCEDURAL HISTORY 

 On November 24, 2009, plaintiff filed an original action in the 

Franklin County Court of Common Pleas, Case No. 09-CV-017576, against 

Mount Carmel Health System (“Mount Carmel”) and two individual 

doctors. Notice of Removal, Doc. No. 1, filed in Nayyar v. Mount 

Carmel Health System, et al., Case No. 2:10-cv-135. After plaintiff 

amended the complaint to add federal claims, defendants removed the 

action to this Court on February 16, 2010. Id.; Complaint, Doc. No. 

3, filed in Case No. 2:10-cv-135 (hereafter, “Nayyar I”). Nayyar I, 

an employment action, alleged that plaintiff had been unlawfully 

terminated from Mount Carmel’s medical residency program on account of 

his race and national origin and in retaliation for his advocacy 

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regarding patient safety. Complaint, filed in Nayyar I. Plaintiff 

asserted claims under O.R.C. §§ 4112.01, .02, Ohio’s public policy and 

Ohio’s Whistleblower Statute; plaintiff also asserted claims of 

emotional distress, denial of contractual due process and spoliation 

of evidence. Id. Plaintiff also asserted federal claims under 42 

U.S.C. § 1981 and the Medicare Act, 42 U.S.C. § 1320c-5. Id. 

On July 23, 2010, this Court granted plaintiff leave to file a 

second amended complaint in that action. Order, Doc. No. 32, filed in 

Nayyar I. That amended complaint contained a section entitled 

“ADDITIONAL ALLEGATIONS REGARDING ACGME [Accreditation Council for 

Graduate Medical Education] WORK HOUR LIMITATION AND BILLAB[L]E 

SERVICES VIOLATIONS AND FEDERAL MEDICARE GRADUATE MEDICAL EDUCATION 

REGULATION VIOLATIONS.” Second Amended Complaint, Doc. No. 33, ¶¶ 58-

88, filed in Nayyar I. This section provided factual background, 

including, inter alia, the allegation that ACGME accreditation 

requirements place work hour limits on residents’ work schedules and 

hours. Id. at ¶¶ 58-64. According to plaintiff, Mount Carmel had 

been placed on probation for ACGME violations that occurred in the 

Mount Carmel residency program and that Mount Carmel intimidated 

plaintiff and other residents to violate ACGME rules and regulations. 

Id. at ¶¶ 65-72. In July 2009, Mount Carmel began investigating 

plaintiff’s placement of an A-line in a patient’s arm, which plaintiff 

alleges occurred without adequate supervision during plaintiff’s rest 

period, in violation of ACGME regulations. Id. at 73-81. 

Discovery in Nayyar I closed on December 15, 2011. Order, Doc. 

No. 55; Opinion and Order, Doc. No. 73 (denying plaintiff leave to 

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conduct additional discovery), filed in Nayyar I. On December 15, 

2011, defendants moved for summary judgment, which plaintiff opposed. 

Doc. Nos. 64, 74, respectively, filed in Nayyar I. 

Approximately two months later, after briefing on the motion for 

summary judgment in Nayyar I was complete, Doc. No. 77, plaintiff 

filed a new action against Mount Carmel and three individual doctors 

in the Franklin County Court of Common Pleas, Case No. 12-CV-001879. 

Notice of Removal, Doc. No. 1, filed in this Court, Case No. 2:12-cv189 (“Nayyar II”). As factual background for his claims, plaintiff 

alleged, inter alia, that Mount Carmel is accredited by the ACGME and 

“agrees to the terms and conditions of the accreditation which 

includes complying with regulations and principles of the ACGME.” 

Complaint, Doc. No. 3, ¶ 12, filed in Nayyar II.1

 According to 

plaintiff, his employment contract with Mount Carmel, which commenced 

in July 2009, required that Mount Carmel comply with hospital policies 

and procedures contained in a manual (“MCW Manual”) and in a physician 

handbook (“MCW Handbook”). Id. at ¶¶ 15-21. Plaintiff further 

alleged that, from July through August 2009, Mount Carmel violated the 

MCW Manual and ACGME institutional requirements. Id. at ¶¶ 22-26. 

Nayyar II asserts claims of breach of contract, promissory estoppel, 

fraudulent misrepresentation and discrimination. Id. at ¶¶ 61-79. In 

particular, as to his breach of contract claim, plaintiff alleged that 

when he entered into his contract in 2009, defendants agreed to comply 

 

1 The parties refer to this complaint as an amended complaint and the Motion to 

Amend seeks leave to file a “Second Amended Complaint.” This Court’s docket 

in Nayyar II, however, reflects only an initial complaint. See Doc. No. 3. 

Therefore, and notwithstanding the parties’ references, the Court will refer 

to the operative complaint as the Complaint. 

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with ACGME and Mount Carmel’s own policies and procedures, but that 

defendants acted in breach of that contract. Id. at ¶¶ 61-66. 

Defendants removed Nayyar II to this Court on March 1, 2012. Id. 

On April 23, 2012, the Court ordered that, inter alia, motions for 

leave to amend the pleadings be filed in this action no later than May 

31, 2012. Preliminary Pretrial Order, Doc. No. 11, p. 2, filed in 

Nayyar II. The Court thereafter set November 30, 2012 as the date for 

completing discovery and March 1, 2013 as the date for filing 

dispositive motions. Order, Doc. No. 25, p. 1, and Order, Doc. No. 

33, filed in Nayyar II.2

 A final pretrial conference is currently 

scheduled for May 31, 2013 and trial is scheduled to begin on June 10, 

2013. Order Setting Trial Date and Settlement Conference, Doc. No. 

34, filed in Nayyar II. 

Plaintiff’s Motion to Amend was filed on October 4, 2012, i.e., 

more than four (4) months after the date by which such motions were to 

have been filed. See Preliminary Pretrial Order, p. 2, filed in 

Nayyar II. Defendants have filed a response to the motion. 

Defendants’ Response in Opposition to Plaintiff’s Motion for Leave to 

File a Second Amended Complaint, Doc. No. 30 (“Response in 

Opposition”), filed in Nayyar II. Plaintiff has not filed a reply. 

II. STANDARD 

 Rule 15(a) of the Federal Rules of Civil Procedure provides that 

“[t]he court should freely give leave [to amend] when justice so 

 

2 The Court consolidated Nayyar I and Nayyar II. Order, Doc. No. 21, filed in 

Nayyar II. The motion for summary judgment filed in Nayyar I was withdrawn, 

and defendants were granted leave to file a motion for summary judgment in 

Nayyar II. Order, Doc. No. 23, filed in Nayyar II. As noted supra, motions 

for summary judgment in Nayyar II are due March 1, 2013. Order, Doc. No. 33, 

filed in Nayyar II.

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requires.” Fed. R. Civ. P. 15(a)(2). However, where, as here, a 

motion for leave to amend is filed beyond the date established in a 

scheduling order, a litigant must first show good cause under Rule 

16(b) for the failure to earlier seek leave to amend. Leary v. 

Daeschner, 349 F.3d 888, 909 (6th Cir. 2003). A court measures good 

cause by the movant’s “diligence in attempting to meet the case 

management order’s requirements.” Id. at 906 (citations omitted). A 

moving party establishes good cause if he shows that, despite his 

diligence, he cannot reasonably meet the deadline. Id. A District 

Court is also required to evaluate prejudice to the opponent in 

determining whether to modify a scheduling order. Inge v. Rock Fin. 

Corp., 281 F.3d 613, 625 (6th Cir. 2002). 

III. DISCUSSION 

 Plaintiff seeks leave to amend his complaint “in order to assert 

additional allegations in support of his existing breach of contract 

claim.” Motion to Amend, p. 2. More specifically, plaintiff seeks to 

incorporate factual allegations contained in ¶¶ 58 to 88 of the Second 

Amended Complaint filed in Nayyar I, which address “Accreditation 

Council for Graduate Medical Education (“ACGME”) work hour limitation, 

billable service violations and federal Medicare graduate medical 

education regulation violations.” Id. Plaintiff contends that 

granting leave to amend in this regard will not prejudice defendants 

because these factual allegations “are identical to the allegations 

brought against Defendants in [Nayyar I].” Id. at 2-3. 

 Although plaintiff concedes that he has known of these 

allegations since July 2010, he offers no explanation for his failure 

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to seek leave to amend before the deadline established in this action 

for doing so. Instead, plaintiff waited more than four months beyond 

the deadline for the filing of such motions, leaving a mere six weeks 

before the close of discovery in this action. Plaintiff has utterly 

failed to establish good cause for modifying the scheduling order. 

See Rule 16(b). 

 Notwithstanding plaintiff’s failure in this regard, however, the 

Court must also consider whether defendants would be prejudiced by the 

requested modification and amendment. See Inge, supra, 281 F.3d at 

625. The Court concludes that defendants would not. 

 Plaintiff does not seek to add a new claim. Cf. Leary, 349 F.3d 

at 909 n. 27 (“[B]rand new claims . . . more obviously create 

prejudice because the defendant must contend with an entirely 

different substantive issue.”). Instead, plaintiff simply seeks to 

add factual allegations in support of the breach of contract claim in 

which he alleges, inter alia, that defendants acted in breach of the 

contract that required compliance with ACGME and Mount Carmel’s own 

policies and procedures. Complaint, ¶¶ 62-66, filed in Nayyar II. 

The addition of these factual allegations, despite plaintiff’s utter 

failure to comply with the Court’s deadline, will not subject 

defendants to unfair discovery on a new substantive issue. Indeed, 

not only did plaintiff previously include allegations regarding ACGME 

in the complaint filed in this action, see Complaint, ¶¶ 12, 22-26, 

61-66, filed in Nayyar II, plaintiff has already served discovery 

requests relating to ACGME. See Exhibit 4, pp. 2-3, attached to 

Plaintiff’s Motion to Compel, Doc. No. 31, filed in Nayyar II. Under 

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these circumstances, the Court cannot conclude that defendants will 

suffer undue prejudice should plaintiff’s motion be granted. 

 Finally, defendants contend that plaintiff’s motion must be 

denied because the proposed amendment would be futile. See Foman v. 

Davis, 371 U.S. 178, 182 (1962) (in exercising its discretion under 

Rule 15, a court may take into consideration, inter alia, the 

“futility of amendment”). Specifically, defendants argue that, 

because plaintiff has been paid for the six days in which he worked 

under the July 2009 employment contract, “he is entitled to no further 

relief and his breach of contract claim is rendered moot.” Response 

in Opposition, p. 8. This Court disagrees. In addition to claimed 

past and future monetary damages, plaintiff also seeks reinstatement 

to his employment and residency. Complaint, p. 11, filed in Nayyar 

II. This claim is not moot and must await resolution after 

development of the record. 

WHEREPON, Plaintiff’s Motion to File Second Amended Complaint, 

Doc. No. 29, is GRANTED. 

February 25, 2013 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

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