United States District Court, D. Kansas
MEMORANDUM AND ORDER
A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE
Fred Nekouee brings this action against Defendants Indian
Creek Shopping Center, L.L.C. (“Indian Creek”)
and Denny's, Inc., seeking declaratory and injunctive
relief for Defendants' alleged violation of Title III of
the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12181, et seq. Now pending before the
Court are Indian Creek's Motion to Dismiss
Plaintiff's First Amended Complaint (Doc. 15) and
Plaintiff's Motion for Leave to File Second Amended
Complaint and Memorandum in Support (Doc. 18).
19, 2018, Indian Creek filed a motion to dismiss
Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(1)
for lack of subject matter jurisdiction. However, Indian
Creek filed no accompanying memorandum in support of its
motion, and United States Magistrate Judge James P.
O'Hara therefore denied the motion for failure to comply
with D. Kan. 7.4(a). In his order, Judge O'Hara also noted
that Plaintiff had filed a First Amended Complaint on June
20, 2018, which might moot Indian Creek's motion to
19, 2018, Indian Creek filed a second motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(1) and a supporting
memorandum, arguing that Plaintiff lacks standing to bring
his claims and that this Court therefore lacks subject matter
jurisdiction. On July 23, 2018, Plaintiff filed a motion
seeking leave to file a Second Amended Complaint. Plaintiff
argues that his proposed Second Amended Complaint addresses
Indian Creek's standing arguments by adding allegations
concerning a return visit he made to the Indian Creek
Shopping Center in July 2018.
Plaintiff has already amended his complaint once as a matter
of course, he now seeks leave of court to amend again under
Fed.R.Civ.P. 15(a). Indian Creek failed to oppose
Plaintiff's motion for leave to amend, and the time for
doing so has long since passed. Under D. Kan. Rule 7.4,
[a]bsent a showing of excusable neglect, a party or attorney
who fails to file a responsive brief or memorandum within the
time specified in D. Kan. Rule 6.1(d) waives the right to
later file such brief or memorandum. If a responsive brief or
memorandum is not filed within the Rule 6.1(d) time
requirements, the court will consider and decide the motion
as an uncontested motion. Ordinarily, the court will grant
the motion without further notice.
as a result of Indian Creek's failure to respond, and
pursuant to Fed.R.Civ.P. 15(a)(2), the Court grants
Plaintiff's motion for leave to amend.
IS THEREFORE ORDERED BY THE COURT that Plaintiff
Fred Nekouee's Motion for Leave to File Second Amended
Complaint and Memorandum in Support (Doc. 18) is
granted. Plaintiff shall file the Second
Amended Complaint attached as Exhibit 1 to Doc. 22 no later
than December 14, 2018. Defendant Indian
Creek Shopping Center, L.L.C.'s Motion to Dismiss
Plaintiff's First Amended Complaint (Doc. 15) is
denied as moot, without prejudice.
IS SO ORDERED.
 On August 14, 2018, Plaintiff filed a
pleading titled “Motion for Leave to File Revised
Second Amended Complaint and Motion for Stay of Deadline to
Answer or Otherwise Respond and Memorandum in Support.”
Doc. 22. In this motion, Plaintiff sought leave to file a
revised version of his proposed Second Amended Complaint to
substitute Den-Tex Central, Inc. as a defendant in place of
Denny's, Inc. On August 17, 2018, Judge O'Hara
granted Plaintiff's motion, allowing Plaintiff
“leave to file a revised version of the proposed second
amended attached to [his] motion for leave to amend
complaint. To be clear, plaintiff is granted leave only to
file a revised version of an exhibit attached to a pending
motion (i.e., the motion for leave to amend, ECF No. 18,
remains pending).” Doc. 23.
 Doc. 13. D. Kan. Rule 7.1 provides
that a brief or memorandum must accompany all motions except
under certain limited circumstances, none of which would have
applied to Indian Creek's initial motion to dismiss. D.
Kan.Rule 7.4(a) provides that “[t]he Court may
summarily deny a ...