Couser v. Somers
| Decision Date | 17 November 2020 |
| Docket Number | Case No. 18-1221-JWB-GEB |
| Parties | WENDY COUSER, as administrator of the Estate of Matthew Holmes, Plaintiff, v. CHRIS SOMERS, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
This matter is before the Court on Plaintiff's Motion for Leave to File Amended Complaint (ECF No. 114). After careful consideration of Plaintiff's motion and Reply (ECF No. 129), all Defendants' responses in opposition (ECF Nos. 118, 119, 120, 122) and Defendants' permitted surreplies (ECF Nos. 139, 140, 141), the Court GRANTS IN PART and DENIES in part Plaintiff's motion, and RECOMMENDS DENIAL IN PART1 as to Plaintiff's proposed claim for indemnification for the reasons stated below.
The factual background of this matter has been explored extensively in prior orders (see Mem. and Orders, ECF Nos. 87, 88, 107) and will not be repeated here. Summarily, Plaintiff Wendy Couser filed this 42 U.S.C. § 1983 and § 1988 civil rights case individually and as administrator of the estate of her son, Matthew Holmes. Mr. Holmes died in August 2017 after leading officers on a high-speed pursuit in central Kansas, after which a confrontation ensued between he and law enforcement officers from three entities: the City of Newton, Harvey County, and McPherson County. Mr. Holmes was shot and died from his wounds.
Plaintiff initially sued multiple law enforcement officers from the three involved agencies. Defendants Anthony Hawpe, Skyler Hinton, and the City of Newton are referenced individually and collectively referenced as the "Newton defendants." Defendants Harvey County Sheriff's Office ("HCSO"), Harvey County, and Sheriff Chad Gay, are referenced individually and collectively denoted the "Harvey County defendants." Defendants Jason Achilles, Sheriff Jerry Montagne, McPherson County, and McPherson County Sheriff's Office ("MCSO") are referenced individually and collectively referred to as the "McPherson County defendants." Defendant Chris Somers is the MCSO Deputy who fired the fatal shot and is sued and defending the caseindividually. The Complaint also names unknown officers from each of the three entities, bringing the case to an initial total of 14 defendants.
Despite a gap in the formal numbering, Plaintiff's original Complaint contains only eight counts,3 including: 1) excessive force in violation of the Fourth Amendment, 2) denial of Equal Protection in violation of the Fourteenth Amendment, 3) denial of medical care in violation of the Fourth and Fourteenth Amendments, 4) wrongful death and 5) survival claims, 6) municipal liability for failure to train/supervise; 7) lack of accommodation in violation of Title II of the Americans with Disabilities Act of 1990 ("ADA") (mislabeled "Count IX" of the Complaint), and 8) a claim of respondeat superior for unspecified state torts (Count X of the Complaint). All Defendants filed motions to dismiss the Complaint (ECF Nos. 33, 38, 51, 53, and 61) and motions to stay discovery on the case (ECF Nos. 55, 57, 58, and 71). After a hearing, the undersigned granted the motions to stay (Mem. and Order, ECF No. 87, filed Feb. 21, 2019) and discovery was postponed pending a decision on the dispositive motions.
On April 17, 2019 Honorable District Judge John W. Broomes granted in part and denied in part the multiple motions to dismiss. (Mem. and Order, ECF No. 88.) The Court dismissed six of Plaintiff's eight claims4 in substance. The Court dismissed all claims against McPherson County and the MCSO, all claims against Sheriff Montagne in his individual and official capacities, all claims against Harvey County and the HCSO,and Sheriff Gay in his individual capacity; and found Wendy Couser in her individual capacity was not a proper plaintiff and dismissed her claims. The two remaining claims are: 1) excessive force against the individual defendants, and 2) the municipal liability claims against Sheriff Gay in his official capacity and the City of Newton. (Id.) Soon after the decision, Sheriff Gay filed an appeal. (Notice of Appeal, ECF No. 90.)
He then sought to stay discovery pending resolution of his appeal (Motion, ECF No. 99), a request which other defendants joined. (ECF Nos. 101, 104.) After another hearing on the issue of stay, the undersigned granted the stay but required all parties—except Sheriff Gay—to serve on one another their Rule 26(a) initial disclosures and exchange any documents identified therein. (Mem. and Order, ECF No. 107, filed July 1, 2019.)
On May 22, 2020, the Tenth Circuit Court of Appeals affirmed Judge Broomes' decision. (Mandate, ECF No. 115, filed in D. Kan. on June 15, 2020.) Twelve days later, Plaintiff filed her motion for leave to amend her complaint. (ECF No. 114, filed June 3, 2020.)
On October 20, 2020, the undersigned held a motion hearing to discuss the briefing regarding Plaintiff's request for amendment. During this hearing, the undersigned denied, in part, Defendants' separate motions to strike the attachment included in Plaintiff's Reply brief. (Motions, ECF Nos. 130, 132; Order, ECF No. 137.) In response to Defendants' various arguments, Plaintiff proceeded in an unusual and typically disallowed procedural manner by introducing a new proposed amended pleading attached to her Reply brief (ECF No. 129-1), which Defendants opposed. Butstriking Plaintiff's revised proposed amended pleading does not further the goals of moving this two-year-old case forward as efficiently as possible, in line with the directives of Fed. R. Civ. P. 1. Because Plaintiff included entirely new allegations in her Reply, though, this is a rare circumstance where Defendants should be permitted to respond to alleviate any potential prejudice.5 In its discretion, and in furtherance of the goals of Rule 1, rather than require Plaintiff to refile a her motion for leave to amend and begin briefing again, the Court granted Defendants' motions in part by permitting Defendants to file surreply briefs. (Order, ECF No. 137.)
All briefing related to Plaintiff's motion to amend is now complete, and the issue of amendment is ripe for decision.
The standard for permitting a party to amend his or her complaint is well established. A party may amend its pleading as a matter of course under Fed. R. Civ. P. 15(a)(1), either before the responding party answers or within 21 days after service of a responsive pleading. However, in cases such as this, where the time to amend as a matter of course has passed, without the opposing party's consent a party may amend its pleading only by leave of the court under Rule 15(a)(2).
Rule 15(a)(2) provides leave "shall be freely given when justice so requires," and the decision to allow an amendment is within the sound discretion of the court.6 The court considers a number of factors in deciding whether to allow an amendment, including timeliness, prejudice to the other party, bad faith, and futility of amendment.7 In exercising its discretion, the court must be "mindful of the spirit of the federal rules of civil procedure to encourage decisions on the merits rather than on mere technicalities."8 The Tenth Circuit Court of Appeals acknowledged that Rule 15 is intended "to provide litigants 'the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties,'"9 especially in the absence of bad faith by an offending party or prejudice to a non-moving party.10 With these standards in mind, this Court evaluates Plaintiff's motion.
Due to the nature of the issues, the number of parties, and each parties' separate briefing, the Court addresses the varying positions in turn. To the extent some Defendants' arguments are in union, the Court notes such agreement.
In her initial motion, Plaintiff seeks to accomplish two primary goals through amendment: 1) replace McPherson and Harvey Counties and the related sheriff's offices as parties (all of which were dismissed), with the counties' boards of commissioners; and 2) add a Count XI of indemnification under K.S.A. § 75-6109 against the government entity defendants. In this new indemnification claim, she seeks a court order against the government entity defendants and sheriffs to pay any damages assessed against their employees in this lawsuit. Plaintiff maintains the proposed amendments do not change claims against any other parties—except, Plaintiff intends to retain the claims that were dismissed by Judge Broomes "only to preserve any possibility of appeal of those claims." (ECF No. 114 at 3, n.1.)
Plaintiff argues no party will be prejudiced by amendment, given no schedule has been entered in this case and no activity has occurred, due to the stays related to dispositive motions and appeal.
As discussed above, in Plaintiff's Reply brief, she addresses the Defendants' responses, in part, by attaching a newly-proposed amended complaint to her brief. (ECF No. 129-1.) Plaintiff's updated pleading includes additional factual policy and practice allegations against Sheriff Montagne and proposed defendant Board of Commissioners of McPherson County, based upon evidence Plaintiff claims she learned in 2020. Plaintiff contends these new facts cure the earlier dismissal of her municipal liability claims against the McPherson County defendants by including facts demonstrating they permitted Defendant Somers to remain on duty at the time he shot Matthew Holmes, eventhough Somers had been alleged to have committed an aggravated battery. (Pl.'s Reply, ECF No. 129 at 3-4; Proposed Amendment, ECF No. 129-1 at ¶ 46.)
Additionally, she contends her proposed indemnification claim is viable. She argues K.S.A. § 75-6109 and § 75-6116 of the Kansas Tort Claims Act ("KTCA") authorize indemnification in a federal civil rights case like this. Although Sheriff Gay cites the Tenth Circuit case of Lampkin v. Little11 to...
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