Auman v. State of Kansas et al

Filing 29

MEMORANDUM AND ORDER granting insofar 23 Motion for Extension of Time to File. Response deadline 9/25/2017. Plaintiff's motion is denied in all other respects. No other deadlines are extended at this time. Denying 24 Motion for Leave to Am end Complaint. Denying and objection is overruled 25 Motion for Leave to File. Signed by District Judge Daniel D. Crabtree on 9/11/17. Mailed to pro se party Ken Auman by regular and certified mail ; Certified Tracking Number: 7015 0920 0001 7045 8126 (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KEN AUMAN,
Plaintiff,
v.

Case No. 17-cv-02069-DDC-JPO

STATE OF KANSAS, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the court on plaintiff Ken Auman’s three motions: Motion for
Extension of Time on All Deadlines (Doc. 23); “1st Amended Petition and Motion for Leave to
File Late for Cause Shown if Considered Late” (Doc. 24); and Motion for Leave to Object to All
Orders on Stays on Discovery (Doc. 25). For the reasons explained below, the court grants
plaintiff an extension of time to respond to defendant State of Kansas’s “Motion to Dismiss and
Request for [Fed. R. Civ. P.] 54(b) Certification of Finality” (Doc. 13) and defendant City of
Overland Park’s “Motion to Dismiss Defendants” (Doc 18.). But, the court denies leave to
amend the Complaint at this time and overrules the objection to the Order staying discovery
(Doc. 25).
I.

Motion for Extension of Time on All Deadlines (Doc. 23)
Plaintiff seeks an extension of time on all deadlines. See Doc. 23 at 1. Plaintiff requests

this extension because he “wishes to Amend his complaint further including with the help of
counsel and Plaintiff wishes to brief the Court on his position on the proposed dismissals and
stay which stays appear have been granted and Plaintiff is objecting by leave of court to the stays
contemporaneously with this motion.” Id. ¶ 4. The court construes plaintiff’s motion as a

request for an extension of time to do four things: (1) amend his Complaint; (2) respond to
defendant State of Kansas’s “Motion to Dismiss and Request for [Fed. R. Civ. P.] 54(b)
Certification of Finality” (Doc. 13); (3) respond to defendant City of Overland Park’s “Motion to
Dismiss Defendants” (Doc 18.); and (4) object to the Order staying discovery (Doc. 22). The
court addresses the extension of time to amend the Complaint in part II. below, and the extension
of time to object to the order staying discovery in part III. Here, the court addresses the
extension of time to respond to defendants’ pending motions.
Plaintiff tries to justify this request, asserting that he “has gone through one of the hardest
times of his life this year and has been unable to keep up with this case.” Id. ¶ 2. While the
court often grants extensions of time needed to accommodate hardships, plaintiff has not
specified the duration of the extension he seeks. Fourteen days is a reasonable amount of time
for the extension, and the court thus extends the time to respond to defendant State of Kansas’s
“Motion to Dismiss and Request for [Fed. R. Civ. P.] 54(b) Certification of Finality” (Doc. 13)
and defendant City of Overland Park’s “Motion to Dismiss Defendants” (Doc 18.). Plaintiff
must file his response to defendants’ motions on or before September 25, 2017.
II.

“1st Amended Petition and Motion for Leave to File Late for Cause Shown if
Considered Late” (Doc. 24)
Plaintiff requests leave to file an amended Complaint. See Doc. 24 at 1. Plaintiff asserts

that he faxed an amended Complaint, but the court never received it. Id. ¶¶ 1–2. Also, plaintiff
asserts that he filed the amended Complaint “within a few days of fees being waived in the case.”
Id. ¶ 1. Plaintiff filed the original Complaint on February 3, 2017. Magistrate Judge O’Hara
entered an Order granting plaintiff’s “Motion to Waive Fees” on February 6, 2017. Taking
plaintiff at his word, it appears that plaintiff attempted to amend his Complaint within the
constraints of Fed. R. Civ. P. 15. See Fed. R. Civ. P. 15(a)(1)(A) (“A party may amend its
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pleading once as a matter of course within 21 days after serving it . . . ”). But, the court never
received any such amended pleading. So, plaintiff has not amended his Complaint as a matter of
right.
Because defendants now have filed motions to dismiss, plaintiff may no longer amend his
Complaint as a matter of course. See Fed. R. Civ. P. 15(a)(1). But, Rule 15 allows plaintiff to
amend with the defendants’ consent or the court’s leave. Fed. R. Civ. P. 15(a)(2) (“In other
cases, a party may amend its pleading only with the opposing party’s written consent or the
court’s leave. The court should freely give leave when justice so requires.”). If a party wishes to
seek the court’s leave, the party must follow our court’s Local Rules. D. Kan. Rule 15.1
provides:
(a) Requirements of Motion. A party filing a motion to amend or a motion for
leave to file a pleading or other document that may not be filed as a matter of
right must:
(1) set forth a concise statement of the amendment or leave sought;
(2) attach the proposed pleading or other document; and
(3) comply with the other requirements of D. Kan. Rules 7.1 through 7.6.
D. Kan. Rule 15.1. Plaintiff’s motion does not comply with Rule 15.1. It does not provide a
concise statement of the amendment or leave sought. It also does not attach the proposed
pleading. The court thus denies plaintiff leave to amend his Complaint without prejudice to his
right to file a rule-complaint Rule 15 motion. Finally, in response to plaintiff’s request for
extension of time on all deadlines, the court does not grant such open-ended relief. So, the court
denies this request.

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III.

Motion for Leave to Object to All Orders on Stays on Discovery (Doc. 25)
Finally, plaintiff moves for leave to object to all orders staying discovery. See Doc. 25 at

1. Though his motion does not say as much, it appears that plaintiff is trying to resurrect his
right to object to Judge O’Hara’s Order staying discovery. See Doc. 22. at 4.
Fed. R. Civ. P. 72 governs such an objection. This rule provides:
When a pretrial matter not dispositive of a party’s claim or defense is referred to a
magistrate judge to hear and decide, the magistrate judge must promptly conduct
the required proceedings and, when appropriate, issue a written order stating the
decision. A party may serve and file objections to the order within 14 days after
being served with a copy. A party may not assign as error a defect in the order
not timely objected to. The district judge in the case must consider timely
objections and modify or set aside any part of the order that is clearly erroneous
or is contrary to law.
Fed. R. Civ. P. 72(a). So, when reviewing a magistrate judge’s order deciding a nondispositive
pretrial matter, the district court applies a “clearly erroneous or contrary to law” standard of
review. See First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (quoting
Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1461–62 (10th Cir. 1988)); 28 U.S.C. §
636(b)(1)(A); Fed. R. Civ. P. 72(a). Under the clearly erroneous standard, the district court does
not conduct a de novo review of the factual findings; rather, it must affirm a magistrate judge’s
order unless a review of the entire evidence leaves it “with the definite and firm conviction that a
mistake has been committed.” Ocelot Oil Corp., 847 F.2d at 1464. In contrast, “the contrary to
law” standard permits the district court to conduct an independent review of purely legal
determinations made by the magistrate judge. Sprint Commc’ns Co. L.P. v. Vonage Holdings
Corp., 500 F. Supp. 2d 1290, 1346 (D. Kan. 2007) (citations omitted). A magistrate judge’s
order is contrary to law if it “fails to apply or misapplies relevant statutes, case law or rules of
procedure.” Walker v. Bd. of Cnty. Comm’rs of Sedgwick Cty., No. 09–1316–MLB, 2011 WL
2790203, at *2 (D. Kan. July 14, 2011) (quotation omitted).
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Plaintiff’s objection to Judge O’Hara’s Order is untimely. He did not file the objection
within 14 days after the Order was issued or timely request an extension of time. Judge O’Hara
issued his Order staying discovery on July 6, 2017. Plaintiff filed both his motion for an
extension of time and his motion objecting to the stay on discovery on August 2, 2017—after the
14-day deadline. On these grounds alone, the court could deny the objection. But, an
independent reason exists for dismissing the objection—the order is neither clearly erroneous nor
contrary to law.
Plaintiff argues that “[d]iscovery regarding state of Kansas, may reveal that they are not
compliant with the requirements of statehood” so it is not entitled to Eleventh Amendment
immunity. Id. ¶ 1. Plaintiff also alleges that Overland Park is not entitled to any type of
immunity. Id. These allegations do not specifically address the reason Judge O’Hara stayed
discovery. After thoroughly reviewing the record and Judge O’Hara’s Order, the court finds that
Judge O’Hara’s decision to stay discovery pending the resolution of the sovereign immunity
issue is neither clearly erroneous nor contrary to law. For that reason, the court overrules
plaintiff’s objection.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff Ken Auman’s
Motion for Extension of Time on All Deadlines (Doc. 23) is granted insofar as it extends the
time to respond to defendant State of Kansas’s “Motion to Dismiss and Request for [Fed. R. Civ.
P.] 54(b) Certification of Finality” (Doc. 13) and defendant City of Overland Park’s “Motion to
Dismiss Defendants” (Doc 18.). Plaintiff must file his response to defendants’ motions on or
before September 25, 2017. Plaintiff’s motion is denied in all other respects. No other
deadlines are extended at this time.

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IT IS FURTHER ORDERED THAT plaintiff Ken Auman’s “1st Amended Petition
and Motion for Leave to File Late for Cause Shown if Considered Late” (Doc. 24) is denied.
IT IS FURTHER ORDERED THAT plaintiff Ken Auman’s Motion for Leave to
Object to All Orders on Stays on Discovery (Doc. 25) is denied and the objection is overruled.
IT IS SO ORDERED.
Dated this 11th day of September, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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