Luttrell v. Brannon et al

Filing 71

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Amend 60 is granted, and plaintiff shall file his proposed amended complaint forthwith. It is further ordered that defendant's motion pursuant to Fed. R. Civ. P. 12(c) 49 is denied as moot. Signed by District Judge John W. Lungstrum on 11/16/2017. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHARLES R. LUTTRELL,

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Plaintiff,
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v.
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JAMES K. BRANNON, M.D.;
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ORTHOPEDIC SCIENCES, INC.;
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JOINT PRESERVATION INSTITUTE
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OF KANSAS, L.L.C.; and
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DOCTORS HOSPITAL, L.L.C.,
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Defendants.
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_______________________________________)

Case No. 17-2137-JWL

MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff’s motion for leave to amend his
complaint (Doc. # 60). For the reasons set forth below, the Court grants the motion, and
plaintiff shall file his proposed amended complaint forthwith.1
In his original complaint, filed on March 30, 2017, plaintiff asserted claims
against the four defendants for negligence, fraud, civil conspiracy, violation of the
Kansas Consumer Protection Act (KCPA), breach of the implied warranty of fitness, and
strict liability failure to warn. On September 1, 2017, defendant Brannon filed a motion
for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) with respect to the KCPA

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Although the deadline for plaintiff’s reply brief has not yet expired, the Court
concludes that such a brief is not necessary for the resolution of this motion.

claim (Doc. # 49), which motion remains pending. Plaintiff filed the instant motion for
leave to amend at the September 29 deadline for such motions under the scheduling
order. Plaintiff proposes the following amendments: the addition of three defendants;
new informed-consent, RICO, and alter ego claims; and additional allegations in support
of the original claims.
Plaintiff seeks leave pursuant to Fed. R. Civ. P. 15(a), which provides that if leave
of court is required for an amendment (as it is here), “[t]he court should freely give leave
when justice so requires.” See Fed. R. Civ. P. 15(a)(2). A district court may dismiss a
complaint without granting leave to amend when it would be futile to allow the plaintiff
an opportunity to amend his complaint. See Brereton v. Bountiful City Corp., 434 F.3d
1213, 1219 (10th Cir. 2006). Moreover, in determining whether to grant leave to amend,
the court may consider such factors as undue delay on the part of the plaintiff in raising
the claim, see Smith v. Aztec Well Serv. Co., 462 F.3d 1274, 1285 (10th Cir. 2006), bad
faith on the part of the moving party, and any undue prejudice to the opposing party by
virtue of allowance of the amendment, see Minter v. Prime Equipment Co., 451 F.3d
1196, 1204 (10th Cir. 2006). Ultimately, whether to grant leave to amend a complaint
is within the discretion of the district court. See Lind v. Aetna Health, Inc., 466 F.3d
1195, 1199 (10th Cir. 2006).
The four defendants filed a total of three briefs in opposition to the motion to
amend. Defendants have not asserted that leave should be denied because of undue
delay, bad faith, or undue prejudice; rather, defendants rely solely on their arguments
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that the assertion of certain claims would be futile.2 For instance, all three defendants
argue that the proposed RICO claim is subject to dismissal for failure to state a claim.
Defendant Brannon also argues that the fraud claim is futile in light of the proposed
informed-consent claim; defendant has not argued, however, that the proposed informedconsent claim is subject to dismissal, and thus there is no basis to reject that amendment.
Defendant Brannon also argues, as he did in his motion for judgment on the pleadings,
that the KCPA claim is subject to dismissal. Defendant Doctors Hospital, L.L.C. also
argues that various claims against two of the proposed new defendants are futile, but it
has not explained how it has standing to oppose any such amendment on that basis.
Thus, defendants have not argued that the proposed new informed-consent and
alter ego claims would be futile. Nor have defendants opposed the addition of any
particular proposed allegations relating to the original claims. Accordingly, those
proposed amendments are granted as unopposed. In addition, defendants have not
argued that the claims against the new defendants, which arise out of the same
occurrence, should not be joined with the claims against the original defendants, and the
Court therefore grants the motion to amend to add such claims. Those new defendants
may raise any issue concerning the viability of the claims against them in response to the

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The Court rejects the argument by defendant Doctors Hospital, L.L.C. that
plaintiff has provided too many factual allegations in his proposed amended complaint
in violation of Fed. R. Civ. P. 8’s requirement of a “short and plain statement.” The
proposed claims are easily comprehended, and the Court does not find the length and
detail of the allegations to be unreasonable or inappropriate.
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amended complaint after they are served.
Finally, the Court concludes that defendants’ arguments concerning the viability
of the proposed new RICO claim and any new bases for the originally-pleaded KCPA
claim are better addressed in the context of a motion to dismiss the amended complaint.
Such a motion will allow for full briefing of those issues. In that motion, defendants
may incorporate by reference any argument already submitted to the Court.
Accordingly, the Court grants the motion to amend in its entirety.3

IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s motion for
leave to amend (Doc. # 60) is hereby granted, and plaintiff shall file his proposed
amended complaint forthwith.
IT IS FURTHER ORDERED BY THE COURT THAT defendant Brannon’s
motion pursuant to Fed. R. Civ. P. 12(c) is hereby denied as moot.
IT IS SO ORDERED.
Dated this 16th day of November, 2017, in Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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In light of this ruling, the Court denies as moot defendant Brannon’s motion for
judgment on the pleadings with respect to the KCPA claim. Dr. Brannon may reassert
that argument in response to the amended pleading if he so desires.
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