Critchlow v. Barcas Field Services, LLC et al

Filing 82

MEMORANDUM AND ORDER granting 59 Plaintiff's Motion for Leave to File First Amended Complaint. Plaintiff shall file his amended complaint on or before August 1, 2014. See Memorandum and Order for further details. Signed by Magistrate Judge Karen M. Humphreys on 7/22/14. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

HORRAL CRITCHLOW,
Plaintiff,
v.
BARCAS FIELD SERVICES, LLC, et al.,
Defendants.

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Case No. 13-1404-JAR

MEMORANDUM AND ORDER
This matter is before the court on plaintiff’s motion for leave to file his first
amended complaint (Doc. 59).

For the reasons set forth below, plaintiff’s motion is

GRANTED.

Background
Highly summarized, plaintiff filed this action in the Sedgwick County District
Court against his former employer alleging breach of contract and violations of the
Kansas Wage Payment Act.1 The case was removed to this court on October 25, 2013.
In January 2014, plaintiff served defendants with discovery requests and the resulting
dispute led to plaintiff’s April 14, 2014 motion to compel (Doc. 48).

In May 2014

defendants produced hundreds of pages of previously-withheld documents. Plaintiff now
moves to amend his complaint to join an additional defendant—Barcas, LLC
1

The details of the plaintiff’s claims have been described in earlier opinions and will not be
repeated. See Mem. and Orders, Docs. 50, 60.

(“Barcas”)—and to add claims against defendant Kevin Foxx for breach of fiduciary duty
and punitive damages. Plaintiff also seeks to pierce the corporate veil between Barcas
Field Services, LLC (“BFS”), Foxx, and Barcas and impose a constructive trust against
assets held by defendants.

Standard
The standard for permitting a party to amend his or her complaint is well
established. Without an opposing party’s consent, a party may amend his pleading only
by leave of the court.2 Although Fed. R. Civ. P. 15(a)(2) provides that leave “shall be
freely given when justice so requires,” the decision to allow an amendment is within the
sound discretion of the court.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 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.5 The factors addressed by the parties are discussed
below.

2

Fed. R. Civ. P. 15(a). 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.
3
See J. Vangel Elec., Inc. v. Sugar Creek Packing Co., 2012 WL 5995283, at *2 (D. Kan. Nov.
30, 2012) (citing Panis v. Mission Hills Bank, 60 F.3d 1486, 1494 (10th Cir. 1995)).
4
Hinkle v. Mid-Continent Cas. Co., 2012 WL 2581000, at *1 (D. Kan. July 3, 2012) (citing
Koch v. Koch Indus., 127 F.R.D. 206, 209 (D. Kan. 1989)).
5
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., 2013 WL 328957, at
*2 (D. Kan. Jan. 10, 2013) report and recommendation adopted, 2013 WL 328986 (D. Kan. Jan.
29, 2013).
2

Discussion
A. Timeliness
The deadline to file any motions to amend the pleadings was June 2, 2014 6 and
plaintiff filed his motion on that date. Therefore, plaintiff’s motion is timely on its face.
Plaintiff further asserts that the amendments are a direct result of the newly-discovered
information found in defendants’ May 2014 disclosures. In response defendants suggest
that because plaintiff should have known that defendants would not readily share
financial information, he should have made his claims for breach of fiduciary duty,
punitive damages and constructive trust at the time of his original petition. The court is
not persuaded by defendants’ argument that plaintiff should have assumed improper
behavior on the part of defendants.
Defendants maintain that plaintiff’s motion is untimely simply because eight
months have passed since the filing of the original petition. However, the cases cited by
defendants are distinguishable because the requests for amendment in those cases
occurred either after previous amendments or in conjunction with other procedural
issues.7 Here, plaintiff requests amendment within the deadline set by the court and the
court finds his request to be timely.

6

Order Granting Plaintiff’s Second Unopposed Motion to Modify Scheduling Order, Doc. 43.
See, e.g., United States v. Burbage, 280 F. Appx. 777, 783 (10th Cir. 2008) (denying plaintiff’s
motion to amend in the § 2255 action when the motion was filed nearly a month after the
magistrate judge issued his findings and recommendations); Platte Valley Wyo-Braska Beet
Growers Ass’n v. Imperial Sugar Co., 100 F. Appx. 717, 720 (10th Cir. 2004) (denying the oral
motion as untimely only two and a half months after the original complaint, but in part because
of the court’s policy against addressing Rule 15 motions during motion to dismiss hearings).

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B. Futility
Defendants contend that the amendment is futile as to proposed defendant Barcas.
Specifically, defendants argue at length that the court lacks personal jurisdiction over
Barcas. Unfortunately defendants’ attempt to argue the merits of the case in the context
of plaintiff’s motion to amend raises practical issues. In this district, dispositive motions
are addressed by the trial judge and non-dispositive motions (including motions to
amend) are addressed by the assigned magistrate judge. For this reason, this court will
refrain from addressing the dispositive issues in the context of this motion. This does not
preclude defendants from filing a motion to dismiss which would be addressed by the
district judge.8

C. Prejudice
“Absent flagrant abuse, bad faith, futility of amendment, or truly inordinate and
unexplained delay, prejudice to the opposing party is the key factor in deciding a motion
to amend.”9 Although defendants note that courts most often find prejudice when the
“amended claims arise out of a subject matter different from what was set forth in the
complaint,”10 they concede that plaintiff’s amended claims are “based on the same course
of conduct” as the claims included in the original petition.11 Plaintiff maintains that the
amendment would not prejudice defendants because discovery is ongoing, no depositions
8

Defendants are cautioned to carefully review the case law cited in plaintiff’s reply brief prior to
filing any such motion. See Pl.’s Reply, Doc. 78 at 9 (citing B-S Steel of Kan., Inc. v. Tex.
Indus., Inc., 229 F. Supp. 2d 1209, 1219 (D. Kan. 2002) (Robinson, J.)).
9
Rubio v. Turner Unified Sch. Dist. No. 202, 453 F. Supp. 2d 1295, 1307 (D. Kan. 2006).
10
Minter v. Prime Equip. Co., 451 F.3d 1196, 1208 (10th Cir. 2006) (internal citations omitted).
11
Defs.’ Resp., Doc. 69 at 7.
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have been taken, and trial is not scheduled until June 2015.12 Based on the underlying
conduct, the apparent relationship between defendants and proposed defendant Barcas,
and the timing of the amendment, the court agrees with plaintiff and finds no prejudice to
defendants by allowing the amendment.

IT IS THEREFORE ORDERED that plaintiff’s motion for leave to amend his
complaint (Doc. 59) is GRANTED. Plaintiff shall file his amended complaint on or
before August 1, 2014.

IT IS SO ORDERED.
Dated at Wichita, Kansas this 22nd day of July 2014.

_s/ Karen M. Humphreys______
KAREN M. HUMPHREYS
United States Magistrate Judge

12

The court encourages the parties to make every attempt to adhere to the most recent
Scheduling Order (Doc. 80) which establishes a discovery deadline of September 26, 2014, in
light of the previous four modifications to the schedule.
5