Opinion
Case No. 02-2135-JWL
September 6, 2002
MEMORANDUM AND ORDER
This matter comes before the court on the following motions:
1. Motion of Curtis A. Kastl, II, to join as additional plaintiff (doc. 98). A response has been filed (doc. 111), but no reply has been timely filed.
2. Motion of the pro se plaintiff, Dale E. McCormick, seeking leave to amend his first amended complaint (doc. 99). Defendants City of Lawrence, Kansas, Vince Casagrande, Gil Crouse, James White, Leo Souders, Chris Mann, Ken Farrar, Mike Byrn, Gerald Little, Susan Hadl, and Sam Harvey ("the City defendants"), and Christine E. Kenney, Bradley Burke, M.J. Willoughby, David Harder and Shelly Welch ("the State defendants"), have filed their responses (docs. 108 111). Plaintiff has filed his reply to each response (docs. 114 117).
Formerly known as Christine Tonkovich.
3. Mr. McCormick's motion to strike all documents filed by defendant M.J. Willoughby (doc. 101). The court also has considered the response (doc. 109) and reply (doc. 116).
4. Mr. McCormick's motion for an immediate ruling on his above-described motion to amend ( doc. 103). The court also has considered the response (doc. 112) and reply (doc. 115).
5. Motions of Merrily C. Coburn and Robert B. Coburn to join as additional plaintiffs (docs. 113 123).
The court has reviewed the above-referenced motions and all of the briefs submitted, and is now prepared to rule.
I. Motion of Kastl to Join as Additional Plaintiff.
Curtis A. Kastl, II, proceeding pro se, seeks leave to join as an additional plaintiff in this case.
The court initially finds that movant Kastl has failed to comply with D. Kan. Rule 7.1 in that the motion is not accompanied by a brief or memorandum in support. While the motion could be denied on this basis alone, the court will address the merits of the motion.
Movant Kastl seeks leave to join as a plaintiff in this case on the grounds that he was involved on the July 13, 2002-incident described in Counts XXX-XXXVI of plaintiff's proposed second amended complaint. The court construes the motion as seeking leave to intervene, which is governed by Fed.R.Civ.P. 24. Fed.R.Civ.P. 24 provides, in pertinent part:
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice adjudication of the rights of the original parties.
(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.
The court initially notes that plaintiff's motion does not comply with Rule 24 in that the motion is not accompanied by a pleading which sets for the claim for which intervention is sought. In his reply, movant Kastl has requested that the court give him an opportunity to comply with the above-mentioned rule. The court grants movant Kastl's request.
Defendants object to the intervention of movant Kastl, arguing that if he is allowed to join in the case, it will be "cluttered" and "will add substantial amount of discovery." The court, however, does not find that said defendants have supported such objections and, from a review of claims to which movant Kastl would join, the court is unable to conclude that the additional discovery would be substantial.
Defendants also argue that movant Kastl's motion should be denied until he obtains counsel to represent him. Defendants argue that it is obvious that pro se plaintiff McCormick is preparing the pleadings for movant Kastl, which is tantamount to allowing the unauthorized practice of law by plaintiff McCormick. Given the present state of the record, however, the court is unwilling to deny movant Kastl's motion on this basis.
Candidly, although not qualified as a handwriting expert, the undersigned magistrate judge shares defendants' expressed concerns.
The court finds that the proposed claims of movant Kastl have questions of law and fact in common with plaintiff McCormick's claims. The intervention of movant Kastl will not unduly delay or prejudice adjudication of the rights of the original parties in this action. Therefore, the court grants movant Kastl leave to intervene. Movant Kastl shall serve the required pleading setting forth the claims for which his intervention is sought by September 16, 2002.
II. Plaintiff's Motion to Amend His First Amended Complaint.
Plaintiff seeks leave to amend his first amended complaint to add additional claims and defendants.
A. Procedural Considerations
The City defendants and the State defendants all argue that the instant motion should be denied due to procedural defects. First, they assert that plaintiff has not complied with D. Kan. Rule 15.1 in that neither plaintiff's motion nor memorandum sets forth "a concise statement of the amendment sought to be allowed" (emphasis added). Second, the City defendants argue that plaintiff has failed to comply with D. Kan. Rule 15.1 in that he failed to affix to the motion "the signed original and one copy of the proposed amended pleading." The City defendants suggest that plaintiff has affixed either an original or a copy of the proposed second amended complaint, but not both. Third, the City defendants argue that the second amended complaint served upon them is unsigned. Fourth, the State defendants argue that plaintiff has failed to comply with Fed.R.Civ.P. 5 in that plaintiff has failed to use the correct mailing address for said defendants.
In resolving a motion to amend filed by a pro se plaintiff, the court generally will not find that plaintiff's procedural failings in making the motion to amend justify denial of the motion. Rather, the court prefers to decide issues on the merits rather than to construe technical niceties to preclude a resolution on the merits. The court, albeit with a considerable degree of consternation and reluctance, finds that none of the previously mentioned procedural defects justify denial of the instant motion to amend. However, in this regard, plaintiff ought not infer that the court considers the applicable procedural rules simply "niceties." Further, the court is not condoning plaintiff's failure to comply with the applicable rules. Plaintiff is admonished that future failure to comply with the Federal Rules of Civil Procedure and the Rules of Practice of the United States District Court for the District of Kansas when filing motions may result in their denial solely on procedural grounds.
Crocker v. Durkin, 159 F. Supp.2d 1258, 1270 (D.Kan. 2001).
Id.
B. Substantive Considerations
Plaintiff's motion to amend is governed by Rule 15(a) of the Federal Rules of Civil Procedure, which provides:
A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise, a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
Although Rule 15(a) requires that leave to amend "be freely given when justice so requires," whether leave should be granted is within the trial court's discretion. The factors the court should consider in determining whether to allow amendment of a pleading are undue delay, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, and undue prejudice to the opposing party or futility of amendment.
Castleglen v. Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir. 1993) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971)).
Foman v. Davis, 371 U.S. 178 (1962); Castleglen, 984 F.2d at 1585.
1. Rule 20 — permissive joinder
The City defendants argue that plaintiff's proposed amendments do not meet the standards imposed by Fed.R.Civ.P. 20, in that plaintiff does not seek joint, several, or alternative relief against the various defendants. Further, they argue that there are no common facts between the incidents alleged in the first amended complaint and those alleged in the proposed amendments.Fed.R.Civ.P. 20(a), governing permissive joinder, provides:
All persons . . . may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.
The court is unpersuaded by the City defendants' arguments, i.e., it does appear that the claims in plaintiff's first amended complaint and the proposed amendments arise out of series of confrontations between plaintiff and various City of Lawrence police officers.
2. Futility
In order to justify denying leave to amend based on futility, the proposed amendment must be clearly futile. "If a proposed amendment is not clearly futile, then denial of leave to amend is improper." The court may deny a motion to amend as futile if the proposed amendment would not withstand a motion to dismiss or otherwise fails to state a claim upon which relief may be granted. "Thus, the court must analyze a proposed amendment as if it were before the court on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)."
6 Charles Alan Wright et al., Federal Practice Procedure § 1487, at 637-43 n. 23 (2d ed. 1990) (emphasis added).
Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992); Schepp v. Fremont County, 900 F.2d 1448, 1451 (10th Cir. 1990).
Sheldon v. Vermonty, 204 F.R.D. 679, 682 (D.Kan. 2001).
The court will dismiss a cause of action under Rule 12(b)(6) only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, or when an issue of law is dispositive. The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support the claims.
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998).
Neitzke v. Williams, 490 U.S. 319, 326 (1989).
Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000).
Scheurer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scheurer, 468 U.S. 183 (1984).
The City defendants and the State defendants argue that the proposed amendment adding a conspiracy claim against the State defendants (Count XXXVII) would be futile since plaintiff's conclusory allegations of conspiracy are insufficient to state a claim under 42 U.S.C. § 1983. The State defendants also argue that this proposed amendment would be futile since a claim that the Attorney General defendants conspired with one another is barred by the intracorporate conspiracy doctrine.
Allegations of conspiracy may form the basis of a § 1983 claim. However, a plaintiff must allege specific facts showing an agreement and concerted action among the defendants. "Conclusory allegations of conspiracy are insufficient to state a valid § 1983 claim."
Tonkovich v. Kan. Bd. Of Regents, 159 F.3d 504, 533 (10th Cir. 1998) citing Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994).
Id.
Id. (quotation omitted).
Plaintiff makes only conclusory allegations of a conspiracy among the Attorney General defendants. There are no allegations or evidence, circumstantial or otherwise, indicating that there was any agreement among these defendants. Thus, the court finds that it would be futile to allow plaintiff's proposed amendment which asserts a conspiracy claim against the Attorney General defendants (Count XXXVII). In making such ruling, the court finds it unnecessary to address the State defendants' second argument regarding the futility of this claim.
The State defendants argue that the proposed amendment to add an injunction claim against the "D.A. defendants" as to the January 10, 2002-prosecution (Count XXXIX) would be futile since the case has been dismissed. In his response, plaintiff concedes that this proposed claim is moot.
The State defendants and the City defendants argue that the proposed amendment to add an injunction claim against the D.A. defendants as to the new criminal case (Count XXXX) would be futile because, under Younger v. Harris and its progeny, this court lacks jurisdiction to grant an injunction against pending state court criminal proceeding. " Younger abstention is appropriate when '(1) there are ongoing state judicial proceedings, (2) the proceedings implicate important state interests, and (3) there is an adequate opportunity in the state proceeding to raise federal questions'"
Case No. 02-CR-1284 pending in the District Court of Douglas County, Kansas.
401 U.S. 37 (1971).
Mounkes v. Conklin, 922 F. Supp. 1501, 1511(D.Kan. 1996) (citations omitted).
In this case, plaintiff does not dispute that there are ongoing state judicial proceedings or that the proceedings implicate important state interests. Thus, the first and second elements of Younger are satisfied here.
Plaintiff argues that the third element of Younger is not met because, in defending the criminal prosecution, there supposedly will not be an adequate opportunity for plaintiff to raise his constitutional claims. The court disagrees, for the reasons explained below.
"The final requirement for Younger abstention is 'an opportunity [for the plaintiffs] to present their federal constitutional claims in the ongoing state court proceedings. No more is required to invoke Younger abstention.'" As in Mounkes, this court finds that plaintiff has the opportunity to present his constitutional claims in the state court proceedings, in a separate habeas corpus proceeding in state district court, on direct appeal of the habeas corpus proceeding, and possibly on direct appeal of any criminal conviction. Therefore, the court denies plaintiff leave to amend his complaint to add Count XXXX.
Mounkes, 922 F. Supp. at 1513 (citing Judice v. Vail, 430 U.S. 327, 337 (1977)).
Id. (citations omitted).
The undersigned magistrate judge understands that, on September 6, 2002, there was a status conference in this case involving Mr. McCormick, counsel for the City defendants, and the Hon. John W. Lungstrum, Chief Judge. Evidently there was some discussion during that conference concerning plaintiff's request for injunctive relief against certain police officers, i.e., independent of plaintiff's above-described requests for leave to amend his complaint with regard to enjoining ongoing state court criminal proceedings. Although plaintiff filed a motion for a preliminary injunction on July 16, 2002 (doc. 74), and although Judge Lungstrum has that motion set for hearing on September 11, 2002, plaintiff's proposed second amended complaint does not appear to contain a separate count, claim, or prayer for injunctive relief against such police officers. Accordingly, without implying what Judge Lungstrum should or might do with regard to this issue, the undersigned magistrate judge is not granting plaintiff leave to file a second amended complaint asserting such an injunctive relief claim.
The City defendants argue that Counts V, XXIX, XXX-XXXVI, and XXXVIII of plaintiff's proposed second amended complaint are futile. Upon review, the court finds that these claims are not clearly futile and that the City defendants' arguments would more appropriately be resolved by way of a motion for summary judgment.
3. Undue Delay and Prejudice.
The City defendants argue that Counts XXVII-XXVIII of plaintiff's proposed second amended complaint, which arise out of an August 18, 2001-incident, are untimely in that plaintiff knew or should have known the facts giving rise to these claims before he filed his first amended complaint. The City defendants argue that this is the second time plaintiff has tried to add a claim for the alleged August 18, 2001-incident. The City defendants claim that plaintiff previously sought leave to amend his complaint in another case in this court, styled McCormick v. Farrar, Case No. 01-4136-SAC, to add claims against defendants Souders and "John Doe 11". In Farrer, the court denied this portion of plaintiff's motion on the grounds that these claims were known to plaintiff at the time of his original complaint.
"Untimeliness in itself can be a sufficient reason to deny leave to amend, particularly when the movant provides no adequate explanation for the delay." "Where the party seeking the amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend is subject to denial." Given the state of the record, the only reasonable inference that the court can draw is that plaintiff was aware of the facts giving rise to these counts at the time of the filing of his complaint and first amended complaint.
Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1495 (10th Cir. 1995) (citing Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994)).
Id. (quoting State Distributors, Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416 (10th Cir. 1984)).
The City defendants and the State defendants argue that allowing the proposed amendments will be prejudicial to defendants. The court agrees that the addition of claims and defendants will have a definite impact on the defense of this case. However, the court is not persuaded that the arguable prejudice alleged by defendants warrants denying the motion to amend on this basis.
4. Frivolous and Bad Faith.
The City defendants argue that a number of the proposed amendments are frivolous and offered in bad faith. Later discovery or hearings may very well demonstrate that defendants' concerns are valid, in which event plaintiff presumably will suffer dire consequences, financial and otherwise. However, on the record now before the court, the court is unwilling to find that any of the proposed amendments are frivolous and/or offered in bad faith.
In consideration of the aforementioned, plaintiff's motion to amend ( doc. 99) is granted in part and denied in part. Plaintiff shall file and serve a revised second amended complaint, consistent with the court's rulings herein, by September 16, 2002.
III. Motion of Plaintiff to Strike All Documents Filed by Defendant M.J. Willoughby.
Plaintiff requests that the court strike all documents filed by M.J. Willoughby. Plaintiff argues that, because Ms. Willoughby is individually named as a defendant and has been sued for money damages, and because she has entered an appearance on defendants other than herself, she is in violation of Rule 1.7 of the Kansas Rules of Professional Conduct.
The State defendants first object to the instant motion, claiming that the motion and supporting memoranda fail to comply with the requirements of D. Kan. Rule 7.6 as to form.
Second, the State defendants object to the instant motion on the grounds that plaintiff has failed to cite any authority which supports the relief requested or supports his position that Ms. Willoughby has violated the above-cited ethical rule.
Third, the State defendants claim that there is no factual basis for plaintiff's assertion that Ms. Willoughby has a financial interest in this matter. Defendants cite the Kansas Torts Claim Act, K.S.A. 75-6101, et seq. which provides that any judgment obtained against any of the state defendants including Ms. Willoughby shall be paid by the State of Kansas. As such, the State defendants claim that Ms. Willoughby has no personal financial interest in this matter other than as one of the millions of state taxpayers interested in protecting the state treasury. Consequently, defendants claim that there is no violation of Rule 1.7.
Fourth, the State defendants argue that there is no conflict of interest between Ms. Willoughby and any of the other State defendants as the defendants share a common interest, a common employer (State of Kansas), and compatible positions in this litigation.
Fifth, State defendants claim that this motion is used merely as a litigation tactic.
The court concurs with each of the arguments raised by the State defendants and finds that plaintiff's motion to strike frivolous. Accordingly, the motion is denied.
IV. Motion for Expedited Ruling
Plaintiff requests an immediate ruling on his motion to amend. Defendants object to plaintiff's request. There have been numerous motions filed by the parties in this case. As earlier indicated, Judge Lungstrum has set a hearing on September 11, 2002 to address certain motions that are pending before him. Consequently, as a practical matter, it makes sense for the undersigned magistrate judge to expedite the ruling on the instant motion. Thus, plaintiff's motion for an immediate ruling is granted.
Doc. 99.
V. Motions of Merrily C. Coburn and Robert B. Coburn to Join as Additional Plaintiffs.
Movants Merrily Coburn and Robert Coburn seek leave to join as additional plaintiffs in this case.
The court initially notes that the original motion filed by movants was procedurally defective in many respects. After being brought to movant Coburns' attention, the movants filed a second motion to join (doc. 123) concurrently with their reply to the State defendants' response in opposition to their first motion. The court overrules the first motion filed by movant Coburns (doc. 113) as moot due to the filing of the second motion. The court will construe movants' second motion to join as a motion to intervene which is governed by Fed.R.Civ.P. 24.
The court initially notes that movant Coburns' motion does state the grounds for intervention. However, movants have failed to attach a pleading setting forth the claim or defense for which intervention is sought as required under Fed.R.Civ.P. 24. The court will allow movants the opportunity to file the required pleading.
In addition to the State defendants' arguments regarding the procedural defects of the movant Coburns' motion, the State defendants also raise arguments regarding the merits of the claims. The court finds that these arguments would be more appropriately addressed by a motion for summary judgment.
The court finds that the intervention of movants Merrily and Robert Coburn will not unduly delay or prejudice the adjudication of the rights of the original parties. Accordingly, the court grants the instant motion allowing Merrily C. Coburn and Robert B. Coburn to intervene in this action. The Coburns shall file a pleading setting forth the claims for which intervention is sought by September 16, 2002.
In summary,
IT IS HEREBY ORDERED:
1. The motion of Curtis A. Kastl, II, to join as additional plaintiff (doc. 98), is granted.
2. The motion of the pro se plaintiff, Dale E. McCormick, seeking leave to amend his first amended complaint (doc. 99), is granted in part and denied in part.
3. Mr. McCormick's motion to strike all documents filed by defendant M.J. Willoughby (doc. 101), is denied.
4. Mr. McCormick's motion for an immediate ruling on his motion to amend ( doc. 103), is granted.
5. The initial motion of Merrily C. Coburn and Robert B. Coburn to join as additional plaintiffs (docs. 113), is denied as moot. The second motion of Merrily C. Coburn and Robert B. Coburn to join as additional plaintiffs (docs. 123), is granted.
6. Copies of this order shall be mailed by the clerk to pro se plaintiffs by certified and regular mail and to all counsel of record by regular mail. The undersigned's staff also will endeavor to fax copies of this order to the same individuals.