United States District Court, D. Kansas
JULIE GORENC, KARA WINKLER, and MIDWIFE PARTNERS IN WOMEN'S WELLNESS, LLC, Plaintiffs,
JOANN KLAASSEN, RN, MN, JD, in her official capacity as the President of THE KANSAS STATE BOARD OF NURSING, et al., Defendants.
MEMORANDUM & ORDER
D. Crabtree United States District Judge
the court is defendant Janetta Proverbs M.D.'s Motion for
Judgment on the Pleadings (Doc. 20) and plaintiffs'
Motion for Leave to File Sur-Reply (Doc. 32). Dr. Proverbs
filed her motion before the other defendants have filed their
answers. The court thus denies the motion as premature,
without prejudice to refiling once the pleadings are closed.
And, because the court denies Dr. Proverbs's motion, it
denies plaintiffs' Motion for Leave to File Sur-Reply
(Doc. 32) as moot.
Complaint and Procedural History
Plaintiffs are nurse-midwives who provide maternity care.
Doc. 1 at 2 (Compl. ¶ 1). Under Kansas Administrative
Regulations, advance practice nurses must collaborate with a
medical provider to treat patients. Id. at 7 (Compl.
¶ 36) (citing Kan. Admin. Regs. § 60-11-101(a)).
The crux of plaintiffs' Complaint is that Kansas
Administrative Regulation § 60-11-101(a) impermissibly
delegates to individual doctors the power to control advanced
practice nurses' ability to provide medical services in
accord with their training as nurses.
2016, plaintiffs entered into a Collaborative Practice
Agreement with Dr. Proverbs, which permitted plaintiffs
privileges at Shawnee Mission Medical Center Health,
including the ability to attend deliveries. Id. at 5
(Compl. ¶¶ 21, 23). Then, Dr. Proverbs told
plaintiffs she intended to terminate the Collaborative
Practice Agreement by February 2018. Id. (Compl.
¶ 25). Plaintiffs tried to reach a Collaborative
Practice Agreement with four other physicians employed at
Shawnee Mission Medical Center Health but they did not
succeed. Id. at 5-6 (Compl. ¶¶
26-30). Plaintiffs allege that policies adopted by Adventist
Health Mid-America, Inc., the owner and operator of Shawnee
Mission Medical Center Health, have impeded their ability to
enter into a Collaborative Practice Agreement. Id.
at 6 (Compl. ¶ 32). Once Dr. Proverbs terminated their
Collaborative Practice Agreement, plaintiffs could not attend
their clients' deliveries. Id. at 15-16 (Compl.
initiated this action by filing a five-count Complaint.
Counts I and II challenge Kansas Administrative Regulation
§ 60-11-101(a), raising claims for declaratory and
injunctive relief under 28 U.S.C. §§ 2201, 2202,
and 42 U.S.C. § 1983 against the Kansas State Board of
Nursing and Joann Klaassen. Id. at 17-23 (Compl.
¶¶ 96-127). Count III raises a § 1983 claim
against Dr. Proverbs, Adventist Health Mid-America, and the
four other physicians who declined to enter into a
Collaborative Practice Agreement with plaintiffs.
Id. at 23-25 (Compl. ¶¶ 128- 42). Count IV
raises a tortious interference with contract claim against
Dr. Proverbs and the four other physicians, alleging that the
plaintiffs' inability to secure a Collaborative Practice
Agreement forced them to breach their contracts with their
clients. Id. at 25-27 (Compl. ¶¶ 143- 53).
And, Count V raises a claim for tortious interference with a
business expectancy against Dr. Proverbs, Adventist Health
Mid-America, and the four other physicians. Id. at
27-28 (Compl. ¶¶ 154-65).
Proverbs filed an Answer to plaintiffs' Complaint. Doc.
10. Ms. Klaassen, in her capacity as president of the Kansas
State Board of Nursing, moved under Federal Rule of Civil
Procedure 12(b)(1), (2), (5), and (6) to dismiss Counts I and
II of plaintiffs' Complaint. Doc. 11. Adventist Health
Mid-America and the four other physicians moved under Rule
12(b)(6) to dismiss Counts III, IV, and V of plaintiffs'
Complaint. Doc. 15; see also Doc. 16 at 4
(identifying Rule 12(b)(6) as basis for dismissal). Later,
Dr. Proverbs filed a Motion for Judgment on the Pleadings
under Federal Rule of Civil Procedure 12(c). Doc. 20. And,
after Dr. Proverbs filed her reply brief in support of her
motion, plaintiffs moved to file a sur-reply. Doc. 32.
not addressed by the parties, a procedural defect in Dr.
Proverbs's motion prevents the court from reaching the
merits of the motion. “After the pleadings are
closed-but early enough not to delay trial-a party may move
for judgment on the pleadings.” Fed.R.Civ.P. 12(c).
When a plaintiff files an action against multiple defendants,
“[t]he pleadings are not closed until all defendants
have filed an answer, even when one defendant has filed a
motion to dismiss instead of an answer.” Garvey v.
Seterus, Inc., No. 5:16-cv-00209-RLV, 2017 WL 2722307,
at *12 (W.D. N.C. June 23, 2017) (quoting Nationwide
Children's Hosp., Inc. v. D.W. Dickey & Son, Inc.
Emp. Health & Welfare Plan, No. 2:08-cv-1140, 2009
WL 5247486, at *1 (S.D. Ohio Dec. 31, 2009)). And, until all
defendants have filed an answer, “a remedy under Rule
12(c) is not available.” Scottsdale Ins. Co. v.
Doe, No. 7:13-CV-00342, 2014 WL 3778510, at *3 (W.D. Va.
July 30, 2014); see also Stands Over Bull v. Bureau of
Indian Affairs, 442 F.Supp. 360, 367 (D. Mont. 1977)
(“When a[ny] defendant has failed to file an answer, a
motion for judgment on the pleadings is not the correct
procedural remedy.” (citing Gen. Motors Corp. v.
Blevins, 144 F.Supp. 381, 389 (D. Colo. 1956))).
after Dr. Proverbs was served with plaintiffs' Complaint,
she had a choice. She either could file an answer or file a
motion to dismiss under Rule 12(b). Dr. Proverbs decided to
file an Answer, precluding her from filing a Rule 12(b)
motion. See Fed. R. Civ. P. 12(b) (“A motion
asserting any of these [Rule 12(b)] defenses must be made
before pleading if a responsive pleading is allowed.”).
And, where Dr. Proverbs's co-defendants have not yet
filed answers because they pursued dismissal under Rule
12(b), the pleadings are not closed for purposes of a Rule
12(c) motion. The court thus denies Dr. Proverb's Rule
12(c) motion as premature. Because the court denies the
motion without reaching its merits, the denial is without
prejudice, permitting Dr. Proverbs to refile the motion after
all other defendants have filed answers or are dismissed from
IS THEREFORE ORDERED BY THE COURT THAT defendant
Janetta Proverbs, M.D.'s Motion for Judgment on the
Pleadings (Doc. 20) is denied without prejudice.
IS FURTHER ORDERED BY THE COURT THAT plaintiffs'
Motion for Leave to File Sur-Reply (Doc. 32) is denied as