Case: DOC #2 40 Filed: 09/16/19 Page: 1 of 5 412

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVESION
Jeffrey L. Butler, Jr., Case No. 1:17?cv?00604
Plaintiff, Judge Michael R. Barrett
v.

City of Cincinnati, Ohio, et al.,

Defendants.

ORDER

This matter is before the Court on Plaintiff's Motion for Leave to Amend his Second
Amended Complaint and the responsive briefing thereto. (Docs. 37, 38, 39). Defendants?
Motion to Strike (Doc. 30) and Motion to Dismiss (Doc. 31), along with the responsive

briefing to those motions (Docs. 34, 35, 36), are also pending before the Court.

I. BACKGROUND

Plaintiff first amended his initial Complaint as a matter of course (Doc. 5) and the
Court previously granted him leave to file a Second Amended Complaint (Doc. 23).
Plaintiff now moves for leave to amend his Second Amended Complaint to add a claim of
spoliation of evidence against Defendants City of Cincinnati and Isaac. (Doc. 37).

In his proposed Third Amended Complaint, Plaintiff alleges that those Defendants
lost or destroyed key evidence in this case which relates to a February 2018 audit of the
Cincinnati Police Department?s overtime usage, an April 2018 Hamilton County Grand

Jury Subpoena relating to that audit, and the Ohio Auditor?s investigation of that audit?s

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findings. (Doc. 37, Attachment 1). In particular, Plaintiff alleges that at least one Bankers
Box containing supporting documents related to the February 2018 audit, supportive of
the April 2018 Subpoena, and related to the Auditor?s investigation went missing after
Plaintiff filed his Second Amended Complaint in this matter. Plaintiff alleges that
those documents are key evidence in this matter (Doc. 39) and Defendants? conduct was
designed to and has impacted his ability to bring this case (Doc. 37, Attachment 1). He
further alleges that the allegedly missing or destroyed documents were subject to a
litigation hold notice. Additionally, Plaintiff brings, infers/fa, a claim under 42 U.S.C.
1983 alleging that Defendant Issac violated Plaintiff's First Amendment right to free
speech and Plaintiff's participation in the February 2018 audit, in part, forms the basis for
that claim. (Doc. 23).

Defendants assert that Plaintiff?s proposed amendment is futile, as he has failed
to plead facts sufficient to support a spoliation claim. (Doc. 38). Defendants argue that
the allegedly missing documents cannot form the basis of a spoliation claim, because
those documents are not relevant to whether Plaintiff was engaged in protected conduct
and Plaintiff?s First Amendment claim depends on whether he was engaged in protected
speech and not on whether the conclusions he reached in the February 2018 audit were

correct. 

ll. ANALYSIS
Federal Rule of Civil Procedure 15(a) governs amendments to pleadings before
trial and provides that a ?party may amend its pleading once as a matter of course within:

(A) 21 days after sewing it, or (B) if the pleading is one to which a reSponsive pleading is

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required, 21 days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), or whichever is earlier.? FED. R. Civ. P. ?In all
other cases, a party may amend its pleading only with the opposing party's written
consent or the court's leave.? FED. R. CEV. P. However, ?[t]he court should freely
give leave when justice so requires.? Id.

Rule 15(a) contains a ?liberal policy of permitting amendments to ensure the
determinations of claims on their merits." Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir.
1987). Leave should be granted unless there is ?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,
[or] futility of amendment." Foman v. Davis, 371 US. 178, 182 (1962). proposed
amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to
dismiss.? Rose v. Hartford Undem/riters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing
Thiokol Corp. v. Dep't of Treasury, Revenue Div., 987 F.2d 376, 38283 (6th Cir. 1993)).

Here, Defendants do not argue that there is undue delay, bad faith, dilatory motive,
repeated failure to cure deficiencies by amendments previously allowed, or undue
prejudice and the Cdurt does not find any of those circumstances present in this matter
at this time. See Fornan, 371 US. at 182.

Turning to Defendants? argument regarding futility of the proposed amendment,

Ohio recognizes an independent tort of intentional spoliation of evidence.1 Elliott-Thomas

 

1 The Court notes that there has been no discovery in this matter thus far, Plaintiff has moved to amend his
Second Amended Corn piaint, and Ptaintiff has not separately moved for evidentiary sanctions for spoliation
of evidence. Cf. RC, Ofmstead, inc. v. CU Interface, LLC, 657 F. Supp. 2d 878, 887 (ND. Ohio 2009),
aff?d, 606 F.3d 262 (6th Cir. 2010) ("There is no independent cause of action for spoiiation under federal
law, . . . but a district court?s inherent power to control litigation and protect the integrity of the judiciat
process ailows it to impose sanctions against a party for spoiiating evidence") (internal citations omitted);
Penr'x v. Avon Laundry Dry Cleaners, No. 91355, 2009 WL 792348, at *4 (Ohio App. Mar. 26, 2009)

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v. Smith, 2018 WL 2148088, *2 (Ohio May 8, 2018) (citing Smith v. Howard Johnson 00.,
Inc, 67 Ohio St. 3d 28, 29, 615 1037 (Ohio 1993)). in Ohio, the elements of this
claim are: pending or probable litigation involving the plaintiff, (2) knowledge on the
part of defendant that litigation exists or is probable, (3) willful destruction of evidence by
defendant designed to disrupt the plaintiffs case, (4) disruption of the plaintiff's case, and
(5) damages proximately caused by the defendant?s acts." Id. (quoting Smith, 67 Ohio
St.3d at 29, 615 1037). Plaintiff?s allegations, discussed above and found in his
proposed Third Amended Complaint, contain the factual content that allows the Court ?to
draw the reasonable inference that the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 US.
544, 556 (2007)); see Bassett v. Nat?l Collegiate Athletic Ass?n, 528 F.3d 426, 430 (6th
Cir. 2008) (explaining that, in reviewing a motion to dismiss for failure to state a claim
pursuant to Federal Rule of Civil Procedure this Court must "construe the
complaint in the light most favorable to the plaintiff, accept its allegations as true and draw
all reasonable inferences in favor of the plaintiff?) (quoting Directv, Inc. v. Treesh,
487 F.3d 471, 476 (6th Cir. 2007)). Consequently, the Court will grant Plaintiff?s Motion

for Leave to Amend. See Marks, 830 F.2d at 69; FEB. R. Civ. P. 

Ill. CONCLUSION
Based on the foregoing, it is hereby ORDERED that Plaintiff?s Motion for Leave to

Amend his Second Amended Complaint (Doc. 37) is GRANTED and that Complaint shall

 

emphasize that this assignment of error deals with a motion for sanctions for spoliation of evidence,
Le, a discovery sanction; it does not involve an independent tort action or claim for spoliation of evidence.
Thus, [Defendantfs reliance on case law dealing with the tort claim, focusing on [Plaintif??s faiiure to present
evidence of [Defendanth ?willfui destruction? of the personnel file, is misplaced?).

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be filed within seven (7) days of the entry of this Order. It is further ORDERED that
Defendants? Motion to Strike (Doc. 30) and Defendants? Motion to Dismiss (Doc. 31) are
DENIED as moot.
IT IS SO ORDERED.
Michael R. Barrett?

Michael R. Barrett, Judge
United States District Court

 

 

 

 

. ENTERED
EN THE COURT OF COMMON PLEAS SEP 1 7 2019

 

 

 

HAMILTON CGUNTY, OHIO
STATE OF OHIO ex rel, JEFFREY CASE A1903798
BUTLER JR, -
Plaintiff,
JUDGE ROBERT P. RUEHLMAN
vs.

ENTRY OVERRULING 

MOTION FOR TEMPORARY

RESTRAINING ORDER AND GRANTING

MOTION TO DISMISS
THE CITY OF CINCINNATI et al

Defendants.

This matter is before the Court on Plaintiffs motion for temporary restraining order
and Defendant?s motion to dismiss. The Court, having read the submitted briefs and in full
consideration of the arguments ?nds Plaintiffs motion not well taken and DENIES the same,
but finds Defendant?s motion well taken and GRANTS the same.

Collective bargaining agreements between public employees and employers are governed
under O.R.C. section 4117. Under the code, all grievances must be handled in accordance with
the collective bargaining agreement itself. A collective bargaining agreement was in place
between the City of Cincinnati and Jeffrey L. Butler and the grievance process outlined in said
agreement must be upheld. Therefore, this Court ?nds that O.R.C. section 4} 17 governs this

Court lacks the subject matterjurisdiction over the claims. This ease is hereby dismisse without

prejudice and the motion for a temporary restraining order is denied. Cos are to be

 

 

 

 

 

 

 

 

 

 

 

 

 

paid by the Plaintiff. 11:05:; COURT [135 ONLY con 1- 0; ON 
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HON. adelsm P. RUEHLMAN
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RECORG