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Walker v. Newman University, Inc.

United States District Court, D. Kansas

September 30, 2019

JOHN WALKER, Plaintiff,
NEWMAN UNIVERSITY, INC., et al., Defendants.


          Teresa J. James, U.S. Magistrate Judge.

         This matter is before the Court on Plaintiff’s Motion for Leave to File Third Amended Complaint (ECF No. 60). Plaintiff seeks leave to amend his complaint to add counts for malicious prosecution and abuse of process. Defendants jointly oppose the motion. Upon consideration of the matter, the Court finds the motion should be granted.


         On January 3, 2019, Plaintiff filed his Complaint asserting four counts against Newman University, Inc., and two counts against Newman and Kimberly McDowell-Long. He has since sought and been granted leave to file First[1] and Second[2] Amended Complaints. Plaintiff’s current allegations assert alleged discriminatory and retaliatory actions related to the end of his employment in January 2018, as well as counts for defamation and invasion of privacy. Plaintiff now seeks to add counts for malicious prosecution and abuse of process against both Defendants related to conduct occurring in and around May 2019. Plaintiff timely filed the motion.[3]

         Defendants filed a joint response objecting to the proposed amendment. Defendants argue both counts are futile and the motion is unduly prejudicial and brought in bad faith.

         Legal Standard

         Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial. It provides that the parties may amend a pleading once “as a matter of course” before trial if they do so within (A) 21 days after serving the pleading, or (B) “if the pleading is one to which a responsive pleading is required, ” 21 days after service of the responsive pleading or a motion under Fed.R.Civ.P. 12(b), (e), or (f), whichever is earlier.[4] Other amendments are allowed “only with the opposing party’s written consent or the court’s leave.”[5] Rule 15(a)(2) also instructs that the court “should freely give leave when justice so requires.”[6] The court’s decision to grant leave to amend a complaint, after the permissive period, is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.[7] The court may deny leave to amend upon a showing of “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 by virtue of allowance of the amendment, futility of amendment, etc.”[8]

         In considering whether a proposed amendment is futile, the court uses the same analysis that governs a Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim.[9] Therefore, the court will deny an amendment on the basis of futility only when, accepting the well-pleaded allegations of the proposed amended complaint as true and construing them in the light most favorable to the plaintiff, the court determines the plaintiff has not presented a claim to relief that is plausible on its face.[10] A complaint or amendment thereof need only make a statement of the claim and provide some factual support to withstand dismissal.[11] It does not matter how likely or unlikely the party is to actually receive such relief, because for the purposes of dismissal all allegations are considered to be true.[12] The party opposing the proposed amendment bears the burden of establishing its futility.[13]


         It is well settled that a court may deny a motion to amend as futile if the proposed amendment would not withstand a motion to dismiss or if it otherwise fails to state a claim.[14] Dismissal of a claim under Rule 12(b)(6) is appropriate only when it appears “beyond a doubt” that a party can prove no set of facts in support of the theory of recovery that would entitle it to relief.[15] The issue before this Court is therefore not whether Plaintiff ultimately will prevail on his claims for malicious prosecution and abuse of process, but whether he is entitled to offer evidence to support his allegations.[16]

         Defendants recite the correct legal standard for determining futility and argue the facts as alleged in the proposed Third Amended Complaint cannot establish certain elements of abuse of process or malicious prosecution. However, much of their argument misses the mark. Defendants portray Plaintiff as alleging “that because Dr. Long was represented in her Petition for Protection from Stalking by the same counsel that represents her in the present civil matter, that Defendants abused proper court process, ”[17] and “that because Dr. Long was not granted an Order of Protection, that Dr. Long acted without probable cause.”[18] On the contrary, Plaintiff alleges specific facts related to each element of each cause of action.

         The elements of a claim for abuse of process are (1) the existence of an ulterior purpose and (2) an act in the use of such process not proper in the regular prosecution of the proceeding.[19] The elements of a claim for malicious prosecution are (1) the defendant initiated the proceedings of which complaint is made; (2) the defendant acted without probable cause; (3) the defendant acted with malice; (4) the proceedings terminated in favor of the plaintiff; and (5) the plaintiff sustained damages.[20]

         Plaintiff alleges that Dr. Long filed a false and meritless Petition for Protection from Stalking Order (PFS Petition) against Plaintiff, and that Newman approved, encouraged, financed, and ratified the Petition. Plaintiff describes as false some of the accusations of the PFS Petition, which Dr. Long verified under oath, and certain of the evidence introduced at the hearing. Plaintiff notes the action terminated in his favor when the court denied the PFS Petition, and points out that the concomitant award of attorney’s fees to him was made under the statutory grant of authority to award fees to the defendant “in any case where the court finds that the petition to seek relief pursuant to this act is without merit.”[21]

         On the same day Dr. Long filed the PFS Petition, she filed a police report with the Wichita Police Department that Plaintiff believes contains the same allegations the PFS action judge found to be meritless. Plaintiff further alleges that Dr. Long was represented in the hearing by counsel who was also representing Newman in this action at the same time, and that counsel questioned Plaintiff during the hearing about matters pertinent to this case. And according to recent deposition testimony (as set forth in the proposed Third Amended Complaint), Newman’s insurance company paid counsel’s fees for representing Dr. Long in the PFS action, and Newman’s president spoke with Dr. ...

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