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Birdsong v. Unified Government of Wyandotte County/Kansas City

United States District Court, Tenth Circuit

January 10, 2014

JEROME BIRDSONG and ROCIO DOMINGUEZ, Plaintiffs,
v.
UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS, CITY, KANSAS, et al., Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

Plaintiffs bring this removal action under 42 U.S.C. § 1983, alleging violations of the Fourth and Fourteenth Amendments based on unlawful searches and seizures, excessive force, and denial of due process against Defendants Unified Government of Wyandotte County/Kansas City, Kansas ("Unified Government"), and against Officer P.J. Locke, Officer Travis Toms, Officer Joseph Reyes, Officer Steve Haulmark, Officer Nathan Doleshal, Officer Phil Trusskey, Officer Jeffery Bell, Officer Michael Mills, Detective Stewart Littlefield, John Does 1-10, Chief of Police Rick Armstrong, and Chief of Police Sam Breshears, in their individual and official capacities. In March 2013, soon after the case was removed, Defendants moved to dismiss: Defendants Bell and Mills filed a Motion to Dismiss Counts 11, 12, 13, 14, and 15 of the First Amended Complaint (Doc. 13), [1] and the remaining Defendants filed a Motion to Dismiss (Doc. 20) all counts alleged against them. Both motions argue that several of the claims in the First Amended Complaint are barred by the applicable statute of limitations and that others fail to state a claim for which relief can be granted under Fed.R.Civ.P. 12(b)(6).

Plaintiffs' response was due on August 26, 2013; it was not filed until August 27, 2013, without leave. Defendants argue that the Court should not consider this untimely response. Three weeks after the response was filed, and after the reply time on the motions to dismiss had expired, Plaintiffs filed a Motion for Leave to Amend, attaching a proposed Second Amended Complaint (Doc. 41) that added substantial additional factual material, two new defendants, and new claims. Defendants oppose the motion for leave to amend on grounds of delay and futility.

The Court first addresses the motion for leave to amend because if leave is granted, the motions to dismiss the First Amended Complaint are moot. As described more fully below, the Court finds that the motion for leave to amend should be granted in part and denied in part. The Court finds that the proposed amendments are futile with respect to counts 2, 3, 4, 6, 7, 8, 9, 10, and 12 of the proposed Second Amended Complaint because they are barred by the statute of limitations. The proposed amendment is not futile and will be allowed with respect to counts 1, 5, 11, 13, 14, 15, and 16 of the proposed Second Amended Complaint. The motions to dismiss the First Amended Complaint are therefore moot.

I. Procedural Background

This case was originally filed in Wyandotte County, Kansas District Court on October 26, 2012. It was removed on February 20, 2013. On March 11 and March 22, Defendants filed their motions to dismiss. Both motions argue that several counts are barred by the statute of limitations or otherwise fail to state a claim upon which relief can be granted, and that certain defendants are entitled to qualified immunity. Plaintiffs sought and obtained four extensions of time to respond to these motions. Plaintiffs' "Final Motion for Extension of Time, " filed on July 9, 2013, was denied because it was filed after the July 1, 2013 deadline established by the Court in its previous order. Plaintiffs sought reconsideration. The Court reluctantly granted Plaintiffs' motion to reconsider, finding that since no scheduling order was in place yet, Defendants' risk of prejudice was low. The Court allowed Plaintiffs until August 26, 2013 to respond and explained that the Court would not favorably entertain any further extensions. On August 27, 2013, Plaintiffs filed their response, without seeking leave to file out of time.[2] It was eight pages in length and failed to specifically address many of the arguments raised in the motions to dismiss. Defendants replied on September 5, 2013.

On September 18, 2013, Plaintiffs moved to amend the complaint, attaching a proposed Second Amended Complaint. The proposed amendments replaced the John Doe Defendants with Detectives Patrick Greeno and Jerome Gorman. It re-labeled the unlawful arrest claims as malicious prosecution claims and clarified which claims were associated with which police encounters. It added approximately forty pages of allegations, most of which are relevant only to the official capacity claims against the Unified Government that it had a policy or custom of sanctioning Fourth and Fourteenth Amendment violations. The motion to amend was fully briefed on December 18, 2013. In their reply, Plaintiffs address the arguments raised in the motions to dismiss, as applied to the proposed pleading.

II. Standard for Leave to Amend

Under Rule 15(a), leave to amend a complaint is freely given when justice so requires.[3] A party is typically granted leave to amend under this rule unless there is "a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendment previously allowed, or futility of amendment."[4] A proposed amendment is futile if the amended complaint would be subject to dismissal.[5] Defendants argue that leave to amend should be denied based on undue delay, and because the proposed amendment is futile.

III. Delay

Undue delay alone is sufficient to deny a motion to amend; there need not be a showing of prejudice.[6] In the Tenth Circuit, undue delay may be found "when the party filing the motion has no adequate explanation for the delay."[7] The Court may also deny leave to amend if the moving party "knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint."[8] Moreover, motions for leave to amend are correctly denied

when it appears that the plaintiff is using Rule 15 to make the complaint "a moving target" to "to salvage a lost case by untimely suggestion of new theories of recovery, " present "theories seriatim" in an effort to avoid dismissal, or to "knowingly delay[ ] raising [an] issue until the eve of trial."[9]

While liberality of amendment is important, it is equally important that "there must be an end finally to a particular litigation."[10]

Here, the Court is troubled by Plaintiffs' delay in bringing this motion. Plaintiffs delayed responding to the motions to dismiss for five months. The main argument asserted by Defendants in their motions to dismiss is that the statute of limitations bars Plaintiffs' claims. This defense turns on legal and factual arguments surrounding the claims' accrual dates. Plaintiffs' proposed amendments restyled three claims as malicious prosecution claims, but the bulk of information added in the proposed amended complaint is relevant only to the official capacity claim against the Unified Government. Plaintiffs delayed responding to the motions to dismiss for five months and then failed to respond to the motions to dismiss on the date that the Court explicitly provided was the final deadline to do so. Plaintiffs then waited three weeks to file the motion for leave to amend, causing a needless reply brief to be filed by Defendants Bell and Mills that turned out to be moot. Plaintiffs' contention that they have been diligent throughout these proceedings is belied by the record.

More troubling than the delay is the fact that Plaintiffs made no attempt to seek leave to file their response to the motion to dismiss out of time, nor to explain how their delay constitutes excusable neglect.[11] Plaintiffs simply waited until the reply time passed before seeking leave to amend to add over forty pages of information to the complaint and to restyle certain counts to survive the statute of limitations defense.

Notwithstanding this delay, the Court declines to deny leave to amend on this basis alone. There has been no deadline established in the case for filing a motion for leave to amend. While this is largely due to the fact that the motions to dismiss have been pending for so long, postponing a scheduling conference that would establish such a deadline, it is nonetheless important because Plaintiffs were still technically within the window of time to amend. However, the Court is loathe to condone the dilatory practices employed by Plaintiffs so far in this case. Plaintiffs should not be rewarded for flouting the orders of this Court.

Given the prejudice caused by Plaintiffs' decisions to seek leave to amend so long after delaying their response to the motions to dismiss, not to file their response along with a proposed amendment to aid in the parties' and Court's analysis, and not to file the proposed amendment until after the reply deadline had elapsed, the Court finds that sanctions are in order. Under 28 U.S.C. § 1927, "any attorney... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses and attorneys' fees reasonably incurred because of such conduct." The Court finds that Plaintiffs' attorney shall reimburse Defendants Bell and Mills for the reasonable attorneys' fees incurred in replying to the response to the motion to dismiss.[12] These Defendants shall submit an application for reasonable attorney fees incurred in filing that reply by February 7, 2014, in accordance with D. Kan. Rule 54.2.

IV. Futility

The Court now proceeds to determine whether the motion for leave to amend should be denied on grounds of futility. A proposed amendment is futile if the amended complaint would be subject to dismissal.[13] To survive a motion to dismiss, a complaint must present factual allegations, assumed to be true, that "raise a right to relief above the speculative level" and must contain "enough facts to state a claim to relief that is plausible on its face."[14] "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."[15] In responding to the motion for leave to amend, Defendants incorporate many of the arguments set forth in their briefs on the motion to dismiss. The Court considers these arguments in addition to those briefed on the motion to amend in deciding whether Plaintiffs' proposed amendments are futile.

Defendants argue that the proposed Second Amended Complaint would be subject to dismissal because: (1) Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, and 16 are barred by the statute of limitations; (2) Counts 11 and 13 are futile because they fail to state a claim upon which relief can be granted; (3) many of the factual amendments would be stricken because they are irrelevant, unsupported, scandalous, and ...


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