UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BISHOP EDWIN MALL, 

 Plaintiff, 

v. 

LARRY J. MERLO, et al., 

 Defendants. 

Civil Action 2:18-cv-430 

Judge James L. Graham 

Magistrate Judge Chelsey M. Vascura 

ORDER and REPORT AND RECOMMENDATION 

Plaintiff, Bishop Edwin Mall, who is proceeding without the assistance of counsel, brings 

this action against several defendants, alleging that he was wrongfully terminated on the basis of 

his race, ethnicity, faith, religion, and age, and in violation of the Labor Management and 

Relations Act of 1947. This matter is before the Court on Plaintiff’s Motion for Leave to Serve 

Additional Interrogatories, Demand for Jury Trial, and Prayer to Allow Join [sic] Additional 

Parties (ECF No. 60). For the following reasons, Plaintiff’s Motion is GRANTED IN PART

and DENIED IN PART, and it is RECOMMENDED that Plaintiff’s demand for a jury trial be 

GRANTED. 

I. LEAVE TO SERVE ADDITIONAL INTERROGATORIES 

Plaintiff’s Motion seeks leave to serve in excess of 25 interrogatories (including subparts) 

on Defendants Larry J. Merlo, Brett McCarty, Edward Thomas, Regina Wheat, and Ohio CVS 

Stores, LLC (the “CVS Defendants”). The draft interrogatories attached to Plaintiffs’ Motion 

indicated that they are “for all CVS Defendants: All for each. Every interrogatory with 
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[illegible] for each Defendant to respond.” (ECF No. 60-1.) Although Plaintiff’s interrogatories 

are labeled seriatim 1 through 12, when subparts are considered, the Court counts approximately 

37 separate interrogatories. (Id.) 

Federal Rule of Civil Procedure 33(a) provides that “[u]nless otherwise stipulated or 

ordered by the court, a party may serve on any other party no more than 25 written 

interrogatories, including all discrete subparts.” Fed. R. Civ. P. 33(a)(1). The CVS Defendants 

object that Plaintiff has made no showing of why discovery beyond that provided by Rule 33 

should be permitted. The Undersigned agrees. 

District courts have broad discretion to determine the proper scope of 

discovery. See Fed. R. Civ. P. 26(b)(2). The Court “must limit the frequency or extent of 

discovery otherwise allowed by these rules . . . if it determines that . . . the discovery sought is 

unreasonably cumulative or duplicative, or can be obtained from some other source that is more 

convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). To determine 

whether a party should be permitted to serve additional discovery requests, “the Court looks to 

whether the benefits of the expansion outweighs the burden of the extra discovery.” PettusBrown v. Phelps, No. 2:18-CV-082, 2018 WL 5960821, at *5 (S.D. Ohio Nov. 14, 2018), report 

and recommendation adopted, No. 2:18-CV-82, 2019 WL 132346 (S.D. Ohio Jan. 8, 2019)

(quoting Martin v. Posey, No. 2:15-CV-2294, 2017 WL 412876, at *4 (S.D. Ohio Jan. 31, 

2017)). “A party requesting leave to serve additional discovery requests must make a 

‘particularized showing’ to establish a need for those additional requests.” Id. (quoting St. Ann v. 

McLean, No. 5:15-CV-11770, 2017 WL 5732991, at *2 (E.D. Mich. Nov. 28, 2017) (collecting 

cases)). 
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Here, Plaintiff has not offered any explanation as to why additional interrogatories are 

necessary. Although he conclusorily states that “the discovery sought is not unreasonably 

cumulative or duplicative” and “cannot be obtained from any other source,” he does not provide 

any supporting facts. See, e.g., Snead v. Mohr, No. 2:12-CV-00739, 2014 WL 8140893, at *1 

(S.D. Ohio Mar. 11, 2014) (denying leave to serve excess interrogatories in the absence of 

sufficient information to determine whether further interrogatories are necessary). Plaintiff also 

suggests in his Reply that, contrary to the statement on the first page of his interrogatories, 

certain of the interrogatories are directed only to certain of the CVS defendants, and therefore it 

is not the case that any one defendant must answer more than 25 interrogatories. (Reply 2, ECF 

No. 70.) However, if this is this case, then Plaintiff would not have required leave to serve 

excess interrogatories in the first instance. 

In the absence of information that would allow the Court to determine whether excess 

interrogatories are warranted (or even requested), Plaintiff’s request for leave to serve additional 

interrogatories is DENIED. 

II. LEAVE TO AMEND COMPLAINT TO ADD DEFENDANTS 

Plaintiff seeks to amend his Complaint to add CVS Pharmacy Inc. and United Food and 

Commercial Workers Union, Local 1059 (the “Union”) as defendants. The CVS Defendants 

oppose the addition of CVS Pharmacy Inc. as futile because Plaintiff was never employed by that 

entity. (CVS Defs. Resp. 4–5, ECF No. 69.) Likewise, Defendant Cara McKnight opposes the 

addition of the Union as futile because Plaintiff’s claims are barred by the statute of limitations 

borrowed from the National Labor Relations Act, 29 U.S.C. § 160(b).1

 (McKnight Resp. 4–5, 

ECF No. 62.) 

 

1

 Defendant McKnight also opposes addition of the Union because Plaintiff could have added the 

Union as a defendant when he previously amended his Complaint to add Ohio CVS Stores, LLC 
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Under Federal Rule of Civil Procedure 15(a)(2), the Court should give leave for a party to 

amend its pleading “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.” Teft v. Seward, 689 F.2d 637, 639 (6th Cir. 1982) (citations omitted); Oleson v. 

United States, 27 F. App’x 566, 569 (6th Cir. 2001) (internal quotations omitted) (noting that 

courts interpret the language in Rule 15(a) as conveying “a liberal policy of permitting 

amendments to ensure the determination of claims on their merits”). “Nevertheless, leave to 

amend ‘should be denied if the amendment is brought in bad faith, for dilatory purposes, results 

in undue delay or prejudice to the opposing party, or would be futile.’” Carson v. U.S. Office of 

Special Counsel, 633 F.3d 487, 495 (6th Cir. 2011) (quoting Crawford v. Roane, 53 F.3d 750, 

753 (6th Cir. 1995)). A court may deny a motion for leave to amend for futility if the 

amendment could not withstand a motion to dismiss. Riverview Health Inst. LLC v. Med. Mut. of 

Ohio, 601 F.3d 505, 512 (6th Cir. 2010); Midkiff v. Adams Cnty. Reg’l Water Dist., 409 F.3d 

758, 767 (6th Cir. 2005). 

As set forth above, Defendants’ opposition to adding CVS Pharmacy Inc. and the Union 

as additional defendants are based on the futility of Plaintiff’s claims against these entities. 

Because “denying a motion for leave to amend on grounds that the proposed [complaint] is 

legally insufficient is, at least indirectly, a ruling on the merits” of the claims presented in the 

complaint, this Court has recognized the “conceptual difficulty presented” when a Magistrate 

Judge, who cannot by statute ordinarily rule on a motion to dismiss, is ruling on such a motion. 

 

as a defendant. (Resp. 4, ECF No. 62.) However, Plaintiff’s motion for leave to amend is not 

untimely. The parties agreed in their joint Rule 26(f) report that “any motion or stipulation 

addressing the parties or pleadings or to join additional parties shall be filed by June 7, 2019.” 

(ECF Nos. 58–59). Plaintiff’s instant Motion was filed on May 6, 2019—a month prior to that 

agreed deadline. 
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Durthaler v. Accounts Receivable Mgmt., Inc., 2:10-cv-1068, 2011 WL 5008552, at *4 (S.D. 

Ohio Oct. 20, 2011) (recognizing the “conceptual difficulty presented”); 28 U.S.C. 

§ 636(b)(1)(A) (“[A] judge may designate a magistrate judge to hear and determine any pretrial 

matter pending before the court, except a motion . . . to dismiss for failure to state a claim upon 

which relief can be granted . . . .”). 

In light of this procedural impediment, the Court concludes that the better course would 

be to permit Plaintiff to amend his Complaint with the understanding that CVS Pharmacy Inc. 

and the Union are free to challenge the claims through a motion to dismiss. See Durthaler, 2011 

WL 5008552 at *4 (“[I]t is usually a sound exercise of discretion to permit the claim to be 

pleaded and to allow the merits of the claim to be tested before the District Judge by way of a 

motion to dismiss.”); Morse/Diesel, Inc. v. Fidelity & Deposit Co. of Md., 715 F.Supp. 578, 581 

(S.D.N.Y. 1989) (“The trial court has the discretion to grant a party leave to amend a complaint, 

even where the amended pleading might ultimately be dismissed.”). Accordingly, Plaintiff’s 

request to amend his Complaint to add CVS Pharmacy Inc. and United Food and Commercial 

Workers Union, Local 1059 as defendants is GRANTED. 

III. DEMAND FOR JURY TRIAL 

Plaintiff’s Motion “admits that a mistake has been done by the Plaintiff” in failing to 

demand a jury trial sooner; however, he asks that the Court consider his pro se status and allow 

his jury demand at this time. Defendants argue that Plaintiff has waived his right to demand a 

jury trial pursuant to Federal Rule of Civil Procedure 38. This rule requires a jury demand to be 

made within 14 days after the last pleading directed to any issues triable by a jury; otherwise the 

jury demand is waived. Fed. R. Civ. P. 38(b), (d). Because the last relevant pleadings were filed 

on March 5, 2019 (Defendants’ Answers, ECF Nos. 51–52), Plaintiff’s last day to demand a jury 

under the Rule was March 19. Yet Plaintiff first raised his jury demand in the parties’ joint Rule 
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26(f) report filed April 26, 2019 (ECF Nos. 58–59), and did not formally move for leave to 

demand a jury trial until his motion dated May 6, 2019 (ECF No. 60). 

While Plaintiff’s jury demand is untimely, Federal Rule of Civil Procedure 39 provides 

that “the court may, on motion, order a jury trial on any issue for which a jury might have been 

demanded.” Fed. R. Civ. P. 39(b). A district court has broad discretion in deciding whether to 

grant a Rule 39(b) motion. Andrews v. Columbia Gas Transmission Corp., 544 F.3d 618, 632 

(6th Cir. 2008). “Generally, a district court will not abuse its discretion in denying a Rule 39(b) 

motion if the only justification offered for failure to demand a jury trial is mere inadvertence.” 

Misco, Inc. v. U.S. Steel Corp., 784 F.2d 198, 205 (6th Cir. 1986). “However, special 

consideration may be warranted in cases where ‘the party who failed to file a timely jury demand 

has been hailed into federal court against his will, or is proceeding pro se.’” Andrews, 544 F.3d 

at 632 (quoting Misco, 784 F.2d at 205 n. 8 (internal citations omitted)). 

Here, Plaintiff is pro se and first raised his demand for jury trial only 38 days after his 

deadline to do so under Rule 38. Moreover, the litigation is still in the relatively early stages and 

none of the Defendants have identified any prejudice they would suffer if the jury demand were 

allowed. It is therefore RECOMMENDED that Plaintiff’s demand for jury trial be 

GRANTED. 

IV. DISPOSITION 

For the foregoing reasons, Plaintiff’s Motion (ECF No. 60) is GRANTED IN PART 

and DENIED IN PART. Plaintiff’s request for leave to serve additional interrogatories is 

DENIED; and Plaintiff’s request to amend his Complaint to add CVS Pharmacy Inc. and United 

Food and Commercial Workers Union, Local 1059 as defendants is GRANTED. Plaintiff is 

ORDERED to file his Second Amended Complaint, adding CVS Pharmacy Inc. and United 

Food and Commercial Workers Union, Local 1059 as defendants, WITHIN 21 DAYS of this 
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Order. Plaintiff is cautioned that no new allegations against any existing Defendants will be 

permitted in his Second Amended Complaint. 

It is further RECOMMENDED that Plaintiff’s demand for jury trial be GRANTED. 

V. PROCEDURE ON OBJECTIONS 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this Report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A Judge of this Court shall make a de novo 

determination of those portions of the Report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. 

§ 636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the District Judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

IT IS SO ORDERED. 

/s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE