Asebedo v. Kansas State University

Filing 54

MEMORANDUM AND ORDER denying 48 Plaintiff's Motion for Leave to Amend Complaint. Signed by Magistrate Judge Kenneth G. Gale on 8/25/14. (aw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

EDWIN ASEBEDO,
Plaintiff,
vs.
KANSAS STATE UNIVERSITY,
et al.,
Defendant.

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Case No. 12-1373-EFM-KGG

MEMORANDUM AND ORDER
DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND
Now before the Court is Plaintiff’s “Motion for Leave to Amend,”
requesting permission to file a second Amended Complaint. (Doc. 48.) For the
reasons set forth below, the motion is DENIED.
The background of this case was summarized by Magistrate Judge
Humphreys in her February 8, 2013, Order granting Plaintiff’s first Motion to
Amend. (Doc. 16.) That summary stated:
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.
(Doc. 16, at 1-2.)
Since the granting of that initial motion to amend, an Amended Complaint
was filed (Doc. 17), but the District Court ultimately dismissed Plaintiff’s claims in
their entirety. (Doc. 29.) Upon appeal to the Tenth Circuit, the dismissal of
Plaintiff’s retaliation claim was upheld. The dismissal of Plaintiff’s employment
discrimination claim was, however, reversed with the case remanded back to the
District of Kansas. (Doc. 37.)
A scheduling conference occurred on May 29, 2014, resulting in a revised
Scheduling Order, which was filed on May 30, 2014. (Doc. 43.) That Scheduling
Order specifically stated that “[t]he parties stipulate no motion for leave to join
additional parties or to otherwise amend the pleadings will be filed.” (Id., at 7.)
The Report of Parties’ Planning Meeting, submitted on May 23, 2014, also
specifically stated that “Plaintiff has already once sought and received leave to file
an amended complaint. No motions for leave to join additional parties or
otherwise amend pleadings are needed.” (Doc. 49-1.)
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Plaintiff filed the present motion on July 9, 2014, moving the Court for an
order allowing him to amend his Complaint to include a new claim as well as
allegations contained in an third charge of discrimination he claims to have filed
with the EEOC. (Doc. 48, at 2.) Plaintiff alleges to have received his right to sue
letter from the EEOC on or about June 13, 2014. (Id.). He does not, however,
submit the right to sue letter with his filing or proposed Amended Complaint.
(See Doc. 48.)
Plaintiff has framed his motion as motion to amend the Complaint under
Fed.R.Civ.P. 15(a). Because the initial deadline to amend has expired and the
revised Scheduling Order specifically stated that no additional motions to amend
would be filed, Plaintiff’s motion is actually a motion to modify the Scheduling
Order, which is governed by Fed.R.Civ.P. 16(b)(4).
Rule 16(b)(4) mandates that “[a] schedule may be modified only for good
cause and with the judge’s consent.”
To establish ‘good cause’ the moving party must show
that the scheduling order's deadline could not have been
met with diligence. Parker v. Central Kansas Medical
Center, 178 F.Supp.2d 1205, 1210 (D.Kan.2001);
Denmon v. Runyon, 151 F.R.D. 404, 407 (D.Kan.1993).
‘This rule gives trial courts ‘wide latitude in entering
scheduling orders,’ and modifications to such orders are
reviewed for abuse of discretion.’ In re Daviscourt, 353
B.R. 674, (B.A.P. 10th Cir.2006) (citing Burks v. Okla.
Publ'g Co., 81 F.3d 975, 978-79 (10th Cir.1996)).
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Grieg v. Botros, No. 08-1181-EFM-KGG, 2010 WL 3270102, at *3 (D.Kan. Aug.
12, 2010). It is well-established in this District that motions to modify a
scheduling order focus “on the diligence of the party seeking to modify the
scheduling order.” Id. (citing Leviton Mfg. Co., Inc. v. Nicor, Inc., 245 F.R.D.
524, 528 (D.N.M.2007) (internal citations omitted)).
Plaintiff’s motion makes no effort to establish diligence or the requisite good
cause to allow him to modify the Scheduling Order to amend out of time. There is
no discussion as to why the amendment could not have been made in a timely
manner. Plaintiff’s motion references the EEOC right to sue letter he alleges to
have received on June 13, 2014. The Court surmises, however, that the agency
charge in question had already been filed at the time of the scheduling conference.
Even if it had not yet been filed, Plaintiff does not explain why the facts contained
in the underlying charge of discrimination – and its potential for necessitating an
amendment to his Complaint – would have been unknown to him at the time of the
scheduling conference that occurred a mere two weeks earlier. Plaintiff’s Motion
(Doc. 48) is, therefore, DENIED.

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to

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Amend (Doc. 48) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 25th day of August, 2014.

S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge

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