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Somrak v. Kroger Co.

United States District Court, D. Kansas

April 10, 2018

MARY A. SOMRAK, Plaintiff,
v.
KROGER CO., Defendant.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Motion to Amend the Pleadings (ECF No. 20). For the reasons set forth below, Plaintiff's motion is GRANTED.

         I. Background[1]

         Plaintiff Mary Somrak filed this personal injury action after falling in a Dillons grocery store in Salina, Kansas in September 2015. As Plaintiff was leaving the self-checkout to exit the store, she slipped in a puddle of clear liquid, causing her to fall and a jar she was holding to break. She fell, coming down on the broken glass, producing significant injuries to her hand.

         Plaintiff filed her negligence case against Kroger Co. claiming diversity jurisdiction, because she is a resident of Kansas and Kroger Co. is an Ohio corporation, conducting business in Kansas as Dillons Stores. Defendant sought dismissal, arguing the proper defendant is Dillon Companies, Inc. (“Dillon”), but if Dillon were to be added to the case, diversity jurisdiction would no longer exist. (See Motion to Dismiss, ECF No. 5.) District Judge Carlos Murguia denied the motion to dismiss, finding the federal court currently has subject matter jurisdiction over the case as pleaded:

The court acknowledges that defendant believes it should be dismissed because Dillon is the proper party, and should it be joined, the court would no longer have diversity jurisdiction over the case. Dillon, however, is not currently a party and the court will not hypothesize as to the status of the case should Dillon be joined.

(Memorandum and Order, ECF No. 11.)

         The case has progressed with scheduling and the parties are apparently engaged in discovery, which is set to conclude by June 1, 2018. (Scheduling Order, ECF No. 15.) Plaintiff timely filed her Motion to Amend the Pleadings (ECF No. 20) on the February 28, 2018 deadline established in the Scheduling Order, seeking to add a claim for punitive damages. Defendant opposes the amendment. All related briefing is complete, and the issue of amendment is ripe for decision.

         II. Motion to Amend (ECF No. 20)

         A. Legal Standard for Amendment

         The standard for permitting a party to amend his or her complaint is well established. A party may amend its pleading as a matter of course under Fed.R.Civ.P. 15(a)(1), either before the responding party answers or within 21 days after service of a responsive pleading. However, in cases such as this, where the time to amend as a matter of course has passed, without the opposing party's consent a party may amend its pleading only by leave of the court under Rule 15(a)(2).

         Rule 15(a)(2) provides leave “shall be freely given when justice so requires, ” and the decision to allow an amendment is within the sound discretion of the court.[2] The court considers a number of factors in deciding whether to allow an amendment, including timeliness, prejudice to the other party, bad faith, and futility of amendment.[3]In exercising its discretion, the court must be “mindful of the spirit of the federal rules of civil procedure to encourage decisions on the merits rather than on mere technicalities.”[4]The Tenth Circuit acknowledged that Rule 15 is intended “to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties, '”[5] especially in the absence of bad faith by an offending party or prejudice to a non-moving party.[6] With these standards in mind, this Court evaluates Plaintiff's motion.

         B. Discussion

         Plaintiff seeks to amend her Complaint to add a claim for punitive damages. Her amendment includes seven paragraphs, adding facts to support her punitive damages claim. She contends Defendant knew the water was leading out the door and knew the water hazard was created by another customer. (Proposed Amended Complaint, ECF No. 21-1 at ¶¶ 16, 17.) Plaintiff claims Defendant produced video from 9:45 a.m. to 11:45 a.m. and of the accident itself, which happened at 12:45 p.m.-including the presence of Defendant's employee, Brenda Willey, in the self-check area. But Defendant has no video from 11:45 to 12:45, which should show the creation of the water hazard. (Id. at ¶¶18, 21.) Plaintiff alleges the store documents show Ms. Willey was the last person to inspect the area at 11:00 a.m., prior to the accident at 12:45 p.m., but there was no record of inspection at noon. (Id. at ¶ 20.) Plaintiff asserts these facts support her theory that Defendant, and/or its employee, Ms. Willey, had prior knowledge of the water spill and, although Ms. Willey was present in the checkout area, Defendant failed to either clean up the water, or warn Plaintiff of the danger prior to her fall. (Id. at ¶ 22.)

         Plaintiff contends she came to recognize the potential prior knowledge of the spill after reviewing Defendant's initial disclosures, which included Defendant's Supplemental Floor Inspection and claim logs which note the water hazard was created by another customer. (ECF No. 21, Ex. A.) She believes the information indicates Defendant knew about the water on the floor, but allowed it to remain there. Although Defendant's employee, Ms. Willey, was assigned to the self-checkout area prior to the accident, no one warned Plaintiff of the water hazard. Plaintiff contends this constitutes willful and wanton action by Defendant, sufficient to support a claim for punitive damages, and she should be permitted the opportunity to prove her theory. (ECF No. 21 at 2-3.)

         Defendant argues Plaintiff misconstrues the information on the claim logs, and the summary included on the logs does not constitute any admission by Dillon employees of knowledge of the water on the floor before Plaintiff's fall. Defendant claims it has provided all video maintained from the date of the accident, but in the event additional video is recovered, Defendant will supplement its production. (ECF No. 29.) Although Ms. Willey has apparently not yet been deposed, Defendant claims it anticipates “Ms. Willey will testify that she routinely checks the area for any potential hazards and takes appropriate steps to remedy and/or warn customers if she detects their presence and those inspections are not recorded. Further, it is anticipated that Ms. Willey was unaware of any hazards on the floor.” (ECF No. 29 at 2.)

         Of the factors analyzed by the Court when considering amendment, Defendant opposes Plaintiff's amendment solely based on the alleged futility of Plaintiff's proposed punitive damages claim. Each factor to be weighed when considering amendment is addressed in turn.

         1. Futility

         As the party opposing amendment, Defendant bears the burden of establishing its futility.[7] “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.”[8] The proposed pleading is then analyzed using the same standard as a motion to dismiss under Fed.R.Civ.P. 12(b)(6). When utilizing this standard, “the court must accept as true all well-pleaded factual allegations and view them in the light most favorable to the pleading party.”[9] Only if the court finds “the proposed claims do not contain enough facts to state a claim for relief that are plausible on their face or the claims otherwise fail as a matter of law”[10] should the court find the amendment futile.

         Because this is a diversity action, under the Erie doctrine, this federal Court must apply the substantive law of the forum state, but its own federal procedural law.[11]Defendant cites to Kansas law in its responsive briefing, and Plaintiff filed no reply arguing otherwise; so, the Court presumes Kansas law is applicable to its review of the punitive damages claim.

         Defendant argues the Court must consider Kansas Statutes Annotated § 60-3701 to determine whether Plaintiff's punitive damages claim is futile. This statute provides, “in the initial phase of trial, ”[12] a plaintiff is required to establish by “clear and convincing evidence” that the defendant's actions were willful, wanton, fraudulent or with malice.[13]Additionally, in this case, Plaintiff must also show the conduct of Defendant's employee was “authorized or ratified by a person expressly empowered to do so” by Dillon.[14]Defendant reasons, given the “clear and convincing” standard of proof required at trial and the insufficiency of the allegations in the proposed amendment, the amendment should be denied. (ECF No. 29 at 3.) Plaintiff failed to respond to these arguments by Defendant, so the Court is left to consider the authorities supplied by Defendant and gleaned through its own research.

         The initial question for this Court is whether the standard for amendment to include punitive damages, or the inclusion of a punitive damages claim at initial pleading, is considered a substitutive issue, to be determined by Kansas law, or a procedural one, to be determined by federal rules. Defendant relies on a 2007 opinion from this District in Emmons v. Cessna Aircraft Co.[15] to reason that Plaintiff's proposed punitive damages claim must meet the standard of proof under Kansas law to be permitted. Defendant argues Plaintiff's proposed allegations are not supported by current evidence, and contends the amendment is futile, “given the standard of proof required at ...


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