United States District Court, D. Kansas
M. SMITH, Parent and Natural Guardian of minor, C.S., Plaintiff,
TFI FAMILY SERVICES, INC., Defendant.
MEMORANDUM AND ORDER
E. BIRZER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's Motion for
Leave to File a First Amended Complaint (“Motion to
Amend”) (ECF No. 116), which seeks to add The Kansas
State Department of Children and Families (DCF), DCF
Secretary Laura Howard, and five individual DCF employees as
Defendants (“Proposed Defendants”). On behalf of the
Proposed Defendants, DCF and Secretary Howard entered a
special limited appearance and filed an Objection to the
Motion to Amend (ECF No. 120). For lack of standing and other
reasons cited in a Memorandum and Order filed today, this
Court granted Plaintiff's Motion to Strike the Objection
(ECF No. 131). As such and because Defendant TFI Family
Services, Inc. (“TFI”) did not respond to the
Motion to Amend, the Motion to Amend is
uncontested. Accordingly, and for the reasons stated
below, the Court GRANTS Plaintiff's
Motion to Amend.
Standard and Short Discussion
background information regarding this case, the Court refers
readers to the Memorandum and Order, being filed today,
granting Plaintiff's Motion to Strike (ECF No. 131). As
stated therein and above, Plaintiff filed a Motion to Amend
on January 4, 2019, seeking to add the Proposed Defendants
and to assert claims against them similar to the claims
already asserted against Defendant TFI.
standard for permitting a party to amend his or her complaint
is well established. Under Fed.R.Civ.P. 15(a)(2), once a
responsive pleading has been filed and twenty-one days have
passed, “a party may amend its pleading only with the
opposing party's written consent or the court's
leave.” Rule 15 dictates the court “should freely
give leave when justice so requires.” Although the
granting of a motion to amend is within a court's
discretion, the Supreme Court has indicated that Rule
15's directive to “freely give leave” is a
“mandate . . . to be heeded.” “A district
court should refuse leave to amend ‘only [upon] a
showing of undue delay, undue prejudice to the opposing
party, bad faith or dilatory motive, . . . or futility of
Court does not find undue delay, bad faith or dilatory motive
as Plaintiff timely filed the Motion to Amend by the
court-imposed January 4, 2019 deadline. While this case
has been on file for some time, there has been significant
motion practice,  and voluminous discovery produced thus
far, much of which required an in-camera review by this Court
before production to Plaintiff. In fact, it was Plaintiff's
need to review this sizable discovery before deciding whether
merit existed to add DCF and its employees that warranted
several extensions of the motion to amend
deadline. Thus, the Court finds good reason for any
perceived delay. Regarding the procedural posture of the
case, the Court notes discovery is progressing, and no trial
date has been set. While the addition of new defendants will
inevitably mean adjustments to the schedule, Plaintiff has
already procured much discovery from the current Defendant,
TFI, as well as from DCF due to an earlier subpoena, which
should enable the parties to move on from written discovery
and begin the next phases of discovery relatively quickly.
this Court finds no undue prejudice to the opposing party,
TFI, as it did not respond to the Motion to Amend. And,
regarding futility, the Court notes the Proposed
Defendant's Objection to the Motion to Amend is premised
on such arguments, namely for lack of subject matter
jurisdiction and failure to state a claim pursuant to Fed. R.
Civ. P 12(b)(1) and (6). However, for the reasons stated in
the Court's Memorandum and Order striking the Objection,
the Court believes these arguments can be more properly
presented in a dispositive motion filed after service of the
Amended Complaint, i.e., when the Proposed Defendants become
actual parties to the lawsuit.
IS THEREFORE ORDERED that Plaintiff's Motion for
Leave to File First Amended Complaint (ECF No. 116) is
GRANTED. Plaintiff is directed to file the
Amended Complaint (ECF No. 116-1) within 7
days from the date of this Order.
IS SO ORDERED.
 Plaintiff also seeks to amend the
caption of this litigation to reflect Plaintiff's status
as an adult.
See D. Kan. Rule 7.4 (d)
(stating that if a responsive brief or memorandum is not
timely filed, the court will consider and decide the motion
as uncontested, and will ordinarily “grant the ...