Asebedo v. Kansas State University

Filing 16

MEMORANDUM AND ORDER granting 12 Plaintiff's Motion to Amend Complaint. Plaintiff shall file and serve his amended complaint by 2/19/2013. Signed by Magistrate Judge Karen M. Humphreys on 2/8/2013. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

EDWIN ASEBEDO,
Plaintiff,
v.
KANSAS STATE UNIVERSITY,
Defendant,

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Case No. 12-1373-EFM

MEMORANDUM AND ORDER

This matter is before the court on plaintiff’s motion for leave to amend his complaint
to add facts and new allegations of retaliation. (Doc. 12). Defendant opposes the motion.
For the reasons set forth below, the motion to amend shall be GRANTED.

Background
Plaintiff, a mail service employee for Kansas State University, alleged in his original
complaint that defendant engaged in race discrimination and illegal retaliation. Defendant
did not file an answer but instead filed a motion to dismiss, arguing that plaintiff failed to (1)
exhaust his administrative remedies and/or (2) allege plausible claims of discrimination and
retaliation. Plaintiff opposed the motion to dismiss and also moved for leave to amend to
correct/supplement some of the alleged deficiencies in his original complaint and to add

allegations concerning a November 20, 2012 EEOC notice of right to sue.

Motion To Amend
The standard for permitting a party to amend his pleading is well established. Without
an opposing party's consent, a party may amend his pleading only by leave of the court. Fed.
R. Civ. P. 15(a).1 Although such leave to amend “shall be freely given when justice so
requires,” whether to grant leave is within the court's discretion. Panis v. Mission Hills
Bank, 60 F.3d 1486, 1494 (10th Cir. 1995)(citing Woolsey v. Marion Labs., Inc., 934 F. 2d
1452, 1462 (10th Cir. 1991)). 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.” Koch v. Koch Industries, 127 F.R.D. 206, 209 (D. Kan. 1989). 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. Hom v. Squire,
81 F.3d 969, 973 (10th Cir. 1996). “Untimeliness alone may be a sufficient basis for denial
of leave to amend.” Las Vegas Ice & Storage Co. v. Far West Bank, 893 F.2d 1182, 1185
(10th Circuit, 1990). “Where the party seeking amendment knows or should have known of
the facts upon which the proposed amendment is based but fails to include them in the
original complaint, the motion to amend is subject to denial.” Id., (quoting State Distributors,
Inc. v. Glenmore Distilleries Co., 738 F.2d 405 (10th Cir. 1984).
1

A party may amend its pleading once as a matter of course before a responsive
pleading is filed. The time for amending “as a matter of course” is long past.
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Defendant does not oppose the motion to amend based on timeliness, prejudice, bad
faith or futility. Rather, defendant argues that its pending motion to dismiss should be
decided before the motion to amend in order to avoid the expenditure of additional time and
expense related to filing a second motion to dismiss.2 This argument is not persuasive
because the court would expend needless resources evaluating plaintiff’s original complaint
at the same time that plaintiff is seeking leave to amend his original complaint. Defendant’s
suggested sequencing of ruling on the pending motions is inefficient and results in a
piecemeal approach to plaintiff’s proposed amended complaint. It is rejected. Under the
circumstances, the motion to amend shall be GRANTED.

IT IS THEREFORE ORDERED that plaintiff’s motion to amend (Doc. 12) is
GRANTED. Plaintiff shall file and serve his amended complaint by February 19, 2013.
The ruling herein is without prejudice to any defenses which defendant may assert in any
future dispositive motion.3

2

Defendant’s concern about the expense of filing a second motion to dismiss rings
hollow because defendant would still have to address the substance of plaintiff’s motion
to amend after any ruling concerning the sufficiency of the allegations in the original
complaint.
3

Defendant’s argument that the ruling on plaintiff’s motion to amend is
“dispositive” and therefore beyond the jurisdiction of the undersigned magistrate judge is
without merit. Judge Melgren will address the motion to dismiss and, as a practical
matter, may conclude that the pending motion to dismiss is moot based upon the amended
complaint. However, in granting plaintiff’s motion to amend, the undersigned judge
expresses no opinion concerning the merits of the parties’ claims or defenses.
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IT IS SO ORDERED.
Dated at Wichita, Kansas this 8th day of February 2013.
S/ Karen M. Humphreys
_______________________
KAREN M. HUMPHREYS
United States Magistrate Judge

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