IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

LARRY MORRIS, 

Plaintiff, 

 Civil Action 2:18-cv-00543 

 Judge George C. Smith 

 v. Magistrate Judge Elizabeth P. Deavers 

 

MARY RUTAN HOSPITAL, 

 Defendant. 

ORDER 

 This matter is before the Court for consideration of Plaintiff’s Motion for Leave to File 

Second Amended Complaint and Motion to Stay Defendant’s Motion to Dismiss, Defendant’s 

Response in Opposition, and Plaintiff’s Reply to Response in Opposition. (ECF Nos. 12, 16, 

17.) For the following reasons, Plaintiff’s Motion is GRANTED. (ECF No. 12.) 

I.

 Plaintiff filed his original Complaint on June 4, 2018. (ECF No. 1.) On July 6, 2018, 

Plaintiff filed an Amended Complaint. (ECF No. 8.) Defendant filed its Answer as to Counts I 

and II of the Amended Complaint and a Motion to Dismiss Counts III and IV of Plaintiff’s 

Amended Complaint on July 31, 2018. (ECF Nos. 10 & 11.) Plaintiff filed his Motion for Leave 

to File Second Amended Complaint and Motion to Stay Defendant’s Motion to Dismiss on 

August 8, 2018, to which he attached his proposed Second Amended Complaint. (ECF No. 12-

A.) Defendant’s chief argument in opposition to Plaintiff’s motion is that the claims he seeks to 

assert are futile, i.e., fail to state claims for relief. 
II.

 Pursuant to 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). As the United 

States Court of Appeals for the Sixth Circuit has noted, Rule 15(a) supports the principle of 

trying cases on their merits, rather than on technicalities, and thus “assumes ‘a liberal policy of 

permitting amendments.’” Inge v. Rock Fin. Corp., 388 F.3d 930, 937 (6th Cir. 2004) (quoting 

Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) and Ellison v. Ford Motor Co., 847 

F.2d 297, 300 (6th Cir. 1988)). 

 Courts consider several factors in determining whether a party should be permitted leave 

to amend a pleading, including “undue delay in filing, lack of notice to opposing party, bad faith 

by the moving party, repeated failure to cure deficiencies by previous amendment, undue 

prejudice to the opposing party, and futility of the amendment.” Seals v. Gen. Motors Corp., 546 

F.3d 766, 770 (6th Cir. 2008) (citing Wade v. Knoxville Utils. Bd., 259 F.3d 452, 459 (6th Cir. 

2001)). In addition, when considering the issue of prejudice, a court must ask whether allowing 

amendment would “require the opponent to expend significant additional resources to conduct 

discovery or prepare for trial” or cause considerable delay in resolving the dispute. Phelps v. 

McClennan, 30 F.3d 658, 662–63 (6th Cir. 1994). 

III.

 Having considered these factors, the Court concludes that justice requires Plaintiff be 

permitted leave to amend. Defendant’s stated reason for opposing the amendments is that they 

would be futile. The Court declines to resolve this question here because “denying a motion for 

leave to amend on grounds that the proposed new claim is legally insufficient is, at least 

indirectly, a ruling on the merits of that claim.” Durthaler v. Accounts Receivable Mgmt., Inc., 
No. 2:10-CV-1068, 2011 WL 5008552, at *4 (S.D. Oct. 20, 2011). 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 the merits of a claim in a motion for leave to amend. 

See, e.g., id. (recognizing the “conceptual difficulty presented”), and 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 . . . .”). 

 Considering this procedural impediment, the Court concludes that the better course would 

be to permit Plaintiff to file his Second Amended Complaint with the understanding that 

Defendant is free to challenge the amended claims against it through a new 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. Fid. & 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.”). 

IV.

 For the reasons set forth above, Plaintiff’s motion is GRANTED. (ECF No. 12.) The 

Clerk is DIRECTED to file the Second Amended Complaint, attached to the Motion as Exhibit 

1. (ECF No. 12-1.) Consequently, Defendant’s Motion to Dismiss Counts III and IV of 

Plaintiff’s Amended Complaint is DENIED AS MOOT. (ECF No. 11.) 

IT IS SO ORDERED. 

Date: September 18, 2018 /s/ Elizabeth A. Preston Deavers_____ 

 ELIZABETH A. PRESTON DEAVERS 

UNITED STATES MAGISTRATE JUDGE