Cox v. Gurba et al

Filing 38

MEMORANDUM AND ORDER granting in part and denying in part 30 Motion to Amend Complaint. Signed by Magistrate Judge Kenneth G. Gale on 7/10/2012. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TONY COX,

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)
Plaintiff,
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v.
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DANNY M. GURBA, MD, et al,
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Defendants.
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______________________________ )

Case No. 11-2680-JTM-KGG

ORDER ON PLAINTIFF’S MOTION TO AMEND COMPLAINT
Plaintiff has filed a motion to amend his Complaint to add a claim that
Defendants’ fraud may have prevented him from filing this action within the
statute of limitations (Doc. 30). Two of the Defendants, Patricia Martin, MD, and
St. Luke’s South Hospital, Inc., oppose the motion, claiming that the proposed
amendment is futile, at least as to them. (Docs. 31, 32). The motion is unopposed
as to Defendants Danny Gurba, MD, and Dickson-Dively Midwest Orthopaedic
Clinic, PA. The Court agrees with the objecting Defendants, and DENIES the
Plaintiff’s motion as to those parties.
The proposed amendment requires leave of the Court, which should be
freely given when “justice so requires.” Fed.R.Civ.P.15(a)(2). The opposing
Defendants’ resistance is based on an argument that the new claim is futile because

it fails to state a claim. The Court may deny a motion to amend upon that basis if
the claim would fail to withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6).
Stewart v. Board of Com’rs for Shawnee County, Kansas, 216 F.R.D. 662, 664
(D. Kan. 2003). To survive such a challenge, the amendment must “state a claim
to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). Additionally, the opposing Defendants claim that the Plaintiffs
proposed amendment, as to them, lacks sufficient specificity in pleading fraud to
comply with Fed.R.Civ.P. 9.
The Federal Rules require that averments of fraud be plead with
particularity. Specifically, Fed.R.Civ.P. 9 states that “[i]n alleging fraud or
mistake, a party must state with particularity the circumstances constituting fraud
or mistake.” The rule requires that a party “set forth the time, place and contents of
the false representation, the identity of the party making the false statements, and
the consequences thereof.” United States ex rel. Sikkenga v. Regence Bluecross
Blueshield of Utah, 472 F. 3d 702, 726-27 (10th Cir. 2006). The failure to plead
plausible facts violates not only Rule 9, but also runs afoul of the pleading
requirements set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic
v. Twombly, supra.
Plaintiff’s proposed Amended Complaint describes misrepresentations
allegedly made by Defendant Gurba. However, as to Defendants Martin and St.

Luke’s, Plaintiff alleges only “they” concealed facts about the alleged malpractice.
He alleges that they “duped” him by “intentional and knowing lies and
concealment.” He alleges that “other defendants,” perhaps meaning Defendants
Martin and St. Luke’s, did not reveal Gurba’s alleged concealments and
misrepresentations. He also alleges generally that “defendants could not stand
innocently silent as to the matters complained of,” that the concealments and
misrepresentations were “untrue statements of fact, known to be untrue by those
making it, with the intent to deceive.” He further alleges that “defendants intended
to deceive and conceal the truth.”
These claims are exactly the types of general allegations, unsupported by the
allegation of any facts whatsoever, that are condemned by both Rule 9 and Rule
12(b)(6), as interpreted by the Court in Iqbal and Twombly. Plaintiff does not
explain or allege what Dr. Martin or any named agents of St. Luke’s knew that
they concealed or failed to divulge, what misrepresentions were made (much less
when they where made or by whom), or what actions those Defendants took to
affirmatively conceal facts relevant to the Plaintiff’s case. The proposed Amended
Complaint thus fails to state a fraud claim against Dr. Martin and St. Luke’s, and
thus, its filing would be futile.
The Plaintiff’s motion is, therefore, DENIED as to the amended allegations
relating to Defendants Dr. Martin and St. Luke’s. The motion is otherwise

GRANTED. Plaintiff shall file its revised Amended Complaint, clearly and
unambiguously deleting from it the amended claims relating to Dr. Martin and St.
Luke’s, on or before July 18, 2012.
IT IS SO ORDERED.
Dated at Wichita, Kansas on this 10th day of July, 2010.

S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge