United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Mitchell U.S. Magistrate Judge.
matter comes before the court on Plaintiff Laura Hawkins'
Motion for Leave to File a Third Amended Complaint. (ECF No.
95.) Ms. Hawkins seeks leave to file an amended pleading
asserting additional factual allegations in support of her
retaliation claim. Defendants the Board of County
Commissioners of Coffey County, Christopher Phelan, Karen
Maley, Brenda Cherry, and Heidi Harris (collectively,
“the County”) oppose the motion on the grounds
that they would be unduly prejudiced by the amendment and
that the proposed amendments are futile. For the reasons
stated below, the court disagrees. Ms. Hawkins' motion to
amend is granted.
Hawkins alleges that Ms. Maley fired Ms. Hawkins from her
position as a clerk in the Coffey County Treasurer's
Office in retribution after Ms. Hawkins unsuccessfully
challenged Ms. Maley in the Republican primary for the
treasurer seat and subsequently ran an unsuccessful campaign
as a write-in candidate in the general election-all the
while, criticizing Ms. Maley and the Treasurer's Office
during her campaign. Ms. Hawkins asserts claims under 42
U.S.C. § 1983 for alleged violations of her First
Amendment and due process rights. She also asserts claims for
alleged unpaid straight and overtime wages in violation of
the Fair Labor Standards Act, 29 U.S.C. § 201, et
seq., and the Kansas Wage Payment Act, K.S.A. 44-313,
et seq. On August 27, 2019, the court granted Ms.
Hawkins to assert a 42 U.S.C. § 1983 First Amendment
retaliation claim against Defendant Heidi Harris, the Coffey
County zoning and subdivision administrator, stemming from
allegations that Ms. Harris undertook an investigation and
found that the Hawkins property violated zoning ordinances
because it constituted a “hunting preserve, ”
even though the County did not cite a similar Coffey County
business. Ms. Hawkins' operative Second Amended Complaint
alleges that Ms. Harris's letter informing Ms. Hawkins
and her husband that they were violating zoning ordinances by
operating a hunting preserve was copied to the County
Commission, County Attorney, and Department of Environmental
Health. (ECF No. 76 ¶ 61.) Ms. Hawkins alleges that when
she contacted Marilyn Eccles of the Coffey County
Environmental Health Department, Ms. Eccles told Ms. Hawkins
that the Environmental Health Department must have been
copied on the letter because “a complaint must have
been filed” about Ms. Hawkins' lagoon.
(Id. ¶ 62.) At that time, however, Ms. Hawkins
alleges that she had never received notice from the
Department of Environmental Health about any problems with
the lagoon. (Id.)
Hawkins now seeks leave to amend again to add additional
factual allegations in further support of her 42 U.S.C.
§ 1983 retaliation claim against the County. These
allegations all concern events that occurred after Ms.
Hawkins filed her Second Amended Complaint. Specifically, Ms.
Hawkins alleges that on September 17, 2019, she and her
husband received a letter from Ms. Eccles, with a copy to the
county attorney, informing them that their “new
lagoon” was out of compliance with code requirements
and would need to be modified. (ECF No. 95 ¶ 63.) The
letter stated that it was imperative that the couple complete
work on the lagoon, adding that, “I believe you will
agree that you have been given plenty of time to complete the
fencing.” (Id. ¶ 63.) According to the
proposed pleading, the Hawkins lagoon is fenced at the
appropriate height and has an appropriate gate, unlike other
lagoons within county limits that have either been
“grandfathered in” under the new code
requirements or which the county has not pursued.
(Id. ¶¶ 66-69.) The proposed pleading also
alleges that Ms. Hawkins and her husband built the lagoon in
2002 and that the Department of Environmental Health approved
the design. (Id. ¶ 67.)
scheduling order established a deadline of June 1, 2019, for
motions to amend the pleadings. (ECF No. 56, at 9.) Ms.
Hawkins filed this motion on October 4, 2019. She argues she
could not have amended sooner because the new allegations all
occurred within the month prior to her motion. The County
opposes the amendment on the grounds that: (1) it would be
unduly prejudiced if the court allows the amendments; and (2)
the amendments are futile.
party moves to amend after the scheduling order deadline, the
moving party must (1) demonstrate good cause for modifying
the scheduling order under Federal Rule of Civil Procedure
16(b)(4), and (2) satisfy the standards for amendment under
Rule 15(a). Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank
Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014).
CAUSE PURSUANT TO RULE 16(b)(4)
scheduling order “may be modified only for good cause
and with the judge's consent.” Fed.R.Civ.P.
16(b)(4). To establish good cause, the moving party must show
that it could not have met the motion to amend deadline
despite “diligent efforts.” Husky Ventures,
Inc. v. B55 Invs., Ltd., 911 F.3d 1000, 1020 (10th Cir.
2018). Because Rule 16 requires diligence, if a party knows
of “the underlying conduct but simply failed to raise
[its] claims, . . . the claims are barred.”
Gorsuch, 771 F.3d at 1240. On the other hand,
“Rule 16's good cause requirement may be satisfied
. . . if a [party] learns new information through discovery
or if the underlying law has changed.”
proposed amendments all stem from events that occurred both
after the deadline for amending the pleadings and after Ms.
Hawkins filed her Second Amended Complaint. The County cites
the good cause standard, but notably does not address how
that standard applies to the current motion. The court finds
that Ms. Hawkins' motion easily meets Rule 16(b)(4)'s
good cause standard because she could not have moved to amend
any sooner than she did.
AMENDMENT UNDER RULE 15
party has filed a responsive pleading, the opposing party
“may amend its pleading only with the opposing
party's written consent or the court's leave, ”
which should be freely given when justice requires.
Fed.R.Civ.P. 15(a)(2). The purpose of the rule “is to
provide litigants the maximum opportunity for each claim to
be decided on its merits rather than on procedural
niceties.” SCO Grp., Inc. v. Int'l Bus.
Machines Corp., 879 F.3d 1062, 1085 (10th Cir. 2018)
(internal quotations omitted). The court may refuse leave to
amend “only [upon] a showing of 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.” Wilkerson v.
Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010); see
also Foman v. Davis, 371 U.S. 178, 182 (1962) (same).
speaking, the party opposing a motion to amend generally
bears the burden to demonstrate why the amendment should not
be permitted. See Wilkerson, 606 F.3d at 1267 (in
the absence of such a showing, amendment should be allowed);
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1052 (9th Cir. 2003) (stating the party opposing
amendment bears the burden to show undue prejudice and that
there is a presumption in favor of amendment absent such a
showing “or a strong showing of the ...