United States District Court, D. Kansas
CHARLES R. LUTTRELL, Plaintiff,
JAMES K. BRANNON, M.D.; ORTHOPEDIC SCIENCES, INC.; JOINT PRESERVATION INSTITUTE OF KANSAS, L.L.C.; and DOCTORS HOSPITAL, L.L.C., Defendants.
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
matter comes before the Court on plaintiff's motion for
leave to amend his complaint (Doc. # 60). For the reasons set
forth below, the Court grants the motion,
and plaintiff shall file his proposed amended complaint
original complaint, filed on March 30, 2017, plaintiff
asserted claims against the four defendants for negligence,
fraud, civil conspiracy, violation of the Kansas Consumer
Protection Act (KCPA), breach of the implied warranty of
fitness, and strict liability failure to warn. On September
1, 2017, defendant Brannon filed a motion for judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c) with respect to the
KCPA claim (Doc. # 49), which motion remains pending.
Plaintiff filed the instant motion for leave to amend at the
September 29 deadline for such motions under the scheduling
order. Plaintiff proposes the following amendments: the
addition of three defendants; new informed-consent, RICO, and
alter ego claims; and additional allegations in support of
the original claims.
seeks leave pursuant to Fed.R.Civ.P. 15(a), which provides
that if leave of court is required for an amendment (as it is
here), “[t]he court should freely give leave when
justice so requires.” See Fed. R. Civ. P.
15(a)(2). A district court may dismiss a complaint without
granting leave to amend when it would be futile to allow the
plaintiff an opportunity to amend his complaint. See
Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219
(10th Cir. 2006). Moreover, in determining whether to grant
leave to amend, the court may consider such factors as undue
delay on the part of the plaintiff in raising the claim,
see Smith v. Aztec Well Serv. Co., 462 F.3d 1274,
1285 (10th Cir. 2006), bad faith on the part of the moving
party, and any undue prejudice to the opposing party by
virtue of allowance of the amendment, see Minter v. Prime
Equipment Co., 451 F.3d 1196, 1204 (10th Cir. 2006).
Ultimately, whether to grant leave to amend a complaint is
within the discretion of the district court. See Lind v.
Aetna Health, Inc., 466 F.3d 1195, 1199 (10th Cir.
four defendants filed a total of three briefs in opposition
to the motion to amend. Defendants have not asserted that
leave should be denied because of undue delay, bad faith, or
undue prejudice; rather, defendants rely solely on their
arguments that the assertion of certain claims would be
futile. For instance, all three defendants argue
that the proposed RICO claim is subject to dismissal for
failure to state a claim. Defendant Brannon also argues that
the fraud claim is futile in light of the proposed
informed-consent claim; defendant has not argued, however,
that the proposed informed-consent claim is subject to
dismissal, and thus there is no basis to reject that
amendment. Defendant Brannon also argues, as he did in his
motion for judgment on the pleadings, that the KCPA claim is
subject to dismissal. Defendant Doctors Hospital, L.L.C. also
argues that various claims against two of the proposed new
defendants are futile, but it has not explained how it has
standing to oppose any such amendment on that basis.
defendants have not argued that the proposed new
informed-consent and alter ego claims would be futile. Nor
have defendants opposed the addition of any particular
proposed allegations relating to the original claims.
Accordingly, those proposed amendments are granted as
unopposed. In addition, defendants have not argued that the
claims against the new defendants, which arise out of the
same occurrence, should not be joined with the claims against
the original defendants, and the Court therefore grants the
motion to amend to add such claims. Those new defendants may
raise any issue concerning the viability of the claims
against them in response to the amended complaint after they
the Court concludes that defendants' arguments concerning
the viability of the proposed new RICO claim and any new
bases for the originally-pleaded KCPA claim are better
addressed in the context of a motion to dismiss the amended
complaint. Such a motion will allow for full briefing of
those issues. In that motion, defendants may incorporate by
reference any argument already submitted to the Court.
Accordingly, the Court grants the motion to amend in its
THEREFORE ORDERED BY THE COURT THAT plaintiff's motion
for leave to amend (Doc. # 60) is hereby
granted, and plaintiff shall file his
proposed amended complaint forthwith.
FURTHER ORDERED BY THE COURT THAT defendant Brannon's
motion pursuant to Fed.R.Civ.P. 12(c) is hereby
denied as moot.
Although the deadline for
plaintiff's reply brief has not yet expired, the Court
concludes that such a brief is not necessary for the
resolution of this motion.
The Court rejects the argument by
defendant Doctors Hospital, L.L.C. that plaintiff has
provided too many factual allegations in his
proposed amended complaint in violation of Fed.R.Civ.P.
8's requirement of a “short and plain
statement.” The proposed claims are easily
comprehended, and the Court does not find the ...