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Auman v. State

United States District Court, D. Kansas

September 11, 2017

KEN AUMAN, Plaintiff,
v.
STATE OF KANSAS, et al., Defendants.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE, UNITED STATES DISTRICT JUDGE.

         This matter comes before the court on plaintiff Ken Auman's three motions: Motion for Extension of Time on All Deadlines (Doc. 23); “1st Amended Petition and Motion for Leave to File Late for Cause Shown if Considered Late” (Doc. 24); and Motion for Leave to Object to All Orders on Stays on Discovery (Doc. 25). For the reasons explained below, the court grants plaintiff an extension of time to respond to defendant State of Kansas's “Motion to Dismiss and Request for [Fed. R. Civ. P.] 54(b) Certification of Finality” (Doc. 13) and defendant City of Overland Park's “Motion to Dismiss Defendants” (Doc 18.). But, the court denies leave to amend the Complaint at this time and overrules the objection to the Order staying discovery (Doc. 25).

         I. Motion for Extension of Time on All Deadlines (Doc. 23)

         Plaintiff seeks an extension of time on all deadlines. See Doc. 23 at 1. Plaintiff requests this extension because he “wishes to Amend his complaint further including with the help of counsel and Plaintiff wishes to brief the Court on his position on the proposed dismissals and stay which stays appear have been granted and Plaintiff is objecting by leave of court to the stays contemporaneously with this motion.” Id. ¶ 4. The court construes plaintiff's motion as a request for an extension of time to do four things: (1) amend his Complaint; (2) respond to defendant State of Kansas's “Motion to Dismiss and Request for [Fed. R. Civ. P.] 54(b)

         Certification of Finality” (Doc. 13); (3) respond to defendant City of Overland Park's “Motion to Dismiss Defendants” (Doc 18.); and (4) object to the Order staying discovery (Doc. 22). The court addresses the extension of time to amend the Complaint in part II. below, and the extension of time to object to the order staying discovery in part III. Here, the court addresses the extension of time to respond to defendants' pending motions.

         Plaintiff tries to justify this request, asserting that he “has gone through one of the hardest times of his life this year and has been unable to keep up with this case.” Id. ¶ 2. While the court often grants extensions of time needed to accommodate hardships, plaintiff has not specified the duration of the extension he seeks. Fourteen days is a reasonable amount of time for the extension, and the court thus extends the time to respond to defendant State of Kansas's “Motion to Dismiss and Request for [Fed. R. Civ. P.] 54(b) Certification of Finality” (Doc. 13) and defendant City of Overland Park's “Motion to Dismiss Defendants” (Doc 18.). Plaintiff must file his response to defendants' motions on or before September 25, 2017.

         II. “1st Amended Petition and Motion for Leave to File Late for Cause Shown if Considered Late” (Doc. 24)

         Plaintiff requests leave to file an amended Complaint. See Doc. 24 at 1. Plaintiff asserts that he faxed an amended Complaint, but the court never received it. Id. ¶¶ 1-2. Also, plaintiff asserts that he filed the amended Complaint “within a few days of fees being waived in the case.” Id. ¶ 1. Plaintiff filed the original Complaint on February 3, 2017. Magistrate Judge O'Hara entered an Order granting plaintiff's “Motion to Waive Fees” on February 6, 2017. Taking plaintiff at his word, it appears that plaintiff attempted to amend his Complaint within the constraints of Fed.R.Civ.P. 15. See Fed. R. Civ. P. 15(a)(1)(A) (“A party may amend its pleading once as a matter of course within 21 days after serving it . . . ”). But, the court never received any such amended pleading. So, plaintiff has not amended his Complaint as a matter of right.

         Because defendants now have filed motions to dismiss, plaintiff may no longer amend his Complaint as a matter of course. See Fed. R. Civ. P. 15(a)(1). But, Rule 15 allows plaintiff to amend with the defendants' consent or the court's leave. Fed.R.Civ.P. 15(a)(2) (“In other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.”). If a party wishes to seek the court's leave, the party must follow our court's Local Rules. D. Kan. Rule 15.1 provides:

(a) Requirements of Motion. A party filing a motion to amend or a motion for leave to file a pleading or other document that may not be filed as a matter of right must:
(1) set forth a concise statement of the amendment or leave sought;
(2) attach the proposed pleading or other document; and
(3) comply with the other requirements of D. Kan. Rules 7.1 through 7.6.

         D. Kan. Rule 15.1. Plaintiff's motion does not comply with Rule 15.1. It does not provide a concise statement of the amendment or leave sought. It also does not attach the proposed pleading. The court thus denies plaintiff leave to amend his Complaint without prejudice to his right to file a rule-complaint Rule 15 motion. Finally, in response to plaintiff's request for extension of ...


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