Burgett v. Kansas City Area Transportation Authority et al

Filing 57

ORDER AND OPINION ENTERED BY JUDGE ORTRIE SMITH (1) GRANTING PLAINTIFF'S MOTION TO VACATE; (2)DISMISSING COUNTS I, II, AND III WITH RESPECT TO KCATA; AND (3) GRANTING DEFENDANT KANSAS CITY AREA TRANSPORTATION AUTHORITY'S MOTIONFOR EXTENSION OF TIME TO RESPOND TO ANY REMAINING CLAIMS 17 . (Order mailed to Charles Burgett) (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
CHARLES L. BURGETT,
Plaintiff,
vs.
KANSAS CITY AREA
TRANSPORTATION AUTHORITY,
et al.,
Defendants.

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Case No. 13-0494-CV-W-ODS

ORDER AND OPINION (1) GRANTING PLAINTIFF’S MOTION TO VACATE; (2)
DISMISSING COUNTS I, II, AND III WITH RESPECT TO KCATA; AND (3) GRANTING
DEFENDANT KANSAS CITY AREA TRANSPORTATION AUTHORITY’S MOTION
FOR EXTENSION OF TIME TO RESPOND TO ANY REMAINING CLAIMS
On June 10, 2013, Plaintiff filed his First Amended Complaint, which alleged the
following counts: Count I—Assault and Battery (against Defendants Cartwright, KCATA,
Porter, and Lienhard); Count II—False Arrest and Imprisonment (against Defendants
Cartwright, KCATA, Porter, and Lienhard); Count III—Malicious Prosecution (against
Defendants Cartwright, KCATA, Porter, and Lienhard); Count IV—Negligent Training
and Supervision (against Defendants McInerney, Brooks, Wasson-Hunt, Pelofsky, and
James); and Count V—Negligent Training and Supervision (against KCATA).
On June 20, 2013, KCATA filed a Motion to Dismiss Plaintiff’s First Amended
Complaint. Plaintiff filed his Opposition to KCATA’s Motion to Dismiss on July 8, 2013.
On August 7, 2013, the Court granted KCATA’s Motion to Dismiss. See Doc. # 11. The
Court’s Order inadvertently stated that Counts I, II, and III were the only Counts against
KCATA. However, as noted above, Count V was also asserted against KCATA.
On September 9, 2013, Plaintiff filed a Motion to Vacate (Doc. # 17) the Court’s
August 7, 2013 Order. First, the Motion contains the same argument and authority
originally set forth in Plaintiff’s July 8, 2013 Opposition. Plaintiff argues that KCATA is
akin to a municipal entity and not shielded by sovereign immunity. This argument
remains unpersuasive. See State ex rel. Trimble v. Ryan, 745 S.W.2d 672, 674-75

(Mo. 1988). Second, the Motion brings to the Court’s attention the fact that Count V of
Plaintiff’s First Amended Complaint was not addressed by the KCATA or the Court.
On November 27, 2013, Plaintiff filed a Third Amended Complaint (Doc. # 53),
which adds Count VII, asserted against Defendants KCATA, Porter, and Lienhard.1 The
state and federal law claims against the KCATA in Counts I, II, III and V of the First
Amended Complaint and the Third Amended Complaint are virtually identical.
Accordingly, the Court hereby vacates the August 7, 2013 Order but only to the extent it
completely dismisses KCATA from this case. Counts I, II, and III remain dismissed with
respect to KCATA. KCATA is given up and until January 13, 2014, to respond to the
remaining claims (Counts V and VII) asserted against it in Plaintiff’s Third Amended
Complaint.

IT IS SO ORDERED.

DATE: December 13, 2013

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/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

Plaintiff’s Third Amended Complaint also includes Count VI, which is not asserted
against KCATA.