King et al v. The Rib Crib BBQ, Inc.

Filing 50

ORDER denying 48 Motion to Amend Complaint. Signed by Magistrate Judge K. Gary Sebelius on 9/11/2017.(wh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JONATHAN KING and
TYRECE EDWARDS,
Plaintiffs,
v.
THE RIB CRIB BBQ, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 16-4142-DDC

ORDER
This matter comes before the court upon plaintiffs’ Motion to Amend (ECF No. 48).
Plaintiffs seek to amend their complaint to include a claim under 42 U.S.C. § 1981. For the
following reasons, plaintiffs’ motion is denied.
I.
On August 26, 2016, plaintiffs filed this action. In their complaint, plaintiffs alleged
claims of discrimination based on race, and retaliation, pursuant to Title VII of the Civil Rights
Act.

During the Scheduling Conference held on December 14, 2016, the court did not establish

a deadline for motions to amend because the parties advised the court that they did not anticipate
filing such motions. The deadline for the completion of discovery was August 1, 2017. During
the Pretrial Conference on August 30, 2017, plaintiffs’ counsel indicated that he wanted to
amend the complaint to add a claim under 42 U.S.C. § 1981. The court allowed plaintiff seven
days to file his motion. The motion has since been filed and defendant has responded.
In their motion, plaintiffs contend that the amendment should be allowed because
defendant will suffer no prejudice. Defendant argues in response that plaintiffs’ motion should
be denied due to the delay in raising this claim. Defendant notes that plaintiffs have failed to

indicate why they seek to add additional claims under § 1981 and why they did not seek to
include these claims at an earlier time in these proceedings. Defendant further contends that it
will suffer some prejudice because it has evaluated plaintiffs’ claims based solely on their
alleged violations of Title VII.
II.
The court should grant motions to amend under Fed.R.Civ.P. 15(a)(2) when justice so
requires, and this decision is within the sound discretion of the court.1 The Supreme Court has
further elucidated the appropriate circumstances for granting leave to amend.
If the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on the
merits. In the absence of any apparent or declared reason—such as 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.—the
leave sought should, as the rules require, be ‘freely given.’2
The Tenth Circuit has held that “untimeliness alone is a sufficient reason to deny leave to
amend.”3 This is especially the case where the party seeking amendment gives “no adequate
explanation for the delay” or where the party “knows or should have known of the facts upon
which the proposed amendment is based but fails to include them in the original complaint.”4
III.
The court is persuaded that plaintiffs’ motion is untimely and should not be allowed.
Plaintiffs have failed to provide any explanation for the delay. Moreover, plaintiffs could have

1

Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 (10th Cir. 2006).

2

Foman v. Davis, 371 U.S. 178, 182 (1962).

3

Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).

4

State Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984).

2

asserted these claims at any time, including in the original complaint.

Under these

circumstances, plaintiffs’ motion to amend is denied as untimely.
Accordingly,
IT IS THEREFORE ORDERED that plaintiffs’ Motion to Amend (ECF No. 48) is
denied.
IT IS SO ORDERED.
Dated this 11th day of September, 2017, at Topeka, Kansas.

s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge

3