Janis et al v. Nelson et al

Filing 80

ORDER denying as moot 38 Motion to Dismiss; granting 49 Motion to Amend/Correct. Signed by Chief Judge Karen E. Schreier on 10/02/2009. (KC)

UNITED STATES DISTRICT COURT D I S T R I C T OF SOUTH DAKOTA W E S T E R N DIVISION E I L E E N JANIS and K I M COLHOFF, Plaintiffs, vs. C H R I S NELSON, in his official c a p a c it y as Secretary of State of S o u t h Dakota and as a member of t h e State Board of Education; P A U L A JONES, G A I L BROCK, C H R I S T O P H E R W. MADSEN, RICHARD CASEY, KAREN M. LAYHER, and L I N D A LEE VIKEN, in their official c a p a c i tie s as members of the State B o a r d of Elections; and S U E GANJE, in her official capacity a s Auditor for Shannon County, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C R . 09-5019-KES

O R D E R GRANTING PLAINTIFFS' M O T I O N TO AMEND C O M P L A I N T AND DENYING D E F E N D A N T S ' MOTION TO DISM ISS

C h r i s Nelson, Paula Jones, Gail Brock, Christopher Madsen, Richard C a s e y , Karen Layher, Linda Lee Viken, and Sue Ganje, (defendants) in their o ff ic ia l capacities, move for dismissal of Eileen Janis and Kim Colhoff's (p l a in t iffs ) complaint as to the claims for monetary damages on the basis that t h e court lacks subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). P l a i n t i ff s resist defendants' motion and move to amend their complaint.

O n February 18, 2009, plaintiffs filed a civil action under 42 U.S.C. § 1983 alleging that their right to vote during the 2008 federal, state, and lo c a l elections had been unlawfully denied by defendants. Plaintiffs assert e ig h t counts in the complaint that allege various violations of their rights. C o u n ts one and two assert that their rights under the Equal Protection and D u e Process Clauses in both the Federal and South Dakota Constitutions w e r e violated. See U.S. Const. amend. XIV, § 1; S.D. Const. Art. VI, §§ 2, 19; S .D . Const. Art. VII, § 1. The third and fourth counts allege violations of the H e lp America Vote Act (HAVA) and a South Dakota statute. See 42 U.S.C. § § 15482, 15483; S.D. Codified Laws § 12-18-39. Count five alleges violations o f the National Voter Registration Act (NVRA). 42 U.S.C. § 1973gg-6. In the s ix t h and seventh counts, plaintiffs assert that defendants violated the Voting R ig h t s Act of 1965. 42 U.S.C. §§ 1973, 1973c. Finally, in count eight, p la in t iffs allege violations of the Voting Rights Act of 1964 and the Privileges o r Immunities Clause of the South Dakota Constitution. See 42 U.S.C. § 1971; S.D. Const. Art. VI, § 18. In summary, plaintiffs allege that their names were unlawfully removed fr o m the statewide and county voter registration rolls after having been s e n t e n c e d only to probation for their felony convictions. Plaintiffs also allege t h a t they were not given the opportunity to cast provisional ballots despite the e x is te n c e of both federal and state laws authorizing the use of provisional

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b a l lo t s if there is a question about voter eligibility. Plaintiffs seek declaratory, i n j u n c t i v e , monetary, and other forms of relief. Plaintiffs move to amend the complaint pursuant to Rule 15(a)(2). See F e d . R. Civ. P. 15(a)(2). The amended complaint adds the following: (1) an a d d i t i o n a l defendant, La Fawn Conroy, who was a Shannon County poll w o r k e r ; (2) clarification that the suit is brought against all defendants in their in d i v id u a l and official capacities; and (3) additional allegations related to p l a i n t i ff s' claim that they were denied their right to vote. (Plaintiffs' Motion to A m e n d the Complaint, Docket 49, at 1.) Defendants object to plaintiffs' m o t io n arguing that the amended complaint fails to present any new claims t h a t were unavailable at the time plaintiffs filed the initial complaint. U n d e r Rule 15(a)(2), "[t]he court should freely give leave when justice so r e q u ir e s ." See Fed. R. Civ. P. 15(a)(2) ("In all other cases, a party may amend it s pleading only with the opposing party's written consent or the court's le a v e . The court should freely give leave when justice so requires."). Leave to a m e n d the pleadings is not appropriate when the opposing party d e m o n s t r a t e s "undue delay, bad faith on the part of the moving party, futility o f the amendment, or unfair prejudice to the non-moving party[.]" Roberson v . Hayti Police Dep't, 241 F.3d 992, 995 (8th Cir. 2001) (citing Foman v. D a v i s , 371 U.S. 178, 182 (1962)). Delay alone, however, "is not a reason in a n d of itself to deny leave to amend; the delay must have resulted in unfair

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p r e j u d ic e ." Id. (citing Sanders v. Clemco Indus., 823 F.2d 214, 217 (8th Cir. 1 9 8 7 ); see also Moses.com Sec., Inc. v. Comprehensive Software Sys., 406 F .3 d 1052, 1065 (8th Cir. 2005) ("In most cases, `delay alone is insufficient j u s t i f i c a t i o n ; prejudice to the nonmovant must also be shown.' " (quoting Bell v . Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998)). Finally, " `[t]he b u r d e n of proof of prejudice is on the party opposing the amendment.' " R o b e r s o n , 241 F.3d at 995 (quoting Sanders, 823 F.2d at 217). Defendants' only argument against plaintiffs' motion to amend is a v a r i a t io n of undue delay, namely that the newly asserted claims could have b e e n put forth in the original complaint. Defendants have not demonstrated t h a t there would be any unfair prejudice as a result of the amended c o m p l a i n t . See Roberson, 241 F.3d at 996 (reversing trial court's refusal to a llo w amending of the complaint because "[t]he district court's orders and r u lin g s do not indicate that the court believed that the [defendant] would have b e e n prejudiced by the amendment of the complaint, nor does our review of t h e record suggest that prejudice was likely"). Thus, plaintiffs' motion to a m e n d the complaint is granted because defendants have not demonstrated a n y unfair prejudice in allowing plaintiffs to amend the complaint. Accordingly, it is hereby O R D E R E D that plaintiffs' motion to amend the complaint (Docket 49) is gr an te d .

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I T IS FURTHER ORDERED that defendants' motion to dismiss p l a i n t i f f s ' complaint (Docket 38) is denied as moot and without prejudice. Dated October 2, 2009. BY THE COURT:

/s/ Karen E. Schreier K A R E N E. SCHREIER C H I E F JUDGE

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