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M. Smith v. TFI Family Services, Inc.

United States District Court, D. Kansas

April 10, 2019

M. SMITH, Parent and Natural Guardian of minor, C.S., Plaintiff,



         This matter is before the Court on Plaintiff's Motion to Strike Document ECF No. 120 for Lack of Standing Filed by Nonparty Kansas Department for Children and Families and Interim Secretary Laura Howard (“Motion to Strike”) (ECF No. 122).[1] After careful contemplation of Plaintiff's Motion to Strike and Memorandum in Support (ECF No. 123), and considering no response to the Motion to Strike was filed, [2] the Court GRANTS Plaintiff's Motion to Strike.


         Plaintiff, on April 23, 2017, filed a Complaint on behalf of C.S., a minor child, [3]against Defendant TFI Family Services, Inc. (“Defendant TFI”). Defendant TFI is a private company that formerly contracted with the Kansas State Department of Children and Families (“DCF”) to provide placement services for foster children in State custody.[4] In 2008, C.S. was placed in DCF custody and referred to Defendant TFI for placement services.[5] Defendant TFI placed C.S. in the home of Delores and Earl Wilkins (Wilkins' Home) from October 2008 through mid-2009.[6] Plaintiff alleges C.S. suffered physical and emotional abuse while residing in the Wilkins' Home.[7] Plaintiff claims Defendant TFI knew, or should have known, abuse was occurring at the Wilkins' Home, but recklessly choose to place C.S. there anyway.[8] Thus, Plaintiff claims Defendant TFI is liable for failing to keep C.S. safe from the alleged abuse, and asserts damages under 42 U.S.C. § 1983 and state tort law.[9]

         On December 13, 2017, after its Motion to Dismiss for Failure to State a Claim was denied, [10] Defendant TFI filed an Answer denying the allegations in the Complaint.[11] Since that time, Plaintiff and Defendant TFI have been actively engaged in discovery.[12]

         On January 4, 2019, Plaintiff timely[13] filed a Motion for Leave to File a First Amended Complaint (“Motion to Amend”).[14] Plaintiff seeks to add DCF, DCF Secretary Laura Howard, and five individual DCF employees as defendants (“Proposed Defendants”).[15] In support, Plaintiff asserts the proposed claims against DCF and its employees are similar to and arise out of the same occurrences as the current claims against Defendant TFI, and states common questions of law and fact exist.[16]

         On January 15, 2019, DCF and DCF Secretary Howard, on behalf of the Proposed Defendants, entered a “Notice of Special Limited Appearance” for the “sole purpose of objecting to” Plaintiff's Motion to Amend, and not to appear generally.[17] That same day, DCF and Howard filed an Objection to the Motion to Amend (“Objection”), [18] contesting the proposed amendment due to lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.[19] On January 28, 2019, Plaintiff filed the instant Motion to Strike challenging DCF's and Howard's standing, as non-parties, to contest the Motion to Amend.[20] DCF and Howard did not respond to Plaintiff's Motion to Strike, and their time to do so has passed.


         Plaintiff's Motion to Strike questions whether DCF and Howard, who are non-parties, have standing to oppose the Motion to Amend. Plaintiff argues DCF and Howard lack standing based on the plain language of Fed.R.Civ.P. 12. Plaintiff notes DCF's and Howard's arguments against granting the Motion to Amend are defenses falling under Rule 12(b), [21] which states a “party” may raise these defenses, with no similar reference to a “non-party” being made.[22] Plaintiff also argues Rule 12 only allows the aforementioned defenses to be made in a “responsive pleading” or by “motion.”[23] Plaintiff notes Defendant's Objection is neither a motion or responsive pleading. Plaintiff further states DCF and Howard, as non-parties, cannot possibly file a responsive pleading, i.e. an answer, [24] because they have not been served with the Amended Complaint. Finally, Plaintiff asserts that if the Court grants DCF's and Howard's Objection, it may not be able to appeal due to DCF and Howard being non-parties.

         As stated above, DCF and Howard failed to respond to the Motion to Strike. While this alone would be reason to grant the Motion to Strike, the Court believes further discussion of the issue is in order. But, before addressing standing, the Court will consider DCF's and Howard's “special limited appearance” in this case. As stated above, DCF and Howard filed a Notice of Special Limited Appearance immediately before filing their Objection to the Motion to Amend. In their Notice, DCF and Howard state they “appear specially in the above proceeding for the sole purpose of objecting to” the Motion to Amend, but do not “appear generally in the above-entitled proceeding.”[25]

         This Court, however, questions DCF's and Howard's authority to make a special limited appearance to assert Rule 12(b) defenses.[26] The distinction between general and special appearances was abolished with the passage of the Federal Rules of Civil Procedure.[27] This is made clear by the absence in Rule 12 of any reference to either a general or special appearance, and by the express provisions in subdivision (b) stating that every defense may be made either in the responsive pleading or by motion, and that no defense or objection is waived by being joined with any other defense or objection in a responsive pleading or motion.[28]

         As aptly stated by one appellate court shortly after the passage of Rule 12:

It necessarily follows that Rule 12 has abolished for the federal courts the age-old distinction between general and special appearances. A defendant need no longer appear specially to attack the court's jurisdiction over him. He is no longer required at the door of the federal courthouse to intone that ancient abracadabra of the law, de bene esse, in order by its magic power to enable himself to remain outside even while he steps within. He may now enter openly in full confidence that he will not thereby be giving up any keys to the courthouse door which he possessed before he came in.[29]

         As applicable here, DCF and Howard should not be able to have one foot in the case and one foot out. If DCF and Howard wish to invoke Rule 12(b) defenses, they must, as Plaintiff argues, do so by filing a motion or responsive pleading, [30] which can only procedurally occur after they have been served with the Amended Complaint.

         Regarding the issue of standing, the Court finds DCF and Howard do not have standing to oppose the Motion to Amend because they are non-parties.[31] In so ruling, this Court recognizes that some courts, despite the lack of standing, will consider a non-party's opposition to a motion to amend because the non-party could have moved to intervene under Rule 24(b).[32] Rule 24(b) provides a court may, on a timely motion, permit anyone to intervene who “has claim or defense that shares with the main action a common question of law or fact.”[33] However, this Court declines to do so here for two reasons.

         First, Plaintiff filed this Motion to Strike directly challenging DCF's and Howard's standing, and DCF failed to respond in any form. Additionally, DCF and Howard failed to substantively address their authority to oppose the Motion to Amend in their Objection, and neither have moved to intervene. Thus, without more information from DCF and Howard, the Court cannot properly evaluate whether intervention under Rule 24 is even appropriate.[34]

         Second, the Court notes Plaintiff's concern with regard to an appealable order. Generally, appellate courts will not ordinarily hear appeals involving non-parties.[35] While there are exceptions to this general rule, [36] the Court finds the most efficient and procedurally proper way to proceed in this case-given DCF's and Howard's failure to properly intervene and respond to this Motion-is to strike the Objection for lack of standing and grant the Motion to Amend as uncontested.[37] This will officially add the Proposed Defendants as parties. And, once Plaintiff has served the Amended Complaint, the Proposed ...

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