Dhillon v. Grewal

• Decision Date: 09 January 2023
• Docket Number: Civil Action 3:22-cv-197-RGJ
• Parties: HARPREET DHILLON, ET AL Plaintiffs v. PREETKANWAL GREWAL, ET AL. Defendants
• Court: U.S. District Court — Western District of Kentucky

HARPREET DHILLON, ET AL Plaintiffs
v.
PREETKANWAL GREWAL, ET AL. Defendants

Civil Action No. 3:22-cv-197-RGJ

United States District Court, W.D. Kentucky, Louisville Division

January 9, 2023

MEMORANDUM OPINION AND ORDER

Rebecca Grady United States District Judge.

Preetkanwal Grewal (“Grewal”) moved to dismiss Harpreet Dhillon's and Surinder Kaur's (“Plaintiffs”) Complaint. [DE 8]. Plaintiffs responded [DE 10], and Grewal replied. [DE 12]. Plaintiffs also moved to amend the Complaint prior to responding to the motion to dismiss. [DE 9]. Grewal moved a second time to dismiss [DE 13]. Plaintiffs moved for leave to file a sur-reply to the motion to dismiss. [DE 14]. Grewal responded to the motion for sur-reply [DE 15], and Plaintiffs replied. [DE 16]. Kentucky Farm Bureau Mutual Insurance Company (“Kentucky Farm Bureau”) filed a Motion to Intervene. [DE 17]. There matters are ripe.

For the reasons below, Grewal's Motion to Dismiss [DE 8] is GRANTED, Plaintiffs' Motion to Amend [DE 9] is DENIED, Grewal's Second Motion to Dismiss [DE 13] is DENIED as moot, and Plaintiffs' Motion for Leave to file Sur-Reply [DE 14] is GRANTED. Kentucky Farm Bureau's Motion to Intervene [DE 17] is DENIED as moot.

I. BACKGROUND

The factual allegations in the Complaint [DE 1] and Amended Complaint [DE 9-2] are considered true for purposes of this motion. See Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)).

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Plaintiffs sued Michael Smithers (“Smithers”) and Preetkanwal Grewal (“Defendants”) in April 2022 for violating the First, Fourth, and Fourteenth Amendments of the United States Constitution, and various state laws. Smithers was an investigator with the Kentucky Attorney General's office. [DE 9-2 at 55].

On February 6, 2022, Grewal sent text messages in group and individual conversations, including one involving Dhillon. [Id. at 56]. One of the group conversations included Dhillon's friend, who detailed her marital issues and physical abuse from one of Grewal's relatives. [Id.]. Grewal threatened legal action against the individuals involved in the messages. [Id.].

On February 7, 2022, Smithers appeared at Plaintiffs' residence, flashed his badge, and stated he was “Detective Smithers.” [Id. at 57]. Only Kaur was present, and she informed Smithers she did not speak or understand English beyond basic phrases and names. [Id.]. Smithers told Kaur to have Dhillon call him or that she might be in trouble and get locked up, and mimed handcuffs. [Id.]. Smithers left his business card. [Id.] Dhillon called Smithers at the provided phone number and they spoke for 16 minutes, during which Smithers told Dhillon to stay away from Grewal and out of her family issues. [Id. at 57-58]. Dhillon told Smithers she was expected to testify in a domestic violence matter involving Grewal's family member and asked about pressing charges against Grewal for harassing test messages. [Id. at 58]. Smithers told Dhillon she may be arrested if she pursued pressing charges and reiterated that Dhillon would be best off not contacting Grewal or anyone else involved. [Id.].

Grewal now moves to dismiss Plaintiffs claims for failing to state a claim for which relief may be granted. [DE 8; DE 13]. In response, Plaintiffs moved to amend [DE 9], and Defendants renewed their motion to dismiss. [DE 13].

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II. STANDARD

“When there are pending before the court both a dispositive motion and a motion to amend the complaint, the court must first address the motion to amend complaint.” Gallaher & Assocs., Inc. v. Emerald TC, LLC, No. 3:08-CV-459, 2010 WL 670078, at *1 (E.D. Tenn. Feb. 19, 2010) (citing Ellison v. FordMotor Co., 847 F.2d 297, 300 (6th Cir. 1988)). If the court grants a motion to amend, “the original pleading no longer performs any function in the case.” Clark v. Johnston, 413 Fed.Appx. 804, 811 (6th Cir. 2011) (internal quotation marks and citation omitted). Thus, “when the court grants leave to amend the complaint, a motion to dismiss the original complaint will be denied as moot if the amended complaint adequately addresses the grounds for dismissal.” Stepp v. Alibaba.com, Inc., No. 3:16-CV-00389-CRS, 2016 WL 5844097, at *2 (W.D. Ky. Oct. 4, 2016).

Under Fed.R.Civ.P. 15(a)(2), “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Id. “The grant or denial of leave to amend is within the discretion of the trial court, and review is for abuse of discretion.” Sec. Ins. Co. of Hartford v. Kevin Tucker & Assocs., Inc., 64 F.3d 1001, 1008 (6th Cir. 1995) (citing Roth Steel Prod. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983)). “In deciding whether to grant a motion to amend, courts should consider undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.” Brumbalough v. Camelot Care Centers, Inc., 427 F.3d 996, 1001 (6th Cir. 2005) (citing Coe v. Bell, 161 F.3d 320, 341-42 (6th Cir. 1998)). “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.,

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203 F.3d 417, 420 (6th Cir. 2000). An action may be dismissed under Fed.R.Civ.P. 12(b)(6) if the complaint fails to state a claim upon which relief can be granted.

Federal Rule of Civil Procedure 12(b)(6) instructs that a court must dismiss a complaint if the complaint “fail[s] to state a claim upon which relief can be granted[.]” Fed.R.Civ.P. 12(b)(6). To state a claim, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). When considering a motion to dismiss, courts must presume all factual allegations in the complaint to be true and make all reasonable inferences in favor of the non-moving party. Total Benefits Plan. Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citation omitted). “But the district court need not accept a bare assertion of legal conclusions.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citation omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).

To survive a motion to dismiss, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “A complaint will be dismissed . . . if no law supports the claims made, if the facts alleged are insufficient to state a claim, or if the face of the complaint presents an insurmountable bar to relief.” Southfield Educ. Ass'n v. Southfield Bd. of Educ., 570 Fed.Appx. 485, 487 (6th Cir. 2014) (citing Twombly, 550 U.S. at 561-64).

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Rule 12(d) of the Federal Rules of Civil Procedure provides that, if “matters outside the pleadings are presented and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” The Court, however, “may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein” without converting to a summary judgment. Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).

III. DISCUSSION

1. Motion for Sur-reply [DE 14].

The Court first addresses whether to consider Plaintiffs' Sur-reply in its below analysis of the motions to dismiss and motion to amend. Whether to permit a party to file a sur-reply is a matter left to the trial court's discretion. Key v. Shelby Cnty., 551 Fed.Appx. 262, 264 (6th Cir. 2014) (citing Eng'g & Mfg. Servs., LLC v. Ashton, 387 Fed.Appx. 575, 583 (6th Cir. 2010); Tanielian v. DaimlerChrysler Corp., 108 Fed.Appx. 386, 387 (6th Cir. 2004)). “Although the Federal Rules of Civil Procedure do not expressly permit the filing of sur-replies, such filings may be allowed in the appropriate circumstances, especially ‘[w]hen new submissions and/or arguments are included in a reply brief, and a nonmovant's ability to respond to the new evidence has been vitiated.'” Seay v. Tennessee Valley Auth., 339 F.3d 454, 481 (6th Cir. 2003). “As many courts have noted, ‘[s]ur-replies. . . are highly disfavored, as they usually are a strategic effort by the nonmoving party to have the last word on a matter.'” Liberty Legal Found. v. Nat'l Democratic Party of the USA, Inc., 875 F.Supp.2d 791, 797 (W.D. Tenn. 2012) (quoting In re Enron Corp. Sec., 465 F.Supp.2d 687, 691 n.4 (S.D. Tex. 2006)) (additional citation omitted). “The Sixth Circuit has held that a district court does not abuse its discretion in denying leave to file a sur-reply where the opposing

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party's reply did not raise any new legal arguments or introduce new evidence.” Id.; see, e.g., Key, 551 Fed.Appx. at 265 (holding that district court's denial of motion to file sur-reply was not abuse of discretion due to lack of new arguments raised in reply and six-month delay between filing of reply and motion for sur-reply).

Plaintiffs argue the Court should allow their sur-reply to address “several new points of authority” raised in Gewal's reply. [DE 14 at 104]...