United States District Court, D. Kansas
MARIE A. ANDERSON, Plaintiff,
PISTOTNIK LAW, BRIAN R. COLLIGNON, HENRY & MATHEWSON, ELIZABETH L. HENRY, and DARYANNE NICOLE OTT, Defendants.
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE.
case arises out of a car accident that occurred on February
12, 2016. Plaintiff seeks damages from the other driver,
Defendant Daryanne Nicole Ott, who allegedly ran a red light
and hit Plaintiff's vehicle. Plaintiff also pursues
various claims against the lawyers that represented her in
conjunction with her personal injury claim against Ott, as
well as those lawyers' respective law
firms. This Order addresses four motions: (1)
Motion to Dismiss by Defendants Pistotnik Law and Brian
Collignon (Doc. 16), (2) Defendants Henry & Mathewson,
P.A.'s and Elizabeth L. Henry's Motion to Dismiss
(Doc. 27), (3) Motion to Dismiss by Defendant Ott (Doc. 44),
and (4) Plaintiff's Motion to Amend (Doc. 49). For the
reasons explained below, the Court grants Defendants'
motions and denies Plaintiff's motion. Plaintiff's
claims are dismissed without prejudice.
Factual and Procedural Background
February 12, 2016, Defendant Ott drove her vehicle through a
red light in Wichita, Kansas. Ott's vehicle struck
Plaintiff's vehicle, causing Plaintiff's 1999 Chevy
Suburban to flip, trapping Plaintiff inside the vehicle.
Plaintiff was taken to the hospital and treated for multiple
injuries, primarily to her neck, back, and head.
after the accident, Plaintiff retained Defendant Elizabeth
Henry, a partner with Henry & Mathewson, to represent her
in connection with her personal injury claim. Henry also
represented Plaintiff in connection with a Protection from
Stalking (“PFS”) matter filed by Plaintiff's
mother, who had custody of Plaintiff's son. On June 20,
2017, Henry sent Plaintiff and her husband, Daniel Moore, a
letter terminating Henry's representation of Plaintiff
and her husband in connection with the PFS matter, as well as
Henry's representation of Plaintiff in her personal
injury claim. It stated, in part:
Yesterday I received an e-mail from the Shank's attorney
stating that you believed the Judge's ruling in the PFS
permits you to see [child's name] and that they cannot
prevent that interaction. I don't know whether you
believe this or have said it but it has brought home to me
that I simply can no longer represent you either regarding
contact with [child's name] or your car accident of
February 1, 2016.
I have repeatedly tried to tell you that you have no legal
right to contact with [child's name] and you are unable
or unwilling to accept my legal conclusion. In view of the
fact that this is the primary focus of your current life,
this breakdown in communication renders me unable to continue
to represent you on your personal injury case as well. . . .
allowed approximately one and a half years to go by after the
accident without sending an initial demand letter. Plaintiff
alleges that this delay deprived her of her right to due
process of law and constitutes a breach of fiduciary duty.
She also asserts that Henry acted negligently in not speaking
with Plaintiff before terminating Henry's representation.
August 2017, Plaintiff retained Defendant Brian Collignon,
with Pistotnik Law, to represent her in her personal injury
matter. Collignon sent a demand letter to Key Insurance on
September 27, 2017, assuring Plaintiff that the insurance
company would send an answer within a couple of weeks.
Plaintiff did not get in touch with Collignon again until
late October 2017, when Collignon informed Plaintiff of a
settlement offer from the insurance company. Plaintiff and
her husband only received a couple of phone calls from
Collignon over the course of the next few months. Collignon
offered no course of action that he felt would benefit
Plaintiff and her husband, and he took actions against
Plaintiff's wishes. This caused Plaintiff to suffer
emotional distress. Plaintiff alleges that Collignon violated
18 U.S.C. § 242 and asserts claims under 42 U.S.C.
filed three motions to dismiss-one by Collignon and Pistotnik
Law, one by Henry and Henry & Mathewson, and one by Ott.
Plaintiff filed responses to the attorney Defendants'
motions, but did not file a response to Ott's motion.
Plaintiff also filed a motion for leave to amend her Amended
Motion to dismiss for failure to state a claim
Federal Rule of Civil Procedure 12(b)(6), a party may move
for dismissal of “a claim for relief in any
pleading” that fails to state a claim upon which relief
can be granted. Upon such motion, the Court must decide
“whether the complaint contains ‘enough facts to
state a claim to relief that is plausible on its face.'
” The plausibility standard reflects the
requirement in Rule 8 that pleadings provide defendants with
fair notice of the nature of the claims as well as the
grounds on which the claim rests. A claim is facially
plausible if the plaintiff pleads facts sufficient for the
Court to reasonably infer that the defendant is liable for
the alleged misconduct.In determining whether a claim is
facially plausible, the Court must draw on its judicial
experience and common sense. The Court assumes all
well-pleaded facts to be true and construes them in the light
most favorable to the non-moving party. The Court does
not “weigh potential evidence that the parties might
present at trial, ” but assesses whether the complaint
“alone is legally sufficient to state a claim for which
relief may be granted.” Because Plaintiff appears pro se,
the Court must liberally construe her
pleadings. Liberal construction, however,
“does not relieve the plaintiff of the burden of
alleging sufficient facts on which a recognized legal claim
could be based.”
Motion for leave to amend
Rule of Civil Procedure 15 governs amended and supplemental
pleadings. “A party may amend its pleading once as a
matter of course within: (A) 21 days after serving it, or (B)
if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.” If a plaintiff may not
amend as a matter of right under Rule 15(a)(1), it “may
amend its pleading only with the opposing party's written
consent or the court's leave.” Leave to
amend shall be freely given “when justice so
requires.” The Court, however, may “deny
leave to amend based on undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party . . . or futility of
Plaintiff's federal claims fail to state a claim upon
which relief can be granted.
Amended Complaint may be read to assert two causes of action
based on federal law-violations of his due process rights and
violations of 18 U.S.C. § 242. Both claims fail.
Due Process Clause of the Fourteenth Amendment . . . protects
against governmental deprivations of life, liberty,
or property ‘without due process of law.'
” To pursue a procedural due process
violation, (1) Plaintiff must have been deprived of a
constitutionally protected right without due ...