Holick v. Burkhart

Filing 243

MEMORANDUM AND ORDER denying 203 Objection to Order of Magistrate Judge; denying 215 Objection to Order of Magistrate Judge; granting 226 Motion to Disregard Reply Brief; denying 227 Motion for Leave to File Reply Brief; granting 234 Motion to Maintain Seal to the extent stated in the order. Signed by District Judge John W. Broomes on 08/24/2018. (aa)

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

Case No. 16-1188-JWB-KGG

JULIE A. BURKHART,
Defendant.

MEMORANDUM AND ORDER
This matter is before the court on the following:
1. Plaintiff’s Objection to Order of Magistrate Judge (Doc. 203); Defendant’s
Response (Doc. 218); and Plaintiff’s Reply (Doc. 221, 222);
2. Plaintiff’s Objection to Order of Magistrate Judge (Doc. 215); Defendant’s
Response (Doc. 220). and Plaintiff’s Reply (Doc. 228);
3. Defendant’s Motion to Disregard Plaintiff’s Reply in Support of Objections
(Doc. 226); Plaintiff’s Response (Doc. 233); and Defendant’s Reply (Doc. 237);
4. Plaintiff’s Motion for Leave to File Reply Brief (Doc. 227); and Defendant’s
Response (Doc. 231); and
5. Defendant’s Motion to Maintain Seal (Doc. 234); and Plaintiff’s Response (Doc.
238).
For the reasons set for herein, Plaintiff’s objections to the magistrate judge’s rulings and
his motion for leave to file a reply brief are DENIED. Defendant’s motion to disregard Plaintiff’s
reply brief and motion to maintain the sealing of certain exhibits are GRANTED.
Background.
Plaintiff is an ordained minister who resides in Oklahoma. Defendant operates an abortion
facility in Wichita. (Doc. 84 at 1.) The first Amended Complaint, which invokes the court’s
diversity jurisdiction under 28 U.S.C. § 1332(a), alleges that Defendant filed a protection-from-

stalking (PFS) petition against Plaintiff in Sedgwick County District Court on March 7, 2013. (Id.)
Plaintiff claims Defendant made numerous false accusations in the petition, including falsely
accusing him of stalking Defendant by picketing in front of her house and handing out a “wantedstyle” flyer on November 17, 2012. Plaintiff claims the petition also falsely alleged that on
February 13, 2013, he stalked Defendant, pointed a sign at her house reading, “Where is your
church?”1, and used “a bull horn or way to magnify volume” during a protest in front of her house.
(Id. at 1-2.) Plaintiff alleges he was not in front of Defendant’s house on either occasion (he alleges
he was about ten houses away), that the allegations were false, and that Defendant did not make
reasonable efforts to verify the allegations. (Id.) The Sedgwick County District Court issued an ex
parte PFS order against Plaintiff based on Defendant’s petition. Plaintiff alleges the order remained
in effect for two years until Defendant voluntarily dismissed the case after Plaintiff filed a
summary judgment motion. (Id. at 6.)
The Amended Complaint alleges claims for malicious prosecution and abuse of process. It
alleges that Defendant initiated the PFS petition without probable cause, that she acted with malice,
that the prior action was terminated in Plaintiff’s favor, and that Plaintiff was damaged as a result.
(Id.) It further alleges Defendant acted in an improper manner in the prosecution of a regular
proceeding, that she did so with the ulterior motive of harassing and causing hardship to Plaintiff
because she believed he was a leader of pro-life protest activity, and that Plaintiff was damaged as
a result. (Id. at 7.)

1

Defendant contends this was a veiled threat alluding to the murder of her former employer, Dr. George Tiller, who
was shot and killed by an abortion opponent while attending church. Plaintiff contends this sign has been used “for
over a decade” by pro-life advocates “to raise awareness” among Christians concerning tolerance of abortion by some
churches. (Doc. 84 at 3.)

2

Plaintiff’s Objection to Order of Magistrate Judge (Doc. 203). Plaintiff objects to the
magistrate judge’s order of April 18, 2018, (Doc. 190) insofar as it quashed Plaintiff’s attempt to
depose attorneys Robert Eye and Erin Thompson. Thompson (and perhaps Eye) provided legal
advice to Defendant prior to the filing of her PFS petition. They also represented her at some point
during the state action and they represent Defendant in this action. The magistrate judge quashed
the depositions because some of the information sought was protected by attorney-client privilege
and, as to non-privileged information, he found Plaintiff had not shown that the attorneys were the
only source for obtaining the information. (Doc. 190 at 5, 9.)
Plaintiff argues the magistrate judge’s ruling “is clearly erroneous on the facts and is
contrary to established law, and improperly relied on new arguments and legal authority raised for
the first time in a reply brief….” (Doc. 203 at 1.) Plaintiff contends:
There is evidence that the content of the stalking charges was shaped and directly
influenced by [Plaintiff’s] conversations with the attorneys as well as by emails and
other communications which included the attorneys and representatives of the
Feminist Majority Foundation (FMF) in Beverly Hills, California. The FMF had
participated in previous efforts to bring false stalking charges against other pro-life
activists nationwide and promoted that tactic. The information which plaintiff now
seeks is highly relevant and likely to lead to the discovery of admissible evidence,
as it tends to show that the filing of a false PFS petition singling out Pastor Holick
was a political tactic of harassment and targeting, rather than a good faith effort to
protect the safety of defendant.
(Doc. 203 at 2.)
Plaintiff argues the use of a false PFS petition was a tortious act in which the attorneys
played a direct role and that Kansas law does not apply the attorney-client privilege “when the
communications at issue enable or aid the commission or planning of a tort.” (Doc. 203 at 1) (citing
K.S.A. § 60-426(b)). With respect to non-privileged information, Plaintiff argues that deposing
Defendant proved inadequate to obtain relevant information about the PFS petition, and that it
would be prohibitively expensive for Plaintiff to seek information from others who might have it.
3

(Id. at 12-13.) Plaintiff also argues the magistrate judge improperly relied on arguments and
authorities first set forth by Defendant in a reply brief (Id. at 15-16.)
Under Fed. R. Civ. P. 72(a), the district court “must consider timely objections and modify
or set aside any part of the order that is clearly erroneous or is contrary to law.” The clearly
erroneous standard requires this court to affirm any factual determination by the magistrate judge
unless, on the entire evidence, it is left with the definite and firm conviction that a mistake has
been made. Hale v. Emporia State Univ., No. 16-4182-DDC, 2018 WL 1609552, *1 (D. Kan. Apr.
3, 2018) (citation omitted). A magistrate judge’s order is “contrary to law” if it fails to apply or
misapplies relevant statutes, case law, or rules of procedure. Id.
Judge Rushfelt thoroughly discussed the standards governing attempts to depose opposing
counsel in Ed Tobergte Associates, Co. v. Russell Brands, LLC, 259 F.R.D. 550 (D. Kan. 2009).
As he noted, courts in this district have almost universally applied “the Shelton criteria” from
Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986). See Russell Brands, 259 F.R.D. at
554-55 (citing cases). The Tenth Circuit has likewise endorsed the test. See Thiessen v. Gen. Elec.
Cap. Corp., 267 F.3d 1095, 1112 (10th Cir. 2001). Shelton held that depositions should only be
allowed where the party seeking the deposition shows that: (1) no means exist to obtain the
information other than to depose opposing counsel; (2) the information sought is relevant and
nonprivileged; and (3) the information is crucial to the preparation of the case. Shelton, 805 F.3d
at 1327. The Tenth Circuit has indicated the district court has discretion to disallow such a
deposition when any of the Shelton factors are not satisfied. Thiessen, 267 F.3d at 1112 (finding
no abuse of discretion in disallowing deposition); Boughton v. Cotter Corp., 65 F.3d 823, 830
(10th Cir. 1995) (“ordinarily the trial court at least has the discretion under Rule 26(c) to issue a

4

protective order against the deposition of opposing counsel when any one or more of the three
Shelton criteria … are not met.”).
The court first rejects Plaintiff’s argument that the magistrate judge erred by considering
the Shelton factors. The fact that Defendant failed to cite Shelton in the motion to quash did not
preclude the magistrate judge from applying it. The Shelton test represents the governing law in
the Tenth Circuit; it likely would have been error not to apply it. Nor does the court agree that
Defendant improperly injected arguments about Shelton in her reply brief or that Plaintiff did not
have a fair opportunity to address the relevant factors. Given the long-standing use of the Shelton
test in this district, both sides should have been aware that a request to depose opposing counsel
would be examined under those standards. See Mike v. Dymon, Inc., 169 F.R.D. 376, 378 (D. Kan.
1996) (applying Shelton factors); Kelling v. Bridgestone/Firestone, Inc., 153 F.R.D. 170, 171 (D.
Kan. 1994) (citing Shelton and other cases applying same test). Defendant’s invocation of the test
in her reply was a fair response to Plaintiff’s argument that the depositions should be allowed
because some of the information sought was not privileged.
Plaintiff fails to make the showing required by Shelton. The first factor requires Plaintiff
to show there are no other means to obtain the information he seeks. Insofar as Plaintiff is seeking
email communications, he makes no showing he cannot obtain the emails from Defendant or from
other recipients. Insofar as Plaintiff is seeking to discover what input the FMF had in contributing
to the contents or the filing of Defendant’s PFS petition, he fails to show he could not obtain the
relevant information from FMF members duVergne Gaines or Susan Gilligan, who allegedly
communicated with Defendant prior to the filing of her petition. Similarly, although Plaintiff cites
evidence that Erin Thompson may have communicated with duVerge Gaines about “obtaining a
PFS for [Defendant],” he fails to show why the substance of those communications cannot be

5

obtained from Gaines. Finally, insofar as Plaintiff is seeking information about what Defendant
conveyed to Eye or Thompson, Plaintiff has failed to show he could not obtain that information
from Defendant. Plaintiff suggests that Defendant thwarted attempts to discover that information
by engaging in “obfuscations” or “selective memory” during depositions, but he cites no specific
testimony to support such a conclusion. Contrary to Plaintiff’s suggestion, the deposition
testimony does not indicate that Defendant attempted to hide her communication with Thompson.
The deposition attachments show Defendant readily acknowledged having spoken with
Thompson, while asserting that filing of the PFS petition was her (Defendant’s) own idea. (Doc.
204-3 at 20, 23.)2 Plaintiff fails to show he was unable to pursue any relevant information about
these matters by deposing Defendant.
Plaintiff argues the Shelton criteria do not apply when an attorney was “directly involved
in events preceding the filing of the action which may be relevant to the issues in dispute.” (Doc.
203 at 3) (citing United Phosphorus, Ltd. v. Midland Fumigant, Inc., 164 F.R.D. 245, 249 (D. Kan.
1995)). United Phosphorus is not instructive, however, as the attorney in that case agreed to be
deposed, so “the issue in [United Phosphorus] is not whether opposing counsel’s deposition will
be taken.” Id., 164 F.R.D. at 247. Plaintiff similarly argues depositions are allowed when the
attorney is a fact witness who has the best knowledge concerning his or her own involvement.
(Doc. 203 at 14) (citing inter alia Hay & Forage Indus. v. Ford New Holland, Inc., 132 F.R.D.
687 (D. Kan. 1990)). That principle has been applied when an attorney is uniquely in possession
of factual information upon which the claims are based, thus rendering the attorney a critical

2
When first asked whether she consulted with anyone before filling out the petition, Defendant answered no. (Doc.
204-3 at 19.) Plaintiff’s counsel then clarified by asking if she had consulted an attorney about it, to which Defendant
responded, “I had discussed this, but I went down and filled it out on my own and no one – I mean, these are my
words. So we discussed it, but I did not have an attorney present with me when I filled this out, if that’s what you
mean.” (Id. at 20.) Defendant identified the attorney as Erin Thompson. (Id.)

6

witness. In Hay & Forage, the attorney was “the best and perhaps the only available source” for
information about photographs taken by the attorney and about the attorney’s own meetings with
a patent examiner. Id., 132 F.R.D. at 690. In Perez v. Alegria, No. 15-mc-401-SAC, 2015 WL
4744487, * 1 (D. Kan. June 24, 2015), the attorney was compelled to testify about a business
operated by an LLC of which the attorney was a member. In Kannaday v. Ball, No. 09-2255-JWL,
Judge O’Hara allowed an attorney deposition after prior attempts to get the information through
written discovery were unsuccessful, after the attorney himself had previously deposed another
attorney about the same subject in the case, and where it was “likely the only way [the party] will
get the information it seeks.” Id., slip op. at 2-4 (Dec. 3, 2009).
The present case is hardly similar. The allegedly false allegations on which Defendant’s
PFS petition was based concerned protests at Defendant’s residence. Attorneys Thompson and Eye
were not witnesses to those events and have no personal knowledge of them. Merely because the
attorneys discussed the filing of a PFS petition with Defendant at some point and subsequently
represented her after she filed a petition does not make them fact witnesses to the underlying
events. Cf. Fish v. Kobach, 320 F.R.D. 566, 578 (D. Kan. 2017) (deposition allowed where
defendant attorney drafted the documents at issue and “is the only person with direct knowledge
to answer certain questions about the documents,” and “the information plaintiffs seek about the
documents relates to Secretary Kobach’s actions as a party to this case, not to his role as an
attorney of record”). Hay & Forage and the “fact witness” line of cases thus do not support
Plaintiff’s arguments. Finally, Plaintiff cites Kansas Food Packers v. Corpak, 2000 WL 33170870
(D. Kan. Oct. 12, 2000), but that case is likewise inapplicable, as it dealt with a waiver of the
attorney-client privilege due to an “advice of counsel” affirmative defense. Id., 2000 WL
33170870, *3 (because defendant asserts that it brought a claim “‘in good faith on the advice of

7

counsel,’ [defendant] has waived the privilege.”). Plaintiff has not alleged or shown that Defendant
is asserting an advice-of-counsel defense.
As Judge Rushfelt pointed out in Hay & Forage, the party seeking a deposition of opposing
counsel “should demonstrate that the deposition is the only reasonably practical means available
for obtaining the information. If there are other available sources, he should explore them first.”
Id., 132 F.R.D. at 689. This is so because “experience teaches that countenancing unbridled
depositions of attorneys often invites delay, disruption of the case, harassment, and unnecessary
distractions into collateral matters.” Id. (citation omitted).3 That has proved true here, at least
insofar as unnecessary delay is concerned. Plaintiff has failed to satisfy the first Shelton factor, and
the court is satisfied that Judge Gale did not err in granting the motion to quash the depositions of
Thompson and Eye. In view of this finding, the court need not address Plaintiff’s remaining
arguments about the scope of attorney-client privilege.
The court’s ruling is without prejudice to Plaintiff reasserting a request to depose Eye and
Thompson in the future. Because the court’s ruling is based solely on the first Shelton factor – i.e.,
Plaintiff’s failure to show that no other means exist to obtain the information he seeks - the court
expresses no opinion on whether he could satisfy the other Shelton criteria should he be unable to
obtain relevant information from FMF members or others.
In reaching this conclusion, the court has not considered Plaintiff’s Reply Brief (Doc. 221,
222.) A reply brief to an objection is not authorized by the federal rules or the local rules. Federal

3

As noted in Shelton, 805 F.2d at 1327: “The practice of forcing trial counsel to testify as a witness … has long been
discouraged…. Taking the deposition of opposing counsel not only disrupts the adversarial system and lowers the
standards of the profession, but it also adds to the already burdensome time and costs of litigation. It is not hard to
imagine additional pretrial delays to resolve work-product and attorney-client objections, as well as delays to resolve
collateral issues raised by the attorney's testimony. Finally, the practice of deposing opposing counsel detracts from
the quality of client representation. Counsel should be free to devote his or her time and efforts to preparing the client's
case without fear of being interrogated by his or her opponent. Moreover, the ‘chilling effect’ that such practice will
have on the truthful communications from the client to the attorney is obvious.”

8

Rule of Civil Procedure 72(a), which governs here, authorizes the filing of objections to a
magistrate judge’s ruling on nondispositive matters. The drafters added that “[i]t is also
contemplated that a party who is successful before the magistrate judge will be afforded an
opportunity to respond to [the] objections.” Fed. R. Civ. P. 72, 1983 Advisory Committee Notes.
But the drafters made no mention of a reply to the response. Rule 72(b), which applies to objections
to dispositive orders, expressly authorizes a response brief but similarly makes no mention of a
reply. In Raymond v. Spirit AeroSystems Holdings, Inc., 2017 WL 3895012, *8 (D. Kan. Sept. 6,
2017), Judge Marten noted that a local rule provides that the procedure for filing objections follows
Rule 72(b), and that this rule “does not countenance a reply to a response to a party’s objections.”
Id. (citing D. Kan. R. 72.1.4 and Aurzadniczek v. Humana Health Plan, No. 16-1282-JTM, 2016
WL 1266972, at *1 n.2 (D. Col. Apr. 1, 2016)). Other courts considering the issue have likewise
concluded that Rule 72 does not contemplate reply briefs. See e.g., Kemp v. Gen. Growth Servs.,
Inc., No. 1:15-CV-01180-SCJ, 2017 WL 8217632, at *1 (N.D. Ga. Mar. 6, 2017) (“the Court does
not understand Federal Rule of Civil Procedure 72(b)(2) to provide for a reply brief”); Star
Envirotech, Inc. v. Redline Detection LLC, No. EDCV1201861JGBKKX, 2016 WL 6877770, at
*1 (C.D. Cal. Mar. 4, 2016) (“Neither Rule 72(b) nor the Local Rules for the Central District of
California permit an objecting party to file a reply brief in support of its original objections”);
Ventana Med. Sys., Inc. v. St. Paul Fire & Marine Ins. Co., 709 F. Supp. 2d 744, 747 (D. Ariz.
2010), aff'd, 454 F. App'x 596 (9th Cir. 2011) (Rule 72(b) does not provide for a reply brief).
The Raymond opinion indicated leave to file a reply could be granted in exceptional
circumstances. Raymond, 2017 WL 3895012, at *8. Even assuming this court has discretion to
allow a reply brief in an appropriate case, there is no persuasive reason to do so here. Plaintiff

9

moves for leave to file an edited reply4 (Doc. 227-1), while Defendant moves to disregard the reply
(Doc. 226). Plaintiff’s asserted justification for filing a reply largely reasserts the arguments in his
initial objection. See Doc. 227 at 5. Plaintiff also asserts a need to address new background facts
and legal arguments, including a supposed settlement offer (Doc. 227 at 6), but such allegations
are not material to the instant objection. The matter has been more than adequately briefed.
Plaintiff has failed to show that the magistrate judge’s ruling was clearly erroneous or contrary to
law.
Plaintiff’s Objection to Order of Magistrate Judge (Doc. 215). Plaintiff also objects to
the order of the magistrate judge denying Plaintiff’s motion for leave to file a second amended
complaint.5 Pursuant to that motion, Plaintiff sought to add additional claims to the case, as well
as add a request for punitive damages. (Doc. 152 at 10-14.) Plaintiff’s objection only challenges
the denial of his request to amend the complaint to add a request for punitive damages. (Doc. 215
at 16.)
Plaintiff misapprehends the effect of the magistrate judge’s order. The absence of a
specific request for punitive damages in a complaint does not necessarily preclude recovery of
such damages. As a matter of proper pleading, Plaintiff should have stated in the Amended
Complaint that he was seeking punitive damages. See Fed. R. Civ. P. 8(a)(3) (a pleading must
contain a demand for the relief sought). Nevertheless, Rule 54(c) provides that a final judgment
“should grant the relief to which each party is entitled, even if the party has not demanded that
relief in its pleadings.” Courts construing these rules have held that a failure to formally pray for
punitive damages in the complaint is not an absolute bar to such relief. Thus, in Guillen v.

4

Plaintiff’s initial 21-page reply brief (Doc. 221) exceeded the undersigned judge’s 10-page limit. Plaintiff’s edited
version (Doc. 227-1) is 16 pages.
5
For the same reasons previously indicated, the court does not consider Plaintiff’s reply (Doc. 228) in resolving the
objection.

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Kuykendall, 470 F.2d 745 (5th Cir. 1972), the Fifth Circuit found the trial court erred in not
instructing the jury on punitive damages even though the plaintiff did not seek them in the
complaint, because the complaint alleged malice and excessive actions, and Rule 54(c) provides
the plaintiff should be granted all the relief to which he is entitled. Id. at 748.The Eleventh Circuit
similarly held a trial court erred by not allowing a plaintiff to claim punitive damages at trial where
the complaint alleged the defendants acted maliciously, and defendants were otherwise on notice
of the damage request. In such a case, “a specific prayer for punitive damages was unnecessary.”
Scuitieri v. Paige, 808 F.2d 785, 792 (11th Cir. 1987) (citation omitted). See also Soltys v. Costello,
520 F.3d 737, 742 (7th Cir. 2008) (“the fundamental legal error in this case may have been the
parties’ and the district court’s shared assumption that a prayer for punitive damages had to appear
in the complaint in order to sustain an award of such damages.”).
The Amended Complaint gave Defendant notice that Plaintiff was claiming damage from
Defendant’s allegedly malicious actions. It alleged that Defendant lacked probable cause for the
PFS petition, that she acted with malice in singling out Plaintiff based on an unfounded suspicion
he was the leader of the protest, that she maliciously continued the PFS order while knowing her
allegations were false, that the action was terminated in Plaintiff’s favor, and that Defendant’s
action caused him damages. (Doc. 84 at 6-7.). Cf. K.S.A. § 60-3701(c) (to obtain punitive damages
under Kansas law, plaintiff must prove that defendant acted toward plaintiff with malice or similar
state of mind). Plaintiff also provided Defendant with a damage disclosure under Rule 26(a)
showing that he was seeking punitive damages. (Doc. 157-3 at 5.)6 In circumstances similar to

6
Plaintiff may have muddied the waters with a supplemental disclosure that did not mention or list punitive damages.
(Doc. 119-5.) But as Plaintiff points out, the supplemental disclosure stated that “Plaintiff continues to assert the
remaining damages claimed in his initial disclosures resulting from Burkhart’s false accusations….” (Doc. 119-5 at
2.) The supplemental disclosure may not have been crystal clear, but Defendant apparently took no steps to clarify it,
and it fails to show that Plaintiff affirmatively withdrew or waived his request for punitive damages.

11

these, numerous courts have held that recovery of punitive damages is not precluded. See, e.g.,
Bowles v. Osmose Utils, Servs., Inc., 443 F.3d 671, 675 (8th Cir. 2006) (although complaint did
not ask for punitive damages, defendant had notice of claim in time to prepare defense, and Rule
54(c) supported award).
Defendant argues that Plaintiff should be barred from seeking punitive damages because
Plaintiff failed to plead them as required by Federal Rule of Civil Procedure 9(g). That rule
requires that, “[i]f an item of special damage is claimed, it must be specifically stated.”
Defendant’s argument presupposes that punitive damages are special damages.

The court

recognizes that a number of cases in this district have so concluded. See, e.g., Capital Solutions,
LLC v. Konica Minolta Bus. Solutions U.S.A, Inc., 2009 WL 1635894, *8 (D. Kan. June 11, 2009)
(citing cases). However, a review of those cases shows that they are all based on the holding in
NAL II, Ltd. v. Tonkin, 705 F. Supp. 522 (D. Kan. 1989). In that case the court concluded, without
analysis or citation to any authority, that punitive damages were special damages subject to the
pleading requirements of Rule 9(g). Id. at 528. Subsequent cases in this district have cited to
Tonkin without any additional analysis.
Contrary to the Kansas cases, the prevailing view in other courts is that punitive damages
are not necessarily special damages for purposes of Rule 9(g). See Oklahoma ex rel. Wilson v.
Axiom Re, LP, No. CIV-17-0484-HE, 2018 WL 1221395, at *1 (W.D. Okla. Mar. 8, 2018) (“While
the decisions are not of one accord, the court concludes punitive damages do not generally qualify
as ‘special’ damages within the meaning of this rule,”); Figgins v. Advance Am. Cash Advance
Ctrs. of Mich, Inc., 482 F.Supp.2d 861, 870 (E.D. Mich. 2007) (punitive damages are not special
damages); Dowdy v. Coleman Co., No. 1:11CV45DAK, 2011 WL 6151432, at *5 (D. Utah Dec.

12

12, 2011) (“Special damages are not akin to punitive damages and are based on entirely different
public policy considerations.”).
Generally speaking, special damages are defined as “compensatory damages for a harm
other than one for which general damages are given.” Restatement (Second) of Torts § 904 (1979)
(emphasis added). By contrast, the Restatement defines “punitive damages” as damages “other
than compensatory or nominal damages . . . .” Id. § 908(1). Similarly, Black’s Law Dictionary
equates “actual damages” with “compensatory damages,” and then goes on to define “punitive
damages” as damages “awarded in addition to actual damages . . . .” DAMAGES, Black's Law
Dictionary (10th ed. 2014). These sources collectively define “special damages” as a form of
actual or compensatory damages, while “punitive damages” are expressly excluded from the
category of actual or compensatory damages. Indeed, Black’s notes that “punitive damages” may
also be referred to as “exemplary damages; vindictive damages; punitory damages; presumptive
damages; added damages; aggravated damages; speculative damages; imaginary damages; smart
money; [or] punies,” while alternative terms for “special damages” are limited to “particular
damages; [or] extraordinary damages.” Id. (italics in original). Conspicuously absent from these
two definitions is any overlap whatsoever between alternative names for “punitive damages” and
“special damages”. Since special damages are a form of compensatory damages and punitive
damages are not, it follows logically that punitive damages are not special damages. See also,
Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1226 (7th Cir. 1995) (“Fed.R.Civ.P. 9(g)
requires that the complaint plead ‘special damage.’ These are damages that are unusual for the
type of claim in question—that are not the natural damages associated with such a claim. . . .
Damages for personal injury are unusual in commercial cases, normal in tort cases; lost profits are
normal in contract cases, unusual in personal-injury tort cases.”); 5A Charles Alan Wright, et al.,

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Federal Practice and Procedure § 1310 (3d ed.), Westlaw (updated Apr. 2018) (“Special damages
are those elements of damages that are the natural, but not the necessary or usual, consequence of
the defendant's conduct, and typically stem from and depend upon the particular circumstances of
the case”); 25 C.J.S. Damages § 7 (“’special damages’ or ‘consequential damages’ are other
foreseeable damages within the reasonable contemplation of the parties at the time the contract
was made”); id. (“Special compensatory damages are the natural but not the necessary result of an
alleged wrong and are often considered to be synonymous with pecuniary loss and include such
items as medical and hospital expenses, loss of earnings, and diminished capacity. They do not
necessarily result from the wrong or breach of contract complained of, or which the law does not
imply as a result of that injury, even though they might naturally and proximately result from the
injury. Special damages have a ready market value, such that the amount of damages theoretically
may be determined or calculated with relative certainty. Special damages, although resulting from
the wrongful act, are not usually associated with the claim in question and must be pleaded in order
to avoid unfair surprise to the defendant.”)
Kansas law supports this distinction. Like the case at bar, Nelson v. Miller, 227 Kan. 271,
607 P.2d 438 (1980), involved a claim for malicious prosecution. In describing the applicable
pleading requirements, the court stated as follows:
In order for a plaintiff to recover in an action for malicious prosecution, he must
establish that he suffered some actual damages as a result of the defendant's action.
In some jurisdictions, the plaintiff must plead and prove special damages in order
to maintain such an action. Special damages are usually held to include either the
arrest of the plaintiff's person, seizure of his property, or other special interference
with his person or property. The requirement of alleging “special damages” in a
malicious prosecution action is known as the “English Rule.” There exists in the
United States a split of authority as to its application. . . .
....

14

It is clear that Kansas has specifically rejected the requirement of some special
interference with plaintiff's person or property in order to maintain an action for
malicious prosecution. It should also be noted that exemplary damages may be
recoverable, provided actual damages are proved. Stalker v. Drake, 91 Kan. 142,
Syl. P 3, 136 P. 912; Schippel v. Norton, 38 Kan. 567, 16 P. 804 (1888).
Nelson, 227 Kan. at 281–82, 607 P.2d at 446–47 (emphasis added). The highlighted language
from Nelson clearly distinguishes between special damages and exemplary or punitive damages.
See also Mynatt v. Collis, 274 Kan. 850, 886, 57 P.3d 515, 537 (2002) (“As one commentator
explains: ‘Punitive damages may be contrasted with compensatory [and] special damages, …
which, in contrast to punitive damages, are measured by the difference in the position of the party
after the wrong as compared to that party’s position before the wrong.’”) (citing Smith v. Printup,
262 Kan. 587, 602, 938 P.2d 1261, 1274 (1997) (citing Blatt, et al., Punitive Damages § 1.3(B)
(1991)).
Based on the foregoing, the undersigned judge respectfully disagrees with prior decisions
in this district that punitive damages are special damages for purposes of Rule 9(g). Accordingly,
Defendant’s argument on this point is rejected. And, in any event, even in this district the cases
recognize that under Rule 9(g), the pleading party need only “allege the circumstances upon which
the punitive damages claim is made.” Capital Solutions, 2009 WL 1635894, at *8. As noted,
supra, the amended complaint on file in this case makes allegations that would help support a
request for punitive damages, even though the words “punitive damages” were not included in the
pleading.
The issue of whether the current amended pleading necessarily alleges facts that would
allow a jury to consider an award of punitive damages is not before the court on the current
objection. The only issue raised is whether the magistrate judge erred in denying the motion to
amend the complaint; the court finds no error in that ruling. The court includes the above

15

discussion of Rule 54(c), however, to avoid any misunderstanding as to the scope of the magistrate
judge’s ruling: it does not eliminate the possibility that Plaintiff might be able to pursue relief that
includes punitive damages. To the extent Plaintiff plans to seek punitive damages at trial, Plaintiff
is nevertheless admonished to include that among his requested relief in the pretrial order. Whether
a jury may ultimately consider an award of punitive damages in this case is a decision that will
have to wait for another day.
Defendant’s Motion to Maintain Seal (Doc. 234). The court’s prior effort (Doc. 229) to
resolve outstanding issues about sealing exhibits proved unsuccessful, as Plaintiff failed to comply
with the order directing him to identify the deposition excerpts relevant to his objection. (Doc. 229
at 2.)
Having reviewed the parties’ briefs, the court will grant Defendant’s Motion to Maintain
the Seal (Doc. 234) as to Exhibits 6 and 7, which will be sealed, except for the portions of those
exhibits already publicly filed by Defendant.
Conclusion.
Plaintiff’s Objections (Docs. 203 and 215) to the Orders of the Magistrate Judge are
DENIED. Plaintiff’s Motion for Leave to File Reply Brief (Doc. 227) is DENIED. Defendant’s
Motion to Disregard Reply Brief (Doc. 226) is GRANTED. Defendant’s Motion to Maintain Seal
(Doc. 234) is GRANTED to the extent stated above.
IT IS SO ORDERED this 24th day of August, 2018.
___s/ John W. Broomes____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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