Opinion
No. 107,959.
2013-09-13
Bret D. LANDRITH, Appellant, v. Don JORDAN, Secretary of SRS (in his personal capacity), David Weber, SRS Case Manager (in his personal capacity), Defendants, and Stanton A. Hazlett, Disciplinary Administrator (in his official capacity), and Brian Frost, Appellees, and Craig E. Collins, Defendant, and Young Williams, P.C., Appellee.
Appeal from Shawnee District Court; Larry D. Hendricks, judge. Bret D. Landrith, appellant pro se. Stephen Phillips, assistant attorney general, for appellee Stanton A. Hazlett.
Appeal from Shawnee District Court; Larry D. Hendricks, judge.
Bret D. Landrith, appellant pro se. Stephen Phillips, assistant attorney general, for appellee Stanton A. Hazlett.
J. Steven Pigg and Samuel A. Green, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellee Brian Frost.
Amy S. Raymond, of Young Williams, P.C., of Topeka, for appellee Young Williams, P.C.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
POWELL, J.
Disbarred attorney Bret Landrith appeals the dismissal of his 42 U.S.C. § 1981, § 1983, and § 1985(3) (2006) conspiracy actions he brought pro se against Disciplinary Administrator Stanton Hazlett in his official capacity, Brian Frost, and YoungWilliams, P.C. The claims arise from Landrith's allegations that each defendant participated in a grand conspiracy to retaliate against him for his representation of minority clients before his disbarment. These alleged retaliatory actions include interference with Landrith's possible employment opportunities, the enforcement of Landrith's court-ordered child support payments, and general fraud by multiple government and nongovernment employees. At the conclusion of the pleadings stage, the district court dismissed all claims against these defendants.
Because we agree that Landrith's claims are utterly without merit, we affirm the district court.
Factual and Procedural History
On October 12, 2010, Landrith filed a petition alleging civil rights violations naming six defendants, only three of whom are involved in this appeal—Hazlett (in his official capacity), Frost, and YoungWilliams, P.C. Landrith filed his petition pro se, improperly naming it a “Complaint,” but we will refer to the document as a petition. Hazlett was not originally named in Landrith's petition; Landrith was granted leave to amend his petition and named Hazlett in his first amended petition. Landrith was disbarred by our Supreme Court in 2005 from the practice of law in the State of Kansas.
Facts Relating to Hazlett
Landrith added Hazlett as a defendant in the original case when he filed his first amended petition on April 18, 2011. The claims against Hazlett are not exactly clear, but it appears that Landrith alleges that Hazlett committed fraud related to Landrith's disbarment case before the Kansas Supreme Court and that Hazlett committed fraud by participating in the government conspiracy and “selectively prosecuting the attorneys of natural parents seeking to defend their rights.”
The district court granted Hazlett's motion to dismiss for failure to state a claim on July 1, 2011. The district court concluded: (1) it could not review Hazlett's actions during Landrith's disbarment proceeding or the Kansas Supreme Court's decision to disbar Landrith because it lacked subject matter jurisdiction; (2) Landrith failed to plead fraud with enough particularity; and (3) Landrith lacked standing to bring a claim for injunctive relief.
Facts Relating to Frost
There are multiple other cases referred to by Landrith, but little information is actually provided regarding these cases. A basic understanding of three of these cases is needed to follow the conspiracy allegations made by Landrith.
The first case Landrith refers to is the child custody case of Donna Huffman. Brian Frost was appointed by the district court as a case manager in Huffman's child custody case. Frost is a private attorney who is of counsel with the Alderson law firm. A dispute of some kind arose between Huffman and Frost, resulting in Huffman not paying her case management fees. Frost eventually filed suit to collect Huffman's unpaid fees. Landrith alleges that Frost conspired with Deputy Disciplinary Administrator Gayle Larkin to alter Frost's billing records in Huffman's case in order to prevent Huffman from having a successful business that would eventually allow her to employ Landrith as her counsel. Landrith also claims Frost was part of the civil rights conspiracy in allegedly manipulating his fee in the Huffman child custody case.
The second case Landrith refers to is Huffman v. ADP, Fidelity et al., a federal case in the United States District Court for the Western District of Missouri, case no. 4:05–CV–01205–GAF. Landrith represented Huffman in this case which apparently took place around the time of his disbarment. Landrith claims that because he was disbarred in Kansas, he was reciprocally disbarred by the federal courts making him ineligible to collect his contingent fees in the Huffman v. ADP, Fidelity et al. case.
The third case Landrith refers to is United States v. Carrie Neighbors and Guy Neighbors. While he lists three case numbers all similarly captioned (United States District Court, District of Kansas case numbers 07–20124, 07–20073, and 08–20105), we are unable to discern from the limited information provided to which case Landrith is referring when he claims he was to testify on July 27, 2010, in the Neighbors case. Landrith alleges that a Stewart Webb, who had been a witness in a case Landrith had handled before his disbarment, filed an ethics complaint against Larkin. The night before his scheduled testimony in the Neighbors case, Landrith told Hazlett he would be testifying regarding fraud that was allegedly committed during Landrith's disbarment proceeding. Landrith contends that later that evening, after receiving this news from Landrith, Hazlett dismissed Webb's ethics complaint against Larkin. Because of this dismissal, the next day at the Neighbors case, the prosecuting attorney was barred from asking any questions related to Landrith's disbarment. The record does not explain what this case was about or exactly why Landrith was scheduled to testify.
Landrith also asserts multiple facts that center on the alleged wrongs done to Huffman, which supposedly kept her from sitting for the Kansas Bar Exam. Landrith claims the State kept Huffman from sitting for the bar exam in “retaliation for her association with [Landrith].” Huffman's inability to sit for the Kansas Bar Exam is only relevant to Landrith's claims against Frost inasmuch as Huffman's income has supposedly been affected and, by extension, her ability to employ Landrith.
Landrith states that, on September 15, 2009, Huffman “asks Landrith to come to work with her in Oskaloosa, Kansas out of her Mortgage [ sic ] banking building where she is intending to form a real estate business. The position would not pay but would lead to ownership in the real estate business, providing a broker could be recruited.” “On September 17, 2009, [Landrith] accepted the contracts and business expectancies, including a 1/3 interest in a real estate business in return for doing the work for Donna L. Huffinan.” That same day, Landrith “borrowed his mother's truck and went to Oskaloosa, to look over what he [could] do for Huffman and attend[ed] Oskaloosa City Council meeting where problems with Huffman's 1880's Landmark building resulting from water damage of the foundation are discussed.” “On October 22, 2009 [Landrith] prepared an apartment in Donna L. Huffman's building for Housing and Urban Development tenants.” Landrith states in his original petition that he “entered into these contracts knowing Donna L. Huffman could not pay a salary while having her business property interests damaged by unlawful racketeering extortion by [Frost].”
After filing the present lawsuit, Landrith filed a motion to disqualify Frost's attorney, J. Steven Pigg, claiming that Pigg would be a necessary witness. Pigg represented Frost in this suit and had represented Frost in the 2008 case Frost filed against Huffman to collect the unpaid fees for his services as case manager. Landrith claimed Pigg would be a necessary witness because he would need to testify to Frost's conspiracy-driven actions of altering billing records. The district court denied Landrith's motion to disqualify Pigg but specifically noted that Landrith “may renew this motion later if some compelling evidence is developed that Pigg would be a necessary witness.”
Frost subsequently filed a motion for judgment on the pleadings. The district court heard oral arguments from both Frost and Landrith regarding this motion. The court granted Frost judgment on the pleadings and dismissed the case against Frost on May 4, 2011.
Facts Relating to Young Williams
YoungWilliams, P.C. (hereafter “YoungWilliams”) is a child support enforcement agency that contracts with the State of Kansas to enforce existing child support orders. YoungWilliams filed a Motion to Dismiss for failure to state a claim on December 22, 2010. Landrith answered the motion on February 4, 2011. The court granted YoungWilliams' motion and dismissed YoungWilliams on May 19, 2011.
Landrith timely appeals the dismissal of his claims.
I. Dismissal of Stanton Hazlett
A. Did the District Court Err in Dismissing All Claims of Fraud Against Hazlett?
“Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review. [Citation omitted.] An appellate court is required to assume the facts alleged by the plaintiff are true, along with any inferences reasonably drawn from those facts. The appellate court then decides whether the facts and inferences state a claim based on the plaintiffs theory or any other possible theory.” Campbell v. Husky Hogs, 292 Kan. 225, 227, 255 P.3d 1 (2011).
In his brief, Landrith argues that Hazlett is part of the general conspiracy against him, that he has standing to bring his claims, and that res judicata does not apply here because his claims of fraud and conspiracy arise out of Hazlett's conduct since the federal case was decided. Landrith fails to provide a specific reference to the federal case to which he is referring, but it is reasonable to conclude that he means the 10th Circuit case Landrith filed during his disbarment case to stop Hazlett and the Disciplinary Administrator's Office from proceeding to prosecute him. Landrith v. Hazlett, 170 Fed. Appx. 29 (10th Cir.2006). In that case, Landrith claimed that the disciplinary proceedings against him were brought in bad faith, but, in March of 2006, the court found no merit to this claim. Landrith v. Hazlett, 170 Fed. Appx. at 31.
The claim that Hazlett committed fraud related to Landrith's disbarment case is nonactionable for a number of reasons. First, the district court correctly determined that it lacked subject matter jurisdiction to review Hazlett's actions relating to Landrith's disbarment proceedings. Kansas Supreme Court Rule 201 (2012 Kan. Ct. R. Annot. 289) vests all power to decide issues of disbarment solely in the Kansas Supreme Court. The district court has no authority to make a legal determination on a disbarment. Second, K.S.A.2012 Supp. 60–209(b) requires the party pleading fraud to “state with particularity the circumstances constituting fraud.” Landrith fails to allege facts pointing to specific instances of fraud before or during his disbarment proceedings.
Third, res judicata and collateral estoppel prevent this claim of fraud from being relitigated.
“ ‘Kansas law provides that four conditions must be met in order that a prior adjudication becomes res judicata ... “An issue is res judicata when four conditions concur: (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of persons for or against whom claim is made.” ‘ “ Venters v. Setters, 293 Kan. 87, 98, 261 P.3d 538 (2011) (quoting Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1023, 58 P.3d 1284 [2002] ).
All four of these conditions are met.
Collateral estoppel requires:
“ ‘ “(1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment; (2) the parties must be the same or in privity; and (3) the issue litigated must have been determined and necessary to support the judgment.” ‘ “ Venters, 293 Kan. at 98 (quoting Waterview Resolution Corp., 274 Kan. at 1023).
Hazlett correctly argues that all collateral estoppel conditions are met including the requirement that the parties be the same or in privity. In Landrith's disbarment, he was the only named party. However, under Kansas Supreme Court Rule 201 (2012 Kan. Ct. R. Annot. 289), disbarment is by the Kansas Supreme Court, and, under Kansas Supreme Court Rule 205 (2012 Kan. Ct. R. Annot. 325), the Disciplinary Administrator (Hazlett) is appointed by and serves at the pleasure of the Kansas Supreme Court. Therefore, Hazlett was either a party to the proceedings or was at least in privity to the Kansas Supreme Court as a party.
Landrith's second potential basis for a claim of fraud alleges that Hazlett committed fraud by participating in the government conspiracy and “selectively prosecuting the attorneys of natural parents seeking to defend their rights.” Landrith clearly fails to state a claim for fraud under K.S.A.2012 Supp. 60–209(b) because he fails to offer anything besides conclusory statements to support his allegations of conspiracy and selective prosecution.
The district court correctly dismissed all claims of fraud against Hazlett. B. Did the District Court Err in Dismissing Landrith's 42 U.S.C. § 1983 Claim for Injunctive Relief Against Hazlett?
“Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review. [Citation omitted.] An appellate court is required to assume the facts alleged by the plaintiff are true, along with any inferences reasonably drawn from those facts. The appellate court then decides whether the facts and inferences state a claim based on the plaintiff's theory or any other possible theory .” Campbell, 292 Kan. at 227.
The district court found that Landrith lacked standing and dismissed his claim for injunctive relief against Hazlett. Landrith's brief does not address his standing to bring this specific claim against Hazlett. However, Hazlett's brief argues that Landrith lacks standing because he did not allege a personal injury that was fairly traceable to Hazlett's allegedly unlawful conduct and would be suitably redressed by the granting of an injunction.
In order to maintain a claim for injunctive relief, the plaintiff must “demonstrate a good chance of being likewise injured in the future.” Facio v. Jones, 929 F.2d 541, 544 (10th Cir.1991). Standing for a 42 U.S.C. § 1983 suit requires Landrith to have a constitutional right that was violated by Hazlett in order to have an actual injury that is redressable by the court. See Housing Authority v. City of Ponca City, 952 F.2d 1183, 1187–88 (10th Cir.1991).
Landrith claims that Hazlett retaliated against Landrith by telling possible employers that Landrith was not a licensed attorney, that he made “ ‘false cases against government officials,’ “ and that he would “never be permitted to practice law again.” Landrith asks the court to grant him injunctive relief in order to require Hazlett to “furnish all evidence in [his] possession and control, free of false characterizations to law enforcement agencies and court jurisdiction admission authorities upon request.”
Landrith does present some detail regarding what he considers to be misrepresentations by Hazlett and the Disciplinary Administrator's Office. Though this is the first time Landrith starts to support his usual broad and conclusory statements with some detail, it is not enough. Landrith alleges that these statements were made to potential employers and to a potential client seeking legal representation, which presumably then prevented Landrith from being hired. Nevertheless, there is no constitutional right to be a licensed attorney, and there is no constitutional right requiring a company or individual to hire someone after receiving his application for a job. See State ex rel. Stephan v. Williams, 246 Kan. 681, Syl. ¶ 4, 793 P.2d 234 (1990) (“The Kansas Supreme Court has the inherent power to prescribe conditions for admission to the bar and to define, supervise, regulate, and control the practice of law in Kansas.”); Supreme Court Rule 705(a) (2012 Kan. Ct. R. Annot. 790) (“The practice of law is a licensed privilege, not a right....”); Herriges v. United States, 314 F.Supp. 1352, 1355 (D.Mont.1970) (There is no constitutional right to have particular terms in a contract of employment.). Landrith failed to allege a constitutionally protected injury to give him standing to bring this claim under 42 U.S.C. § 1983.
The district court correctly dismissed this 42 U.S.C. § 1983 claim finding that Landrith lacked standing.
II. Dismissal of Brian Frost
A. Did the District Court Err in Granting Judgment on the Pleadings to Frost?
“A motion for judgment on the pleadings is based upon the ground that the moving party is entitled to a judgment on the face of the pleadings themselves.” Koss Construction v. Caterpillar, Inc., 25 Kan.App.2d 200, 200, 960 P.2d 255,rev. denied 265 Kan. 885 (1998). This court's review of the district court's ruling on a motion for judgment on the pleadings is de novo. Wagner v. State, 46 Kan.App.2d 858, 860, 265 P.3d 577 (2011).
When deciding a motion for judgment on the pleadings, the trial court accepts the factual allegations in the opposing party's pleadings as true and makes a determination whether there is a potentially valid claim based on the alleged facts. Ramcharan–Maharajh v. Gilliland, 48 Kan.App.2d 137, 139, 286 P.3d 216 (2012). When deciding if a petition states a claim, the court is not “ ‘ “required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened....” ‘ “ McCormick v. Board of Shawnee County Comm'rs., 272 Kan. 627, 646, 35 P.3d 815 (2001) (quoting Colombelv. Milan, 24 Kan.App.2d 728, 729, 952 P.2d 941 [1998] ),cert. denied537 U.S. 841 (2002).
Landrith repeatedly claims that Frost is involved in a civil rights conspiracy. To state a claim for civil rights conspiracy, conclusory allegations of a conspiracy are insufficient. See Brooks v. Gaenzle, 614 F.3d 1213, 1228 (10th Cir.2010); Scott v. Hern, 216 F.3d 897, 907 (10th Cir.2000); Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983). Conspiracy actions under either 42 U.S.C. § 1983 or 42 U.S.C. § 1985 require “persons acting in concert and an allegation of a meeting of the minds, an agreement among the defendants, or a general conspiratorial objective.” Brooks, 614 F.3d at 1227–28.
Landrith repeatedly names Frost as joining in a civil rights conspiracy, participating in extrinsic fraud on the Kansas courts, and racketeering along with the other defendants—Collins, YoungWilliams, Jordan, and Weber. There are no facts pleaded to specifically connect Frost to any of the other defendants, to show that Frost knew Landrith had entered into an employment agreement with Huffman, that Frost knew his dealings with Huffman would affect Landrith in any way, or that Frost even knew Landrith, as an individual, existed. Without supporting facts, Landrith's claims of Frost's involvement in a conspiracy, fraud, or racketeering are nothing more than conclusory allegations which the court is not required to accept as true. See McCormick, 272 Kan. at 646 (quoting Colombel, 24 Kan.App.2d at 729).
By failing to properly plead that Frost was somehow involved in a conspiracy, Landrith's 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3) claims against Frost fail. However, both 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3) claims and arguments made by the parties are addressed in more detail below.
B. Did the District Court Err in Dismissing Landrith's 42 U.S.C. § 1983 Claim Against Frost?
1. Standing for 42 U.S.C. § 1983 Claim
The district court granted Frost judgment on the pleadings finding that Landrith did not have standing to bring any of his civil rights claims. The court could not find a causal connection between Frost's actions in his suit against Huffman and Landrith's claimed injuries.
Landrith claims he had standing based on two different grounds. First, he claims standing because his First Amendment right to associate by forming contracts with Huffman was violated by the conspiracy's actions against Huffman through Frost. Second, he claims third-party standing arising out of injuries to “Donna L. Huffman, David M. Price, Mark Hunt, Dustin Sherwood, and Valery Rosproy.” Frost's brief addresses Landrith's first claim for standing but does not address his second standing argument.
“ ‘Standing is a jurisdictional question whereby courts determine “whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant invocation of jurisdiction and to justify exercise of the court's remedial powers on his or her behalf.” ‘ “ Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 903, 249 P.3d 434 (2011) (quoting Board of Sumner County Comm'rs. v. Bremby, 286 Kan. 745, 750–751, 189 P.3d 494 [2008] ). Though this case is in state court, it is applying federal law and, therefore, the federal courts' interpretations of standing for a § 1983 claim are instructive. Standing for a 42 U.S.C. § 1983 suit requires Landrith to have a constitutional right that was violated by Frost in order to have an actual injury that is redressable by the court. See Housing Authority, 952 F.2d at 1187–88. a. First Amendment Rights Violation for Standing in 42 U.S.C. § 1983 Claim
First, Landrith claims a violation of his First Amendment right to associate with Huffman by entering into employment contracts for compensation. Landrith pleads facts giving the dates and terms of his employment contract with Huffman. Obviously, Landrith was not prevented from contracting with Huffman. Landrith argues that Frost violated his right to collect compensation from Huffman under their contracts. Landrith tries to argue that though he knew he would not be paid in cash for “the real estate brokerage business opportunity,” he did have the expectation of payment for his gas expenses and his work on “odd jobs including clearing out a rental apartment” because these were all separate contracts. During his oral argument in the district court's hearing on the motion to grant judgment on the pleadings, Landrith did fleetingly mention that the petition refers to separate contracts. However, in reviewing both his original and amended petition, there are no facts alleged of separate agreements for gas or odd jobs that are not covered by the general agreement that Landrith would work for Huffman's real estate business.
Moreover, even if Landrith did have a Constitutional rights violation, such a violation must have been caused by Frost's conduct. The conduct at issue here is Frost's collection of fees earned as a case manager in Huffman's divorce case. Though Frost's conduct of suing Huffman for collection of a disputed debt might eventually lead to Huffman having less money available to fund her business or for possible payments to Landrith, this connection is very attenuated and does not satisfy the requirement that Frost caused the violation of Landrith's Constitutional rights. b. Third–Party Standing for 42 U.S.C. § 1983 Claim
Second, Landrith argues he has third-party standing arising out of injuries to “Donna L. Huffman, David M. Price, Mark Hunt, Dustin Sherwood, and Valery Rosproy.” In his petition as related to this claim against Frost, Landrith makes no relevant mention of any of the above listed people except for Huffman. Therefore, the analysis of third-party standing will be confined to Landrith's relationship with Huffman.
Generally, standing must be based on a violation of the plaintiff's personal rights, not a violation of a third party's rights, but there are special situations in which a litigant may bring an action on behalf of a third party. See Powers v. Ohio, 499 U.S. 400, 410–11, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Naumoff v. Old, 167 F.Supp.2d 1250, 1252 (D.Kan.2001). To have this third-party standing the litigant: (1) “must have suffered an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute”; (2) “must have a close relation to the third party”; and (3) “there must exist some hindrance to the third party's ability to protect his or her own interests.” Powers, 499 U.S. at 411.
Landrith claims his relationship with Huffman satisfies the “close relation to the third party” element because the facts alleged in the petition describe “complicated interpersonal interactions and a shared mutual life struggle and dependency beyond any mere business interactions.” The petition gives facts showing that Landrith was at one point in an attorney-client relationship with Huffman; they later entered into an employer-employee relationship, and they consulted on multiple life struggles and issues. The caselaw relied on by Landrith illustrates that “close relation” depends heavily on the facts of the specific case.
In McCormick v. City of Lawrence, Kansas, 253 F.Supp.2d 1156, 1164 (D.Kan.2003), a husband was deemed to have standing to bring a 42 U.S.C. § 1983 claim because the defendant had threatened his wife not to obtain help from her husband or legal action might be taken against him. This threat, though directly said only to the wife, was meant for her to then tell her husband, thereby giving the husband standing. Powers v. Ohio involved a criminal defendant who brought an equal protection claim because the prosecutor had used peremptory challenges to disqualify African–American members of the jury pool. The Court deemed that the defendant and the disqualified jury member had a close enough relationship because they both had the same interest in making sure that the judicial system provides a fair trial free from ethnic, racial, or political prejudice. Powers, 499 U.S. at 411–14.
Camacho v. Brandon, 317 F.3d 153, 160 (2d Cir.2003), stated that an aid (Camacho) had the right to bring a 42 U.S.C. § 1983 claim based on the violation of his boss' First Amendment rights. Camacho worked extremely closely with his boss, a city council member, for over 12 years on various campaigns and as his general aid. The other city council members tried to pressure Camacho's boss into voting a particular way by threatening to fire Camacho if his boss did not vote with the rest of the council members. When his boss voted against the other council members, Camacho was fired. The court held that because of this close personal and professional relationship, Camacho satisfied the “close relation” requirement. 317 F.3d at 159–160.
Familial, close friendship, or working relationships, however, do not automatically confer third-party standing. See Conn v. Gabbert, 526 U.S. 286, 292–93, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) (attorney has no standing in a § 1983 claim to raise infringement of his client's alleged right to have an attorney present outside grand jury room); Bruner–McMahon v. Hinshaw, 846 F.Supp.2d 1177, 1198 (D.Kan.2012) (children could not assert a § 1983 claim for violation of their father's constitutional rights); Van Deelen v. Shawnee Mission Unified School, 316 F.Supp.2d 1052, 1057 (D.Kan.2004) (parent could not use a violation of his son's constitutional rights to bring a § 1983 claim).
In this case, there is no indication that Frost's actions in filing a suit against Huffman were in any way meant to divert money away from Landrith's future salary or that Landrith's interests in any way align with Huffman's interest in protecting her civil rights. Landrith also fails to allege any barriers that would keep Huffman herself from filing a civil rights claim against Frost if he had violated her civil rights. In fact, Huffman had already challenged Frost's claim for fees against her by filing a counterclaim in the collection case. If Huffman had felt that Frost had violated her constitutional rights, then she could have easily asserted such claims at that time.
Landrith fails to meet his burden of proving standing on his First Amendment violation claim or on his third-party standing claim. The district court was correct in finding that Landrith did not have standing to bring his 42 U.S.C. § 1983 claim against Frost.
2. Failure to State a 42 U.S.C. § 1983 Claim
Despite concluding that Landrith did not have standing, the district court also analyzed why Landrith failed to state a claim against Frost under 42 U.S.C. § 1983.
A 42 U.S.C. § 1983 retaliation claim requires that
“a plaintiff must include facts in the petition alleging that (1) the plaintiff was engaged in a constitutionally protected activity; (2) the defendant's actions caused the plaintiff to suffer an injury sufficient to chill a person of ordinary firmness from continuing to engage in that activity; and (3) the defendant's adverse action was substantially based on the plaintiff's exercise of a constitutionally protected right.” Bloom v. FNU Arnold, 45 Kan.App.2d 225, 233, 248 P.3d 752 (2011).
The defendant must be acting under the color of state law. See Purvis v. Williams, 276 Kan. 182, 198, 73 P.3d 740 (2003).
The district court briefly addressed the 42 U.S.C. § 1983 claim concluding that Landrith's petition failed to allege sufficient facts to support any of the three elements. Landrith argues the district court improperly applied a heightened pleading standard when evaluating his petition and that the court should have applied the plausibility pleading standard set out by the United States Supreme Court in Bell Atlantic Corp, v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Kansas appellate courts have not adopted the federal standard as set out in Twombly and continue to follow the pleading standard as set out in K.S.A.2012 Supp. 60–208(a). Smith v. State, No. 104,775, 2012 WL 1072756, at *6 (Kan.App.2012) (unpublished opinion), rev. denied May 20, 2013. a. Was Landrith Involved in a Constitutionally Protected Activity?
In Landrith's convoluted brief, he seems to be claiming two ways in which he was involved in a constitutionally protected activity. First, he claims he had a protected right to have the employment contract with Huffman and to be paid under that contract. Second, he claims protection under the First Amendment for his actions regarding the representation of former clients Price and James L. Bolden.
Under the terms of Landrith's agreement with Huffman as stated in Landrith's petition, Landrith agreed to work for Huffman without payment. Nowhere in his petition does Landrith give facts to support that he was in any way forbidden or prevented from forming contracts with Huffman. In fact, he claims he formed multiple contracts.
Landrith had the possibility of receiving compensation in the form of an ownership interest in the business, but Huffman made that option contingent on hiring a broker. By choice, Landrith did not have any protected interest in payment from Huffman that was not given in the terms of the agreement. The possible ownership interest was contingent; therefore, Landrith may have had an expectancy interest, but he did not have an actual vested property interest in Huffman's business. See Kenyon v. Jennings, 560 F.Supp. 878, 881–82 (D.Kan.1983) (dismissing § 1983 claim because plaintiff did not have a property right in business he expected to receive by virtue of a contract). A property right cannot be violated if it does not yet exist.
Second, Landrith claims a violation of his First Amendment rights for his pre–2005 representation of a Native–American, Price, and an African–American, Bolden. Protection is provided under 42 U.S.C. § 1983to a white attorney whose First Amendment rights are violated because of his representation of black or other racial minorities. See Phelps v. Wichita Eagle–Beacon, 886 F.2d 1262, 1270 (10th Cir.1989). Therefore, Landrith successfully identified a constitutionally protected activity to satisfy the first element of a 42 U.S.C. § 1983 retaliation claim. b. Did Frost's Actions Cause Landrith to Suffer an Injury Sufficient to Prevent Landrith from Continuing to Represent Racial Minority Clients?
“Causation is an essential element in an action for damages under 42 U.S.C, § 1983. [Citation omitted.] Liability under 42 U.S .C. § 1983 must be based both on proximate cause and cause in fact of the denial of plaintiffs constitutional rights.” Corder v. Kansas Board of Healing Arts, 256 Kan. 638, 655, 889 P.2d 1127 (1994).
Landrith did allege a possible violation of his First Amendment rights that might support a 42 U.S.C. § 1983 claim if Landrith can show that Frost filed suit against Huffman because Landrith had represented minority clients. See Phelps, 886 F.2d at 1270. Landrith fails to allege any facts that Frost knew who Landrith was, that Frost knew Landrith knew Huffman, that Frost knew about Landrith's pre–2005 representations, or that Frost's actions against Huffman were in any way motivated by Landrith's previous representations. Without supporting facts, Landrith's claim for retaliation based on his past representation of minorities fails to maintain a 42 U.S.C. § 1983 claim. c. Was Frost Acting Under the Color of Law?
Landrith claims that Frost was a state actor by participating in a conspiracy with the other named defendants and with Larkin. “ ‘When a plaintiff in a § 1983 action attempts to assert the necessary “state action” by implicating state officials ... in a conspiracy with private defendants, mere conclusory allegations with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreement and concerted action.’ “ Scott, 216 F.3d at 907 (quoting Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 [10th Cir.1983] ). While Landrith points out that certain paragraphs in his petition state Frost participated in a conspiracy or acted at the direction of one of the members of the conspiracy, these statements are merely conclusory allegations without any specific supporting alleged facts. Therefore, even if Landrith did have standing to bring his claims against Frost, Landrith failed to sufficiently plead the elements of the 42 U.S.C. § 1983 retaliation claim against Frost. C. Did the District Court Err in Dismissing Landrith's 42 U.S.C. § 1985(3) conspiracy claim?
42 U.S.C. § 1985(3) provides in part:
“If two or more persons ... conspire ... for the purpose of depriving ... any person ... of the equal protection of the laws, ... [and] if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, ... the party so injured ... may have an action for the recovery of damages occasioned by such injury or deprivation....”
A 42 U.S.C. § 1985(3) claim must be motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); see Hall v. May field, No. 89,084, 2004 WL 292095, at *4 (Kan.App.) (unpublished opinion), rev. denied 278 Kan. 844 (2004). Landrith does not allege that he is directly part of a protected class but, rather, argues that Frost participated in the civil rights conspiracy against Landrith because of “his representation of James L. Bolden, David M. Price or Baby C in their racial discrimination claims....” However, writing that statement in his brief does not cure the problem that he did not allege this fact or supporting facts in his pleadings.
Landrith seems to pick out little instances that he sees as government misconduct and lists them as facts to support the existence of a civil rights conspiracy. His facts involve the following: news articles questioning various actions of the Department of Social and Rehabilitation Services; a letter from a person unconnected to this suit to a Missouri state judge that mentions Landrith's son; multiple news articles commenting on the David Price case; his employment agreement with Huffman; facts about Huffman's pursuit to take the Kansas Bar Exam; information about his ex-wife and the custody of their son; a quote from the Baby C case; and, finally, statements about his own disciplinary action. These alleged facts do not necessarily relate to each other and are not presented in any kind of logical order.
There is nothing alleged in the petition that points to the existence of a large government conspiracy. Even if there was a conspiracy, there is nothing alleged to connect Frost as joining or participating in the conspiracy. Therefore, the district court did not err in dismissing Landrith's 42 U.S.C. § 1985(3) claim against Frost.
D. Did the District Court Err in Dismissing Landrith's 42 U.S.C. § 1981 claim?
1. Did Landrith Have Standing for a 42 U.S.C. § 1981 Claim?
In order to have standing to bring a claim under 42 U.S.C. § 1981, the plaintiff must be the person whose right to make and enforce contracts was impaired on account of race. Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 478, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006). Landrith correctly points out that the district court misstated the law when it said that under 42 U.S.C. § 1981 Landrith must be a member of a protected class, which he is not. A white attorney is protected by 42 U.S.C. § 1981 if he is deprived of an interest protected under that statute because he represented black or other racial minorities. See Phelps, 886 F .2d at 1267. Landrith claims standing as a white attorney who, pre-disbarment, represented a number of minority clients.
Landrith must also show that Frost impaired his right to make and enforce contracts because of his representation of minority clients. It is unclear in Landrith's original petition, Landrith's oral arguments before the district court, the district court's journal entry, Landrith's briefs, or Frost's brief what contract rights Landrith is claiming were impaired. Frost's interpretation in his brief seems the most reasonable. Frost states that Landrith seems to be claiming his pre–2005 representation of minority clients put events into motion that resulted in Frost suing Huffman in 2008, which then prevented her from growing her business, which made Landrith unable to enforce the terms of their 2009 employment contract to receive compensation in the form of gas reimbursements and a future 1/3 ownership interest in Huffman's business.
However, Landrith fails to give specific facts to allege that Frost's motivation for filing the debt collection suit against Huffman was anything other than to simply collect his case management fees. He also fails to show how Frost's actions in any way impaired Landrith's right to bring an action against Huffman to enforce the terms of his employment contract with her. If Landrith were to sue Huffman to enforce the compensation terms of the contract, he may have problems collecting the judgment from Huffman due to her other outstanding debt to Frost. However, Frost's possible interference with Landrith's right to collect on a judgment is not the same as Frost impairing Landrith's right to enforce the contract. Without facts supporting Frost's impairment of Landrith's right to make or enforce a contract, Landrith does not establish standing to bring a 42 U.S.C. § 1981 claim against Frost.
2. Did Landrith Successfully Plead a 42 U.S.C. § 1981 Claim?
To establish a 42 U.S.C. § 1981 claim, Landrith must allege that (1) he is a member of a protected class, (2) Frost intended to discriminate against him on the basis of race, and (3) the discrimination interfered with a constitutionally protected activity. See Sawyer v. Southwest Airlines Co., 243 F.Supp.2d 1257, 1269 (D.Kan.2003), affirmed 145 Fed. Appx. 238 (10th Cir.2005). “By its language, Section 1981 establishes four protected interests: (1) the right to make and enforce contracts; (2) the right to sue, be parties, and give evidence; (3) the right to the full and equal benefit of the laws; and (4) the right to be subjected to like pains and punishments.” Phelps, 886 F.2d at 1267. As discussed above, the only logical protected interest on which Landrith could base this claim against Frost is the right to make and enforce contracts. Landrith fails to give enough facts to support that Frost's actions interfered with Landrith's ability to make or enforce contracts with Huffman.
Given the facts as set out by Landrith, there is no indication that Frost's debt collection suit against Huffman discriminated against Landrith in retaliation for his representation of minority clients. During oral arguments before the district court on the motion for judgment on the pleadings, the judge specifically asked Landrith to explain how Frost's actions fit into this alleged retaliatory motive against Landrith. Rather than point to more specific facts, Landrith once again made the general claim that Frost was part of the conspiracy and that he did not need to plead anything more specific. Since there are no facts that even allow this court to draw the inference that Frost intended to discriminate against Landrith, Landrith's 42 U.S.C. § 1981 claim fails. E. Were the Pleadings Closed When the District Court Granted Frost Judgment on the Pleadings?
Landrith claims that the district court erred in granting judgment on the pleadings because the pleadings were not yet closed as required by K.S.A.2012 Supp. 60–212(c). Landrith filed his initial petition on October 12, 2010. Frost filed his answer on November 22, 2010. According to the case relied upon by Landrith in his brief, Simmon v. Bond, 6 Kan.App.2d 766, 768, 634 P.2d 1148 (1981), pleadings are closed after the defendant's answer is filed unless a counterclaim, cross-claim, or third-party claim is filed. None of those apply in this case; therefore, the pleadings were closed after Frost filed his answer.
Landrith did receive leave from the court to amend his petition by naming additional defendants and laying out the claims against those defendants. If a response to an amended pleading is required, it must be made within 21 days after service of the amended pleading. K.S.A.2012 Supp. 60–215(a)(3). Here, Landrith filed his first amended pleading on April 18, 2011. The court granted Frost's motion for judgment on the pleadings and Frost's dismissal on May 4, 2011, only 16 days after Landrith filed his amended petition. Landrith's amended petition, however, did not change any of the facts or allegations alleged against Frost. There was no reason for Frost to file an answer to the amended petition. All alleged facts and arguments concerning Landrith and Frost were completely set out before the district court when the court considered and granted Frost's motion for judgment on the pleadings.
Though it might have been better for the district court to wait until the allotted 21–day response window to the amended petition had closed, Landrith was in no way prejudiced by the court's failure to wait 5 more days to issue its opinion. If any party might have been hurt by the court's actions, it would have been Frost who does not challenge the court's decision. F. Was the Motion for Judgment on the Pleadings Turned Into a Summary Judgment Motion Under K.S.A.2012 Supp. 60–212(d)?
Landrith also contends that the district court considered matters outside the pleadings when making its decision, which turned Frost's motion for judgment on the pleadings into a motion for summary judgment pursuant to K.S.A.2012 Supp. 60–212(d). He claims the court took Huffman's testimony into account, which is evidence outside the pleadings. In his brief, Landrith does not directly argue that the district court should have applied a summary judgment standard to Frost's motion but does cite to multiple cases discussing that summary judgment should not be granted when pretrial discovery has not been completed. These cases are not relevant here because the motion for judgment on the pleadings was not turned into a summary judgment motion.
The journal entry states that the district court relied only on the pleadings, briefs, and oral arguments of the parties in making its ruling. The district court did state, in rendering its decision from the bench, that it “heard the testimony of Ms. Hoffman [ sic ] of what happened in that case.” However, there is no indication in the journal entry that the court relied at all on Huffman's testimony or anything outside the pleadings in making its decision. The district court applied the correct analysis, and the motion for judgment on the pleadings was not turned into a motion for summary judgment. G. Did the District Court Err in Denying Landrith's Motion to Disqualify Frost's Attorney, J. Steven Pigg?
Landrith moved the district court to disqualify Frost's counsel as a potentially necessary witness. The district court denied Landrith's motion without prejudice, concluding there was no indication that counsel would be a necessary witness.
Whether ethical rules require disqualification is a question of law subject to unlimited review. Venters, 293 Kan. at 92.
Landrith sought the disqualification of Pigg under Kansas Rules of Professional Conduct 3.7(a) (2012 Kan. Ct. R. Annot. 600), which states: “A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness....” This rule requires the moving party to bear the high burden to show that the lawyer is “likely to be a necessary witness.” LeaseAmerica Corp. v. Stewart, 19 Kan.App.2d 740, 746, 750, 876 P.2d 184 (1994). “The moving party bears the initial burden of going forward with evidence sufficient to establish a prima facie case that disqualification is warranted.” Lowe v. Experian, 328 F.Supp.2d 1122, 1125 (D.Kan.2004). It is only after the moving party has presented a prima facie case that the burden shifts to the attorney whose disqualification is sought. Lowe, 328 F.Supp.2d at 1125. In this case, Landrith fails to meet his burden and establish a prima facie case that Pigg should be disqualified.
During the hearing before the district court, Landrith argued that Pigg participated in the conspiracy by representing Frost in collecting a “false debt” and by changing Frost's pleadings in his case “to go back and state that [Frost's law firm] did not seek to collect that debt” against Huffman. Landrith called Huffman as a witness to try to explain why Pigg's representation of Frost during a debt collection case against Huffman meant that Pigg would be a necessary witness in the present case. Huffman discussed her divorce case and Frost's lawsuit against her for her nonpayment of his case management fees. Pigg represented Frost during the fee dispute, and Pigg was also representing Frost in this particular hearing and case. Throughout Huffman's testimony, the judge questioned Landrith about the relevance of Huffman's testimony to the issue of Pigg's disqualification.
In his original motion to disqualify Pigg, and in his brief, Landrith cites cases (some are irrelevant criminal cases) from all over the country that discuss the legal reasoning behind disqualifying an attorney who is likely to be a necessary witness. However, this is all irrelevant unless Landrith is able to provide the court with more than mere speculation that conspiracy-related activities occurred in Frost's suit against Huffman and that Pigg, as Frost's attorney, would present testimony material to the issues in this case. See Lease America Corp., 19 Kan.App.2d at 753 (“Mere speculation is not a sufficient basis for an order to disqualify an attorney.”).
Landrith presented no evidence of what testimony Pigg might offer, that Pigg was the only source of the unknown testimony, or that Pigg's testimony would be prejudicial to Frost. Without being presented with a prima facie case, the district court correctly denied Landrith's motion to disqualify without prejudice.
III. Dismissal of Young Williams
A. Did the District Court Err in Granting YoungWilliams' Motion to Dismiss for Failure to State a Claim?
“Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review. [Citation omitted.] An appellate court is required to assume the facts alleged by the plaintiff are true, along with any inferences reasonably drawn from those facts. The appellate court then decides whether the facts and inferences state a claim based on the plaintiffs theory or any other possible theory.” Campbell, 292 Kan. at 227.
1. Did the District Court Err in Dismissing Landrith's 42 U.S.C § 1983 Abuse of Process Claim?
In his petition (and in his amended petition), Landrith lays out the following facts to support his abuse of process claim under 42 U .S.C. § 1983.
In August 2010, YoungWilliams filed a Motion for Contempt against Landrith in Crawford County, Kansas, for failure to pay child support as ordered by the court in Landrith's divorce case. YoungWilliams alleged that Landrith owed over $20,000 in arrears on child support. Landrith maintains that during his divorce case, the Crawford County District Court never had personal jurisdiction over him because service was improper and he never personally appeared before the Crawford district court until YoungWilliams brought the contempt action against him for nonpayment. Landrith sent a letter to YoungWilliams on September 22, 2010, explaining that the Crawford district court did not have proper jurisdiction to order him to pay child support. Landrith also faxed a copy of this letter to YoungWilliams on September 27, 2010. The following day, the show cause hearing was held in Crawford district court. YoungWilliams did not voluntarily dismiss its motion to show cause, and Landrith appeared, representing himself, for the hearing. Ultimately, Landrith was not found to be in contempt and did not serve time in jail for contempt.
There are no facts in the record regarding whether Landrith ever obtained or presented any order from any court reversing or vacating the original court ruling that determined the Crawford district court did have personal jurisdiction over him. Landrith argues that it was YoungWilliams' responsibility to check whether the Crawford district court had personal jurisdiction over him before enforcing the child support order. He also claims that YoungWilliams was responsible for knowing that he did not have any income and, therefore, had to ride his bicycle part of the way to and from Pittsburg, Kansas (a 160–mile trip, one way), to get to the contempt hearing and was without “funds for lodging” or “the caloric nutrition he was entitled to.”
“[T]he essential elements of an action for abuse of process are ‘a knowingly illegal or improper use of the process done for the purpose of harassing or causing hardship, which resulted in damage’ to the plaintiff.” Bloom, 45 Kan.App.2d at 230. In this case, Landrith failed to allege facts to support that YoungWilliams used its power to enforce child support orders in any illegal or improper manner.
The district court ruled that YoungWilliams was entitled to rely on the determination that the Crawford district court had personal jurisdiction over Landrith at the time it entered the child support order. Additionally, the district court concluded that YoungWilliams had every right to pursue enforcement of the valid order until that order was set aside or found invalid.
YoungWilliams is the state contracting agency for child support enforcement. Landrith does not allege violations of the indirect contempt procedures as laid out in K.S.A. 20–1204a, or challenge the jurisdictional elements of the motion for contempt proceedings themselves. Rather, he claims YoungWilliams improperly filed the motion for contempt because the original child support order itself was invalid. There are no facts showing that the original order was ever appealed, challenged, changed, or found to be invalid by any court.
A court order is to be obeyed and followed until the issuing court or the appropriate court of review determines the order to be invalid. See Celotex Corp. v. Edwards, 514 U.S. 300, 313, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995); Howat v. Kansas, 258 U.S. 181, 190, 42 S.Ct. 277, 66 L.Ed. 550 (1922); Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1022, 58 P.3d 1284 (2002). YoungWilliams had no duty to assess the merits behind the Crawford district court's order and had no reason to dismiss the motion for contempt on anything less than notice that a court had modified or invalidated the original child support order.
Landrith pleads the 42 U.S.C. § 1983 claim against YoungWilliams solely on the basis of the abuse of process claim. If the abuse of process claim fails, then it follows that there is no support to a claim under the vehicle of 42 U.S.C. § 1983.
2. Did the District Court Err in Dismissing Landrith's 42 U.S.C. § 1985(3) Conspiracy Claim?
a. Conspiracy to Deny SNAP Benefits
In the dismissal order, the district court did not specifically mention Landrith's allegation of YoungWilliams as a coconspirator to depriving Landrith of his Supplemental Nutrition Assistance Program (SNAP) benefits. However, in Landrith's petition, YoungWilliams' name is merely inserted into one sentence listing the defendants who he claims were involved in the denial of his SNAP benefits. There are no facts alleged connecting YoungWilliams to the SNAP program. YoungWilliams denies having authority to determine whether Landrith received SNAP benefits and clarifies that its only connection with the other named defendants is that of a contractual relationship between YoungWiIliams and the Department for Children and Families for the sole purpose of child support enforcement.
Landrith failed to adequately plead facts supporting the possibility of YoungWiIliams participating in any kind of conspiracy regarding Landrith's denial of SNAP benefits. b. Motion for Contempt for Failure to Pay Court–Ordered Child Support
The district court found no facts to support the allegations that YoungWiIliams participated in a conspiracy against Landrith when filing a motion for contempt against Landrith for failure to pay his court-ordered child support. Landrith argues that he adequately pleaded that YoungWiIliams was part of the conspiracy against him. The 42 U.S.C. § 1985(3) conspiracy analysis for YoungWiIliams is the same as for Frost and will not be reiterated here.
Landrith fails to give anything but conclusory statements to demonstrate a conspiracy between the defendants. There is nothing alleged to connect YoungWiIliams to Frost or Hazlett or to show that YoungWiIliams had knowledge of Landrith's representation of minorities before his disbarment. Therefore, Landrith fails to show how YoungWiIliams could have been motivated by the conspiracy or knowledge of Landrith's past clients to file the contempt motion. The district court correctly dismissed Landrith's 42 U.S.C. § 1985(3) claim against YoungWiIliams.
3. Did the Pleaded Facts Support a 42 U.S.C. § 1981 Claim?
YoungWilliams' brief discusses why Landrith's 42 U.S.C. § 1981 claim against it fails; however, upon reviewing the petition and amended petition, Landrith does not assert a 42 U.S.C. § 1981 claim against YoungWilliams. Landrith's brief does include YoungWilliams in his discussion of a 42 U.S.C. § 1981 claim, but a claim that is not pled at the district court level cannot for the first time be alleged at the appellate level.
But in the interest of reviewing the facts under the failure to state a claim analysis for any possible claim the facts may support, we will discuss below why Landrith fails to state a 42 U.S.C. § 1981 claim.
To have standing to bring a claim under 42 U.S.C. § 1981, the plaintiff must be the person whose constitutionally protected activity was impaired because of race. See Sawyer, 243 F.Supp.2d at 1269–73. “Section 1981 establishes four protected interests: (1) the right to make and enforce contracts; (2) the right to sue, be parties, and give evidence; (3) the right to the full and equal benefit of the laws; and (4) the right to be subjected to like pains and punishments.” Phelps, 886 F.2d at 1267.
YoungWilliams' actions of trying to enforce a child support order do not logically interfere with any of the four protected interests, and Landrith did not plead any facts that would show any such interference. Landrith's allegation that YoungWilliams was involved in the denial of his SNAP benefits may support a possible violation of Landrith's right to full and equal benefit of the laws; however, one conclusory sentence claiming YoungWilliams played a role in the SNAP benefits decision is not sufficient to even raise the inference that YoungWilliams was involved. Landrith's pleaded facts could not support a 42 U.S.C. § 1981 claim against YoungWilliams.
4. Was YoungWilliams Required to Answer Landrith's Amended Petition in Writing Before the District Court Granted the Dismissal of All Claims?
Landrith petitioned the court for leave to file an amended petition on January 24, 2011. No defendant objected to the amending of the petition, and the court granted Landrith leave to amend. Landrith filed the amended petition, and YoungWilliams was hand-delivered a copy of Landrith's amended petition on April 18, 2011. The next day, April 19, 2011, the district court held a hearing to address YoungWilliams' previously filed motion to dismiss. At the beginning of the hearing, YoungWilliams requested that it be allowed to address in oral arguments the additional 42 U.S.C. § 1983 claim against it as set out in the amended petition. The district court granted the request. Landrith's amended petition added the 42 U.S.C. § 1983 claim for “prospective injunctive relief” against YoungWilliams, Hazlett, and two other defendants. While the amended petition raised the additional 42 U.S.C. § 1983 claim, it did not substantively allege any new facts relating to YoungWilliams other than those already alleged in the original petition. The main allegations in the new 42 U.S.C. § 1983 claim involved Hazlett, not YoungWilliams.
The district court noted that though a motion to dismiss usually should not be granted until after an answer to an amended petition has been filed, YoungWilliams had orally answered and addressed the additional claim against it in the amended petition. The district court ruled that Landrith failed to plead sufficient facts to illustrate that YoungWilliams had abused process, had no facts to show YoungWilliams participated in any kind of conspiracy or interference with Landrith's constitutional rights, and presented no facts to establish standing to raise the new 42 U.S.C. § 1983 claim for injunctive relief.
Landrith argues that the district court should not have allowed YoungWilliams to respond by “oral answer.” K.S.A.2012 Supp. 60–215 governs amended and supplemental pleadings. K.S.A.2012 Supp. 60–215(a)(3) states that “[u]nless the court orders otherwise, any required response to an amended pleading must be made ... within 21 days after service of the amended pleading....” There is no specific statute that allows nonmotion pleadings to be orally given during a hearing; however, there is also no statute that expressly forbids it. Not every amended petition requires an amended answer from each defendant, but here, Landrith's amended petition added an additional claim, therefore it did require an answer from YoungWilliams. Because there were no additional facts relating to YoungWilliams in the amended petition and because YoungWilliams had sufficiently reviewed the amended petition before the hearing, in the interest of judicial economy, it is reasonable that the district court allowed YoungWilliams to orally answer and ruled on the additional claim set forth in the amended petition.
5. Did the District Court Err in Dismissing Landrith's 42 U.S.C. § 1983 Claim for Injunctive Relief for Lack of Standing?
Landrith's amended petition raised an additional claim against YoungWilliams and Hazlett, entitled “Violations of 42 U.S.C. § 1983 Prospective Injunctive Relief.” Landrith sought injunctions to prohibit retaliation “against him for his contracted representation of James L. Bolden Jr. and David M. Price”; “to restrain selective investigation and prosecutions of himself for his contracted representation of James L. Bolden Jr. and David M. Price”; to require the named defendants to “furnish all evidence in their possession and control ... to law enforcement agencies and court jurisdiction admission authorities upon request”; and to require YoungWilliams to “investigate defenses and frauds brought to their attorneys attention in the course of child related proceedings in Kansas courts.”
The district court ruled that Landrith did not have standing to bring any claims “related to a case involving David Price and any Child in Need of Care action.” Landrith's amended petition alleges that SRS has a repeated pattern of committing extrinsic fraud in its litigation and that such fraud through SRS agent and social worker testimony resulted in the removal of Price's child out of Price's home and the improper removal of many Kansas children. YoungWilliams allegedly participated in this fraud by failing to report the “ethical misconduct” of SRS officials.
In his brief, Landrith argues he has third-party standing arising out of injuries to Price. Generally, standing must be based on a violation of the plaintiff's personal rights, not a violation of a third party's rights, but there are special situations in which a litigant may bring an action on behalf of a third party. See Powers, 499 U.S. at 410–11;Naumoff, 167 F.Supp.2d at 1252. To have this third-party standing the litigant (1) “must have suffered an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute,” (2) “must have a close relation to the third party,” and (3) “there must exist some hindrance to the third party's ability to protect his or her own interests.” Powers, 499 U.S. at 411.
Landrith makes no arguments in his amended petition or in his brief to proffer that his relationship with Price went beyond the standard attorney-client relationship. Because Landrith failed to allege the appropriate facts to support third-party standing, the district court was correct in dismissing this claim against YoungWilliams for lack of standing.
Affirmed.