Opinion
Civil Action No. 04-2152-CM.
February 7, 2005
MEMORANDUM AND ORDER
Pending before the court is plaintiff's Motion to Extend Deadline for Motions to Amend Pleadings and File Amended Complaint (Doc. 21) and defendant's Motion to Dismiss (Doc. 23).
I. Background
On January 13, 2003, defendant (the City) passed Ordinance No. 2655, amending Shawnee Municipal Code Chapter 15.04 Section 15.04.02, which purported to make unenforceable any restrictive covenant, whether currently existing or established in the future, that permitted the use of "wood shingles, wood shake shingles or any other unrated roofing material" unless the covenant also allowed asphalt or composition shingles rated Class A, B or C for fire resistance pursuant to the Uniform Building Code. This court invalidated sub-section (b) of this ordinance in Mease v. City of Shawnee, 266 F. Supp. 2d 1270, 1275 (D. Kan. 2003) and Mease v. City of Shawnee, 2003 WL 22102134 (D. Kan. 2003).
This court struck down Ordinance No. 2655 based upon the Contracts Clause of the United States Constitution, U.S. Const., Art. I, § 10. The court concluded that Ordinance No. 2655 violated the Contracts Clause because it adjusted the rights and responsibilities of contracting parties (i.e., the members of homeowners' associations whose residences were subject to restrictive covenants prohibiting asphalt shingles) and did so on conditions that were not of a character appropriate to the public purpose justifying its adoption, i.e., minimizing fire hazards.
After the court's opinion in Mease was rendered, the City passed Ordinance No. 2697, which amended invalidated Ordinance No. 2655. The language of subsection (b) of Ordinance No. 2697 is essentially identical to the invalidated Ordinance No. 2655, in that it proscribes any restrictive covenant which permits the use of wood shingles or wood shake shingles or any other unrated roofing material on a residential dwelling within the City unless the restrictive covenant also permits as an alternative fire resistant rated asphalt shingle. However, subsection (b) also included the following provision: "[T]his subsection (b) shall not apply to nor affect any restrictive covenant established or entered into prior to the effective date of this Ordinance." Accordingly, Ordinance No. 2697(b) is prospective in nature.
On December 13, 2004, the City repealed subsection (b) of Ordinance No. 2697, and labeled the remaining portion Ordinance No. 2750. Plaintiff now moves to amend its Complaint to identify the ordinance that is the subject of this litigation as newly enacted Ordinance No. 2750 — rather than repealed Ordinance No. 2697. Specifically, plaintiff now requests to file an amended complaint challenging what was originally subsection (a) of Ordinance No. 2697, which is currently the only language remaining in Ordinance No. 2750 The deadline for filing amended pleadings under the most recent scheduling order was December 3, 2004.
II. Motion to Amend Pleading
A. Standard
Plaintiff moves the court to extend the deadline for filing amended pleadings. The standard for modifying the Scheduling Order is whether the party seeking the modification shows "good cause." Fed.R.Civ.P. 16(b); see Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599, 604 (10th Cir. 1997). In other words, the party seeking an extension must show that, despite due diligence, it could not have reasonably met the scheduled deadlines. The court also is mindful of Rule 15(a), which provides that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); Gillette v. Tansy, 17 F.3d 308 (10th Cir. 1994).
B. Discussion
Plaintiff, at the time it filed this action, had full knowledge of the code provision (subsection (a) of repealed Ordinance 2697) it claims is the basis of the amendment, but failed to include a challenge to that code provision in the original Complaint. Indeed, the original Complaint alleged only that subsection (b) of Ordinance No. 2697 was unconstitutional. Plaintiff never referenced subsection (a) of Ordinance No. 2697.
Plaintiff alleged in the original Complaint that passing Ordinance No. 2697, so that it had only prospective effect, was intended by the City to render the Contracts Clause inapplicable. (Complaint, ¶ 6). The court looks to the language of the original Complaint:
This revision, however, violates other clauses of the Constitution for the same reasons Invalidated Ordinance 2655 did. Instead of establishing minimum fire resistance ratings for roofing assemblies, the City's Building Code continues to allow unrated roofing assemblies so long as asphalt is allowed as an alternative. The requirement that future restrictive covenants on roofing materials allow asphalt shingles is not reasonable considering the City's purported purpose of reducing fires. Further, it is arbitrary and capricious for the City to favor one roofing material — asphalt — over all other roofing materials available in the marketplace in light of the fact that other roofing materials can have the same or higher fire resistance ratings as asphalt. The City cannot save subsection (b) of Ordinance No. 2697 merely by making it apply prospectively.
(Complaint, ¶¶ 7 8) (emphasis added). Notably, plaintiff in the original Complaint takes issue with the prospectiveness of subsection (b) and alleges that subsection (b) favors one roof material — asphalt — over another.
The remaining ordinance in effect, Ordinance No. 2750 (formerly subsection (a) of Ordinance No. 2697) provides:
It shall be unlawful to establish or attempt to enforce a restrictive covenant which requires the exclusive use of wood shingles or wood shake roof covering material on a residential dwelling within the City and any such restrictive covenant is contrary to the public policy of the City and is null and void.
Ordinance No. 2750. There is no language in this ordinance referencing asphalt roofing materials or stating that the ordinance is prospective.
Plaintiff suggests it is merely requesting leave to change the number of the ordinance at issue. Plaintiff contends that the existing deadline of December 3, 2004 expired at a time when it believed no amendment was necessary since the City had not yet amended Ordinance No. 2697.
The court finds significant that, while plaintiff is correct that the ordinance number changed, Ordinance No. 2750 merely repealed subsection (b); subsection (a) remained unchanged. Plaintiff failed to have originally complained about, and is now seeking to amend its complaint to complain about, an identical provision of the city code which was in effect at the time it filed its original Complaint.
At the time plaintiff filed this action, plaintiff had full knowledge of the code provision it now seeks to challenge, yet plaintiff failed to include a challenge to the code provision in the original Complaint. It appears plaintiff was either careless or dilatory in not including in the original Complaint a challenge to the code provision of which it now seeks, or plaintiff made a deliberate choice to not include the challenge in its original Complaint. Either way, plaintiff cannot show good cause for amending the Scheduling Order, and plaintiff's Motion for Leave to Amend is untimely, since there is no reason for or excuse why the original Complaint did not include a challenge to the code provision described in the proposed Amended Complaint.
Here, plaintiff fails to show any cause, excepting its own failure, to previously challenge subsection (a) of Ordinance 2697. Moreover, the City will be prejudiced by the continuation, with a potential for argument over the allowance of fees, should the court grant leave to amend the original Complaint. Accordingly, the court denies plaintiff's motion to amend the pleadings.
C. Motion to Dismiss
On December 13, 2004, the City repealed the ordinance challenged in the original Complaint (subsection (b) of former Ordinance No. 2697). Having repealed the challenged ordinance, the City has rendered this action moot. IT IS THEREFORE ORDERED that plaintiff's Motion to Extend Deadline for Motions to Amend Pleadings and File Amended Complaint (Doc. 21) is denied, and defendant's Motion to Dismiss (Doc. 23) is granted.