Holick v. Burkhart

Filing 196

MEMORANDUM AND ORDER denying 152 Motion for Leave to Amend Complaint. Signed by Magistrate Judge Kenneth G. Gale on 4/30/18. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK HOLICK,

)
)
Plaintiff,
)
)
v.
)
)
JULIE A. BURKHART,
)
)
Defendant.
)
______________________________ )

Case No. 16-1188-JTM-KGG

MEMORANDUM & ORDER DENYING MOTION TO AMEND
Now before the Court is Plaintiff’s Motion for Leave to File Second
Amended Complaint (Doc. 152), in which he seeks to renew his previously
abandoned defamation claim and include a new claim for civil conspiracy. Having
reviewed the submissions of the parties, Plaintiff’s motion is DENIED.
FACTUAL BACKGROUND
In 2013, Defendant received a temporary order of protection from stalking
against Plaintiff in Kansas state court (state court action). Plaintiff, who is a
resident of Oklahoma, filed the present matter in federal district court on June 9,
2016, alleging malicious prosecution and abuse of process against Defendant, a
Kansas resident, relating to the allegations levied against him in the state court
action. (See generally, Doc. 84.) The Court’s initial Scheduling Order included a
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deadline of May 12, 2017, to join parties or otherwise amend the pleadings. (Doc.
28, at 7.)
On July 31, 2017, Plaintiff filed a motion to amend his Complaint (Doc. 66),
which, although untimely, was unopposed by Defendant. The amended pleading
voluntarily dismissed Plaintiff’s defamation claim. (Doc. 66-1.) Plaintiff indicated
that the defamation claim was “dropped” as a “strategy choice, to avoid the time
required by, and the burden of answering, the extensive discovery requests about
his defamation damages.” (Doc. 152, at 12.) The motion was granted (Doc. 77,
text entry) and the Amended Complaint was filed on August 12, 2017. (Doc. 84.)
Defendant contends that Plaintiff employed this strategy “to deflect
Defendant’s efforts to obtain discovery into [Plaintiff’s] alleged reputational
harm.” (Doc. 157, at 8.) Defendant notes that Plaintiff’s first motion to amend
(which dropped the defamation claim) was filed three hours after Defendant filed a
motion to compel discovery on the issue. (See Docs. 65, 66.) Defendant points out
that Plaintiff, in opposing that motion to compel, “told this Court that, ‘Plaintiff
has voluntarily dropped his defamation claim. This has rendered moot all requests
for information related to plaintiff’s reputation.” (Doc. 95 at 2.)
The Scheduling Order was revised on August 31, 2017. (Doc. 102.) The
new Order did not extend the expired deadline to amend the pleadings. (Id.) The

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Summary of Deadlines and Settings in the Order did, however, note that this
deadline had “passed.” (Id., at 12.)
In late October 2017, Defense counsel began its third response to Plaintiff’s
Requests for Production, which had been served approximately three months
earlier. (Doc. 152, at 4.) Plaintiff contends that this document production was “the
first to be truly responsive to Plaintiff’s first ten requests for production” and
“provide the basis for the amended complaint which Plaintiff now seeks to file.”
(Id.) Plaintiff contends that documents received from Defendant in a document
production on October 26, 2017, provided the information that lead him to renew
his defamation claim and include a new claim for civil conspiracy.
Plaintiff motion includes an extensive factual summary detailing numerous
events that occurred in Plaintiff’s personal life during the time between receiving
these discovery documents in October 2017 and bringing the present motion in
February 2018. (Doc. 152, at 4-5.) For instance, “[o]n November 13, 2017 –
about two weeks after receiving Defendant’s Third Production of Documents –
Plaintiff’s counsel Donald McKinney learned that his father, Harold McKinney,
age ninety-four, had been admitted to the hospital with a suspected case of
pneumonia” and was not expected to survive. (Id., at 4.) This resulted in the
cancellation of Defendant’s deposition, which had been scheduled for November
21, 2017. (Id.)
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Plaintiff’s counsel “was required to move its office to a new location by
December 1, 2017.” (Id., at 5.) Harold McKinney passed away on December 15,
2017, with a funeral following on December 20. (Id.) This resulted in the
continuation of a status conference with the Court as well as Plaintiff’s deposition.
(Id.) Also, on January 9, 2018, the sister of Plaintiff’s counsel “suffered a massive
life-threatening stroke” and was placed in a medically induced coma. (Id.) As of
the filing of the present motion, she remains unconscious. (Id.) The parties agreed
to continue third-party depositions that had been scheduled for mid-January. (Id.)
The parties held a status conference with this Court on January 5, 2018,
during which the Court “observed that the case had essentially ‘gone dark’ for two
months.” (Doc. 152, at 5.) The discovery deadline, which was scheduled to expire
on January 31, 2018, was extended to May 11, 2018. (Id.) Defendant states that,
during this status conference with the Court, Plaintiff’s counsel “raised for the first
time the possibility of Plaintiff reasserting his defamation claim. He explained that,
in the next ten days, he planned to file a motion to amend the complaint. Almost
one month later, on February 2, 2018, he filed his second motion to amend the
complaint.” (Doc. 157, at 8-9.) The Court notes that the motion was filed 10
weeks after Plaintiff received the document production that he contends inspired
him to file the present motion – not to mention eight and a half months after the
deadline to move to amend had expired.
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Another revised Scheduling Order was entered on January 18, 2018. (Doc.
147.) As of the filing of the present motion, only one deposition had occurred –
Plaintiff’s attorneys’ fees expert. (Doc. 152, at 5.)
ANALYSIS
Pursuant to Fed.R.Civ.P. 15, Plaintiff moves to amend his Complaint for a
second time. According to Plaintiff, the proposed pleading “maintains the counts
and allegations against the same defendant as the original complaint, and adds no
new parties, but accounts for significant factual and procedural developments that
have occurred since both the original complaint and the First Amended Complaint
were filed.” (Doc. 152, at 1.)
Defendant responds that the motion, filed eight months past the deadline, “is
Plaintiff’s latest attempt to manipulate the course of discovery and unnecessarily
prolong this litigation.” (Doc. 157, at 6.) Defendant argues that “Plaintiff’s
gamesmanship should be rejected.” (Id.)
A.

Standards for a Rule 15 Motion to Amend.
Rule 15(a) of the Federal Rules of Civil Procedure provides that “a party

may amend the party’s pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so requires. . . .” Fed.R.
Civ.P. 15(a). The granting of an amendment is within the sound discretion of the
court. See First City Bank, N.A., v. Air Capitol Aircraft Sales, Inc., 820 F.2d
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1127, 1132 (10th Cir. 1987). The United States Supreme Court has, however,
indicated that the provision “leave shall be freely given” is a “mandate . . . to be
heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962). “In determining whether to
grant leave to amend, this Court may consider such factors as undue delay, the
moving party’s bad faith or dilatory motive, the prejudice an amendment may
cause the opposing party, and the futility of amendment.” Id., at 182; see also
Jarrett v. Sprint/United Mgmt. Co., No. 97–2487–EEO, 1998 WL 560008, at *1
(D. Kan. 1998).
Plaintiff contends that “[n]one of the factors that militate against granting a
motion to amend are present in this case.” (Doc. 152, at 16.) He argues that the
proposed amendment causes no undue prejudice to Defendant because the
amendments do not change the theory of the case and discovery is ongoing. (Doc.
152, at 9.) Plaintiff contends that there was no undue delay and Defendant “cannot
be prejudiced . . . by the newly alleged facts . . . [because she] and her associates
have first-hand knowledge of the roles that they played in the events at issue.) (Id.)
Further, Plaintiff argues that there is additional time for discovery and depositions
the parties and “meaningful witnesses” were yet to occur when this motion was
filed. (Id.) Plaintiff also contends that “the amendments facilitate the resolution of
this matter on the merits” and the request to amend is not futile because he has
“alleged sufficient facts to state a claim for relief that is facially plausible.” (Id., at
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17.) As discussed below, Defendant argues that Plaintiff cannot meet the
requirements of Fed.R.Civ.P. 15 because the proposed amendments are futile and
result from bad faith. (See generally Doc. 157, at 18-28.)
Before the Court can engage in a Rule 15 analysis, however, it must analyze
Plaintiff’s requested amendment in the context of Fed.R.Civ.P. 16 because the
deadline to amend pleadings expired in the original Scheduling Order (and was not
reset in the Amended Scheduling Order). (Doc. 152, at 8; Doc. 28.) Plaintiff must
therefore first move the Court for an amendment to the Scheduling Order pursuant
to Fed.R.Civ.P. 16. Plaintiff argues that a failure to amend the Scheduling Order,
resulting in “[s]trict enforcement of that initial deadline would not serve the
interests of justice or the purpose and spirit of Rule 15(a).” (Doc. 152, at 8.)
B.

Application of Rule 16.

Pursuant to Fed.R.Civ.P. 16, “[a] schedule may be modified only for good
cause and with the judge’s consent.” If the Court determines that good cause has
been established, the Court then proceeds to determine if the Rule 15(a) standard
has also been met.
The advisory committee notes to this Rule provide:
‘[T]he court may modify the schedule on a showing of
good cause if it cannot reasonably be met despite the
diligence of the party seeking the extension.’
Fed.R.Civ.P. 16 advisory committee’s note to 1983
amendment; see also Gorsuch, Ltd., B.C. v. Wells Fargo
Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014)
(‘In practice, this standard requires the movant to show
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the scheduling deadlines cannot be met despite [the
movant’s] diligent efforts.’ (citation and internal
quotation marks omitted)). ‘Rule 16’s good cause
requirement may be satisfied, for example, if a plaintiff
learns new information through discovery or if the
underlying law has changed.’ Gorsuch, 771 F.3d at
1240.
The district court exercises its sound discretion
when deciding whether to modify a Scheduling Order.
Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1254 (10th
Cir. 2011) (reviewing a district court’s refusal to enter a
new scheduling order for abuse of discretion). Despite
this ‘broad discretion in managing the pretrial schedule,’
the Tenth Circuit has concluded that ‘total inflexibility is
undesirable.’ Summers v. Mo. Pac. R.R. Sys., 132 F.3d
599, 604 (10th Cir. 1997). Also, a scheduling order
which produces an exclusion of material evidence is ‘a
drastic sanction.’ Id.; see also Deghand v. Wal-Mart
Stores, Inc., 904 F. Supp. 1218, 1221 (D. Kan. 1995)
(‘While a scheduling order is not a frivolous piece of
paper, idly entered, which can be cavalierly disregarded
by counsel without peril, rigid adherence to the . . .
scheduling order is not advisable.’ (citations and internal
quotation marks omitted)).
Little v. Budd Co., NO. 16-4170-DDC-KGG, 2018 WL 836292, at *3 (D. Kan.
Feb. 13, 2018).
1.

Good cause.

Plaintiff argues good cause exists for the amendment because of the
discovery of “new information” that “may be reasonably inferred from documents
included in Defendant’s Third Production, produced near the end of October.”
(Doc. 152, at 9.) These allegedly newly discovered facts include:

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 by the time of the first event cited in Defendant’s antistalking petition, Defendant “had already developed
malice and strong animus against” Plaintiff and had
“erroneously determined [he] was the leader of a ‘hate
group’ because of her “knowledge of his involvement in
other protest activities”;
 prior to the events contained in the anti-stalking petition,
Defendant attempted to “smear and defame [Plaintiff] by
directing persons on her staff to write fake letters” and a
press release – and make efforts to have them published –
linking Plaintiff and his associates with the death of Dr.
George Tiller;
 prior to filing the anti-stalking petition, Defendant
“engaged in a conspiracy with her associate(s) and/or
attorney(s) to file the false charges” against Defendant in
the anti-stalking petition and thereafter “engaged in
efforts to wrongfully continue the temporary order
against Holick, and to get him arrested,” including
communications with the Wichita police.
(Doc. 152-1, at 6-7.)
Defendant responds that Plaintiff’s argument is “disingenuous” because
Plaintiff “knew of the underlying conduct on which he bases his second amended
complaint far in advance of Defendant’s October 2017 production.” (Doc. 157, at
11.) The Court will address this issue in the context of the specific newly-alleged
claims, discussed infra.
Defendant continues that “[e]ven if Plaintiff first learned of the conduct he
now alleges was improper” as a result of the October 2017 document production,
Plaintiff still “cannot establish good cause for the 100-day delay between

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Defendant’s October 26, 2017[,] document production and his February 2, 2018[,]
motion to amend.” (Id.)
Defendant recognizes that one of Plaintiff’s two
attorneys, Mr. McKinney, experienced a significant
personal loss when his father passed away in December
2017 and has confronted additional personal challenges
with his sister’s illness in January 2018. But, to the
extent Plaintiff now asserts that these events explain the
delay in this motion since October, on the basis that they
caused a ‘blackout’ in the case, he is incorrect.
(Doc. 157, at 11.) For instance, Defendant indicates that Plaintiff’s counsel
attended a deposition in December, asked to schedule three others that month, and
“corresponded about deposition scheduling and Defendant’s third production of
documents.” (Id.; Doc. 157-2.)
Defendant argues that the active involvement of Plaintiff’s counsel during
this time “belies” Plaintiff’s argument of “good cause” for the delay in moving to
amend. (Doc. 157, at 11-12.) Further, Defendant points to the fact that Plaintiff
has two attorneys, thus his other attorney should have been able to have filed the
motion in a timely manner. (Id., at 12.)
While sympathetic to the hardships experienced by Plaintiff’s counsel, the
Court is unpersuaded that the events that complicated his personal life during the
more than three months between the October 2017 document production and the
filing of the present motion in February 2018 significantly inhibited his ability to
address these issues in a more timely manner. Mr. McKinney was able to litigate
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other aspects of this case. For instance, if there was time for Plaintiff’s counsel to
attend a deposition in December (and attempt to schedule three additional
depositions that month), there was time to address the issues contained in the
present motion. (Doc. 157, at 11.) Further, Mr. McKinney is not the only attorney
representing Plaintiff in this action. The Court finds this information to be
irrelevant. The Court thus turns to an analysis of the facts supporting the new
claims for punitive damages, defamation, and civil conspiracy.
2.

Punitive damages.  

Plaintiff states that “[a]t the time of the filing of the original complaint, [he]
had none of [the] information” relating to Defendant’s malice and animus towards
him, summarized and enumerated above. (Doc. 152, at 10.) Plaintiff continues
that “[t]he gravamen of [his] original complaint was primarily simple negligence,
that he was ‘singled out’ by [Defendant] in a case of mistaken identify [sic],
without a reasonable effort on her part to adequately inquire and learn the level of
his involvement and the identity of the leaders of the protest event at her house.”
(Doc. 152, at 10.)
According to Plaintiff, however, the information gleaned from discovery
“provides a basis to allege that, even before the occurrence of the events that were
the subject of her fake petition, [Defendant] had developed an animus and strong
malice toward [Plaintiff].” (Id., at 11.) Plaintiff is now of the opinion that “[w]ith
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the assistance of others, [Defendant] intentionally targeted him with a campaign of
negative publicity and, ultimately, the false stalking charges which she personally
alleged in a verified petition and continued for two years.” (Id.) This, according to
Plaintiff, constitutes “much stronger evidence to support a punitive damages claim
than [he] had before Defendant’s” third document production, “both in quantity
and in quality.” (Id.) Plaintiff argues that
[t]he new evidence and documents significantly increase
the probability that Defendant intentionally acted with
the requisite intent and malice to support a claim for
punitive damages. This is particularly true in the face of
the defense that Burkhart merely acted ‘with reasonable
fear for her own safety.’ The new evidence also
undermines the notion the [sic] [Defendant’s] conduct
against [Plaintiff] was merely some type of a mistake.
(Id.)  
Defendant disputes Plaintiff’s assertion that the allegedly “stronger
evidence” is sufficient to establish “good cause” to reinstate a punitive damages
claim. (Doc. 157, at 15.) Defendant responds that Plaintiff’s initial Complaint,
filed in June 2016, alleged that Defendant was “reckless and intentional in filing
the false stalking charges,” “acted with malice in ‘singling out’” Plaintiff,
“malicious[ly] continu[ed]” the temporary order, and made communications “with
knowledge that they were false and with a reckless disregard for the truth, and []
with evil-mindedness or a specific intent to injure the reputation and credibility” of
Plaintiff. (Id.; see also generally Doc. 1.) Defendant opines that while
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“[d]eveloping stronger evidence during discovery is to be expected,” Plaintiff’s
new factual allegations do not constitute the “new information” necessary to
constitute “good cause,” particularly when Plaintiff previously voluntarily
withdrew the claim. (Id.)
The Court agrees. Plaintiff’s initial Complaint, filed in June 2016, is replete
with allegations similar to the “new” factual allegations contained in the proposed
amended Pleading. For instance, the initial Complaint alleges that Defendant
“acted with malice in ‘singling out’ [Plaintiff], on her unfounded suspicion that he
was ‘the leader’ of the protest activity, and in the initiation and continuance of the
anti-stalking order based on falsehoods, hearsay, and inadequate evidence.” (Doc.
1, at 6.) Also included is the allegation that Defendant made communications
“with knowledge that they were false and with a reckless disregard for the truth,
and were made with evil-mindedness or a specific intent to injure the reputation
and credibility of” Plaintiff. (Id., at 8.)
Plaintiff’s newly stated allegations may be more specific than those
contained in the original Complaint. They do not, however, constitute new
evidence. The “vast majority” of the facts alleged in the proposed Second
Amended Complaint are “based on information in plaintiff’s possession that
appears could have been plead from the outset.” Ericson v. Landers McLarty
Olathe KS, LLC, No. 17-2087-DDC-KGS, 2017 WL 4573309, at *3 (D. Kan. Oct.
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13, 2017). Plaintiff’s Motion to Amend is DENIED as to the punitive damages
claim.
3.

Defamation.

Plaintiff previously voluntarily dismissed his defamation claim. (Docs. 66,
84.) He contends he did so “as a strategy choice, to avoid the time required by,
and the burden of answering, the extensive discovery requests about his
defamation damages.” (Doc. 152, at 12.) Plaintiff continues that “[u]nder the facts
at that time,” his counsel determined that the related claimed damages (primarily
regarding alleged damages to his employment) “could be sacrificed for
the sake of efficiency, to streamline the process of answering the discovery.” (Id.,
at 12-13.) He argues that the information he gleaned from Defendant’s third
discovery responses give him a clearer picture of Defendant’s “efforts to smear and
defame Plaintiff with false accusations and fake letters” as well as the “extent of
Defendant’s malice and animus against him . . . .” (Id., at 13.) Plaintiff argues that
“[t]his new information casts the defamation claim in a new light and adds value to
it.” (Id.)
Plaintiff contends that “Defendant is not prejudiced by the reinstatement of
the defamation claim” because the claim was in his original Complaint, Plaintiff
has not yet been deposed, and Plaintiff was ordered by the Court to respond to
Defendant’s discovery requests concerning the damages which Holick claimed
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resulted from defamation caused by the false accusation of stalking in March,
2013. (Id., at 12, 13.) “Because Plaintiff is required to respond to the employment
discovery requests anyway, in all fairness he should be permitted to re-assert, in
the amended petition, the underlying defamation claim that originally served as a
basis for the damages,” particularly given the new discovery deadline in the case.
(Id., at 13-14.)
Defendant argues that Plaintiff previously stated a defamation claim that
survived a Motion to Dismiss. (Doc. 157, at 13; Doc. 19.) Thus, from the outset
of this case, Plaintiff was aware of sufficient facts to properly plead the claim.
(Id.) Defendant continues that “[i]t is irrelevant that discovery revealed additional
evidence that Plaintiff believes ‘adds value’ to his initial claim for defamation.”
(Doc. 157, at 13 (emphasis in original).) As Defendant clarifies, “Plaintiff did not
discover a new defamation claim in the course of discovery; he simply learned
additional information that allegedly further supports the defamation claim that he
previously pleaded.” (Id. (emphasis in original).)
The Court agrees. Plaintiff not only had sufficient information available to
allege a claim for defamation when the case was initially filed in June 2016, he
actually alleged the claim. Plaintiff’s attempt to reinstate the defamation claim -some eight months after the deadline to move to amend the pleadings and after
voluntarily dismissing the claim months ago – is mere gamesmanship that the
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Court will not allow. Even assuming for the sake of argument that the necessary
information was unknown until the October 2017 document production, there is no
adequate explanation as to why Plaintiff waited more than three months after that
production before filing the present Motion to Amend. Plaintiff’s Motion to
Amend is DENIED as to the defamation claim.
4.

Civil conspiracy.

Plaintiff also contends that this newly gleaned information “provides a basis
to reasonably infer and believe that Defendant engaged in a civil conspiracy
against [Plaintiff] which caused him personal damages as well as a fraud on the
state court.” (Doc. 152, at 14.) According to Plaintiff, Defendant
and one or more of her associates and/or attorneys
planned and discussed the filing of a false legal document
accusing [Plaintiff] of stalking her. They discussed
accusations that could be brought against [Plaintiff] –
including some that Defendant has previously blamed on
others – in order to support the false [state court] petition.
They agreed, and had a meeting of the minds, on the
course of action and the object to be accomplished, that
is, the filing of false stalking accusations against
[Plaintiff].
(Id.) Plaintiff argues that “[t]his new information provides sufficient evidentiary
basis, and good cause, to allow an amended claim for civil conspiracy under
Kansas law.” (Id., at 15.)
Defendant responds that this information is anything but new to Plaintiff.
According to Defendant, she admitted to Plaintiff’s counsel during her deposition
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in the underlying state action in April 2014 that “she consulted with an attorney
before filling out the [state court] petition.” (Doc. 157, at 16.) Plaintiff concedes
that this was party of Defendant’s deposition testimony. (Doc. 167, at 16.)
Defendant also contends that at the time of her initial disclosures in March
2017, Plaintiff was aware that, “in the lead-up to reopening the clinic,” Defendant
discussed Plaintiff’s “role in actions aimed at ensuring the clinic would not
reopen” with her “associates.” (Doc. 157, at 17.) Plaintiff’s reply brief concedes
that he received this email in the initial disclosures. (Doc. 167, at 28.) Defendant
points to an e-mail chain provided in the disclosures in which Defendant and
employees of the non-profit communicate “regarding the protection from stalking
order, in which [Defendant] explained why she was fearful and the non-profit
employee indicated that she had spoken with Ms. Thompson regarding the
possibility of pursuing a protection from stalking order.” (Doc. 157, at 17.)
As such, Defendant argues that Plaintiff is confusing “additional supporting
information with new information.” (Id. (emphasis in original).) Defendant argues
that Plaintiff has failed to establish the requisite “good cause” to bring a claim for
civil conspiracy “given that he ‘knew of underlying conduct but simply failed to
raise a claim initially.’” Anjela Greer v. City of Wichita, No. 16-1185-EFM-JPO,
2017 WL 1492937, at *3 (D. Kan. April 26, 2017).

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The Court agrees. As with the above claims, the Court finds that Plaintiff
has failed to establish the requisite good cause. His Motion to Amend to add a
claim for civil conspiracy fails on the Rule 16 analysis.
C.

Rule 15 analysis. 
The Court need not address the Rule 15 analysis because Plaintiff has failed

to establish good cause to amend the Scheduling Order to allow her to move to
amend out of time. Even so, the Court will substantively analyze Plaintiff’s
request under Rule 15.
As stated above, “[i]n determining whether to grant leave to amend, this
Court may consider such factors as undue delay, the moving party’s bad faith or
dilatory motive, the prejudice an amendment may cause the opposing party, and
the futility of amendment.” Foman v. Davis, 371 U.S. at 182; see also Wilkerson
v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010). Defendant argues that even if
Plaintiff meets the “good cause” standard of Rule 16, Plaintiff cannot meet the
requirements of Fed.R.Civ.P. 15 because the proposed amendments are futile,
result from bad faith, and were unduly delayed. (See generally Doc. 157, at 1828.)

1.

Futility.

A proposed amendment that is subject to dismissal, such as for failure to
state a claim for relief or being barred by the statute of limitations, is considered
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futile. Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007). Defendant
argues that Plaintiff’s motion must be denied because the proposed claims are
futile. (See generally Doc. 157, at 18-25.) Defendant contends Plaintiff’s
defamation is barred by the one-year statute of limitations and that Plaintiff cannot
establish that he was damaged by the alleged communications. (Id., at 19-20.)
As for the civil conspiracy claim, Defendant argues that the proposed
amendment “offers only conclusory statements as to the elements of fraud,” which
is insufficient to meet “the specificity in pleading requirements.” (Id., at 21.)
Defendant contends that this claim is also barred by the statute of limitations. (Id.,
at 24.)
Given the Court’s reliance on the issue of undue delay, discussed infra, the
Court need not determine whether the proposed claims are futile and/or barred by
the applicable statute of limitations issue. The Court finds these arguments moot.
2.

Bad faith.

Defendant relies on the case of Koch v. Koch Inds., for the proposition that
“[a]n amendment adding causes of action will be denied if sought in bad faith.”
127 F.R.D. 206, 211 (D. Kan. 1989). Defendant states that “[a] finding of bad
faith is warranted where, as here, ‘awareness of facts and failure to include them in
the complaint might give rise to the inference that the plaintiff was engaging in

19 

tactical maneuvers to force the court to consider various theories seriatim.’” (Doc.
157, at 25 (quoting id.).)
Defendant refers the Court to Plaintiff’s admission that he is attempting to
“reassert to claims that he voluntarily dismissed as a ‘strategy choice’” some six
months before filing the present motion. (Id.) Defendant argues that
[n]ow, for the first time, Plaintiff admits that his real
intent was to ‘avoid the time required by, and the burden
of answering, the extensive discovery requests’ about
defamation. ECF No. 152 at 12. Less than one month
before the then-effective discovery deadline of January
31, Plaintiff told the Court and Defendant that he
intended to reassert his defamation claim. Urged by this
Court, the parties subsequently agreed to yet another
extension of the discovery deadline – this time for three
months. Still, the Plaintiff waited almost a month to
actually file this motion; by the time the motion is fully
briefed and this Court issues its order, the long-extended
discovery deadline will be looming yet again. Plaintiff’s
‘strategy choice’ is transparent: he is dropping and
adding claims seriatim to game the discovery process and
delay the conclusion of this litigation – the very
definition of bad faith.
(Id., at 25-26.) Defendant contends that Plaintiff’s decision to wait to file the civil
conspiracy claim is strategic, also.
Plaintiff’s supplemental Rule 26 disclosures, served on
April 9, 2017, identified Ms. Thompson as a witness with
‘discoverable information about [Defendant’s] initiation
of the anti-stalking case against [Plaintiff].’ To credibly
believe at the time that [Defendant’s] attorney would
possess nonprivileged evidence, Plaintiff must have
foreseen an exception to the attorney-client and work
product privileges. That he has now suddenly
20 

determined that Defendant and her attorneys conspired to
commit fraud cannot be coincidental; it is the definition
of pleading seriatim.
(Id., at 26-27.)
Plaintiff replies that the proposed amendment was not made in bad faith
because of the discovery of the new information in the October 2017 document
production. (Doc. 167, at 2.) Plaintiff quotes the Deghand opinion for the
proposition that “‘[l]iberality in amendment is important to assure a party a fair
opportunity to present his claims and defenses.’” (Id. (quoting Deghand, 904
F.Supp. at 1221).) Plaintiff further reminds the Court that the Federal Rules “‘are
designed to encourage decisions on the merits rather than on mere technicalities.’”
(Id. (quoting Deghand, 904 F.Supp. at 1221).) The Deghand decision, however,
unequivocally states that refusal to amend is “justified upon a showing of undue
delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure
to cure deficiencies by amendments previously allowed, or futility of amendment.”
904 F.Supp. at 1221. As discussed in the subsequent section of this Order, the
Court finds that, in this instance, the lines between bad faith, undue delay, and
undue prejudice to the opposing party are indelibly intertwined.
3.

Undue delay.

Finally, Defendant argues that the motion to amend should be denied as
unduly delayed. The various life events experienced by Plaintiff’s counsel are
21 

summarized above. Defendant contends that these events do not excuse the delay
in bringing the present motion some eight months after expiration of the deadline
to amend.
Defendant’s latest production was served more than three
months before Plaintiff moved to amend. And, as
described supra, Plaintiff has known or should have
known about the underlying facts he now asserts as the
basis for a third complaint since at least Defendant’s
initial disclosures in April 2017, and in some instances as
long ago as 2014. Plaintiff’s decision to wait until
February 2018 to move to amend is inexcusable, and his
undue delay provides ample reason to deny the motion.
(Doc. 157, at 28.)
The Court will assume, arguendo, that Plaintiff could establish that the new
claims included in the proposed amended pleading are not futile. Even so, the
Court finds that the motion for leave to amend must fail based on undue delay.
Plaintiff correctly states that “[i]n determining whether a delay was undue, the
Tenth Circuit focuses primarily on the reasons for the delay.” (Doc. 167, at 27
(citing Boone v. TFI Family Services, Inc., No. 14-2548-JTM, 2016 WL
3192996, *1 (D. Kan. June 6, 2016) (internal citation omitted).)
‘Lateness does not of itself justify the denial of [an]
amendment,’ but the ‘longer the delay, ‘the more likely
the motion to amend will be denied, as protracted delay,
with its attendant burdens on the opponent and the court,
is itself a sufficient reason for the court to withhold
permission to amend.’ ’ Id. (quoting Steir v. Girl Scouts
of the USA, 383 F.3d 7, 12 (1st Cir. 2004)).
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Id. (quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 (10th Cir. 2006).)
As discussed above, Plaintiff had sufficient information to bring these claims
when his Complaint was initially filed. Even assuming Plaintiff did not have
sufficient information until Defendant’s document production in October 2017,
Plaintiff has failed to adequately explain the 100-day delay in filing the present
motion in January 2018. (See Doc. 167, at 27 (relying on “the death and near death
of family members of Plaintiff’s counsel, as well as the intervening holidays of
Thanksgiving, Christmas, and New Years [sic]. . .”).) Plaintiff’s request to amend
his Complaint a second time was unduly delayed and fails under Rule 15 analysis.
Plaintiff’s motion (Doc. 152) is, therefore, DENIED.

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to File
Second Amended Complaint (Doc. 152) is DENIED.
IT IS SO ORDERED.
Dated this 30th day of April, 2018, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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