Somrak v. Kroger Co.
MEMORANDUM AND ORDER granting 20 Motion for Leave to Amend Complaint. Plaintiff must file her First Amended Complaint on or before 4/24/18. Signed by Magistrate Judge Gwynne E. Birzer on 4/10/18. (adc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARY A. SOMRAK,
Case No. 17-2480-CM-GEB
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Amend the Pleadings
(ECF No. 20). For the reasons set forth below, Plaintiff’s motion is GRANTED.
Plaintiff Mary Somrak filed this personal injury action after falling in a Dillons
grocery store in Salina, Kansas in September 2015. As Plaintiff was leaving the selfcheckout to exit the store, she slipped in a puddle of clear liquid, causing her to fall and a
jar she was holding to break. She fell, coming down on the broken glass, producing
significant injuries to her hand.
Plaintiff filed her negligence case against Kroger Co. claiming diversity
jurisdiction, because she is a resident of Kansas and Kroger Co. is an Ohio corporation,
conducting business in Kansas as Dillons Stores. Defendant sought dismissal, arguing
Unless otherwise noted, the information recited in this section is taken from the briefs regarding
Plaintiff’s Motion to Amend (ECF Nos. 20, 21, 28, 29), from Plaintiff’s proposed First Amended
Complaint, ECF No. 21-1), and from the Complaint (ECF No. 1) and Answer (ECF No. 7). This
background information should not be construed as judicial findings or factual determinations.
the proper defendant is Dillon Companies, Inc. (“Dillon”), but if Dillon were to be added
to the case, diversity jurisdiction would no longer exist. (See Motion to Dismiss, ECF
No. 5.) District Judge Carlos Murguia denied the motion to dismiss, finding the federal
court currently has subject matter jurisdiction over the case as pleaded:
The court acknowledges that defendant believes it should be dismissed
because Dillon is the proper party, and should it be joined, the court would
no longer have diversity jurisdiction over the case. Dillon, however, is not
currently a party and the court will not hypothesize as to the status of the
case should Dillon be joined.
(Memorandum and Order, ECF No. 11.)
The case has progressed with scheduling and the parties are apparently engaged in
discovery, which is set to conclude by June 1, 2018. (Scheduling Order, ECF No. 15.)
Plaintiff timely filed her Motion to Amend the Pleadings (ECF No. 20) on the February
28, 2018 deadline established in the Scheduling Order, seeking to add a claim for
punitive damages. Defendant opposes the amendment. All related briefing is complete,
and the issue of amendment is ripe for decision.
Motion to Amend (ECF No. 20)
Legal Standard for Amendment
The standard for permitting a party to amend his or her complaint is well
established. A party may amend its pleading as a matter of course under Fed. R. Civ. P.
15(a)(1), either before the responding party answers or within 21 days after service of a
responsive pleading. However, in cases such as this, where the time to amend as a matter
of course has passed, without the opposing party’s consent a party may amend its
pleading only by leave of the court under Rule 15(a)(2).
Rule 15(a)(2) provides leave “shall be freely given when justice so requires,” and
the decision to allow an amendment is within the sound discretion of the court. 2 The
court considers a number of factors in deciding whether to allow an amendment,
including timeliness, prejudice to the other party, bad faith, and futility of amendment. 3
In exercising its discretion, the court must be “mindful of the spirit of the federal rules of
civil procedure to encourage decisions on the merits rather than on mere technicalities.”4
The Tenth Circuit acknowledged that Rule 15 is intended “to provide litigants ‘the
maximum opportunity for each claim to be decided on its merits rather than on
procedural niceties,’”5 especially in the absence of bad faith by an offending party or
prejudice to a non-moving party.6 With these standards in mind, this Court evaluates
Plaintiff seeks to amend her Complaint to add a claim for punitive damages. Her
amendment includes seven paragraphs, adding facts to support her punitive damages
claim. She contends Defendant knew the water was leading out the door and knew the
See J. Vangel Elec., Inc. v. Sugar Creek Packing Co., No. 11–2112–EFM, 2012 WL 5995283,
at *2 (D. Kan. Nov. 30, 2012) (citing Panis v. Mission Hills Bank, 60 F.3d 1486, 1494 (10th Cir.
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)); see also Monge v. St. Francis Health Ctr., Inc., No. 12–2269–EFMJPO, 2013 WL 328957, at *2 (D. Kan. Jan. 10, 2013), report and recommendation adopted,
2013 WL 328986 (D. Kan. Jan. 29, 2013).
Hinkle v. Mid-Continent Cas. Co., No. 11–2652–JTM-KMH, 2012 WL 2581000, at *1 (D.
Kan. July 3, 2012) (citing Koch v. Koch Indus., 127 F.R.D. 206, 209 (D. Kan. 1989)).
Carefusion 213, LLC v. Professional Disposables, Inc., No. 09–2616–KHV–DJW, 2010 WL
4004874, at *4 (D. Kan. Oct. 12, 2010) (citing Minter, 451 F.3d at 1204) (quoting Hardin v.
Manitowoc–Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)).
See AK Steel Corp. v. PAC Operating Ltd. P'ship, No. 15-9260-CM-GEB, 2016 WL 6163832,
at *4 (D. Kan. Oct. 24, 2016) (collecting cases; internal citations omitted).
water hazard was created by another customer. (Proposed Amended Complaint, ECF No.
21-1 at ¶¶ 16, 17.) Plaintiff claims Defendant produced video from 9:45 a.m. to 11:45
a.m. and of the accident itself, which happened at 12:45 p.m.—including the presence of
Defendant’s employee, Brenda Willey, in the self-check area. But Defendant has no
video from 11:45 to 12:45, which should show the creation of the water hazard. (Id. at
¶¶18, 21.) Plaintiff alleges the store documents show Ms. Willey was the last person to
inspect the area at 11:00 a.m., prior to the accident at 12:45 p.m., but there was no record
of inspection at noon. (Id. at ¶ 20.) Plaintiff asserts these facts support her theory that
Defendant, and/or its employee, Ms. Willey, had prior knowledge of the water spill and,
although Ms. Willey was present in the checkout area, Defendant failed to either clean up
the water, or warn Plaintiff of the danger prior to her fall. (Id. at ¶ 22.)
Plaintiff contends she came to recognize the potential prior knowledge of the spill
Supplemental Floor Inspection and claim logs which note the water hazard was created
by another customer. (ECF No. 21, Ex. A.) She believes the information indicates
Defendant knew about the water on the floor, but allowed it to remain there. Although
Defendant’s employee, Ms. Willey, was assigned to the self-checkout area prior to the
accident, no one warned Plaintiff of the water hazard. Plaintiff contends this constitutes
willful and wanton action by Defendant, sufficient to support a claim for punitive
damages, and she should be permitted the opportunity to prove her theory. (ECF No. 21
Defendant argues Plaintiff misconstrues the information on the claim logs, and the
summary included on the logs does not constitute any admission by Dillon employees of
knowledge of the water on the floor before Plaintiff’s fall. Defendant claims it has
provided all video maintained from the date of the accident, but in the event additional
video is recovered, Defendant will supplement its production. (ECF No. 29.) Although
Ms. Willey has apparently not yet been deposed, Defendant claims it anticipates “Ms.
Willey will testify that she routinely checks the area for any potential hazards and takes
appropriate steps to remedy and/or warn customers if she detects their presence and those
inspections are not recorded. Further, it is anticipated that Ms. Willey was unaware of
any hazards on the floor.” (ECF No. 29 at 2.)
Of the factors analyzed by the Court when considering amendment, Defendant
opposes Plaintiff’s amendment solely based on the alleged futility of Plaintiff’s proposed
punitive damages claim. Each factor to be weighed when considering amendment is
addressed in turn.
As the party opposing amendment, Defendant bears the burden of establishing its
futility.7 “A proposed amendment is futile if the complaint, as amended, would be
subject to dismissal.”8 The proposed pleading is then analyzed using the same standard
Neonatal Prod. Grp., Inc. v. Shields, No. 13-2601-DDC-KGS, 2015 WL 1957782, at *2 (citing
Boykin v. CFS Enter., Inc., No. 08–2249–CM–GLR, 2008 WL 4534400, at *1 (D. Kan. Oct. 6,
Farmers Bank & Trust, N.A. v. Witthuhn, No. 11-2011-JAR, 2011 WL 5920941, at *2 (D. Kan.
Nov. 28, 2011) (citing Jefferson Cnty. Sch. Dist. No. R–1 v. Moody's Investors's Servs., Inc., 175
as a motion to dismiss under Fed. R. Civ. P. 12(b)(6). When utilizing this standard, “the
court must accept as true all well-pleaded factual allegations and view them in the light
most favorable to the pleading party.”9 Only if the court finds “the proposed claims do
not contain enough facts to state a claim for relief that are plausible on their face or the
claims otherwise fail as a matter of law”10 should the court find the amendment futile.
Because this is a diversity action, under the Erie doctrine, this federal Court must
apply the substantive law of the forum state, but its own federal procedural law.11
Defendant cites to Kansas law in its responsive briefing, and Plaintiff filed no reply
arguing otherwise; so, the Court presumes Kansas law is applicable to its review of the
punitive damages claim.
Defendant argues the Court must consider Kansas Statutes Annotated § 60-3701 to
determine whether Plaintiff’s punitive damages claim is futile. This statute provides, “in
the initial phase of trial,”12 a plaintiff is required to establish by “clear and convincing
evidence” that the defendant’s actions were willful, wanton, fraudulent or with malice.13
Additionally, in this case, Plaintiff must also show the conduct of Defendant’s employee
F.3d 848, 859 (10th Cir. 1999)); see also Neonatal Prod. Grp., 2015 WL 1957782, at *2
(internal citations omitted).
Carefusion 213, 2010 WL 4004874, at *5 (citing Anderson v. Suiters, 499 F.3d 1228, 1238
(10th Cir. 2007) (internal citations omitted)).
Id. (citing Raytheon Aircraft Co. v. U.S., 501 F. Supp. 2d 1323, 1327 (D. Kan. 2007); see also
Burnett v. Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
Rezac Livestock Comm'n Co., Inc. v. Pinnacle Bank, No. 15-4958-DDC-KGS, 2017 WL
2442851, at *3 (D. Kan. June 6, 2017) (citing Pepsi–Cola Bottling Co. of Pittsburg, Inc. v.
PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005) (internal quotation and citations omitted)).
K.S.A. § 60-3701(c); see also § 60-3702(c).
K.S.A. § 60-3701(d)(1).
was “authorized or ratified by a person expressly empowered to do so” by Dillon.14
Defendant reasons, given the “clear and convincing” standard of proof required at trial
and the insufficiency of the allegations in the proposed amendment, the amendment
should be denied. (ECF No. 29 at 3.) Plaintiff failed to respond to these arguments by
Defendant, so the Court is left to consider the authorities supplied by Defendant and
gleaned through its own research.
The initial question for this Court is whether the standard for amendment to
include punitive damages, or the inclusion of a punitive damages claim at initial pleading,
is considered a substitutive issue, to be determined by Kansas law, or a procedural one, to
be determined by federal rules. Defendant relies on a 2007 opinion from this District in
Emmons v. Cessna Aircraft Co.15 to reason that Plaintiff’s proposed punitive damages
claim must meet the standard of proof under Kansas law to be permitted. Defendant
argues Plaintiff’s proposed allegations are not supported by current evidence, and
contends the amendment is futile, “given the standard of proof required at trial to
successfully establish a basis for punitive damages and the insufficiency of the
allegations in the proposed amended Complaint.” (ECF No. 29 at 2, emphasis added.)
Def.’s Mem., ECF No. 29, at 2 (citing K.S.A. §§ 3701 (c), (d)(1)).
See In Re Cessna 208 Series Aircraft Prod. Liab. Litig., No. 05-MD-1721-KHV-DJW, 2007
WL 2172764, at *1, *8 (D. Kan. July 25, 2007) (reconsidering the April 3, 2007 Order Granting
Plaintiffs' Motions to Amend to Add Claims for Punitive Damages; vacating the earlier order
after applying Idaho law to find Plaintiffs “failed to establish ‘a reasonable likelihood of proving
facts at trial sufficient to support an award of punitive damages’ as required by Idaho Code § 6–
Defendant also cites a 1995 Kansas Supreme Court case, Fusaro v. First Family
Mortgage Corp.,16 addressing K.S.A. § 60-3703.
Relying on Fusaro, Defendant
maintains Kansas law requires Plaintiff to establish a probability she will prevail on her
punitive damages claim at trial before the Court should permit her amendment to include
a punitive damages claim. (ECF No. 29 at 3, emphasis added.)17
However, this Court finds Defendant’s reliance on both Emmons and Fusaro
misplaced. More recently than Emmons, a 2015 opinion from this District in Walker v.
Axalta Coating Sys., LLC,18 analyzed the applicable standards applied to a proposed
amendment to add punitive damages. In Walker, the court discussed both the Kansas
statutes and Fusaro:
The parties agree that Kansas substantive law applies to this case. However,
the pleading standard discussed by [the defendant opposing amendment]
and outlined in Fusaro v. First Family Mtg. Corp. . . . relates to the
procedure in Kansas state courts for including a claim for punitive
damages. Pursuant to K.S.A. § 60–3703, a claim for punitive damages is
prohibited from being pled in the initial state-court petition and may only
be allowed by ruling of the court, upon a proper motion, that “there is a
probability that the plaintiff will prevail on the claim . . .” This statute does
not apply in federal court, as a claim for punitive damages may be included
in a plaintiff's initial pleading.19
An earlier opinion from this district, Ayres v. AG Processing Inc., also notes the
Fusaro v. First Family Mortgage Corp., 257 Kan. 794 (1995).
Def.’s Mem., ECF No. 29 (citing Fusaro, 257 Kan. at 801; also citing K.S.A. § 60-3703).
Walker v. Axalta Coating Sys., LLC, No. 14-2105-JAR, 2015 WL 685834, at *2 (D. Kan. Feb.
Id. at *2 n. 10 (emphasis in original) (citing Lawrence v. Gaarder, No. 13–2102, 2014 WL
5341917, at *1 n. 1 (D. Kan. Oct. 21, 2014; Vance ex rel. Wood v. Midwest Coast Transp., Inc.,
314 F. Supp. 2d 1089, 1090 (D. Kan. 2004) (internal quotes and citations omitted).
K.S.A. 60–3702(c) states that where punitive damages are claimed the
plaintiff has the “burden of proving, by clear and convincing evidence in
the initial phase of the trial, that the defendant acted with willful or wanton
conduct, fraud or malice.” This language merely establishes a burden of
proof for punitive damages in the initial phase of the trial. It does not place
restrictions on whether a party may make a claim for punitive damages.20
In Ayres, the court found the proposed claim for punitive damages “would overcome a
Rule 12(b)(6) motion because Plaintiffs would be entitled to punitive damages if they
[later] proved willful or wanton conduct.”21 And, importantly, “if findings of fact are
required, the claim cannot be dismissed under Rule 12(b)(6) and is not futile.”22
Concluding federal procedural law controls, the Court finds Plaintiff is not
required to meet the “clear and convincing” standard for punitive damages, nor submit
concrete evidence to support her claim, at this phase of the case. Rather, she must simply
state enough facts to make her punitive damages claim plausible on its face. Although
the Court understands Defendant’s concern about the sparsity of Plaintiff’s allegations, at
this stage, the Court must construe the facts in the light most favorable to Plaintiff.23
When doing so, the information shows Ms. Willey did not log a floor inspection for
nearly two hours prior to the accident. Also, Defendant has been unable to produce a
Ayres v. AG Processing Inc., No. 04-2060-DJW, 2005 WL 1799261, at *3 (D. Kan. July 22,
2005) (citing K.S.A. § 60–3702(c)) (some emphasis in original; some emphasis added).
Id. at *3.
Id. at *4.
Carefusion 213, 2010 WL 4004874, at *5 (citing Anderson v. Suiters, 499 F.3d 1228, 1238
(10th Cir. 2007) (internal citations omitted)).
video showing the creation of the hazard, and the parties disagree regarding how much of
the accident is reflected on video produced to date.24
Although nothing more than Plaintiff’s allegations indicate Defendant or its
employee knew of the hazard prior to Plaintiff’s accident—allegations are all that is
required. Defendant admits Ms. Willey’s testimony is currently unknown, so the Court
presumes she has yet to be deposed. (ECF No. 29, at 2.) Defendant acknowledges the
proposed amendment contains allegations, but argues the allegations are unsupported by
evidence. (Id. at 3.) So, Defendant essentially asks the Court to make a factual finding
that the documentary evidence, as interpreted by Plaintiff, does not mean what Plaintiff
suggests it means. But if the Court is required to make such a factual finding, dismissal
under Fed. R. Civ. P. 12(b)(6), and a finding of futility under Rule 15, is inappropriate.25
Construing the facts contained in her proposed amendment in the light most
favorable to Plaintiff, and knowing the parties will clarify the evidence through
discovery, the Court can neither find her punitive damage claim is clearly frivolous, nor
that it would otherwise fail as a matter of law. Exercising its discretion, and recognizing
Defendant will have an opportunity to challenge the sufficiency of the new claims
through a later dispositive motion,26 the Court will not deny Plaintiff’s proposed
Plaintiff says video exists showing both Plaintiff and Ms. Willey at the time of the accident
(ECF No. 21 at 2 ¶ 8), while Defendant says, “It appears that the time of the accident was not
captured” and it will supplement with any additional video discovered (ECF No. 29 at 1).
Ayres, 2005 WL 1799261, at *4.
See, e.g., Carefusion 213, 2010 WL 4004874, at *6 (finding “Defendants' arguments are better
suited for resolution on a motion for summary judgment”); see also Quality Time, Inc. v. W.
Bend Mut. Ins. Co., 12-1008-JTM-GLR, 2012 WL 2872226, at *2 (D. Kan. July 12, 2012)
(citing Tommey v. Computer Sciences Corp., No. 11–2214–EFM, 2012 WL 646022, at *2 (D.
Kan. Feb. 28, 2012). See also Hollis v. Acoustic Sounds, Inc., No. 13-1083-JWL, 2013 WL
amendment on the basis of futility. Permitting the filing of the proposed amendment
“comports with the liberal amendment policy of Fed. R. Civ. P. 15(a)”27 where Defendant
may later challenge the claim,28 and particularly in light of the lack of prejudice to
Defendant discussed below.
Although the parties confront only the issue of futility in their briefs, the other
factors weighed by the Court, such as prejudice to the non-moving party and timeliness
of amendment, were not addressed. Despite the parties’ lack of attention, the Court
briefly considers each topic.
Most importantly, Defendant fails to present any argument regarding the prejudice
it might face if the amendment were permitted. As the party opposing the amendment,
Defendant bears the burden to demonstrate undue prejudice within the meaning of Rule
15.29 Under Rule 15, “undue prejudice” means “undue difficulty in prosecuting or
defending a lawsuit as a result of a change of tactics or theories on the part of the
4768076, at *2 (D. Kan. Sept. 4, 2013) (permitting amendment to add a prayer for punitive
damages, and noting, “To be clear, the undersigned is not ruling that these amendments will
survive a later challenge under Rule 12(b)(6) or Rule 56. Rather, the undersigned is allowing the
amendment. A comprehensive legal analysis and decision is deferred until a subsequent
Quality Time, Inc., 2012 WL 2872226, at *2.
See, e.g., Walker, 2015 WL 685834, at *3 (finding the issue of punitive damages more
appropriately addressed at a later stage in the case by the presiding U.S. District Judge).
Carefusion 213, 2010 WL 4004874, at *4 (internal citations omitted).
movant.”30 While any amendment invariably causes some “practical prejudice,” undue
prejudice means that the amendment “would work an injustice to the defendant.”31
Given Defendant’s complete disregard of this “most important factor,”32 the Court
finds Defendant wholly failed to demonstrate prejudice sufficient to prohibit the proposed
amendment. And, considering the current procedural posture of the litigation, the Court
struggles to discern any true injustice which might occur from amendment. The facts
supporting the new claims arise from the same occurrences as Plaintiff’s original claim,
and much of the discovery will overlap with that sought on the original claim.
Apparently, Ms. Willey—a key witness—has not yet been deposed.
ongoing, and will not end for nearly two months. Therefore, the parties will have
adequate time to conduct any additional discovery and Defendant will have sufficient
opportunity to fully defend the new claim.
Additionally, the Court does not find the timeliness of the amendment to be
problematic. The Scheduling Order is young, and Plaintiff sought amendment within the
initial deadline established.
Defendant makes no argument suggesting delay on
Plaintiff’s part. As noted in the paragraph above, the current procedural posture of the
case weighs in Plaintiff’s favor.
Id. (citing U.S. v. Sturdevant, No. 07–2233–KHV–DJW, 2008 WL 4198598, at *3 (D. Kan.
Sept. 11, 2008) (citing Minter, 451 F.3d at 1208; Jones v. Wildgen, 349 F. Supp. 2d 1358, 1361
(D. Kan. 2004))).
Id. (citing Sturdevant, 2008 WL 4198598, at *3; other internal citations omitted).
Minter, 451 F.3d at 1207 (noting, “The second, and most important, factor in deciding a
motion to amend the pleadings, is whether the amendment would prejudice the nonmoving
Plaintiff’s request to amend its Complaint is timely. Additionally, Defendants
failed to demonstrate any amount of prejudice that may occur as a result of the
amendment. Therefore, finding Plaintiff’s proposed amendment not clearly futile, and
would cause no undue prejudice, the Court prefers this case to proceed on its full
merits.33 In the interests of justice, the Court will allow Plaintiff to amend her Complaint.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to Amend the
Pleadings (ECF. 20) is GRANTED as set forth above. Plaintiff shall file her First
Amended Complaint on or before April 24, 2018. Plaintiff is strongly cautioned future
amendments, although not outright prohibited, will be met with considerable scrutiny34
given the previous opportunities to articulate her claims.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 10th day of April, 2018.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
See Hinkle, 2012 WL 2581000, at *1 (citing Koch, 127 F.R.D. at 209).
See Frank v. U.S. W., Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citing Castleglen, Inc. v.
Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir.1993); Foman, 371 U.S. at 182) (noting
“failure to cure deficiencies by amendments previously allowed” is one reason the court may use
to deny leave to amend).
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