United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
matter comes before the Court on defendant Brock
Hutchinson's motion to dismiss the state-law claims
asserted in plaintiffs' amended complaint (Doc. # 47).
For the reasons set forth below, the Court
denies the motion.
December 8, 2016, plaintiff Jane Doe, a minor and former
student in the Smith Center School District, and her mother
and next friend, plaintiff Angela Harrison, initiated the
present suit against the District and Brock Harrison, a
teacher and coach in the District. By their original
complaint, plaintiffs asserted claims against the District
under Title IX of the Educational Amendments of 1972, 20
U.S.C. §§ 1681 et seq. Plaintiffs also
asserted claims under 42 U.S.C. § 1983 against both
defendants, alleging violations of plaintiff Doe's equal
protection right to be free from sexual harassment in an
educational setting and her right to privacy on personal
Hutchison moved to dismiss the Section 1983 claims against
him on the basis of qualified immunity. By Memorandum and
Order of March 2, 2017, the Court granted the motion in part,
ruling that plaintiffs had not pleaded a plausible privacy
claim under Section 1983; but it denied the motion with
respect to the equal protection claim. On April 3, 2017, Mr.
Hutchinson file notice of his interlocutory appeal of the
Court's ruling on the equal protection claim.
March 7, 2017, plaintiffs moved for leave to amend their
complaint. Specifically, plaintiff Doe sought to add
state-law claims for invasion of privacy, negligent
supervision or retention of employees, negligent supervision
of children, negligent infliction of emotional distress, and
outrage. In addition, in the proposed amended complaint,
defendant Harrison would no longer assert claims as next
friend of Doe, but would assert a new claim on her own behalf
for Title IX retaliation. By Memorandum and Order of
September 1, 2017, Magistrate Judge James granted the motion
to amend with the exception of the new claim for negligent
supervision of children as asserted against Mr. Hutchinson,
which claim was deemed futile. The Magistrate Judge rejected
defendants' arguments that plaintiff Doe failed to
provide sufficient notice of her state-law claims pursuant to
K.S.A. § 12-105b. The Magistrate Judge further concluded
that the proposed amended complaint contained sufficient
allegations to support plaintiff Doe's negligence and
did not seek review of the Magistrate Judge's order. Mr.
Hutchinson now moves to dismiss the new state-law claims
asserted against him.
Jurisdiction to Allow Amendment to
amended complaint that has now been filed includes new
state-law claims by plaintiff Doe against Mr. Hutchinson for
invasion of privacy, negligent infliction of emotional
distress, and outrage (also known as intentional infliction
of emotional distress). Mr. Hutchinson first argues that,
because of his pending interlocutory appeal of the denial of
qualified immunity on the Section 1983 equal protection
claim, this Court lacks jurisdiction to allow the amendment
to add claims against him.
sense, Mr. Hutchinson's argument is untimely, as the
Court has already permitted the amendment. In opposing
plaintiffs' motion to amend, Mr. Hutchinson did not argue
that the Court lacked jurisdiction to permit the requested
amendment or that the proposed amendment would be futile for
that reason. Because the issue concerns its jurisdiction,
however, the Court will nevertheless address the argument.
an effective notice of appeal transfers jurisdiction from the
district court to the circuit court as a general matter, that
transfer is not unlimited:
[T]he transfer affects only those aspects of the case
involved in the appeal. Thus, when an appeal is taken from a
limited interlocutory ruling, as opposed to one the affects
the litigation as a whole, the district court may proceed
with the case.
See Howard v. Mail-Well Envelope Co., 150F.3d 1227,
1229 (10th Cir. 1998) (citations omitted). "Although
filing notice of appeal generally divests the district court
of jurisdiction over the issues on appeal, the district court
retains jurisdiction over collateral matters not involved in
the appeal." See Lancaster v. Independent Sch. Dist.
No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998) (internal
quotations and citation omitted).
making his present argument, Mr. Hutchinson does not explain
why the Court lacks jurisdiction concerning the new claims
under this standard. The Court concludes that the new claims
asserted against Mr. Hutchinson in the amended
complaint-discrete, common-law tort claims-are indeed
collateral to the matter on appeal, which concerns only a
single claim asserted under a federal statute. Mr. Hutchinson
has not cited any authority suggesting that an interlocutory
appeal of a qualified-immunity ruling robs the district court
of jurisdiction over other, discrete claims. Mr. Hutchinson
cites Mayv. Sheahan,226 F.3d 876 (7th
Cir. 2000), a case from the Seventh Circuit. In that case,
however, the proposed amendment did not involve new claims
distinct from the claim on appeal, but rather involved new
factual allegations and new plaintiffs, which amendment
therefore implicated the claim on appeal. See Id. at
880-81. Thus, May does not lend support to Mr.
Hutchinson's argument in this case. This case more
closely resembles Smith v. Board of County Commissioners
of Johnson County, ...