Muathe et al v. Fleming et al

Filing 86

AMENDED ORDER. This Order amends page 3 of the original Order 36 to identify Kasey King as Plaintiff. All other aspects of the Court's Previous Order remain in effect. Signed by District Judge Julie A. Robinson on 4/19/2017. (bw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ERIC MUATHE, et al.,
Plaintiffs,
v.

Case No. 16-CV-2108-JAR-GLR

LORI FLEMING, et al.,
Defendants.

ORDER
Upon subsequent review of existing law and the parties’ memoranda of law, the Court
amends as follows its previous Memorandum and Order Granting in Part and Denying in Part
Plaintiffs’ Motion for Leave to Amend (Doc. 34):
In Count 6 of their original Complaint and First Amended Complaint, Plaintiffs alleged a
tortious interference with contract claim against Defendants Lori Fleming and Kurtis Loy.1 In
their Second Amended Complaint, however, Plaintiffs added Defendants Bill Wachter, Joe
Manns, and My Town, Media, Inc. (“My Town”) to their Count 6 tortious interference with
contractual relations claim.2
Under Kansas law, “[t]he elements of tortious interference with a contract are: (1) the
contract; (2) the wrongdoer’s knowledge thereof; (3) his intentional procurement of its breach;
(4) the absence of justification; and (5) damages resulting therefrom.”3 The Tenth Circuit and
courts in this District have provided guidance as to who may be a defendant to a tortious
interference with contractual relations claim:
1

Docs. 1 & 5.

2

Doc. 14 at 17–19.

3

Cohen v. Battaglia, 293 P.3d 752, 546 (Kan. 2013) (citing Burcham v. Unison Bancorp, Inc., 77 P.3d 130
Kan. 2003)).

The contractual relation must be one to which the defendant is an outsider, since
the defendant cannot “interfere” with its own affairs. The breaching party to a
contract may not be sued for the tort of inducing a breach of contract. The
plaintiff’s recourse against the breaching party is limited to a contract action.4
Further, employees of the contracting party who act within the scope of their employment may
not be held personally liable for the alleged tortious interference of their employers, because the
employees’ “acts and motives are legally attributable to the employer.”5
Here, Plaintiffs assert a breach of contract claim against My Town in Count 4 of their
proposed Second Amended Complaint.6 Thus, My Town, as the allegedly breaching party, may
not be a defendant to the tortious interference claim in proposed Count 6. Further, Plaintiffs
allege in their proposed Second Amended Complaint that Defendant Manns was My Town’s
“employee and/or agent, and was acting within the scope of, and in furtherance of his employer’s
business interest.”7 As an employee of My Town acting within the scope of his employment,
Defendant Manns cannot be held liable for tortious interference with My Town’s contract.
Finally, the proposed Second Amended Complaint alleges that Defendant Wachter “is one of the
owner[s] and/or shareholders of defendant My Town Media, Inc.”8 As one of the owners or
shareholders of the contracting party, Defendant Wachter is not “an outsider” to the contractual
affairs of My Town, and therefore he cannot be liable for tortious interference with My Town’s
contract.
The Court finds that because the three Defendants discussed above cannot be parties to a
claim of tortious interference with Defendant My Town’s contract, Plaintiff King’s proposed
4

Tyrrell v. Boeing Co., No. 91-1285-FGT, 1994 WL 114841, at *17 (D. Kan. Mar. 24, 1994) (citations

omitted).
5

Id. at *18 (citing Johnson v. Wefald, 766 F. Supp. 977, 984 (D. Kan. 1991)).

6

Doc. 14 at 15.

7

Id. at 3.

8

Id. at 8.

2

Count 6 claim against these Defendants would be futile. Accordingly, the Court amends its
previous Memorandum and Order and denies Plaintiff Kasey King’s motion for leave to amend
as it relates to his Count 6 tortious interference with contractual relations claim against
Defendants Wachter, Manns, and My Town. Plaintiff King is, however, granted leave to amend
as to Count 6 as it relates to Defendants Fleming and Loy. Finally, because Count 6 and all other
Counts of Plaintiffs’ proposed Second Amended Complaint are futile as to Defendant Manns, the
Court dismisses Defendant Manns from this case. All other aspects of the Court’s previous
Memorandum and Order remain in effect.9
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff Kasey King is
denied leave to amend Count 6 as it relates to Defendants Bill Wachter, Joe Manns, and My
Town Media, Inc. Plaintiff King is, however, granted leave to amend Count 6 as it relates to
Defendants Lori Flemming and Kurtis Loy.
IT IS FURTHER ORDERED BY THE COURT that Defendant Joe Manns is
dismissed from this case.
IT IS SO ORDERED.
Dated: April 19, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

9

Doc. 34.

3