Mann Law Offices, L.L.C. v. Gibson & Sharps, P.S.C.
Filing
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MEMORANDUM AND ORDER granting in part and denying in part 18 Motion to Amend Complaint. Plaintiff is granted leave to amend the complaint to add a new party defendant, but denied leave to add a new claim against the original defendant. Signed by Magistrate Judge Teresa J. James on 12/22/2014. (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MANN LAW OFFICES, L.L.C.,
Plaintiff,
v.
GIBSON & SHARPS, P.S.C.,
Defendant.
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Case No. 14-CV-1109-JWL-TJJ
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Leave to Amend the Complaint
and Add an Additional Party/Defendant (ECF No. 18). Plaintiff seeks leave to amend its petition
to add a negligent warranty claim against Defendant Gibson & Sharps, P.S.C. (Count III), and to
name a new party Defendant, Accident Fund National Insurance Company. Upon consideration
of the matter, the Court grants the motion in part and denies the motion in part.
I.
Factual Background
In this removal action, Plaintiff’s original petition asserts a claim for breach of contract
against Gibson & Sharps, P.S.C. The lawsuit arises out of a contingency fee contract between
the parties, both law firms, under which Plaintiff agreed to collect a workers compensation lien
for Defendant’s client, Accident Fund National Insurance.1 Plaintiff collected the lien but
alleges that it has never been paid the contingency fee.
1
Plaintiff Mann Law Offices, L.L.C. is represented in this action by Scott J. Mann, who also
performed the legal work that forms the basis of Plaintiff’s claim.
On June 9, 2014, the parties filed a Joint Motion to Amend Order Setting Scheduling
Conference.2 They requested that the Court postpone the Scheduling Conference to allow
Plaintiff an opportunity to seek to add Accident Fund Insurance Company as a party defendant.
Plaintiff represented that it intended to file that motion within a week. The Court granted the
joint motion and directed Plaintiff to file its motion to join an additional party defendant no later
than June 25, 2014.3 Plaintiff did not do so.
The Court re-set the Scheduling Conference for September 23, 2014, and once again
directed Plaintiff to file any proposed motion to joint an additional party defendant before the
Scheduling Conference.4 Plaintiff did not do so. During the September 23 Scheduling
Conference, the Court indicated that Plaintiff would have yet another opportunity to file a motion
to join an additional party defendant. Using the dates Defendant’s counsel proposed in the
Report of Parties’ Planning Conference – which he prepared with no input from Plaintiff’s
counsel in spite of his efforts to confer and hold a planning conference – the Court entered a
Scheduling Order which set (1) an October 15, 2014 deadline for motions to amend/add parties,
and (2) a September 30, 2014 deadline for any motions to dismiss asserting lack of personal
jurisdiction, improper venue, insufficient process or service of process, failure to state a claim upon
which relief can be granted, or the propriety of the parties.5 Based on Scott Mann’s statement
during the Scheduling Conference that he anticipated needing counsel because he would likely
2
ECF No. 7.
3
ECF No. 8.
4
ECF No. 9.
5
ECF No. 13.
2
be a witness in the case, the Court also directed that Plaintiff’s retained counsel file an entry of
appearance by September 30, 2014. No entry of appearance was forthcoming.
On September 30, 2014, Defendant filed its motion for judgment on the pleadings,
seeking judgment on a substantive matter of law.6 On October 13, 2014, Plaintiff filed the
instant motion.7 In its motion, Plaintiff seeks leave to amend its complaint to add a new party
defendant and to add a new claim against the original Defendant, Gibson & Sharps.
II.
Plaintiff’s Proposed New Claim Against Original Defendant
Plaintiff requests leave to amend its petition to assert a negligent representation claim
against Gibson & Sharps. Plaintiff alleges that Gibson & Sharps acted outside the scope of its
authority as agent for the Accident Fund. Gibson & Sharps opposes Plaintiff’s motion, arguing
that Plaintiff’s proposed amendment is futile because Plaintiff has failed to plead sufficient facts
in its proposed amended complaint to establish or otherwise suggest that Gibson & Sharps acted
outside the scope of its authority.
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial.
It provides that the parties may amend a pleading “once as a matter of course” before trial if they
do so within (A) 21 days after serving the pleading, or (B) “if the pleading is one to which a
responsive pleading is required,” 21 days after service of the responsive pleading or a motion
under Fed. R. Civ. P. 12(b), (e), or (f), whichever is earlier.8 Other amendments are allowed
“only with the opposing party’s written consent or the court’s leave.”9 Rule 15(a)(2) also
6
ECF No. 14.
7
ECF No. 18.
8
Fed. R. Civ. P. 15(a)(1).
9
Fed. R. Civ. P. 15(a)(2).
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instructs that the court “should freely give leave when justice so requires.”10 The court’s
decision to grant leave to amend a complaint, after the permissive period, is within the trial
court’s discretion and will not be disturbed absent an abuse of that discretion.11 The court may
deny leave to amend upon a showing of “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.”12
If a proposed amendment would not withstand a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6), or fails to state a claim upon which relief may be granted, the court may deny
leave to amend.13 “[T]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”14 A complaint or
amendment thereof need only make a statement of the claim and provide some factual support to
withstand dismissal.15 It does not matter how likely or unlikely the party is to actually receive
10
Id.; accord Foman v. Davis, 371 U.S. 178, 182 (1962).
11
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006).
12
Id. (quoting Foman, 371 U.S. at 182).
13
Mochama v. Butler Cnty., KS, No. 14-2121-KHV-TJJ, 2014 WL 3767685, at *1 (D. Kan. July
31, 2014) (citing Fulton v. Advantage Sales & Mktg., LLC, No.3:11-CV-01050-MO, 2012 WL 5182805,
at *2 (D. Or. Oct. 18, 2012)).
14
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544
at 570 (2007)).
15
Twombly, 550 U.S. at 555.
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such relief, because for the purposes of dismissal all allegations are considered to be true.16 The
party opposing the amendment has the burden of showing the proposed amendment is futile.17
Reviewing Plaintiff’s proposed First Amended Complaint under these standards, the
Court finds that the proposed amendment is futile. Although Gibson & Sharps urges the Court to
declare futility as to the original breach of contract count, the undersigned Magistrate Judge
leaves to the presiding district judge whether judgment should be entered on the breach of
contract claim.18 As to the newly proposed count, however, in which Plaintiff alleges that
Gibson & Sharps (1) acted outside the scope of its authority as agent for the Accident Fund, and
(2) failed to exercise reasonable care or competence and was negligent in providing misleading
and false representations regarding the scope of its authority to bargain for and enter into a
contract with Plaintiff,19 Plaintiff provides no factual support for its allegations. Plaintiff does
not state what the scope of authority was, how Gibson & Sharps allegedly acted outside of its
authority, or how it provided misleading and false representations with respect to its authority.
Plaintiff provides nothing more than conclusory allegations that would not withstand a motion to
dismiss. Accordingly, the Court will deny Plaintiff’s motion insofar as it seeks to amend its
petition to add a second claim against Defendant Gibson & Sharps.
16
Id. at 556.
17
Layne Christensen Co. v. Bro-Tech Corp., No. 09-CV-2381-JWL-GLR, 2011 WL 3847076, at
*5 (D. Kan. Aug. 29, 2011).
18
See Motion for Judgment on the Pleadings (ECF No. 14), in which Gibson & Sharps asserts
that Plaintiff’s petition fails to state a claim upon which relief can be granted against Gibson & Sharps.
19
See Proposed First Amended Complaint at 6 (ECF No. 18-1).
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III.
Plaintiff’s Proposed Claim Against New Defendant
After having received many additional opportunities to add Accident Fund National
Insurance Company as a party Defendant, Plaintiff has finally sought leave to do so in the instant
motion. Gibson & Sharps opposes the motion as untimely. Although the Court understands
Gibson & Sharps’ frustration with the delay, Plaintiff filed its motion within the time allotted in
the Scheduling Order entered in this case, and it is therefore timely.20 Accordingly, the Court
grants Plaintiff’s motion insofar as it seeks to add Accident Fund National Insurance Company
as a party Defendant.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion for Leave to Amend the
Complaint and Add an Additional Party/Defendant (ECF No. 18) is granted in part and denied in
part. Plaintiff is hereby granted leave to add Accident Fund National Insurance Company as an
additional party defendant on the claim contained in Plaintiff’s proposed First Amended
Complaint. Plaintiff is hereby denied leave to include Count III from its proposed First
Amended Complaint. Plaintiff shall electronically file its proposed First Amended Complaint
within seven (7) days of the date of this Order.
IT IS SO ORDERED.
Dated this 22nd day of December, 2014, at Kansas City, Kansas.
s/ Teresa J. James
Teresa J. James
U. S. Magistrate Judge
20
See Scheduling Order, ECF No. 13. As mentioned, the undersigned Magistrate Judge stated
during the Scheduling Conference that she was largely adopting Gibson & Sharps’ proposed Scheduling
Order dates, including the October 15, 2014 deadlines for motions for leave to join additional parties or
otherwise amend the pleadings. Plaintiff filed its motion on October 13, 2014.
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