IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CATHERINE PETZEL, 

 

 Plaintiff, 

 

 Case No. 2:12-cv-1066 

v. Judge Economus 

 Magistrate Judge King 

REDFLEX TRAFFIC SYSTEMS, INC., 

et al., 

 Defendants. 

 

OPINION AND ORDER 

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

to File Amended Complaint (“Plaintiff’s Motion to Amend”), Doc. No. 

12. Defendants Redflex Traffic Systems, Inc., and Karen Finley 

(collectively “defendants”) oppose Plaintiff’s Motion to Amend on the 

basis that amendment would be futile. Defendants’ Brief in Opposition 

to Plaintiff’s Motion for Leave to File Amended Complaint, Doc. No. 

13. Plaintiff has filed a reply. Plaintiff’s Reply in Support of Her 

Motion for Leave to File Amended Complaint (“Plaintiff’s Reply”), Doc. 

No. 15. For the reasons that follow, Plaintiff’s Motion to Amend is 

GRANTED. 

I. Standard 

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

Federal Rules of Civil Procedure. That rule provides that “[t]he 

court should freely give leave [to amend] when justice so requires.” 

Fed. R. Civ. P. 15(a)(2). “[T]he thrust of Rule 15 is to reinforce 

the principle that cases ‘should be tried on their merits rather than 

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the technicalities of pleadings.’” Moore v. City of Paducah, 790 F.2d 

557, 559 (6th Cir. 1986) (quoting Tefft v. Seward, 689 F.2d 637, 639 

(6th Cir. 1982)). The grant or denial of a request to amend a 

complaint is left to the broad discretion of the trial court. General 

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 the 

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 amendment.” Foman v. Davis, 371 

U.S. 178, 182 (1962). 

“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 

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(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. 

II. Discussion 

Plaintiff Catherine Petzel filed this action on November 19, 

2012. Complaint, Doc. No. 1. On April 19, 2013, defendant Karen 

Finley filed a motion to dismiss under Fed. R. Civ. P. 12(b)(2) for 

lack of personal jurisdiction, Doc. No. 5. On May 31, 2013, plaintiff 

filed Plaintiff’s Motion to Amend, seeking leave to amend the 

Complaint “to allege the factual underpinnings that she believes 

establish that this Court has personal jurisdiction over the 

individual defendants in this matter.” Plaintiff’s Motion to Amend, 

pp. 1-2. The amended complaint, plaintiff argues, will “allow this 

Court to resolve th[e] anticipated issue of personal jurisdiction on 

the merits, as opposed to resolution of the issue on a pleading 

deficiency.” Id. at p. 2. 

As noted supra, defendants oppose Plaintiff’s Motion to Amend on 

the basis of futility. Defendants’ Response, p. 2. Specifically, 

defendants argue that Plaintiff’s Motion to Amend “should be denied 

because the issue of personal jurisdiction is already before the 

Court” and “[t]here is no reason that Plaintiff cannot develop any 

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alleged facts and/or legal arguments that she apparently intends to 

include in her Amended Complaint in her brief in opposition to 

[defendant] Finley’s Motion to Dismiss.” Id. at pp. 2-3. 

Defendants’ Response misconstrues the standard for futility of 

amendment. As discussed supra, “̔[a] proposed amendment is futile if 

the amendment could not withstand a Rule 12(b)(6) motion to dismiss.’” 

Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 

(6th Cir. 2010) (quoting Rose, 203 F.3d at 420). The fact that 

plaintiff could have responded to defendant Finley’s motion to dismiss 

rather than seek leave to file an amended complaint is therefore not 

germane to the determination of futility of amendment. 

Although it is preferred that parties file a proposed amended 

complaint when seeking leave to amend, plaintiff has not tendered a 

proposed amended complaint. Nevertheless, plaintiff represents that 

her amendment will cure the alleged jurisdictional deficiencies in the 

Complaint. There is no suggestion of undue delay or bad faith on 

plaintiff’s part in filing Plaintiff’s Motion to Amend, and defendants 

will not suffer undue prejudice if the requested amendment is 

permitted. Notably, Plaintiff’s Motion to Amend was filed prior to 

the preliminary pretrial conference, at which the parties were granted 

until October 1, 2013 to file motions or stipulations for leave to 

amend the pleadings. See Preliminary Pretrial Order, Doc. No. 17. 

Accordingly, Plaintiff’s Motion to Amend, Doc. No. 12, is 

GRANTED. Plaintiff is directed to file an amended complaint within 

seven (7) days of the date of this Order. 

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The Clerk is DIRECTED to remove Doc. Nos. 5 and 12 from the 

Court’s pending motions list. 

July 2, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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