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Holick v. Burkhart

United States District Court, D. Kansas

April 30, 2018

MARK HOLICK, Plaintiff,



         Now before the Court is Plaintiff's Motion for Leave to File Second Amended Complaint (Doc. 152), in which he seeks to renew his previously abandoned defamation claim and include a new claim for civil conspiracy. Having reviewed the submissions of the parties, Plaintiff's motion is DENIED.


         In 2013, Defendant received a temporary order of protection from stalking against Plaintiff in Kansas state court (state court action). Plaintiff, who is a resident of Oklahoma, filed the present matter in federal district court on June 9, 2016, alleging malicious prosecution and abuse of process against Defendant, a Kansas resident, relating to the allegations levied against him in the state court action. (See generally, Doc. 84.) The Court's initial Scheduling Order included a deadline of May 12, 2017, to join parties or otherwise amend the pleadings. (Doc. 28, at 7.)

         On July 31, 2017, Plaintiff filed a motion to amend his Complaint (Doc. 66), which, although untimely, was unopposed by Defendant. The amended pleading voluntarily dismissed Plaintiff's defamation claim. (Doc. 66-1.) Plaintiff indicated that the defamation claim was “dropped” as a “strategy choice, to avoid the time required by, and the burden of answering, the extensive discovery requests about his defamation damages.” (Doc. 152, at 12.) The motion was granted (Doc. 77, text entry) and the Amended Complaint was filed on August 12, 2017. (Doc. 84.)

         Defendant contends that Plaintiff employed this strategy “to deflect Defendant's efforts to obtain discovery into [Plaintiff's] alleged reputational harm.” (Doc. 157, at 8.) Defendant notes that Plaintiff's first motion to amend (which dropped the defamation claim) was filed three hours after Defendant filed a motion to compel discovery on the issue. (See Docs. 65, 66.) Defendant points out that Plaintiff, in opposing that motion to compel, “told this Court that, ‘Plaintiff has voluntarily dropped his defamation claim. This has rendered moot all requests for information related to plaintiff's reputation.” (Doc. 95 at 2.)

         The Scheduling Order was revised on August 31, 2017. (Doc. 102.) The new Order did not extend the expired deadline to amend the pleadings. (Id.) The Summary of Deadlines and Settings in the Order did, however, note that this deadline had “passed.” (Id., at 12.)

         In late October 2017, Defense counsel began its third response to Plaintiff's Requests for Production, which had been served approximately three months earlier. (Doc. 152, at 4.) Plaintiff contends that this document production was “the first to be truly responsive to Plaintiff's first ten requests for production” and “provide the basis for the amended complaint which Plaintiff now seeks to file.” (Id.) Plaintiff contends that documents received from Defendant in a document production on October 26, 2017, provided the information that lead him to renew his defamation claim and include a new claim for civil conspiracy.

         Plaintiff motion includes an extensive factual summary detailing numerous events that occurred in Plaintiff's personal life during the time between receiving these discovery documents in October 2017 and bringing the present motion in February 2018. (Doc. 152, at 4-5.) For instance, “[o]n November 13, 2017 - about two weeks after receiving Defendant's Third Production of Documents - Plaintiff's counsel Donald McKinney learned that his father, Harold McKinney, age ninety-four, had been admitted to the hospital with a suspected case of pneumonia” and was not expected to survive. (Id., at 4.) This resulted in the cancellation of Defendant's deposition, which had been scheduled for November 21, 2017. (Id.)

         Plaintiff's counsel “was required to move its office to a new location by December 1, 2017.” (Id., at 5.) Harold McKinney passed away on December 15, 2017, with a funeral following on December 20. (Id.) This resulted in the continuation of a status conference with the Court as well as Plaintiff's deposition. (Id.) Also, on January 9, 2018, the sister of Plaintiff's counsel “suffered a massive life-threatening stroke” and was placed in a medically induced coma. (Id.) As of the filing of the present motion, she remains unconscious. (Id.) The parties agreed to continue third-party depositions that had been scheduled for mid-January. (Id.)

         The parties held a status conference with this Court on January 5, 2018, during which the Court “observed that the case had essentially ‘gone dark' for two months.” (Doc. 152, at 5.) The discovery deadline, which was scheduled to expire on January 31, 2018, was extended to May 11, 2018. (Id.) Defendant states that, during this status conference with the Court, Plaintiff's counsel “raised for the first time the possibility of Plaintiff reasserting his defamation claim. He explained that, in the next ten days, he planned to file a motion to amend the complaint. Almost one month later, on February 2, 2018, he filed his second motion to amend the complaint.” (Doc. 157, at 8-9.) The Court notes that the motion was filed 10 weeks after Plaintiff received the document production that he contends inspired him to file the present motion - not to mention eight and a half months after the deadline to move to amend had expired.

         Another revised Scheduling Order was entered on January 18, 2018. (Doc. 147.) As of the filing of the present motion, only one deposition had occurred - Plaintiff's attorneys' fees expert. (Doc. 152, at 5.)


         Pursuant to Fed.R.Civ.P. 15, Plaintiff moves to amend his Complaint for a second time. According to Plaintiff, the proposed pleading “maintains the counts and allegations against the same defendant as the original complaint, and adds no new parties, but accounts for significant factual and procedural developments that have occurred since both the original complaint and the First Amended Complaint were filed.” (Doc. 152, at 1.)

         Defendant responds that the motion, filed eight months past the deadline, “is Plaintiff's latest attempt to manipulate the course of discovery and unnecessarily prolong this litigation.” (Doc. 157, at 6.) Defendant argues that “Plaintiff's gamesmanship should be rejected.” (Id.)

         A. Standards for a Rule 15 Motion to Amend.

         Rule 15(a) of the Federal Rules of Civil Procedure provides that “a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. . . .” Fed.R. Civ.P. 15(a). The granting of an amendment is within the sound discretion of the court. See First City Bank, N.A., v. Air Capitol Aircraft Sales, Inc., 820 F.2d 1127, 1132 (10th Cir. 1987). The United States Supreme Court has, however, indicated that the provision “leave shall be freely given” is a “mandate . . . to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962). “In determining whether to grant leave to amend, this Court may consider such factors as undue delay, the moving party's bad faith or dilatory motive, the prejudice an amendment may cause the opposing party, and the futility of amendment.” Id., at 182; see also Jarrett v. Sprint/United Mgmt. Co., No. 97-2487-EEO, 1998 WL 560008, at *1 (D. Kan. 1998).

         Plaintiff contends that “[n]one of the factors that militate against granting a motion to amend are present in this case.” (Doc. 152, at 16.) He argues that the proposed amendment causes no undue prejudice to Defendant because the amendments do not change the theory of the case and discovery is ongoing. (Doc. 152, at 9.) Plaintiff contends that there was no undue delay and Defendant “cannot be prejudiced . . . by the newly alleged facts . . . [because she] and her associates have first-hand knowledge of the roles that they played in the events at issue.) (Id.) Further, Plaintiff argues that there is additional time for discovery and depositions the parties and “meaningful witnesses” were yet to occur when this motion was filed. (Id.) Plaintiff also contends that “the amendments facilitate the resolution of this matter on the merits” and the request to amend is not futile because he has “alleged sufficient facts to state a claim for relief that is facially plausible.” (Id., at 17.) As discussed below, Defendant argues that Plaintiff cannot meet the requirements of Fed.R.Civ.P. 15 because the proposed amendments are futile and result from bad faith. (See generally Doc. 157, at 18-28.)

         Before the Court can engage in a Rule 15 analysis, however, it must analyze Plaintiff's requested amendment in the context of Fed.R.Civ.P. 16 because the deadline to amend pleadings expired in the original Scheduling Order (and was not reset in the Amended Scheduling Order). (Doc. 152, at 8; Doc. 28.) Plaintiff must therefore first move the Court for an amendment to the Scheduling Order pursuant to Fed.R.Civ.P. 16. Plaintiff argues that a failure to amend the Scheduling Order, resulting in “[s]trict enforcement of that initial deadline would not serve the interests of justice or the purpose and spirit of Rule 15(a).” (Doc. 152, at 8.)

         B. Application of Rule 16.

         Pursuant to Fed.R.Civ.P. 16, “[a] schedule may be modified only for good cause and with the judge's consent.” If the Court determines that good cause has been established, the Court then proceeds to determine if the Rule 15(a) standard has also been met.

The advisory committee notes to this Rule provide: ‘[T]he court may modify the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension.' Fed.R.Civ.P. 16 advisory committee's note to 1983 amendment; see also Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014) (‘In practice, this standard requires the movant to show the scheduling deadlines cannot be met despite [the movant's] diligent efforts.' (citation and internal quotation marks omitted)). ‘Rule 16's good cause requirement may be satisfied, for example, if a plaintiff learns new information through discovery or if the underlying law has changed.' Gorsuch, 771 F.3d at 1240.
The district court exercises its sound discretion when deciding whether to modify a Scheduling Order. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1254 (10th Cir. 2011) (reviewing a district court's refusal to enter a new scheduling order for abuse of discretion). Despite this ‘broad discretion in managing the pretrial schedule, ' the Tenth Circuit has concluded that ‘total inflexibility is undesirable.' Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599, 604 (10th Cir. 1997). Also, a scheduling order which produces an exclusion of material evidence is ‘a drastic sanction.' Id.; see also Deghand v. Wal-Mart Stores, Inc., 904 F.Supp. 1218, 1221 (D. Kan. 1995) (‘While a scheduling order is not a frivolous piece of paper, idly entered, ...

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