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Greer v. City of Wichita Kansas

United States District Court, D. Kansas

April 26, 2017

ANJELA GREER, Plaintiffs,
v.
CITY OF WICHITA, KANSAS, WICHITA ART MUSEUM, and, PATRICIA McDONNELL, Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE.

         Before the Court is Plaintiff Anjela Greer's Motion for Leave to Amend her First Amended Complaint (Doc. 75). But prior to the filing of that latest motion, the Defendants-the City of Wichita (“the City”), the Wichita Art Museum (“WAM”), and Patricia McDonnell-filed a Joint Motion to Dismiss Greer's First Amended Complaint (Doc. 37). Because Greer's proposed Second Amended Complaint could arguably modify some the claims in the First Amended Complaint that the Defendants move to dismiss, the Court must determine whether Greer may again amend her Complaint. Because Greer has not shown good cause to untimely amend her complaint, her Motion for Leave to Amend is denied. And because she fails to adequately state any claims under Kansas law in her First Amended Complaint, the Defendants' Motion to Dismiss is granted.

         I. Background

         A. Greer's Original Complaint

         Plaintiff Angela Greer initiated this action on June 9, 2016. In her Original Complaint (Doc. 1), Greer named three Defendants: The City, WAM, and McDonnell-WAM's director. Greer is a member of the United States Navy Reserve, and was employed by WAM. Greer alleged that during the course of her employment, she was mistreated and denied promotions because of her military service. She also alleged that the City refused to grant her interviews for other positions to which she had applied. Greer asserted that the City had “committed to all of its employees to protect them from discrimination, harassment and illegal treatment” and had also “committed to military veterans in its employ that it will afford them all legitimate rights and privileges available to veterans.”

         Ultimately, Greer alleged that the City, WAM, and McDonnell violated the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), the Kansas Act Against Discrimination (“KAAD”), and her veteran's preference rights. Greer also claimed that the City and WAM violated her rights at common law. The Complaint provided no further detail as to what exactly the Kansas common law claims were or how many common law claims were being asserted.

         B. Greer's First Amended Complaint

         On September 19, 2016, Greer filed an unopposed motion for extension of time to amend her complaint as a matter of course (Doc. 19). In that motion, Greer stated that she intended “to amend her Complaint as a matter of course to set forth her common law claims therein with greater particularity.” The Court granted that motion. Around the same time, the Court issued the First Scheduling Order in this case (Doc. 24). The deadline for motions to amend was November 30, 2016. The Court later extended that deadline to December 21, 2016.[1]

         On October 12, Greer filed her First Amended Complaint (Doc. 26). The First Amended Complaint no longer alleges violations of KAAD. But it does not do much to set forth the common law claims with greater particularity, as Greer had stated she was going to do. The First Amended Complaint states simply that “[t]his action arises out of violations of the common law.” The First Amended Complaint still alleges that the City has committed to afford veterans it employed “all legitimate rights and privileges available to veterans” and lays out the many ways in which Greer was mistreated. But Greer does not specify which specific common law claims she is alleging. At the end of the First Amended Complaint, Greer again states that the City, WAM, and McDonnell have violated her rights under USERRA as well as her veteran's preference rights. New in her First Amended Complaint is an allegation that WAM and McDonnell “wrongfully interfered with Ms. Greer's Veteran's Preference rights by influencing the City to refuse to interview her for jobs for which she had applied and met the minimum qualification requirements.”

         C. Defendants' Motion to Dismiss Greer's First Amended Complaint

         On November 30, 2016, the City, WAM, and McDonnell filed a Joint Motion to Dismiss Greer's First Amended Complaint (Doc. 37). In their Rule 12(b)(6) motion, the Defendants move to dismiss any and all of Greer's non-USERRA claims. The Defendants argue that Greer's bare assertion that they committed “violations of the common law” fails to state a plausible claim for relief.

         Greer responded to the motion (Doc. 44), stating that in her First Amended Complaint, she had sufficiently stated claims for both breach of contract and tortious interference with a business relationship, which are Kansas common law causes of action. The Defendants' Motion to Dismiss is currently pending before this Court.

         D. Greer's Motion for Leave to File a Second Amended Complaint

         On March 23, 2017, Greer filed a Motion for Leave to File a Second Amended Complaint (Doc. 75). In this latest motion, Greer states that she wishes to make it clear that she is also seeking a remedy under Kansas's Veteran's Preference Act (“VPA”), K.S.A. § 73-201, et. seq., in addition to her claims under USERRA and Kansas common law. The Defendants oppose Greer's motion for leave to amend yet again, arguing that Greer has not shown good cause for the amendment.

         II. Discussion

         A. Greer's Motion for Leave to File Second Amended Complaint

         The Court will first address Greer's Motion for Leave to File a Second Amended Complaint. Because Greer seeks to amend her complaint after the scheduling order deadline, she must establish good cause for doing so.[2] And in addition to showing good cause, she must also satisfy the requirements of Fed.R.Civ.P. 15(a).[3] Greer asserts that her proposed amendment would clarify her claims. She states:

Plaintiff believes that she has Veteran's Preference rights which arise at common law and by virtue of the Kansas Veteran's Preference Statute, K.S.A. 73-201, et seq. Although the First Amended Complaint states that Plaintiff's claims are based in part on her “Veteran's Preference” rights, it does not state that the Kansas Veteran's Preference Statute is one source of those rights. Plaintiff wishes to rectify this and eliminate any claim of prejudice or surprise that the Kansas Veteran's Preference statute is a separate source for her Veteran's Preference Rights.

         The proposed Second Amended Complaint adds a line declaring that “[t]his action arises out of violations of the Kansas Veteran's Preference Law, K.S.A. 73-201 et seq.” And elsewhere, the proposed Second Amended Complaint states that the City is subject to the provisions of the VPA, and that as a City employee, Greer is entitled to the rights and benefits conferred by the VPA.

         To compare, the First Amended Complaint similarly alleges violations of Greer's veteran's preference rights, but does not explain the source of those rights. For example, the First Amended Complaint states simply that the City “has committed to military veterans in its employ that it will afford them all legitimate rights and privileges to veterans.” Elsewhere, the First Amended Complaint states that Greer was entitled a veteran's preference as a City employee, without reference to the VPA. Apparently, Greer believes that her Second Amended Complaint will make clear that through her employment, Greer had veteran's preference rights arising from two sources: Kansas statute and her employment contract, which presumably guaranteed veteran's preference rights as well.

         The deadline in this case for a motion to amend was December 21, 2016. And so, Greer's March 23, 2017, motion for leave to amend is untimely. Therefore, she must show good cause for the amendment, as set out in Fed R. Civ. P. 16(b)(4).[4]

         Greer notes that the discovery cutoff for this case is June 9, 2017, and asserts that the Defendants have not yet filed an answer due to their pending motion to dismiss. Greer also references her response to the Defendants' interrogatories in which she made it clear that she is alleging a violation of the VPA. She claims that her Second Amended Complaint merely clarifies her already-asserted VPA claim. Greer asserts that her attempt to clarify constitutes good cause and that it will not cause any undue delay.[5]

         Conversely, the Defendants argue that Greer has not shown good cause for her proposed amendment. To begin, they reject Greer's assertion that her First Amended Complaint already contains a VPA claim. They argue that Greer is really trying to “backdoor” in a new claim that was not alleged earlier. The Defendants note that Greer does not allege any new facts or a change to the underlying law. Rather, she could have alleged a violation of the VPA earlier but failed to do so. According to the Defendants, Greer simply failed to raise a VPA claim in both her Original and First Amended Complaint, and her attempt to add the claim now does not constitute good cause.

         Examples of good cause are situations in which a plaintiff learns new information through discovery or if the underlying law has changed.[6] But a plaintiff cannot show good cause where she knew of underlying conduct but simply failed to raise a claim initially.[7] Ultimately, Greer must show that she could not meet the scheduling order's amendment deadline despite her diligent efforts to do so.[8]

         Greer argues that the entire purpose of her proposed amendment is to make it clear that she intended to bring a VPA claim from the very start of this case. But she provides no explanation as to why this clarification did not come until eight months after she filed her initial Complaint, and three months after the deadline for amending it has passed. No new facts have been discovered. In each Complaint, the Defendants' alleged conduct is the same. And although the VPA has evolved over time, the “concept of a veterans' preference was first conferred by the Kansas legislature in 1886.”[9] In other words, Greer has not learned any new information, and the underlying law is not new. Greer was, or should have been, well aware of the VPA before the deadline to amend her pleadings. And indeed, Greer cited the statute in responding to the Defendants' interrogatory. But for some unknown reason, Greer chose not to cite or identify the statute in either her Original or First Amended Complaint. The Court will not speculate as to why that is, but in any event, she has not shown good cause to clarify her allegations now.

         Greer has always had the factual basis for her proposed VPA claim. Her failure to allege it with greater particularity before December 21, 2016, constitutes a lack of diligence.[10]Accordingly, her Motion for Leave to File a Second Amended Complaint is denied. Greer maintains that she has always alleged a VPA claim in this case. That assertion will now be tested in the Court's consideration of the Defendants' Motion to Dismiss all of Greer's non-USERRA claims.

         B. Defendants' Motion to Dismiss Greer's First Amended Complaint

         The Court now turns to the Defendants' Joint Motion to Dismiss. In that motion, the Defendants move to dismiss all of Greer's claims brought under Kansas common law as well as any other non-USERRA claims.

         1. Legal Standard

         Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the plaintiff has failed to state a claim upon which relief can be granted. Upon such a motion, the Court must decide “whether the complaint contains enough facts to state a claim to relief that is plausible on its face.”[11] A claim is facially plausible if the plaintiff pleads facts sufficient for the Court to reasonably infer that the defendant is liable for the alleged misconduct.[12] The plausibility standard reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature of claims as well as the grounds on which each claim rests.[13] The Court must accept all of the factual allegations in the complaint as true.[14] But the Court need not afford such a presumption to legal conclusions.[15] If the allegations in the complaint are “so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.”[16]

         2. ...


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