King et al v. The Rib Crib BBQ, Inc.
ORDER granting 52 Motion to Amend Pretrial Order. See order for details. Signed by Magistrate Judge K. Gary Sebelius on 10/10/2017. (wh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JONATHAN KING and
THE RIB CRIB BBQ, INC.,
Case No. 16-4142-DDC
This matter comes before the court upon defendant’s Motion to Amend Pretrial Order
(ECF No. 52). Defendant seeks to amend Stipulated Fact No. 6. For the following reasons, the
court grants this motion.
On or about August 18, 2017, counsel for defendant drafted the initial Pretrial Order
(“PTO”) and sent it to plaintiff’s counsel. The original version of the PTO contained Stipulated
Fact No. 6, which read “Plaintiff King’s employment was terminated on January 13, 2016 when
he refused to sign a disciplinary notice and walked out on his shift”. On or about August 22,
2017, counsel for plaintiffs sent a revised version of the PTO to counsel for defendant, in which
Stipulated Fact No. 6 read “Plaintiff King’s employment was terminated on January 13, 2016
when he refused to sign a disputed disciplinary notice.” In addition to adding that the
disciplinary notice was disputed, counsel for plaintiffs deleted defendant’s contention that
plaintiff King walked out on his scheduled shift. Counsel for defendant indicates in the instant
motion that he inadvertently accepted the change and the proposed PTO was submitted to the
court on August 23, 2017.
Defendant seeks to amend the PTO because it conflicts with the discovery produced in
the case and the contentions made by the defendant from the outset. Defendant argues that the
stipulation as presently written does not accurately reflect the parties’ contentions. Defendant
requests that Stipulated Fact No. 6 in the PTO be modified so that it reads “Plaintiff King’s
employment was terminated on January 13, 2016” and that the remainder of the sentence be
deleted. Plaintiffs object to any amendment of the PTO. Plaintiffs argue that the stipulation was
previously considered by the parties and defendant should not be allowed to “retreat” from it
because “it has decided that the stipulation maybe less favorable than originally thought.”
The PTO “controls the course of the action unless the court modifies it.”1 A PTO may be
modified “only to prevent manifest injustice.”2 A party seeking to amend the PTO has the burden
to demonstrate that manifest injustice would otherwise occur.3 The court exercises discretion in
deciding whether to modify the pretrial order.4 In so doing, the court considers the following
factors: (1) disruption to the orderly and efficient trial of the case by inclusion of the new issue;
(2) prejudice or surprise to the party opposing trial of the issue; (3) ability of the party to cure
any prejudice; and (4) bad faith by the party seeking to modify the order.5
Fed. R. Civ. P. 16(d)
Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1208 (10th Cir.2002) (quoting Fed.R.Civ.P. 16(e)).
See id. at 1208.
See id.; Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir.2000).
See Koch, 203 F.3d at 1222 (citation omitted).
The court is persuaded that defendant’s motion should be granted and the PTO should be
modified. The court believes that the mistake made by defendant’s counsel should be corrected
to avoid manifest injustice. The stipulation that was included in the PTO did not reflect the
discovery produced in this case or the contentions of the parties. The court does not find that
plaintiffs will be prejudiced by this amendment. Accordingly, Stipulation No. 6 shall be
modified to read as follows: Plaintiff King’s employment was terminated on January 13, 2016.
The court, sua sponte, also intends to modify the PTO in two other ways. First, at the
time of the Pretrial Conference, the court and the parties discussed the possibility of additional
mediation in this case. As a result, the court indicated that the deadline for filing dispositive
motions was set at thirty (30) days after the completion of mediation. However, based upon
recent events, the court believes that additional mediation would not be beneficial. If the parties
later conclude that mediation might be helpful in resolving this action, they can contact the court
and the court will consider the request again at that time. Thus, the deadline for filing dispositive
motions is set at November 3, 2017. Second, the court learned after the entry of the PTO that the
date for trial was incorrect. The PTO is amended to reflect the correct trial date as May 15,
IT IS THEREFORE ORDERED that defendant’s Motion to Amend Pretrial Order
(ECF No. 52) is hereby granted.
IT IS FURTHER ORDERED that an Amended Pretrial Order reflecting the
amendments contained in this order be filed forthwith.
IT IS SO ORDERED.
Dated this 10th day of October, 2017, at Topeka, Kansas.
s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge
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