Baskas v. Vogel et al

Filing 47

MEMORANDUM AND ORDER finding as moot 26 Motion to Dismiss for Failure to State a Claim; granting 33 Motion to Amend Complaint. Plaintiff should file the amended complaint by August 15, 2013. This action makes defendants motion to dismiss moot. Defendant is granted leave until September 16, 2013 to file a motion to dismiss the amdended complaint. Signed by District Judge Richard D. Rogers on 8/9/2013. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN J. BASKAS

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Plaintiff,
v.
NEIL VOGEL, individually and in
his official capacity as a
Leavenworth Police Officer;
PAT KITCHENS, individually and in
his capacity as Chief of Police
of Leavenworth, Kansas;
CITY OF LEAVENWORTH, KANSAS,
Defendants.

Case No. 13-2018-RDR

MEMORANDUM AND ORDER
This is an action asserting state law claims and claims
pursuant

to

42

U.S.C.

§

1983

against

a

City

of

Leavenworth

Police Officer (defendant Vogel), the Chief of Police of the
City

of

Leavenworth

Leavenworth itself.
search

warrant

(defendant

Kitchens),

and

the

City

of

The case arises from the execution of a

during

which

plaintiff

allegedly

was

shot

multiple times by defendant Vogel.
This case is before the court upon defendants’ motion to
dismiss three of the five counts of the original complaint (Doc.
No. 26), and plaintiff’s motion to amend the complaint (Doc. No.
33).

The original complaint was filed on January 8, 2013.

Defendants filed their motion to dismiss on April 29, 2013.

Plaintiff responded to the motion to dismiss and simultaneously
filed the motion to amend the complaint on May 17, 2013.

Among

other changes, the proposed amended complaint has two additional
counts.

So, the proposed amended complaint has seven counts.

Defendants have opposed the motion to amend arguing that
the motion is untimely because a scheduling order (Doc. No. 18)
set

a

deadline

of

May

1,

2013

for

amending

the

pleadings.

Defendants also argue that Counts I, IV and VII of the proposed
amended complaint fail to state a claim for the same reasons
argued by defendants with regard to Counts I, IV and V of the
original complaint.

Finally, defendants contend that the motion

to amend should be denied because plaintiff was already aware of
the facts upon which the proposed amended complaint is based at
the time of the original complaint or the deadline for filing an
amended complaint, and waited too long to seek leave to amend.
When faced with a motion to amend filed after the deadline
for

filing

motions

to

amend,

judges

in

this

district

have

applied the provisions of FED.R.CIV.P. 16(b)(4) and FED.R.CIV.P.
15(a).

E.g., Chambers v. Kansas City Kansas Community College,

2013 WL 2422733 *1 (D.Kan. 6/3/2013).
Rule 16(b)(4) provides that:

“A schedule may be modified

only for good cause and with the judge’s consent.”
exists here in the court’s opinion.

2

Good cause

The motion to amend was filed in response to defendants’
motion

to

concerns

dismiss.
“with

Plaintiff

greater

sought

specificity

complaint.”

Doc. No. 33, p. 1.

was

unaware

largely

of

to

than

address
is

in

defendants’

the

original

One may assume that plaintiff

defendants’

concerns

until

defendants

filed the motion to dismiss on the eve of the deadline for
filing motions to amend.

So, there was good cause to file the

motion to amend after the deadline in the scheduling order.
Plaintiff filed the motion to amend 18 days after defendants
filed the motion to dismiss.

This does not constitute undue

delay.
One may further assume that if plaintiff had not filed the
motion to amend and that if the court had granted defendants’
motion to dismiss, the court would have granted plaintiff leave
to amend the complaint.
of

Human

preferred

Services,
practice

925
is

See McKinney v. State of Oklahoma Dept.
F.2d
to

363,

accord

365
a

(10th

plaintiff

Cir.

1991)(“the

notice

and

an

opportunity to amend his complaint before acting upon a motion
to dismiss for failure to state a claim”).

Since the preferred

practice is to grant a plaintiff an opportunity to amend before
taking final action upon a motion to dismiss for failure to
state a claim, the court believes there is good cause to amend
the scheduling order to permit plaintiff the opportunity to do

3

now

what

the

court

may

well

have

permitted

later

in

these

not

exist

proceedings.
Defendants

could

argue

that

good

cause

because the proposed amendments are futile.

does

But, the court

believes the futility contention is better tested with a new
motion to dismiss addressing the allegations contained in the
amended complaint, instead of requiring the court to compare the
allegations

of

the

original

and

amended

complaints

and

determining whether defendants’ arguments apply equally to each.
Of course, this puts defendants to the trouble of filing another
motion to dismiss (which defendants have sought leave to do if
the court grants the motion to amend).

This, however, was a

possibility anyway if the court proceeded only upon the original
complaint and granted defendants’ motion to dismiss, but allowed
plaintiff leave to amend.
amend

the

scheduling

In sum, the court finds good cause to

order

to

permit

plaintiff

to

file

an

requirements

of

amended complaint.
Plaintiff

still

must

Rule 15(a) are satisfied.

establish

that

the

This is not a heavy burden.

Under

Rule 15(a)(2), the court is instructed to grant leave to amend
“freely . . . when justice so requires.”

“Refusing leave to

amend is generally only justified upon a showing of undue delay,
undue prejudice to the opposing party, bad faith or dilatory
motive, failure to cure deficiencies by amendments previously
4

allowed, or futility of amendment.”

Frank v. U.S. West, Inc., 3

F.3d 1357, 1365 (10th Cir. 1993).
Here defendant argues undue delay not only because of the
deadline in the scheduling order has passed but also because
plaintiff has not employed any recently acquired information to
make the changes made in the proposed amended complaint.

The

proposed amended complaint was filed a little more than four
months after this case was filed.
Defendants’
plaintiffs

arguments
should

only

in
be

this

This is not undue delay.

matter

allowed

would

one

crack

complaint unless new facts come to light.

suggest
at

that

pleading

a

The court does not

believe this is the normal practice when a motion to dismiss for
failure to state a claim is filed, particularly in the absence
of significant prejudice to a defendant or a showing of dilatory
motive.

“Rule 15 . . . was designed to facilitate the amendment

of pleadings except where prejudice to the opposing party would
result. . . . Typically, courts will find prejudice only when an
amendment

unfairly

affects

non-movants

their response to the amendment.”

in

terms

of

preparing

Bylin v. Billings, 568 F.3d

1224, 1229 (10th Cir. 2009)(quotations and citations omitted).
Defendants have not shown prejudice in preparing a response to
the amended complaint.

Defendants may still file a motion to

dismiss for failure to state a claim.

5

As the court has already

stated, it will be easier and more efficient for the court to
examine defendants’ futility argument in that context.
In conclusion, the court shall grant plaintiff’s motion to
amend

the

complaint
motion

to

September

complaint.
by

August

dismiss
16,

2013

Plaintiff

16,

2013.

moot.
to

file

should

This

Defendant
a

motion

file

action
is
to

makes

the

amended

defendants’

granted

leave

dismiss

the

amended

complaint.
IT IS SO ORDERED.
Dated this 9th day of August, 2013, at Topeka, Kansas.

s/Richard D. Rogers
United States District Judge

6

until