Jones v. City of Topeka, Civ. A. No. 89-4175-S.

• Decision Date: 17 May 1991
• Docket Number: Civ. A. No. 89-4175-S.
• Citation: 764 F. Supp. 1423
• Parties: Richard E. JONES, Plaintiff, v. The CITY OF TOPEKA, a municipal corporation; Douglas S. Wright, individually and in his official capacity as Mayor of the City of Topeka, Kansas; Ronald S. Miller, individually and in his official capacity as Chief Administrative Officer of the City of Topeka, Kansas; and Harry L. Felker, III, individually and in his official capacity as Mayor of the City of Topeka, Kansas, Defendants.
• Court: U.S. District Court — District of Kansas

764 F. Supp. 1423

Richard E. JONES, Plaintiff, v. The CITY OF TOPEKA, a municipal corporation; Douglas S. Wright, individually and in his official capacity as Mayor of the City of Topeka, Kansas; Ronald S. Miller, individually and in his official capacity as Chief Administrative Officer of the City of Topeka, Kansas; and Harry L. Felker, III, individually and in his official capacity as Mayor of the City of Topeka, Kansas, Defendants.

Civ. A. No. 89-4175-S.

United States District Court, D. Kansas.

May 17, 1991.

Richard E. Jones, Topeka, Kan., Gregory B. King, Kansas City, Kan., for plaintiff.

Thomas E. Wright, Davis, Wright, Unrein, Hummer & McCallister, Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendants' motion for partial summary judgment in this civil rights action brought by plaintiff following his termination from employment as an Assistant City Attorney in August 1988. In a motion accompanying his memorandum in opposition to defendants' partial summary judgment motion, plaintiff also seeks partial summary judgment; defendants have moved to strike plaintiff's summary judgment motion on grounds that it is untimely. In this action, plaintiff alleges that defendants' conduct in terminating plaintiff initially in August 1988 and, after plaintiff successfully arbitrated his initial termination, in removing plaintiff from the payroll again in August 1989, violated his rights to due process, equal protection and free speech; plaintiff also asserts several state common law claims. Because the court finds that oral argument would not be of material assistance in resolving the issues raised in the parties' motions, defendants' request for oral argument will be denied. D.Kan. 206(d).

Defendants' Motion to Strike; Plaintiff's Summary Judgment Motion

As an initial matter, defendants move to strike plaintiff's motion for partial summary judgment, filed January 12, 1991. In support of their motion to strike, defendants contend that plaintiff's request is untimely, given that the scheduling order entered in this case on October 24, 1989 states a June 6, 1990 deadline for the filing of dispositive motions. Alternatively, defendants contend that the request should be stricken because plaintiff has argued issues beyond those raised in defendants' partial summary judgment motion. Rule 12(f) of the Federal Rules of Civil Procedure allows the court to order stricken "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." (emphasis added). It has been held that a Rule 12(f) motion may not be directed at motions. Krass v. Thomson-CGR Medical Corp., 665 F.Supp. 844, 847 (N.D.Cal.1987). Rather, under the Federal Rules, motions to strike are properly directed at "pleadings" as enumerated in Rule 7(a) of the Federal Rules of Civil Procedure, including:

a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served.

See Stands Over Bull v. Bureau of Indian Affairs, 442 F.Supp. 360, 368 (D.Mont.1977) (affidavits were not "pleadings" subject to a motion to strike within the literal terms of Federal Rules). Thus, the court finds that defendants' motion to strike plaintiff's motion for partial summary judgment should be denied.

Notwithstanding the court's conclusion that it should not "strike" plaintiff's motion for partial summary judgment, the court still must determine whether plaintiff's motion is properly before the court for consideration. Plaintiff's motion was filed at least 6 months beyond the June 6, 1990 deadline established in the scheduling order in this case and no requests for either extension of time or for permission to file the motion out of time were filed with the court. Given that the death of plaintiff's former counsel apparently occurred before the June 6, 1990 dispositive motion deadline, see doc. 31 (stating that the death occurred between June 6, 1990 and July 18, 1990), plaintiff's former counsel's death does not explain plaintiff's failure to file his motion before the June 6, 1990 date. The court finds that plaintiff has not established that his failure to file a timely motion or seek extension of time constitutes "excusable neglect" under Rule 6(b) of the Federal Rules of Civil Procedure. Thus, because plaintiff's motion is not properly before the court, plaintiff's motion for entry of partial summary judgment will be denied.¹

Defendants' Motion for Partial Summary Judgment

A moving party is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). The requirement of a "genuine" issue of material fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing an absence of a genuine issue of material fact. This burden "may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider factual inferences tending to show triable issues in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985).

The court finds that the relevant undisputed facts can be summarized as follows. Plaintiff Richard E. Jones (hereinafter, "Jones" or "plaintiff"), was employed by the City of Topeka as an Assistant City Attorney on October 1, 1973. In 1979, plaintiff was appointed Deputy City Attorney. In approximately 1983, with the concurrence of Edward Johnson, then Topeka City Attorney, and defendant Wright, plaintiff's position title changed to Chief of Litigation. Defendant Douglas S. Wright (hereinafter, "Mayor Wright"), served as Mayor of the City of Topeka from April 1983 through April 11, 1989. Defendant Ronald S. Miller served as Chief Administrative Officer for the City of Topeka from September 1985 through October 1988.

Pursuant to Charter Ordinance No. 65, which had been approved by City of Topeka voters in the fall of 1984 and became effective April 1985, Topeka's form of city government was changed to reflect a strong mayor-council form of city government. Pursuant to Charter Ordinance No. 65, among the powers and duties of the Mayor are to:

Appoint, promote, transfer, assign and demote, discipline, layoff, suspend, discharge, or remove all appointive officers and employees of the City except as otherwise provided by applicable Kansas Statutes. All such appointive officers and employees shall be subject to demotion, layoff, suspension, discharge and removal without cause, except as otherwise provided in any negotiated memorandum of agreement, any applicable civil service regulation, or the administrative code and the personnel code.

Charter Ordinance No. 65 art. II, § 2.4.A.10. Pursuant to the charter ordinance, Mayor Wright stated that he believed that he had the authority to fire, without cause, any employee (including the plaintiff), who was not covered by a negotiated memorandum of agreement or an employment contract. Plaintiff contends that Mayor Wright's authority under the charter ordinance did not extend to him, but rather only to cabinet-level appointments, citing the opinion of Edward Johnson, who drafted the ordinance.

On May 27, 1987, the City of Topeka and the Heritage Development Company entered into a real estate purchase agreement (hereinafter referred to as the "Kenney Contract"), whereby the City agreed to sell and Heritage agreed to buy the property known as 503 Kansas Avenue. The Kenney Contract contained the following provisions:

The performance by purchaser under this contract shall be expressly contingent upon entering into a lease with the State of Kansas for tenant which is currently being negotiated between purchaser and the State of Kansas. In the event that purchaser does not obtain said lease, this agreement shall be null and void, and both purchaser and seller are released from all performance of the terms of this agreement.

The lease described in the above paragraph was not obtained by Heritage Development Company.

On December 22, 1987, the City of Topeka and the Kansas Avenue Plaza Development Company entered into a real estate purchase agreement (hereinafter referred to as the "Howard Paul contract") whereby the City agreed to sell and the Kansas Avenue Development Company agreed to buy property located at 503 Kansas Avenue, 515 Kansas Avenue, and a parking garage then being constructed behind 515 Kansas Avenue. On July 15, 1987, litigation concerning the Kenney Contract was instituted in Shawnee County District Court (case no. 87-CV-1217) and was pending when the City executed the Howard Paul contract. The Howard Paul contract included the following language:

the obligations of the seller to convey 503 Kansas Avenue under this contract is strictly conditioned upon a final determination in favor of the City in the matter now before the Shawnee

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