Smith v. TFI Family Services, Inc.

Filing 132

MEMORANDUM AND ORDER granting 116 Plaintiff's Motion for Leave to File a First Amended Complaint. Plaintiff is directed to file the Amended Complaint(ECF No. 116-1) within 7 days from the date of this Order. Signed by Magistrate Judge Gwynne E. Birzer on 4/10/19. (rel)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
M. SMITH, Parent and Natural
Guardian of minor, C.S.,
Plaintiff,

)
)
)
)
vs.
)
)
TFI FAMILY SERVICES, INC.,
)
Defendant. )
_________________________________ )

Case No. 17-02235-JWB-GEB

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Leave to File a First
Amended Complaint (“Motion to Amend”) (ECF No. 116), which seeks to add The Kansas
State Department of Children and Families (DCF), DCF Secretary Laura Howard, and five
individual DCF employees as Defendants (“Proposed Defendants”).1 On behalf of the
Proposed Defendants, DCF and Secretary Howard entered a special limited appearance and
filed an Objection to the Motion to Amend (ECF No. 120). For lack of standing and other
reasons cited in a Memorandum and Order filed today, this Court granted Plaintiff’s
Motion to Strike the Objection (ECF No. 131). As such and because Defendant TFI Family
Services, Inc. (“TFI”) did not respond to the Motion to Amend, the Motion to Amend is
uncontested.2

Accordingly, and for the reasons stated below, the Court GRANTS

Plaintiff’s Motion to Amend.

Plaintiff also seeks to amend the caption of this litigation to reflect Plaintiff’s status as an adult.
See D. Kan. Rule 7.4 (d) (stating that if a responsive brief or memorandum is not timely filed,
the court will consider and decide the motion as uncontested, and will ordinarily “grant the motion
without further notice”).
1
2

1

Legal Standard and Short Discussion
For background information regarding this case, the Court refers readers to the
Memorandum and Order, being filed today, granting Plaintiff’s Motion to Strike (ECF No.
131). As stated therein and above, Plaintiff filed a Motion to Amend on January 4, 2019,
seeking to add the Proposed Defendants and to assert claims against them similar to the
claims already asserted against Defendant TFI.
The standard for permitting a party to amend his or her complaint is well
established. Under Fed. R. Civ. P. 15(a)(2), once a responsive pleading has been filed and
twenty-one days have passed, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.” Rule 15 dictates the court “should freely give
leave when justice so requires.”3 Although the granting of a motion to amend is within a
court’s discretion, the Supreme Court has indicated that Rule 15’s directive to “freely give
leave” is a “mandate . . . to be heeded.”4 “A district court should refuse leave to amend
‘only [upon] a showing of undue delay, undue prejudice to the opposing party, bad faith or
dilatory motive, . . . or futility of amendment.’”5
The Court does not find undue delay, bad faith or dilatory motive as Plaintiff timely
filed the Motion to Amend by the court-imposed January 4, 2019 deadline.6 While this
case has been on file for some time, there has been significant motion practice,7 and

3

Fed. R. Civ. P. 15(a)(2).
Foman v. Davis, 371 U.S. 178, 182 (1962).
5
Wilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010) (quoting Duncan v. Manager, Dep't
of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005)).
6
See ECF No. 110, p. 3.
7
See ECF Nos. 34, 89, 90, and 121.
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voluminous discovery produced thus far, much of which required an in-camera review by
this Court before production to Plaintiff.8 In fact, it was Plaintiff’s need to review this
sizable discovery before deciding whether merit existed to add DCF and its employees that
warranted several extensions of the motion to amend deadline.9 Thus, the Court finds good
reason for any perceived delay.10 Regarding the procedural posture of the case, the Court
notes discovery is progressing, and no trial date has been set. While the addition of new
defendants will inevitably mean adjustments to the schedule, Plaintiff has already procured
much discovery from the current Defendant, TFI, as well as from DCF due to an earlier
subpoena, which should enable the parties to move on from written discovery and begin
the next phases of discovery relatively quickly.
Similarly, this Court finds no undue prejudice to the opposing party, TFI, as it did
not respond to the Motion to Amend. And, regarding futility, the Court notes the Proposed
Defendant’s Objection to the Motion to Amend is premised on such arguments, namely for
lack of subject matter jurisdiction and failure to state a claim pursuant to Fed. R. Civ. P
12(b)(1) and (6). However, for the reasons stated in the Court’s Memorandum and Order
striking the Objection, the Court believes these arguments can be more properly presented

8

See ECF Nos. 49, 80, 103, and 110.
See, e.g., ECF No. 110, p. 3 (extending Plaintiff’s deadline to move for leave to amend based on
timing of the production of documents after an in-camera review).
10
See, e.g., Minter v. Prime Equip. Co., 451 F.3d 1196, 1206-07 (10th Cir. 2006) (“This Circuit,
however, focuses primarily on the reasons for the delay. We have held that denial of leave to
amend is appropriate ‘when the party filing the motion has no adequate explanation for the
delay.’”) (finding good reason where new information was learned in the course of discovery)
(internal citations omitted).
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in a dispositive motion filed after service of the Amended Complaint, i.e., when the
Proposed Defendants become actual parties to the lawsuit.11
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to File First
Amended Complaint (ECF No. 116) is GRANTED. Plaintiff is directed to file the
Amended Complaint (ECF No. 116-1) within 7 days from the date of this Order.

IT IS SO ORDERED.

Dated at Wichita, Kansas this 10th day of April, 2019.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

11

See Abraham v. Hampton Inn Corp., No. 18-2137-DDC, 2018 WL 2926582, at *1-4 (D. Kan.
June 7, 2018) (granting motion to amend despite proposed defendant’s objection to the same and
stating proposed defendants could re-assert their arguments in a properly filed dispositive motion).
4