United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Mitchell, U.S. Magistrate Judge.
matter comes before the court on plaintiff Teresa
Wisneski's response to the court's November 15, 2019
order to show cause and motion for leave to file an amended
complaint. (ECF No. 19.) For the reasons discussed below, Ms.
Wisneski's motion is granted and her amended complaint
shall be deemed filed.
August 29, 2019, Ms. Wisneski filed a complaint asserting
claims under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et seq.
(ECF No. 1.) She alleges she worked at an apartment complex
operated by defendant Belmont Management Company, Inc.
(“Belmont”) as a non-exempt employee. During her
employment, Ms. Wisneski lived on the premises. She contends
that Belmont violated the FLSA by failing to include all
forms of compensation, including rent discounts or a rent
credit, in hourly employees' regular rate of pay when
calculating the appropriate overtime rate. Ms. Wisneski
brings an individual claim for this alleged FLSA violation,
as well as a collective action claim for the same violation.
November 13, 2019, Ms. Wisneski filed an amended complaint.
(ECF No. 17.) Because Ms. Wisneski's amended complaint
did not appear to comply with Fed.R.Civ.P. 15(a)(2), the
court ordered her to show cause why the court should not
strike her amended complaint by filing a motion for leave to
amend. (See ECF No. 18, at 2.) Ms. Wisneski did so,
explaining that she sought to leave to amend to add another
plaintiff, Mildred Jones. (See ECF No. 19 ¶ 6,
at 2.) Ms. Jones' allegations and claims are identical to
those of Ms. Wisneski.
contends that Ms. Jones was never provided a rent-free
apartment, therefore she cannot state the same FLSA claims as
Ms. Wisneski. (ECF No. 20 ¶ 8, at 2.) In support of this
argument, Belmont relies declarations from two of its
employees. Belmont asks the court to deny leave to amend on
that basis. (Id. ¶ 9, at 2.)
Ms. Wisneski seeks to add a new plaintiff in her amended
complaint, the court analyzes both Federal Rules of Civil
Procedure 15 and 20, governing amendment and permissive
Amendment Under Rule 15
responsive pleading has been filed, a 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 rule's purpose “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 quotation marks
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 any of the remaining
Foman factors”). Whether to grant a motion to
amend is within the court's sound discretion. Minter
v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir.
Belmont makes a single futility argument against allowing Ms.
Wisneski to amend her complaint. A court may deny a motion to
amend as futile “if the proposed amendment could not
have withstood a motion to dismiss or otherwise fail[s] to
state a claim.” Schepp v. Fremont Cty., Wyo.,
900 F.2d 1448, 1451 (10th Cir. 1990). When analyzing a motion
to dismiss, a court must “assume the truth of all
well-pleaded facts in the complaint, and draw all reasonable
inferences therefrom in the light most favorable to the
plaintiffs.” Dias v. City & Cty. of
Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
“[D]isputes over material issues of fact cannot be
resolved on a motion to dismiss . . . but must be reserved
for resolution at trial by the appropriate trier.” 5
Arthur R. Miller et al., Federal Practice and Procedure
§ 1277 (3d ed. 2019).
futility argument rests on its contention that Ms. Jones was
never provided a rent-free apartment during her employment
and therefore she cannot state the claims in the amended
complaint. This argument is a dispute over the facts
underlying the proposed amendment that relies on two employee
declarations. Such materials are not properly considered on a
motion to dismiss and therefore the court will not consider
them. See Brokers' Choice of Am., Inc. v. NBC
Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017)
(“When a party presents matters outside of the
pleadings for consideration [on a 12(b)(6) motion], as a
general rule ‘the court must either exclude the
material or treat the motion as one for summary
judgment.'”). The court must assume the facts in
the proposed amended complaint as true when determining
whether the amendment is futile, so the court cannot deny
leave to amend on this basis. Belmont will have an
opportunity to challenge the factual basis of Ms. Jones'
claims and whether she is an appropriate class member at a
later procedural juncture.