Wilkins v. Aberdeen Enterprizes II, Inc. et al

Filing 211

OPINION AND ORDER by Judge Terence Kern ; finding as moot 175 Motion to Dismiss; finding as moot 176 Motion to Dismiss; finding as moot 177 Motion to Dismiss; finding as moot 178 Motion to Dismiss; finding as moot 179 Motion to Dismiss; finding as moot 180 Motion to Dismiss; finding as moot 181 Motion to Dismiss; finding as moot 182 Motion to Dismiss; finding as moot 183 Motion to Dismiss; finding as moot 184 Motion to Dismiss; finding as moot 185 Moti on to Dismiss; granting 202 Motion to Amend; granting 202 Motion for Miscellaneous Relief; finding as moot 95 Motion to Dismiss for Lack of Jurisdiction; finding as moot 99 Motion to Dismiss for Lack of Jurisdiction; finding as moot 169 Motion to Dismiss (lmc, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
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CARLY GRAFF;
RANDY FRAZIER;
DAVID SMITH;
KENDALLIA KILLMAN;
LINDA MEACHUM;
CHRISTOPHER CHOATE; and
IRA LEE WILKINS;

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on behalf of themselves and all others
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similarly situated.
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Plaintiffs,
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v.
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1) ABERDEEN ENTERPRIZES II, INC.; )
2) JIM D. SHOFNER;
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3) ROB SHOFNER;
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4) OKLAHOMA SHERIFFS’
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ASSOCIATION;
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5) THE BOARD OF COUNTY
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COMMISSIONERS OF THE
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COUNTY OF TULSA;
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6) THE BOARD OF COUNTY
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COMMISSIONERS OF THE
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COUNTY OF ROGERS;
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7) VIC REGALADO, SHERIFF OF
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TULSA COUNTY;
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8) SCOTT WALTON, SHERIFF OF
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ROGERS COUNTY;
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9) JASON RITCHIE, SHERIFF OF
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ADAIR COUNTY;
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10) RICK WALLACE, SHERIFF OF
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ALFALFA COUNTY;
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11) TONY HEAD, SHERIFF OF ATOKA )
COUNTY;
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12) RUBEN PARKER, JR., SHERIFF OF )
BEAVER COUNTY;
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13) TONY ALMAGUER, SHERIFF OF
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BLAINE COUNTY;
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14) CHRIS WEST, SHERIFF OF
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CANADIAN COUNTY;
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15) CHRIS BRYANT, SHERIFF OF
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CARTER COUNTY;
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Case No. 4:17-CV-606-CVE-JFJ
(Amended Complaint - Class Action)
JURY TRIAL DEMANDED

16) NORMAN FISHER, SHERIFF OF
CHEROKEE COUNTY;
17) TODD GIBSON, SHERIFF OF
CLEVELAND COUNTY;
18) BRYAN JUMP, SHERIFF OF COAL
COUNTY;
19) HEATH WINFREY, SHERIFF OF
CRAIG COUNTY;
20) BRET BOWLING, SHERIFF OF
CREEK COUNTY;
21) HARLAN MOORE, SHERIFF OF
DELAWARE COUNTY;
22) CLAY SANDER, SHERIFF OF
DEWEY COUNTY;
23) JERRY NILES, SHERIFF OF
GARFIELD COUNTY;
24) JIM WEIR, SHERIFF OF GRADY
COUNTY;
25) SCOTT STERLING, SHERIFF OF
GRANT COUNTY;
26) DEVIN HUCKABAY, SHERIFF OF
GREER COUNTY;
27) THOMAS MCCLENDON, SHERIFF
OF HARPER COUNTY;
28) MARCIA MAXWELL, SHERIFF OF
HUGHES COUNTY;
29) ROGER LEVICK, SHERIFF OF
JACKSON COUNTY;
30) JEREMIE WILSON, SHERIFF OF
JEFFERSON COUNTY;
31) JON SMITH, SHERIFF OF
JOHNSTON COUNTY;
32) STEVE KELLEY, SHERIFF OF KAY
COUNTY;
33) DENNIS BANTHER, SHERIFF OF
KINGFISHER COUNTY;
34) JESSE JAMES, SHERIFF OF
LATIMER COUNTY;
35) ROB SEALE, SHERIFF OF
LeFLORE COUNTY;
36) MARTY GRISHAM, SHERIFF OF
LOVE COUNTY;
37) DANNY CRYER, SHERIFF OF
MARSHALL COUNTY;
38) MIKE REED, SHERIFF OF MAYES
COUNTY;

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39) KEVIN CLARDY, SHERIFF OF
McCURTAIN COUNTY;
40) KEVIN LEDBETTER, SHERIFF OF
MCINTOSH COUNTY;
41) DARRIN RODGERS, SHERIFF OF
MURRAY COUNTY;
42) SANDY HADLEY, SHERIFF OF
NOWATA COUNTY;
43) STEVEN WORLEY, SHERIFF OF
OKFUSKEE COUNTY;
44) P.D. TAYLOR, SHERIFF OF
OKLAHOMA COUNTY;
45) EDDY RICE, SHERIFF OF
OKMULGEE COUNTY;
46) EDDIE VIRDEN, SHERIFF OF
OSAGE COUNTY;
47) JEREMY FLOYD, SHERIFF OF
OTTAWA COUNTY;
48) MIKE WATERS, SHERIFF OF
PAWNEE COUNTY;
49) R.B. HAUF, SHERIFF OF PAYNE
COUNTY;
50) MIKE BOOTH, SHERIFF OF
POTTAWATOMIE COUNTY;
51) B.J. HEDGECOCK, SHERIFF OF
PUSHMATAHA COUNTY;
52) DARREN ATHA, SHERIFF OF
ROGER MILLS COUNTY;
53) SHANNON SMITH, SHERIFF OF
SEMINOLE COUNTY;
54) LARRY LANE, SHERIFF OF
SEQUOYAH COUNTY;
55) MATT BOLEY, SHERIFF OF TEXAS
COUNTY;
56) BOBBY WHITTINGTON, SHERIFF
OF TILLMAN COUNTY;
57) CHRIS ELLIOT, SHERIFF OF
WAGONER COUNTY;
58) RICK SILVER, SHERIFF OF
WASHINGTON COUNTY;
59) ROGER REEVE, SHERIFF OF
WASHITA COUNTY;
60) RUDY BRIGGS, JR., SHERIFF OF
WOODS COUNTY;
61) KEVIN MITCHELL, SHERIFF OF
WOODWARD COUNTY

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62) JUDGE DAWN MOODY;
63) JUDGE DOUG DRUMMOND;
64) JUDGE WILLIAM J. MUSSEMAN,
JR.;
65) DON NEWBERRY, TULSA COUNTY
COURT CLERK;
66) DARLENE BAILEY, TULSA
COUNTY COST ADMINISTRATOR;
67) JUDGE TERRELL S. CROSSON; and
68) KIM HENRY, ROGERS COUNTY
COURT CLERK;
Defendants.

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OPINION AND ORDER
Before the Court is Plaintiffs’ Motion for Leave to file a Second Amended Complaint
(“Motion to Amend”). (Doc. 202.) For reasons discussed below, Plaintiffs’ Motion to Amend is
GRANTED.
I.

Factual Background
This case arises out of Aberdeen Enterprizes II., Inc.’s allegedly unlawful debt collection

business. The named plaintiffs, on behalf of a putative class, challenge the alleged practices of the
above-named Defendants in assessing court debts, requesting and issuing warrants on those debts,
and collecting those debts. Plaintiff Ira Lee Wilkins filed this case, on behalf of himself and the
putative class, on November 2, 2017. (Doc. 2.) Defendant Aberdeen Enterprizes II, Inc. filed a
Motion to Dismiss on January 11, 2018 (Doc. 8), before any Defendants had been served, though
this motion was quickly deemed moot when, after serving all Defendants in late January, all named
Plaintiffs filed a First Amended Complaint (“FAC”) on February 1, 2018. (Doc. 76.) All
Defendants filed Motions to Dismiss the Amended Complaint by March 23, 2018. (Docs. 95, 99,
169, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, and 185.) Plaintiffs did not respond to these

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Motions to Dismiss, but rather, filed a Motion to Amend Complaint. (Doc. 202.) Some, but not
all, of the Defendants oppose this Motion to Amend.1
II.

Standard for Leave to Amend
Courts should “freely give leave [to amend] when justice so requires.” FED. R. CIV. P.

15(a)(2). The Court has wide discretion in deciding whether to grant leave to amend. See Minter
v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006). “Refusing leave to amend is generally
only ‘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.” See Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Additionally, a
party may amend its pleading once as a matter of course, either twenty-one days after service, or
twenty-one days after service of a responsive pleading. FED. R. CIV. P. 15(a)(1)(B). Amendment
as a matter of course after responsive pleading is meant to streamline and expedite consideration
of the issues raised in the motion, as the responsive pleading may raise issues that the original
pleader had not considered. FED. R. CIV. P. 15 Comm. Notes on Federal Rules of Civil Procedure
(“Rules”)—2009 Amendment.
III.

Analysis
The Defendants who oppose Plaintiffs’ Motion to Amend have filed five Response briefs,

which together argue that Plaintiffs’ motion should be denied for all of the reasons listed above.

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The following Defendants oppose this Motion: Darlene Bailey, Tulsa County Cost
Administrator; The Board of County Commissioners of the County of Tulsa; Don Newberry, Tulsa
County Court Clerk; Vic Regalado, Sheriff of Tulsa County (“Tulsa County Defendants”) (Doc.
204); The Board of County Commissioners of the County of Rogers; Kim Henry, Rogers County
Court Clerk; Scott Walton, Sheriff of Rogers County (“Rogers County Defendants”) (Doc. 205);
Oklahoma Sheriffs’ Association (Doc. 207); Aberdeen Enterprizes II, Inc.; Jim D. Shofner; Rob
Shofner (Doc. 208); Judges Terrell S. Crosson, Doug Drummond, Dawn Moody, and William J.
Musseman, Jr. (Doc. 209). The remaining Defendants do not oppose the Motion to Amend.
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(Docs. 204, 205, 207, 208, and 209.) Additionally, Tulsa County Defendants (Doc. 204), Rogers
County Defendants (Doc. 205) and Aberdeen Enterprizes II, Inc., Jim D. Shofner, and Rob Shofner
(Doc. 208) argue in the alternative that, should the Court grant Plaintiffs’ Motion to Amend,
Plaintiffs should be required to pay all fees and costs incurred by Defendants. Finally, the
Oklahoma Sheriffs’ Association argues that the Court should consider Plaintiff’s Motion to Amend
in connection with Defendants’ Motions to Dismiss. (Doc. 207.)
Plaintiffs, by contrast, argue that amending their complaint in response to arguments raised
in Defendants’ Motions to Dismiss will increase clarity and encourage resolution of issues, and
will preserve the Court’s and the Parties’ resources, without prejudice against Defendants. They
also argue that the proposed amendments here do not fall within the reasons that justify denying
the Motion to Amend, as identified in Frank v. U.S. West. (Doc. 202.) Further, they argue that
Defendants’ request for costs should be denied, for the same reasons the Motion to Amend should
be granted. (Doc. 206.) Finally, Plaintiffs argue that their Motion to Amend should not be
considered with Defendants’ Motions to Dismiss for reasons of judicial economy, as the changes
in the proposed Second Amended Complaint (“SAC”) will substantively affect Defendants’
arguments and Plaintiffs’ responses. (Doc. 210.)
A.

Undue Delay

A delay is undue when the party filing the motion has no adequate explanation for the
delay, or should have known the facts upon which the proposed amendment is based but failed to
include them in the original pleading. See Frank, 3 F.3d at 1365; Las Vegas Ice & Cold Storage
Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990). Courts have found that a party knew
or should have known the facts upon which the proposed amendment is based in cases where the
party had actual knowledge, or where the facts were of obvious importance to the party and were

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not difficult to learn. See, e.g., Muller v. Culbertson, 408 F. App’x 194, 197 (10th Cir. 2011)
(unpublished) (plaintiff’s motion to amend was denied where he changed his allegations as to the
identity of his employer in response to defendant’s motion to dismiss, as plaintiff knew or should
have known who his employer was); Panis v. Mission Hills Bank, 60 F. 3d 1486, 1494-95 (10th
Cir. 1995) (plaintiff’s motion to amend denied where plaintiff had actual knowledge of the omitted
facts); Frank, 3. F.3d at 1366 (plaintiffs’ motion to amend denied where plaintiffs conceded that
their failure to name a defendant prior to the proposed amendment was a strategic decision); Fed.
Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987) (defendant’s motion to amend
was denied where he possessed documents from which he could have discovered and asserted a
statute of limitations defense at the time the lawsuit was filed).
In this case, though Defendants argue that Plaintiffs were aware of the facts underlying the
amendments at the time the lawsuit was filed, they have not identified any specific fact in the
proposed SAC of which the Plaintiffs were, or should have been, aware, prior to filing the FAC.
With the exception of allegations regarding the Plaintiffs named in the FAC, the Court can
similarly find no indication that Plaintiffs had actual knowledge of any of the facts that they allege
for the first time in the SAC. Indeed, the allegation in the SAC that “[a]fter the filing of this
lawsuit, Tulsa County stopped using Aberdeen, Inc.’s services for collection of Tulsa County court
debt,” was by necessity not known to Plaintiffs prior to filing their complaint. Further, in the case
of the allegations regarding the Plaintiffs named in the FAC , the additional allegations appear to
add precision to existing allegations, rather than to add new allegations of which they had actual
knowledge prior to filing the SAC.
Moreover, the Court can find no facts alleged in the SAC that are both of obvious
importance to Plaintiffs and not difficult to learn. For example, many of Plaintiffs’ proposed

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amendments supply more precision and clarity regarding Plaintiffs’ allegations as to each
Defendant’s unlawful conduct. While each Defendant’s alleged role in the unlawful activity may
be of obvious importance, the precise details of each Defendant’s actions are nowhere near as
easily discoverable as the facts that have served as the basis for denying motions to amend, such
as the identity of a plaintiff’s employer, or the existence of a statute of limitations defense. See,
e,g., Muller, 408 F. App’x at 197 (plaintiff’s motion to amend was denied where he changed his
allegations as to the identity of his employer in response to defendant’s motion to dismiss, as
plaintiff knew or should have known who his employer was); Fed. Ins. Co., 823 F.2d at 387
(defendant’s motion to amend was denied where he possessed documents from which he could
have discovered and asserted a statute of limitations defense at the time the lawsuit was filed).
Accordingly, the facts alleged in Plaintiffs’ SAC are not facts that Plaintiffs knew, or should have
known, at the time they filed the FAC.
Plaintiffs have also presented an adequate explanation for filing their Motion to Amend at
this time. Plaintiffs state that “[t]he proposed amendments here are made in good faith in direct
response to Defendants’ motions to dismiss in order to bolster Plaintiff’s claims and to streamline
the issues for presentation to the Court.” (Doc. 202.) Though Plaintiffs cannot amend their
Complaint as a matter of course, as they have already done so once, Plaintiff’s proposed
amendments fall within the policy of judicial economy that supports allowing a plaintiff to amend
in response to a motion to dismiss. See FED. R. CIV. P. 15 Comm. Notes on Rules—2009
Amendment (allowing a plaintiff to amend his complaint in response to a motion to dismiss “may
avoid the need to decide the motion or reduce the number of issues to be decided, and will expedite
determination of issues that otherwise might be raised seriatim.”). Plaintiffs’ SAC limits which of
their claims are brought against each Defendant, offers greater clarity on their factual allegations

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and the legal substance of their claims, and adds an additional Plaintiff in response to Defendants’
arguments regarding the statute of limitations. Permitting these amendments will allow the Court
to decide future motions on substantive legal issues, rather than on procedural issues. See
Travelers Indem. Co. v. United States, 382 F.2d 103 (10th Cir. 1967) (pleading is not a game of
skill and its purpose is to facilitate a decision on the merits). Accordingly, the Court finds that
Plaintiffs’ delay in filing the proposed SAC is not undue.
Further, allowing Plaintiffs to file their SAC will not make their allegations a “moving
target,” as some Defendants contend. (Doc. 204, 205, and 208.) It is common, and indeed,
contemplated by the Rules that a plaintiff may amend his complaint in response to a motion to
dismiss. See FED. R. CIV. P. 15 Comm. Notes on Rules—2009 Amendment. In this case, the
proposed SAC does not change Plaintiffs’ theory of the case, but rather alleges additional facts
that address the issues raised in Defendants’ motions to dismiss. Accordingly, rather than making
Plaintiffs’ allegations a “moving target,” the SAC refines the allegations and will allow the Court
to decide future motions based on substantive issues. See Travelers Indem. Co., 382 F.2d 103.
Finally, this amendment will not lay the groundwork for Plaintiffs to make serial
amendments to prevent a decision on the merits, because the policy reasons in the Committee
Notes on Rule 15 that support amendment in this case will not apply equally to future responsive
pleadings. For example, the right to amend as a matter of course after service of a responsive
pleading is not cumulative, and so the policy cannot apply with equal force to future amendments.
See FED. R. CIV. P. 15 Comm. Notes on Rules—2009 Amendment. Moreover, serial amendments
to prevent a decision on the merits would allow Defendants to put forward facts showing 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.

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B.

Undue Prejudice to the Opposing Party

Courts typically find prejudice when the proposed amendment will unfairly affect the
opposing party “in terms of preparing their defense to the amendment.” Minter, 451 F.3d at 1208.
This most often occurs when the amended claims arise out of a different subject matter than what
was set forth in the original complaint and raises significant new factual issues. Id. Prejudice is
the most important factor in deciding a motion to amend the pleadings. Id., at 1207.
In this case, Defendants will not be prejudiced by Plaintiffs’ filing the SAC. While the
SAC alleges some new facts, restyles one claim, and adds a new Plaintiff, there is significant
overlap in the legal and factual material of both the FAC and SAC, which limits potential prejudice
from the SAC. See Minter v. Prime Equip. Co., 451 F.3d 1196, 1208 (10th Cir. 2006) (finding no
prejudice where there was significant overlap in the factual underpinnings and defenses of the two
complaints). Additionally, because much of the SAC attempts to describe, with more precision,
the role of each Defendant in the alleged unlawful activity, the relevant witnesses and documents
are within Defendants’ control, further limiting prejudice. See Velocity Press v. Key Bank, N.A.,
570 F. App’x 783, 788 (10th Cir. 2014) (finding no prejudice where relevant witnesses and
documents were within defendants’ control). Finally, because the amendment would take place
before the parties have commenced discovery and before the Court has ruled on any motions,
Defendants will not be prejudiced in their ability to conduct discovery on all of Plaintiffs’ legal
claims and factual allegations, nor their ability to present every relevant argument to the Court.
Moreover, though several Defendants have asserted that allowing Plaintiffs to file the SAC
would result in prejudice, the only prejudice any Defendant has alleged is that Defendants will
likely be required to file an additional Motion to Dismiss, and that this task will be timeconsuming, as the SAC is quite lengthy. (Docs. 204, 205, 207, and 208.) While Defendants may

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be required to engage in additional research in response to the SAC or draft an additional motion
to dismiss, this additional work does not, by itself, constitute prejudice. Defendants are not
prejudiced simply because they must respond to Plaintiffs’ amendments, particularly because, as
discussed supra, III. A, the Rules contemplate Plaintiffs amending their complaint in response to
motions to dismiss. See FED. R. CIV. P. 15 Comm. Notes on Rules—2009 Amendment; Minter,
451 F.3d at 1208; Velocity Bank, 570 F. App’x at 788. Defendants’ argument is especially
unpersuasive in this case because, with one exception, the pending motions to dismiss are the first
motions to dismiss filed by the parties in this litigation, further limiting potential prejudice.2
Accordingly, the SAC would not unduly prejudice Defendants.
C.

Bad Faith or Dilatory Motive

Bad faith may be inferred if the proposed amendment contradicts the original pleading,
such that the two cannot be reconciled, or if the party seeks leave to amend for an improper
purpose. See Rivera v. Volvo Cars of N. Am., LLC., No. 13-00397 KG/KBM, 2015 U.S. Dist.
LEXIS 192620, at *11 (D. N.M. Feb. 9, 2015); Colo. Civ. Rights Comm’n v. 1950 Logan Condos.
Condo. Ass’n, No. 13-cv-02583-PAB-MJW, 2013 U.S. Dist. LEXIS 181195, at *4 (D. Colo. Dec.
30, 2013); see also Ayon v. Gourley, No. 98-1305, 1999 U.S. App. LEXIS 14199, *9-10 (10th Cir.
1999). In this case, Defendants have identified no portion of the SAC that contradicts the FAC,
and the Court has found none.
Similarly, while Defendants Aberdeen Enterprizes, Jim Shofner, and Rob Shofner have
alleged that Plaintiffs seek this amendment for the improper purpose of delay, the facts they cite
in support of this allegation are equally consistent with Plaintiffs, in good faith, seeking to refine
their factual allegations and legal claims. These Defendants argue that Plaintiffs presented their

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Aberdeen Enterprizes II has filed two Motions to Dismiss. (Docs. 8 and 208.)
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prior pleadings with the goal of discerning what factual and legal allegations would draw objection,
and now seek “a mulligan.” (Doc. 208.) However, these facts are not sufficient to demonstrate an
improper purpose of delay—they are equally consistent with the Rules’ policy to allow amendment
in response to a motion to dismiss, as it “may avoid the need to decide the motion or reduce the
number of issues to be decided, and will expedite determination of issues that might otherwise be
raised seriatim.” See FED. R. CIV. P. 15 Comm. Notes on Rules—2009 Amendment. As discussed
supra, III.A., merely seeking to amend in response to a motion to dismiss does not in itself
demonstrate bad faith. Accordingly, Plaintiffs’ proposed SAC does not demonstrate bad faith or
dilatory motive.
D.

Failure to Cure Deficiencies by Amendments Previously Allowed

Defendants contend that leave to amend should not be granted because Plaintiffs have
amended their complaint once before, and failed to include the factual refinements, additional
Plaintiff, and claim restyling that they have included in the SAC. (Doc. 205, 207, and 208.) This
argument is not persuasive. As discussed supra, III. A, Plaintiffs have presented adequate reason
for filing their Motion to Amend at this time, and the Court has before it no compelling evidence
that Plaintiffs should have filed their Motion to Amend earlier, or should have included the
amendments contained in the SAC in the FAC. Accordingly, the Court rejects Defendants’
argument that Plaintiffs have not cured deficiencies by amendments previously allowed.
E.

Futility of Amendment

A proposed amendment is futile if the pleading, as amended, would be subject to dismissal
for any reason. See Watson ex. rel. Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001)
(internal citations omitted). When a court denies a motion to amend based on futility, that court
has frequently already ruled on a dispositive motion, either in a separate order or in conjunction

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with the motion to amend. See, e.g., Bradshaw v. Lappin, 484 F. App’x 217, 221 (10th Cir. 2012)
(motion to amend denied where it reasserted claims that had been dismissed and so was futile);
Jefferson County Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., 175 F.3d 848, 850 (10th Cir.
1999) (granting motion to dismiss and denying motion to amend because both the original and
amended complaint were based on an article protected by the first amendment); Bauchman v. West
High Sch., 132 F.3d 541, 559 (10th Cir. 1997) (motion to amend denied where claims with no
material differences had already been dismissed); Mountain View Pharmacy v. Abbott
Laboratories, 630 F.2d 1383, 1389 (10th Cir. 1980) (granting a motion to dismiss and denying in
part a motion to amend where “both complaints were equally devoid of any factual allegations
which would support the claims of these plaintiffs against these particular defendants.”).
In this case, the court has yet to rule on any dispositive motions. Accordingly, the Court
has not yet determined whether the FAC is subject to dismissal, and so cannot determine based
exclusively on the proposed SAC whether the SAC is subject to dismissal. At the very least, the
SAC is not so obviously deficient that the Court can find that it would be subject to dismissal
without the aid of the Parties’ briefing on this subject.
Further, the Court declines to consider Defendants’ motions to dismiss in conjunction with
Plaintiffs’ motion to amend, as the facts in this case counsel against such a process. Considering
the motions to dismiss and the motion to amend together would require the Court to determine
whether any dismissed claims were dismissed for defects cured in the proposed SAC. The briefing
on the present motions to dismiss is extensive, and if the Court considered the Motions to Dismiss
and the Motion to Amend together, the Court would be required to determine whether the SAC
cured the defects of the FAC without the benefit of the same extensive briefing. Due to the

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complex nature of both Plaintiffs’ claims and Defendants’ defenses, the Court will require briefing
to determine whether the SAC is subject to dismissal.
Finally, Defendants argue that Plaintiffs restyling their claim of “civil extortion” as
“duress” does not save this claim, as duress is not an independent tort. (Doc. 208.) This too does
not render the proposed SAC futile. Economic duress is not an independent tort under Oklahoma
law, and cannot support the award of punitive damages. See Cimarron Pipeline Constr. Inc. ex.
rel. All Other Insurers Who Write Comp. Ins. v. United States Fidelity & Guar. Ins. Co., 1993 OK
22, 848 P.2d 1161, 1162 (Okla. 1993). However, economic duress is an equitable doctrine under
contract law, and can support a claim for avoiding or rescinding a contract based on economic
duress, as well as for compensatory damages arising out of that contract. Id. at 1165-66. Plaintiffs’
proposed SAC includes compensatory damages in its Prayer for Relief. Accordingly, Plaintiffs’
claim of duress is not subject to dismissal without the benefit of briefing. However, Defendants
may raise their objections to this, or any, claim in any subsequent motions to dismiss.
F.

Costs

The Court has the discretion to impose “reasonable conditions” on a grant of leave to
amend, such as requiring Plaintiffs to pay Defendants’ additional discovery costs and attorney’s
fees. See Duran v. N.M. DOL, 42 F. App’x 326, 327-28 (10th Cir. 2002)(unpublished); Mountain
View Pharmacy v. Abbott Laboratories, 630 F.2d 1383, 1386 (10th Cir. 1980). When deciding
whether to impose any conditions on a party’s leave to amend, several of the same factors that are
relevant to determining whether to grant leave to amend initially may be considered. 12 Charles
Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 1486
(2014), citing Mountain View Pharmacy, 630 F.2d at 1386.

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In this case, though it would be within the Court’s discretion to impose conditions such as
the award of costs, the same factors that weigh in favor of granting the Motion to Amend also
weigh against requiring Plaintiffs to pay Defendants’ additional discovery costs and attorney’s
fees. In this case, Plaintiffs filed their Motion to Amend two months after Defendants’ filed their
Motions to Dismiss, and in direct response to those motions. Accordingly, rather than causing
economic prejudice to Defendants, the proposed SAC will conserve resources and help the Court
and the parties reach a decision on substantive issues. See Travelers Indem. Co. v. United States,
382 F.2d 103 (10th Cir. 1967) (pleading is not a game of skill and its purpose is to facilitate a
decision on the merits). Additionally, discovery and other pretrial procedures have not begun in
this case, so Defendants will not have to undergo additional discovery. Indeed, it appears that
Defendants’ only potential additional costs will be to prepare additional Motions to Dismiss. This
is not sufficient to justify awarding discovery costs and attorney’s fees. See Duran, 41 F. App’x
at 328-29 (upholding a condition that plaintiff pay additional discovery costs on the court’s grant
of leave to amend where the defendant would have been required to engage in additional discovery
and respond to otherwise-barred claims). Accordingly, the Court will not require Plaintiffs to pay
Defendants’ additional discovery costs and attorney’s fees.
IV.

Conclusion
For the reasons set forth above, the Court finds that Plaintiffs’ Motion to Amend is

GRANTED. Plaintiffs may file their SAC within five (5) days of this order being entered.
Plaintiffs’ Motion to Amend (Doc. 202) is GRANTED. Further, because Defendants’
Motions to Dismiss refer to the FAC, which is no longer the operative complaint, Plaintiffs’
Motion to Deny Defendants’ Motions to Dismiss as Moot (Doc. 202) is GRANTED.

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Defendant P.D. Taylor’s Motion to Dismiss for Lack of Jurisdiction in Official Capacity
(Doc. 95) is DENIED AS MOOT.
Defendant P.D. Taylor’s Motion to Dismiss for Lack of Jurisdiction in Individual Capacity
(Doc. 99) is DENIED AS MOOT.
Defendants’ Terrell S. Crosson’s, Doug Drummond’s, Dawn Moody’s, and William J.
Musseman Jr.’s Motion to Dismiss (Doc. 169) is DENIED AS MOOT.
Defendant Aberdeen Enterprizes II, Inc. Motion to Dismiss (Doc. 175) is DENIED AS
MOOT.
Defendants Jim D. Shofner’s and Ron Shofner’s Motion to Dismiss (Doc. 176) is DENIED
AS MOOT.
Defendants the Board of County Commissioners of the County of Rogers’s, Roger County
Clerk Kim Henry’s, and Rogers County Sheriff Scott Walton’s (Doc. 177) is DENIED AS
MOOT.
Defendants Roger County Clerk Kim Henry’s and Rogers County Sheriff Scott Walton’s
Motion to Dismiss (Doc. 178) is DENIED AS MOOT.
Defendant Oklahoma Sheriffs’ Association’s Motion to Dismiss (Doc. 179) is DENIED
AS MOOT.
Defendant Darlene Bailey’s Motion to Dismiss (Doc. 180) is DENIED AS MOOT.
Defendants Darlene Bailey’s, the Board of County Commissioners of the County of
Tulsa’s, Don Newberry’s and Vic Regalado’s Motions to Dismiss (Doc. 181) is DENIED AS
MOOT.
Defendant Don Newberry’s Motion to Dismiss (Doc. 182) is DENIED AS MOOT.
Defendant Vic Regalado’s Motion to Dismiss (Doc. 183) is DENIED AS MOOT.

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Defendants Tony Almaguer’s, Darren Atha’s, Dennis Banther’s, Matt Boley’s, Mike
Booth’s, Bret Bowling’s, Rudy Briggs, Jr.’s, Chris Bryant’s, Kevin Clardy’s, Danny Cryer’s, Chris
Elliott’s, Norman Fisher’s, Jeremy Floyd’s, Todd Gibson’s, Marty Grisham’s, Sandy Hadley’s,
R.B. Hauf’s, Tony Head’s, B.J. Hedgecock’s, Jesse James’s, Bryan Jump’s, Steve Kelley’s, Larry
Lane’s, Kevin Ledbetter’s, Roger Levick’s, Marcia Maxwell’s, Thomas McClendon’s, Kevin
Mitchell’s, Harlan Moore’s, Jerry Niles’s, Ruben Parker, Jr.’s, Mike Reed’s, Roger Reeve’s, Eddy
Rice’s, Jason Ritchie’s, Darrin Rodgers’s, Clay Sander’s, Rob Seale’s, Rick Silver’s, Jon Smith’s,
Shannon Smith’s, Scott Sterling’s, Eddie Virden’s, Rick Wallace’s, Mike Waters’s, Jim Weir’s,
Chris West’s, Bobby Whittington’s, Jeremie Wilson’s, Heath Winfrey’s, and Steven Worley’s
Motions to Dismiss in their Official Capacity (Doc. 184) and in their Individual Capacities (Doc.
185) are DENIED AS MOOT.
DATED THIS 20th day of September, 2018.

__________________________________________
TERENCE C. KERN
United States District Judge 

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