Ohio Civil Rule 15(A) discourages a prompt motion for judgment on the pleadings.
In a surprising win by a pro se plaintiff against a large law firm, the Eighth District Court of Appeals reminded counsel of a plaintiff’s absolute right to amend their complaint. In this case, the appellate court held that the trial court improperly granted judgment on the pleadings on the initial complaint when the plaintiff had filed an amended complaint within 28 days of the answer.
On June 3, 2022, the plaintiff alleged a claim of “tortious interference with prospective business relationships” that accused the defendant, her former employer, of providing bad references that destroyed her reputation. The employer filed an answer on July 5, 2022, then filed a motion for judgment on the pleadings on July 28, 2022. The basis for the motion for judgment on the pleadings was that there was no set of facts plead in the complaint that described causation. In response to the motion, the plaintiff filed an amended complaint (without leave of court) that set out very few additional facts and named a new defendant.
On August 16, 2022, the date its answer to the amended complaint would have been due, the employer filed a motion to strike the amended complaint as being improperly filed without leave of court, pursuant to Civ.R. 15(A). On September 8, 2022, the trial court granted the motion for judgment on the pleadings to the original complaint without ruling on the motion to strike.
The plaintiff appealed the decision, arguing that the trial court was without jurisdiction because the motion for judgment on the pleadings was mooted by the amended complaint. In response, the employer argued that Civ. R. 15(A) limited the right to amend without leave of the court to only the first 28 days following service of the complaint unless a counterclaim is filed (as a pleading that requires a responsive pleading from plaintiff). Thus, the amended complaint was a nullity because it was filed without leave. Alternatively, the employer argued that the amended complaint offered the same frivolous and futile allegations as the original complaint, and leave should not have been granted to file the amended complaint, or that the failure to consider the allegations of the amended complaint was harmless error.
Civil Rule 15(A) states that a plaintiff may amend its complaint “once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading or twenty-eight days after service of a motion under Civ.R. 12(B), (E), or (F), whichever is earlier.” The appellate court made clear that the responsive pleading referred to in Civ. R. 15(A) is the answer to a complaint (in a scenario like this one) and that the futile nature of the allegations in the complaint are not considered when making a determination as to whether leave was needed to file an amendment. Though not expressed in the employer’s brief, the employer plausibly could have argued that the “whichever is earlier” language refers to both 28 days after service as well as 28 days after a responsive pleading or relevant motion. This argument was not raised.
The holding underlines that a dispositive motion filed within 28 days of a responsive pleading does not disrupt the plaintiff’s right to amend their pleading as a matter of course. The lesson to be learned from this case is that a defendant should not rush to file a motion for judgment on the pleadings. A motion for judgment on the pleadings should not be filed until more than 28 days after the answer is filed. Waiting this brief period will prevent the plaintiff from automatically curing the deficiencies of the complaint with an amendment as a matter of course. Forcing the plaintiff into requesting leave, albeit freely given, will allow the defendant to argue that the amendment would be futile to give the court the opportunity to deny leave.
Case Law Alerts, 3rd Quarter, July 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2023 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.