Grider et al v. Shawnee Mission Medical Center, Inc. et al
MEMORANDUM AND ORDER denying 36 Motion for Leave to File Third Amended Complaint; denying 47 Motion for Clarification. Signed by Magistrate Judge Gerald L. Rushfelt on 7/12/2017. Mailed to pro se party Gary Grider, Teresa Mary Palmer, Teresa Marita Palmer, James William Palmer by regular mail. (hl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GARY D GRIDER, et al.,
Case No. 16-2750-DDC-GLR
SHAWNEE MISSION MEDICAL CENTER,
INC., et al.,
MEMORANDUM AND ORDER
Plaintiff Teresa Mary Palmer, proceeding pro se, brings this medical malpractice suit
against Defendants Shawnee Mission Medical Center (“SMMC”) and Mid-America Physician
Services, LLC (“MAPS”). At issue is their treatment of Plaintiff Teresa Mary Palmer, who
checked into SMMC because she appeared to be going into labor. Joining her as Plaintiffs are
Gary Dean Grider (her husband), Teresa Marita Palmer (her mother), and James William Palmer
(her father) (collectively, the “Family Plaintiffs”). The matters before the Court are Plaintiffs’
Motion for Leave to File Third Amended Complaint (ECF 36) and Motion for Clarification (ECF
47). For the reasons below, the Court grants in part and denies in part Plaintiffs’ Motion for
Leave to File Third Amended Complaint (ECF 36) and its supplement that requests alternative
relief, Plaintiffs’ Motion for Clarification (ECF 47).
Plaintiffs’ first Complaint (ECF 1) asserted twenty-three counts within five different
groups and alleging violations of 42 U.S.C. § 1395dd (Counts 1–5), strict liability (Counts 6-9),
res ipsa loquitur (Counts 10–13), intentional infliction of emotional distress (Counts 141–19), and
Plaintiffs’ Complaint actually labels this 13, but the Court assumes it is a typo and meant to be 14.
breach of contract (Counts 20–23). Plaintiffs amended their Complaint twelve days after filing
(ECF 4). The Court cannot discern a difference between the Complaint and the Amended
Complaint, except for adding the case number to the caption. With leave of Court Plaintiffs then
filed their Second Amended Complaint (ECF 23) on March 16, 2017. It contains only a few
changes: combining two numbered fact paragraphs into one numbered paragraph; and addressing
the numbering error (see footnote one) with respect to the alleged Counts.
On April 6, 2016, Plaintiffs filed a Motion for Leave to File Third Amended Complaint
(ECF 36). It attaches their proposed Third Amended Complaint (ECF 36-1).
On May 15, 2017, Plaintiffs filed a Motion for Clarification (ECF 47), which contained
another proposed Third Amended Complaint (ECF 47-1). The two Third Amended Complaints
thus proposed by these two motions are essentially identical, except that the latter document does
not include Dr. Piquard as a defendant. Plaintiffs explained that, if the Court rules that Dr.
Piquard not be added as a defendant, they intend the latter proposed Complaint (ECF 47-1) to be
their Third Amended Complaint. The Court thus construes Plaintiffs’ Motion for Clarification
(ECF 47) as a supplement to Plaintiffs’ Motion for Leave to File a Third Amended Complaint
that requests alternative relief.2
II. Legal Standards
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial.
It provides that the parties may amend a pleading once “as a matter of course” before trial if they
do so within (A) 21 days after serving the pleading, or (B) “if the pleading is one to which a
responsive pleading is required,” 21 days after service of the responsive pleading or a motion
Regardless of the Court’s construction of Plaintiffs’ Motion for Clarification as a supplement, Defendant
SMMC responded to it as if it were a proper motion. However, their response merely repeated arguments made in
their response to the original motion to amend. (Compare ECF 39 with ECF 48.) Defendant MAPS did not respond
to these motions.
under Fed. R. Civ. P. 12(b), (e), or (f), whichever is earlier.3 Other amendments are allowed
“only with the opposing party’s written consent or the court’s leave.”4 Rule 15(a)(2) also
instructs that the court “should freely give leave when justice so requires.”5 The court’s decision
to grant leave to amend a complaint, after the permissive period, is within the trial court’s
discretion and will not be disturbed absent an abuse of that discretion.6 The court may deny leave
to amend upon a showing of “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of amendment, etc.”7
“If a defendant is not served within 90 days after the complaint is filed, the court—on
motion or on its own after notice to the plaintiff—must dismiss the action without prejudice
against that defendant or order that service be made within a specified time.”8
The Court liberally construes the pleadings of a pro se plaintiff.9 This does not mean,
however, that the Court must become an advocate for the pro se plaintiff.10 Liberally construing
a pro se plaintiff’s complaint means that “if the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should do so despite the plaintiff’s failure to
cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence
construction, or his unfamiliarity with pleading requirements.”11
Fed. R. Civ. P. 15(a)(1).
Fed. R. Civ. P. 15(a)(2).
Id.; accord Foman v. Davis, 371 U.S. 178, 182 (1962).
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006).
Id. (quoting Foman, 371 U.S. at 182).
Fed. R. Civ. P. 4(m).
See Jackson v. Integral, Inc., 952 F.2d 1260, 1261 (10th Cir. 1991).
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Plaintiffs propose a Third Amended Complaint (ECF 36-1), which contains two
significant changes. First, Plaintiffs seek to add another defendant, Angela L. Piquard, M.D., an
obstetrician employed by MAPS and who had a physician-patient relationship with Plaintiff
Teresa Mary Palmer. Second, Plaintiffs condense their claims to five Counts, some of which
may be substantively different. The Counts in the latest proposed version are:
Count 1: Violations of 42 U.S.C. § 1395dd against SMMC;
Count 2: Negligence against SMMC;
Count 3: Negligence against MAPS;
Count 4: Negligence against proposed-defendant Dr. Piquard;12 and
Count 5: Contract Liability against SMMC, MAPS, and Dr. Piquard.13
Defendants SMMC and MAPS filed separate responses (ECF 38 and 39), and SMMC joins and
incorporates MAPS’ response.
A. Addition of Dr. Piquard
Plaintiffs seek to add a defendant to this lawsuit: Dr. Piquard, the physician who admitted
and discharged Plaintiff Teresa Mary Palmer. As Plaintiffs acknowledge, the statute of
limitations for each of their claims ran on November 5, 2016.14 Therefore, Dr. Piquard can be
added only if Plaintiffs satisfy Federal Rule of Civil Procedure 15(c)(1)(C). Rule 15(c)(1)(C)
(1) When an Amendment Relates Back. An amendment to a
pleading relates back to the date of the original pleading when
Notably, Plaintiffs list only one count of negligence, but it consists of seven subparts. These subparts are
perhaps best categorized as factual allegations—not separate instances of negligence.
K.S.A. § 60-513(a).
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced
in defending on the merits; and
(ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party’s
As the United States Supreme Court explains in Krupski v. Costa Crociere S. p. A.,15 Plaintiffs
must satisfy three elements to satisfy Rule 15(c)(1)(C):
First, the claim against the newly named defendant must have
arisen “out of the conduct, transaction, or occurrence set out—or
attempted to be set out—in the original pleading.” Fed. Rules Civ.
Proc. 15(c)(1)(B), (C). Second, “within the period provided by
Rule 4(m) for serving the summons and complaint” (which is
ordinarily 120 days from when the complaint is filed, see Rule
4(m)), the newly named defendant must have “received such notice
of the action that it will not be prejudiced in defending on the
merits.” Rule 15(c)(1)(C)(i). Finally, the plaintiff must show that,
within the Rule 4(m) period, the newly named defendant “knew or
should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s identity.”
The parties do not dispute that the first element is met. The claims proposed against Dr. Piquard
undoubtedly relate to the claims set forth or attempted to be set forth in Plaintiffs’ original
As to the second element, Plaintiffs argue Dr. Piquard had actual notice—or at the very
least, constructive notice—because she was contacted by both federal and state investigators
after Plaintiff James William Palmer lodged a complaint with the Kansas Department of Health
and Environment (“Health Department”) in November 2014. Plaintiffs, however, misunderstand
560 U.S. 538 (2010).
Id. at 545.
this element, as Rule 15(c)(1)(C) clearly states that the proposed defendant must receive notice
of this action. For actual notice, Plaintiffs must demonstrate Dr. Piquard received notice of their
Complaint or Amended Complaint within the period provided by Rule 4(m). While Defendants
do not address actual notice, the Court finds that notice of Mr. Palmer’s complaint with the
Health Department cannot constitute actual notice of this suit. Plaintiffs could have, for
example, lodged a complaint with the Health Department and never filed this suit. Nothing in
the record shows Dr. Piquard received actual notice of this suit.
To show constructive notice, Plaintiffs must demonstrate Dr. Piquard learned of this
litigation in some indirect manner. For instance, SMMC or MAPS may have informed her of
this suit, because in any event she appears to be a witness. While Plaintiffs do not allege that (or
something like it) actually happened, the Court finds the following facts informative. There is
significant overlap between the Health Department complaint and this suit, both alleging a
violation of the Emergency Medical Treatment and Labor Act, 42 U.S.C. §1395dd, and general
allegations of negligent medical care. Plaintiffs allege that Dr. Piquard received notice of the
Health Department complaint and was interviewed during the Health Department’s subsequent
investigation. Dr. Piquard was an employee of MAPS and worked at SMMC, which makes it
plausible she would hear of this case in some way.17 Moreover, neither Defendant addresses
Plaintiffs’ contention that Dr. Piquard received constructive notice.18 For these reasons and on
this record, the Court declines to find at this juncture that Plaintiffs’ amendment to add Dr.
The Court has no information as to whether Dr. Piquard still works for MAPS or at SMMC, but she did
at the time.
Though, to be fair, Defendants may not have knowledge of what Dr. Piquard did or did not receive or
whether she was interviewed as part of a state investigation. Nevertheless, the Court notes this fact because
Defendants would know whether they contacted Dr. Piquard about this action.
Piquard is futile with respect to the notice element. The Court also notes that Dr. Piquard would
perhaps not be prejudiced in defending on the merits, as this case is still in its infancy.19
The third element under Rule 15(c)(1)(C) requires that Plaintiff show Dr. Piquard “knew
or should have known that the action would have been brought against [her], but for a mistake
concerning the proper party’s identity.”20 Plaintiffs argue that this element is satisfied because
they mentioned Dr. Piquard in the Complaint, and that she, as Teresa Mary Palmer’s doctor on
the night of the injury, should have known she would have been sued but for Plaintiffs’
ignorance. Plaintiffs suggest they made a mistake about the difference in legal status of Dr.
Piquard and her employer MAPS, apparently assuming that by suing MAPS they were also suing
MAPS’ employee, Dr. Piquard.21 Defendants counter that Plaintiffs did not make a mistake
about the proper defendant’s identity, citing several pre-Krupski cases holding that lack of
knowledge is not a mistake under Rule 15(c)(1)(C).22
Both parties cite Krupski in support of their respective positions. In Krupski the Supreme
Court held that “making a deliberate choice to sue one party instead of another while fully
understanding the factual and legal differences between the two parties is the antithesis of
making a mistake concerning the proper party’s identity.”23 Plaintiffs argue that language
supports their position because they, as pro se plaintiffs, did not fully understand the legal
differences between MAPS and Dr. Piquard. Indeed, Plaintiffs readily concede they understood
the factual differences between MAPS and Dr. Piquard. Defendants argue Krupski demonstrates
Indeed, if added, Dr. Piquard would have an opportunity to raise issues regarding relation back.
Fed. R. Civ. P. 15(c)(1)(C)(ii).
But they never explain why they thought this.
See, e.g., Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir. 2004); Sellers v. Butler, et al., No. 02-3055DJW, 2007 WL 2042513 (D. Kan. July 12, 2007); Lowe v. Surpas Res. Corp., 253 F. Supp. 2d 1209, 1248–1249
(2003); Bloesser v. Office Depot, Inc., 158 F.R.D. 168, 171 (D. Kan. 1994).
Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 549 (2010) (emphasis added).
Plaintiffs did not make a mistake under Rule 15(c)(1)(C)(ii), because they knew of Dr. Piquard’s
existence and her role in the underlying incident. Defendants thus frame Plaintiffs’ omission of
Dr. Piquard as a tactical error—not a mistake.
The Court finds Defendants’ conclusion more persuasive, but not necessarily for the
arguments they advanced. Where “the original complaint and the plaintiff’s conduct compel the
conclusion that the failure to name the prospective defendant in the original complaint was the
result of a fully informed decision as opposed to a mistake concerning the proper party’s identity,
the requirements of Rule 15(c)(1)(C)(ii) are not met.”24 The Court finds Plaintiffs’ conduct
compels the conclusion that their failure to name Dr. Piquard as a defendant25 in the original
Complaint was not a mistake.26 Plaintiffs knew Dr. Piquard’s role and her existence from this
case’s inception. Yet, over the course of five months, they twice amended their Complaint
without naming Dr. Piquard as a defendant. Their delay in seeking to add Dr. Piquard,
moreover, exceeds the 90-day timeframe set forth in Federal Rule of Civil Procedure 4(m).27
This conduct favors a finding that Plaintiffs made a tactical decision, rather than a mistake. It is
a common assumption that a bigger payday may be had by suing a corporation rather than its
employees, because the corporation apparently has more financial resources. The Court also
finds it hard to believe that a plaintiff could reasonably mistake the legal identities of a
corporation and a living human being, particularly when that plaintiff knew of the existence and
Id. at 552.
Unlike in Krupski, Plaintiffs named Dr. Piquard in their original Complaint—just not as a defendant.
See McGregor v. Shane’s Bail Bonds, No. 10-CV-2099-JWL, 2010 WL 3155635, at *7 (D. Kan. Aug. 9,
2010), aff’d sub nom. McGregor v. Snyder, 427 F. App’x 629 (10th Cir. 2011) (holding it would be futile to allow
amendment where pro se plaintiff had full knowledge of existence and role of proposed defendant in events giving
rise to plaintiff’s claims).
To be sure, Krupski cautions against using the fact that a plaintiff failed to add or change a party during
the Rule 4(m) period as a justification to prohibit an amendment. See Krupski, 560 U.S. at 548 n. 3. Here, this fact
is one of many that informs the Court’s conclusion.
role of each. Indeed, unlike Krupski, Plaintiffs have not confused two entities with similar
names, either corporate or individual, with very similar names. Finally, having not been named
in two amended pleadings over a five-month timeframe that included the passing of the two-year
limitations period and the Rule 4(m) period, the Court finds that Dr. Piquard has a strong interest
in repose.28 For these reasons the Court finds Plaintiffs have failed to satisfy Rule 15(c)(1)(C)(ii)
and that adding Dr. Piquard as a defendant would be futile.
B. Otherwise Amending the Complaint
The Court must decide whether the other differences between the Second Amended
Complaint and the proposed Third Amended Complaint, without the addition of Dr. Piquard,
(ECF 47-1) warrant granting leave to amend. The Court finds they do not. The two Complaints
are substantively without significant difference. Plaintiffs merely changed the form of the
Complaint, such as condensing the number of counts from twenty-five to five. Given this, and
the fact there is a pending motion to dismiss the Second Amended Complaint, the Court denies
Plaintiffs leave to file the Third Amended Complaint. If the claims of Plaintiffs survive
Defendants’ motions to dismiss, they may file a motion to reconsider with regard to ECF 47-1.
That would simply invite the Court to revisit the issue, but it does not assure that the Court
would grant their motion.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs’ Motion for Leave
to File Third Amended Complaint (ECF 36) and its supplement, Motion for Clarification (ECF
47), are denied.
See Krupski, 560 U.S. at 550 (“A prospective defendant who legitimately believed that the limitations
period had passed without any attempt to sue him has a strong interest in repose. But repose would be a windfall for
a prospective defendant who understood, or who should have understood, that he escaped suit during the limitations
period only because the plaintiff misunderstood a crucial fact about his identity. Because a plaintiff’s knowledge of
the existence of a party does not foreclose the possibility that she has made a mistake of identity about which that
party should have been aware, such knowledge does not support that party’s interest in repose.”).
On a logistical note as to the whole case, Plaintiffs need send the Court only one copy of
any future filings, which can be mailed or emailed and can be ink-signed or digitally-signed (i.e.
“s/ ”). The Court does not need both copies.
Dated July 12, 2017, at Kansas City, Kansas.
S/ Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge
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