United States District Court, D. Kansas
MEMORANDUM AND ORDER
TERESA J. JAMES, Magistrate Judge.
This matter is before the Court on Plaintiff's Motion for Leave to File Amended Complaint (ECF No. 21). He requests an order granting him leave to file his proposed Second Amended Complaint, in which he dismisses all claims against three existing Defendants: Butler County, Kansas; Butler County Sheriff; and the Department of Homeland Security ("DHS"). In his proposed Second Amended Complaint, he also seeks to assert state law claims for assault and battery and negligence, as well as a claim for deprivation of his constitutional and statutory rights to be represented by counsel, against the five previously unknown individual DHS agents in their individual capacities.
Defendants Butler County, Kansas and Butler County Sheriff ("Butler Defendants") filed a response (ECF No. 24) stating that they have no objection to Plaintiff's motion but ask the Court to enter an order pursuant to Fed.R.Civ.P. 41 formally dismissing them from the case, rather than have the dismissal occur by implication derived from their omission in the Second Amended Complaint.
The United States of America, as real party in interest for DHS, has also filed a response (ECF No. 25) stating that it does not oppose the amendment to the extent it simply removes DHS from this litigation and names the five previously unnamed DHS agents. It does, however, oppose the filing of the Second Amended Complaint to the extent it includes common law tort claims against the DHS agents, arguing that it would be futile to allow these claims because Plaintiff has failed to name the United States as the proper defendant for his common law negligence claims and has failed to administratively exhaust these claims as required under the Federal Tort Claims Act.
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial. It provides that the parties may amend a pleading "once as a matter of course" before trial if they do so within: (A) 21 days after serving the pleading, or (B) "if the pleading is one to which a responsive pleading is required, " 21 days after service of the responsive pleading or a motion under Fed.R.Civ.P. 12(b), (e), or (f), whichever is earlier. Other amendments are allowed "only with the opposing party's written consent or the court's leave." Rule 15(a)(2) also instructs that the court "should freely give leave when justice so requires." The court's decision to grant leave to amend a complaint, after the permissive period, is within the trial court's discretion and will not be disturbed absent an abuse of that discretion. The court may deny leave to amend upon a showing of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc."
If a proposed amendment would not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), or fails to state a claim upon which relief may be granted, the court may deny leave to amend. "[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" A complaint or amendment thereof need only make a statement of the claim and provide some factual support to withstand dismissal. It does not matter how likely or unlikely the party is to actually receive such relief, because for the purposes of dismissal all allegations are considered to be true. The party opposing the amendment has the burden of showing the proposed amendment is futile.
Reviewing Plaintiff's proposed Second Amended Complaint under these standards, the Court finds that the proposed amendment is not futile. The Court rejects Defendant DHS's argument that it would be futile to allow Plaintiff to assert common law tort claims against the DHS agents in their individual capacities.
When a federal employee is sued for a wrongful or negligent act, the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("FELRTCA"),  commonly known as the Westfall Act, empowers the Attorney General to certify that the employee "was acting within the scope of his office or employment at the time of the incident out of which the claim arose." Upon certification, the employee is dismissed from the action and the United States is substituted as defendant. The case then falls under the governance of the Federal Tort Claims Act ("FTCA"). Generally, such cases unfold like those against other employers who concede respondeat superior liability.
Under the FELRTCA, federal employees acting within the scope of their office or employment are immune from suit, which requires persons who are injured by them to substitute the United States as the defendant. Section 2679(b) provides that:
(1)The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.
(2)Paragraph (1) does not extend or apply to a civil action against an employee of the Government-
(A) which is brought for a violation of the Constitution of the United States, or
(B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.
FELRTCA, however, conditions the automatic substitution of the United States as the party defendant under the FTCA "upon the certification by the Attorney General that the defendant employee[s] w[ere] acting within the scope of [their] office or employment at the time of the incident out of which the claim arose." Or if the Attorney General refuses to certify, the employee may petition the ...