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Fergus v. Faith Home Healthcare, Inc.

United States District Court, D. Kansas

December 21, 2018

DANIELLE FERGUS, Plaintiff,
v.
FAITH HOME HEALTHCARE, INC., Defendant.

          MEMORANDUM AND ORDER

          TERESA J. JAMES U.S. MAGISTRATE JUDGE

         Before the Court are Defendant Faith Home Healthcare, Inc.'s Counterclaims Against Plaintiff and Crossclaims Against Co-Conspirator Patty Claybourne and Magan Brown (ECF No. 22), and Defendant Faith Home Healthcare, Inc.'s Motion to Add Counterclaims and Join Crossclaim Defendant Patricia Clayborn (ECF No. 26). Plaintiff opposes both motions. For the reasons discussed below, the motions are granted in part and denied in part.

         I. Relevant Background

         Plaintiff filed this action on June 19, 2018 alleging four counts: employment disability discrimination and retaliation in violation of 42 U.S.C. § 12101 (the Americans with Disabilities Act Amendments Act), retaliation in violation of Title VII, and retaliation in violation of 42 U.S.C. § 1981.[1] Plaintiff's first two counts involve discrimination and retaliation as a result of her disabilities: Type 1 Diabetes and Attention Deficit Disorder. Plaintiff claims Defendant's owner, Bob Blevins, continuously mocked Plaintiff because of her disabilities. She also claims she was terminated because she reported her disabilities and requested reasonable accommodations for them. Her remaining two counts involve retaliation as a result of her reports of race discrimination. Plaintiff alleges she would not have been terminated but for making the reports.

         The Court entered a scheduling order, setting the deadline for the parties to file motions to amend or join additional parties as October 31, 2018 (ECF No. 19). On that date, Defendant filed its “Counterclaims Against Plaintiff and Crossclaims Against Co-Conspirator Patty Claybourne and Magan Brown, ” which the Court construes as a motion for extension of time to file a motion to amend pleadings and join additional parties.[2] Then, on November 7, 2018, Defendant filed its Motion to Add Counterclaims and Join Crossclaim Defendant Patricia Clayborn.[3]

         In support of its motions, Defendant claims Plaintiff engaged in a conspiracy with co-workers to “bring down the company (Defendant)” and start their own agency.[4] In its second motion, Defendant attached its proposed counterclaims against Plaintiff and crossclaims against alleged co-conspirator Patricia Clayborn.[5] Defendant seeks to add four counts: (1) Abuse of Process against Plaintiff and Ms. Clayborn; (2) Tortious Interference with Business Expectancy against Plaintiff and Ms. Clayborn; (3) Conversion against Plaintiff and Ms. Clayborn; and (4) Breach of Fiduciary Duty against Plaintiff. In its second motion, Defendant cites in the first sentence Federal Rules of Civil Procedure 13, 19, and 20 as support for adding its counterclaims against Plaintiff and Rule 13(g) as support for adding its crossclaims and joining Ms. Clayborn as a defendant, but does not explain how those rules apply or give authority for Defendant's request.

         Plaintiff argues Defendant's request is untimely.[6] She argues Defendant included an affirmative defense that Plaintiff's allegations are part of a conspiracy in its answer filed August 10, 2018, and therefore, Defendant knew or should have known it would need to add the proposed claims several months ago. She also argues leave to add the Abuse of Process claim should be denied on the additional basis of futility.

         II. Analysis

         A. Timeliness of Defendant's requests

         Federal Rule of Civil Procedure 15 allows for amended and supplemental pleadings. More than 21 days have passed since Defendant served its answer. Therefore, Rule 15(a)(2) governs here: “[A] party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Although Defendant fails to request to amend pursuant to Rule 15, because leave to amend should be freely given, the Court will consider whether Defendant should be allowed to amend its pleading under these facts and circumstances.

         The decision to grant or deny a request to amend is within the discretion of the district court. However, the court “should deny leave to amend only when it finds ‘undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.'”[7]

         Plaintiff argues Defendant's requests should be denied as untimely. But Defendant filed its motion for extension of time to amend its pleading on October 31, 2018, which was the deadline for the parties to file motions to amend or join additional parties. By filing a motion for extension of time, Defendant preserved its deadline to file a motion to amend or join additional parties.[8]

         Additionally, although the Court understands Plaintiff's frustrations with Defendant's lack of communication and failure to meet deadlines leading up to the filing of the subject motions, the Court does not find that Plaintiff would be prejudiced by the filing of Defendant's counterclaims at this time. It is still early in this case. Discovery does not close for another four months, and trial is still nine months away. Further, as Plaintiff points out, Defendant raised the issue of a possible conspiracy in its answer, so Plaintiff has been on notice since at least August that Defendant might seek to add its counterclaims. The Court, therefore, finds Defendant's requests timely.

         B. Counterclaims against Plaintiff

         Federal Rule of Civil Procedure 13 discusses counterclaims. It says that a pleading must state a counterclaim against an opposing party if the counterclaim “(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction.” That appears to be the situation here. Part of Plaintiff's allegations are that while she was employed with Defendant, another employee reported to her that Defendant's owner made racial comments regarding a third employee. Plaintiff alleges she reported the racial comments and was retaliated against as a result. Defendant's allegations are that Plaintiff engaged in a conspiracy with other employees of Defendant to bring down the company. Specifically, Defendant claims Plaintiff and other employees lied about the supposed racial comments by Defendant's owner and reported fabricated claims of discrimination.

         Defendant's proposed counterclaims are, in part, that Plaintiff conspired to file the present lawsuit knowing that no basis exists in law or fact for her claims; Plaintiff conspired to convert Defendant's Do Not Take Back list, which lists former patients with whom Defendant chooses not to do business; and that Plaintiff breached her fiduciary duty to Defendant by participating in the conspiracy. These allegations appear to arise out of the transaction or occurrence that is the subject matter of Plaintiff's Title VII and 42 U.S.C. § 1981 claims of retaliation for reporting the racial comments, and are therefore allowed pursuant to Fed.R.Civ.P. 13.

         Defendant fails to say through what statute or constitutional provision, state or federal, it is bringing the allegations in the proposed counterclaims. The Court has subject matter jurisdiction over Plaintiff's allegations through federal question jurisdiction because she alleges violations of federal statutes. Defendant's conspiracy, tortious interference, conversion, and breach of fiduciary duty claims appear to be based upon Kansas common law, so the Court would need a separate basis through which to exercise subject matter jurisdiction over the proposed counterclaims.[9] Plaintiff and Defendant are both Kansas citizens, so the Court would not have diversity jurisdiction. However, “[t]he Court may, in its discretion, exercise supplemental jurisdiction over state law counterclaims which are sufficiently related to a pending federal claim.”[10] Specifically, 28 U.S.C. § 1367(a) allows a court to exercise supplemental jurisdiction over claims that do not fall within the court's original jurisdiction if the claims “are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy ….” As discussed above, Defendant contends its claims against Plaintiff arise out of the same transaction or occurrence that is the subject matter of Plaintiff's claims. Plaintiff did not address this issue in either of her responses, so the Court considers it uncontested.[11] The Court finds that Plaintiff's Title VII and 42 U.S.C. § 1981 race discrimination reporting retaliation claims and Defendant's proposed counterclaims arise out of the same transaction or occurrence, or common nucleus of operative fact, [12] for the reasons discussed above.[13] It seems that the allegations are part of the same case or controversy, and the Court will exercise supplemental jurisdiction over the proposed counterclaims.

         However, Plaintiff makes an additional argument with regard to Defendant's proposed abuse of process counterclaim: that it should not be allowed because the claim would be futile. “Abuse of process exists when the defendant (or, of course, counterclaim defendant) ‘uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed.'”[14] Kansas has established the elements of abuse of process as: “(1) that the defendant made an illegal, improper, perverted use of the process, (a use neither warranted nor authorized by the process); (2) that the defendant had an ulterior motive or purpose in doing so; and (3) that damage resulted to the plaintiff from the irregularity.”[15] There must be use of the process for an immediate purpose other than that for which it was designed ...


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