Davis v. Shawnee Mission School District et al
ORDER setting forth rulings made at April 9, 2018 status conference. Signed by Magistrate Judge James P. O'Hara on 4/10/2018. (amh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RUBYE L. DAVIS
UNIFIED SCHOOL DISTRICT NO. 512
K/A SHAWNEE MISSION SCHOOL
Case No. 15-9160-KHV
In this employment-discrimination case, under 42 U.S.C. § 1983, plaintiff sues her
former employer for race discrimination in violation of 42 U.S.C. § 1981 and the 14th
Amendment. On April 9, 2018, the undersigned U.S. Magistrate Judge, James P. O’Hara,
conducted a status conference to address concerns raised by the presiding U.S. District Judge,
Kathryn H. Vratil, in a memorandum and order entered April 5, 2018 (ECF No. 153). Highly
summarized, Judge Vratil directed the undersigned to address whether a stipulation entered
by the parties to dismiss plaintiff’s individual-capacity claims against John McKinney (the
principal of Shawnee Mission East High School) and Ginny Lyon (defendant’s director of
certified professionals), should be “recalled and plaintiff’s claims against McKinney and
Lyon individually reinstated in this case.”1 During the conference, Charles S. Scott, Jr.
ECF No. 153 at 8.
argued on behalf of plaintiff, and J. Drew Marriott and Kristen Michael O’Neal argued on
behalf of defendant. This order supplements and summarizes the undersigned’s directives
made on the record.
Given the current June 4, 2018 trial setting, the court and parties must act
expeditiously to bring definition and clarity to the scope of this action. Thus, by April 13,
2018, the parties are directed to each file a brief, limited to ten double-spaced pages,
addressing the issues set out below. Each party may then file a response to the opposing
side’s brief, limited to five double-spaced pages, by April 17, 2018.2 No further briefing
shall be allowed.
1. Setting Aside the Stipulation. The parties should address whether the Tenth
Circuit’s standards3 for setting aside a stipulation are met in this case, specifically taking into
account the concerns expressed on page 8 of Judge Vratil’s memorandum and order.
2. Statute of Limitations for Individual Claims Against McKinney and Lyon. The
undersigned reads the Supreme Court case of Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369 (2004), as recognizing a four-year statute of limitations applicable to plaintiff’s claims
against McKinney and Lyon. If a party believes the applicable statute of limitations is
If by April 13, 2018, the parties file a joint motion asking Judge Vratil for relief from
the June 4, 2018 trial setting, agreeing to a plan by which plaintiff’s claims against
McKinney and Lyon are asserted, and proposing a new pretrial schedule, the undersigned
relieves them of the requirement that they brief outstanding issues by that date.
See, e.g., Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., 532
F.3d 1063, 1075 (10th Cir. 2008) (party may be relieved of a stipulation if necessary to
prevent “manifest injustice”).
shorter than four years, it should discuss why.
3. Procedural Mechanisms for Plaintiff to Assert Claims Against McKinney and
Lyon. The undersigned can envision a number of procedural routes that could potentially
bring plaintiff’s claims against McKinney and Lyon back before the court. Mindful of Fed.
R. Civ. P. 1’s mandate that the rules be construed to secure the “just, speedy, and inexpensive
determination of every action,” the parties should address the following:
Since plaintiff’s dismissal of McKinney and Lyon was without prejudice (see
ECF No. 121), and since it appears the applicable four-year statute of
limitations doesn’t expire until March 2019, is there any legal impediment to
plaintiff now filing an entirely separate lawsuit against McKinney and Lyon?
And, if plaintiff were to file a separate lawsuit against McKinney and Lyon,
wouldn’t it be most efficient to consolidate that case with this case?
Instead of plaintiff filing a separate lawsuit and consolidating it with this case,
should the court permit plaintiff to file an amended complaint under Federal
Rules of Civil Procedure 15 and 16? A pretrial order has been entered in this
action (ECF No. 133). The pretrial order recognizes that, under Rule 16(e),
the court may not modify the order except to prevent “manifest injustice.” In
addition, Rule 15(a)(2) governs when a party may amend its pleading with
leave of court. The parties should address whether these standards are met at
this point in the case (in light of the analysis of U.S. Magistrate Judge K. Gary
Sebelius when he granted plaintiff leave to amend her complaint on June 2,
2017 (ECF No. 107)).
Should McKinney and Lyon be joined or substituted as defendants in the
current lawsuit under Federal Rule of Civil Procedure 19 or 21?
4. Discovery. The court would like to hear from the parties about what specific
discovery they wish to take should plaintiff’s claims against McKinney and Lyon be
5. Mediation. At the conference, both sides expressed a desire to engage in further
mediation of this dispute. The undersigned noted the options of retaining a skilled trial
lawyer familiar with § 1983 claims as a mediator, or using a U.S. magistrate judge as a courtprovided mediator. The parties should discuss their preferred mediation plan and dates they
are available for mediation.
After the above issues are fully briefed, the undersigned will endeavor to issue an
order expeditiously. The deadlines for the parties to seek Fed. R. Civ. P. 72 review of the
undersigned’s order by Judge Vratil are expedited. Any motion for review, limited to ten
double-spaced pages, is due two business days after the entry of the order; and any response,
limited to five double-spaced pages, is due the following business day.
In addition to the above topics, the court briefly discussed settlement with the parties
at the conference. Counsel informed the undersigned that the parties have only exchanged
one settlement proposal (neither of which was very serious), but each side expressed the
possibility of moving from its original number. Thus, by April 13, 2018, plaintiff must make
a reasonable, good-faith settlement demand on defendant, taking into account (among other
things) the problems plaintiff has candidly acknowledged with proving her stated lost-income
claims. Defendant must make a reasonable, good-faith settlement counter-proposal demand
by April 24, 2018.
IT IS SO ORDERED.
Dated April 10, 2018, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge
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