Martin Marietta Materials, Inc. v. Kan. Dep't of Transp.

• Decision Date: 02 October 2013
• Docket Number: Case No. 12–2699–SAC.
• Citation: 953 F.Supp.2d 1176
• Parties: MARTIN MARIETTA MATERIALS, INC., and Hunt Martin Materials, LLC, Plaintiffs, v. KANSAS DEPARTMENT OF TRANSPORTATION, and Mike King, in his individual and official Capacity as Kansas Secretary of Transportation, and Jerry Younger, in his individual and official capacity as Deputy Secretary of Transportation State Transportation Engineer, Defendants.
• Court: U.S. District Court — District of Kansas

953 F.Supp.2d 1176

MARTIN MARIETTA MATERIALS, INC., and Hunt Martin Materials, LLC, Plaintiffs,
v.
KANSAS DEPARTMENT OF TRANSPORTATION, and Mike King, in his individual and official Capacity as Kansas Secretary of Transportation, and Jerry Younger, in his individual and official capacity as Deputy Secretary of Transportation State Transportation Engineer, Defendants.

Case No. 12–2699–SAC.

United States District Court,
D. Kansas.

May 21, 2013.
Order Denying Reconsideration Oct. 2, 2013.

[953 F.Supp.2d 1180]

Chad E. Blomberg, David R. Frye, H. Wayne Phears, Roland B. Miller, III, Lathrop & Gage, LLP, Kansas City, MO, Daniel L. Delnero, McGuire Woods, LLP, Atlanta, GA, for Plaintiffs.

Carmen D. Tucker Bakarich, Topeka, KS, Charles E. Millsap, Gelene D. Savage, Lyndon W. Vix, Fleeson, Gooing, Coulson & Kitch, LLC, Wichita, KS, for Defendants.

MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.

The case comes before the court on the defendants' motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) (Dk. 22), and on the plaintiffs' motion for leave to file first amended complaint pursuant to Fed.R.Civ.P. 15(a)(2). (Dk. 31). Asserting diversity and subject matter jurisdiction, the plaintiffs, collectively referred to as “Martin Marietta,” are suing due to the removal of their two Kansas limestone quarries from the Kansas Department of Transportation's (“KDOT”) approved or pre-qualified list of concrete aggregate suppliers. Martin Marietta's complaint includes 12 counts alleging violations of federal constitutional rights, state regulations and state tort law entitling them to monetary, declaratory and injunctive relief. The defendants have filed their answer. (Dk. 6).

After the defendants filed their Fed.R.Civ.P. 12(c) motion, the plaintiffs sought leave to file an amended complaint. (Dk. 31). The plaintiffs explain in their motion that the requested amendments include the defendants' wrongful removal of another Martin Marietta quarry from KDOT's approved listings, incorporate recently acquired information on more wrongful acts by the defendants, and offer additional facts to support the claims challenged in the defendants' motion. The plaintiffs do not state that their proposed amendments concede any legal challenges that have been raised in the defendants' Rule 12(c) motion. In their last filing, the reply in support of their motion to amend, the plaintiffs state they “will dismiss without prejudice” their “claims under K.A.R. § 36–31–2 (Count One), the Takings Clause (Count Ten), and ... for negligent interference with contractual relationships (Count Five), and would have no objection to the Court dismissing these claims without prejudice.” (Dk. 47, p. 3 n. 1). While a motion for leave to amend is typically regarded as a nondispositive matter routinely handled by the magistrate judge, the district judge will handle both motions at the same time due to the overlapping issues. Thus, for the sake of convenience and simplicity, the court will collapse its analysis of the defendants' Rule 12(c) motion

[953 F.Supp.2d 1181]

and the defendants' legal arguments on futility in opposing leave to amend.

STANDARDS ON MOTIONS

After a responsive pleading has been served, “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). The Rule directs that a “court should freely give leave when justice so requires.” Id. “The purpose of the Rule is to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.’ ” Minter v. Prime Equipment Co., 451 F.3d 1196, 1204 (10th Cir.2006) (quoting Hardin v. Manitowoc–Forsythe Corp., 691 F.2d 449, 456 (10th Cir.1982)). A plaintiff is entitled to test the merits of a claim assuming “the underlying facts or circumstances relied upon ... may be a proper subject of relief.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Proper grounds for denying leave include “ ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.’ ” Minter, 451 F.3d at 1204 (quoting Foman, 371 U.S. at 182, 83 S.Ct. 227).

“A court properly may deny a motion for leave to amend as futile when the proposed amended complaint would be subject to dismissal for any reason, including that the amendment would not survive a motion for summary judgment.” Bauchman for Bauchman v. West High School, 132 F.3d 542, 562 (10th Cir.1997), cert. denied,524 U.S. 953, 118 S.Ct. 2370, 141 L.Ed.2d 738 (1998). Simply stated, “a proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Bradley v. Val–Mejias, 379 F.3d 892, 901 (10th Cir.2004) (internal quotation marks and citation omitted). “The futility question is functionally equivalent to the question whether a complaint may be dismissed for failure to state a claim.” Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir.1999) (citations omitted). “The burden of showing futility rests with the defendants who assert this ground in opposing the plaintiff's leave to amend.” Meyer v. City of Russell, 2012 WL 5878613, at *2 (D.Kan.2012) (citing Synthes, Inc. v. Marotta, 281 F.R.D. 217, 231–32 (E.D.Pa.2012); Boykin v. CFS Enterprise, Inc., 2008 WL 4534400 at *3 (D.Kan.2008)). Thus, a court may deny leave to amend if the proposed amendments fail to state plausible claims under Rule 12(b)(6).

“A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to dismiss under Rule 12(b)(6),” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir.2000), and the same standards apply to both motions, Ward v. Utah, 321 F.3d 1263, 1266 (10th Cir.2003). The court will apply the same standards for evaluating both motions. If the allegations in the petition lack plausibility, defendants are entitled to judgment on the pleadings, and if the allegations in the proposed amended complaint lack plausibility, then leave to amend should be denied as futile.

In determining whether to grant or deny the Rule 12(c) motion, or in determining whether amendment would be futile, the court looks to the same following standards. The court accepts as true “all well-pleaded factual allegations in a complaint and view[s] these allegations in the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009), cert. denied,558 U.S. 1148, 130 S.Ct. 1142, 175 L.Ed.2d 973 (2010). This duty to accept a complaint's allegations as true is tempered by the principle that “mere labels and conclusions,'

[953 F.Supp.2d 1182]

and ‘a formulaic recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual allegations to support each claim.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir.2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). As recently clarified by the Supreme Court, the standard under Rule 12(b)(6) is that to withstand a motion to dismiss, “a complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face.” Al–Owhali v. Holder, 687 F.3d 1236, 1239 (10th Cir.2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)¹). Thus, “a plaintiff must offer sufficient factual allegations to ‘raise a right to relief above the speculative level.’ ” Kansas Penn Gaming, 656 F.3d at 1214 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.' ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). It follows then that if the “complaint pleads facts that are ‘merely consistent with’ a defendant's liability it ‘stops short of the line between possibility and plausibility of “entitlement to relief.” ’ ” Id. “ ‘A claim has facial plausibility when the [pleaded] factual content ... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1178 (10th Cir.2012). “Thus, in ruling on a motion to dismiss, a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable.” Kansas Penn Gaming, 656 F.3d at 1214. The Tenth Circuit regards the Twombly–Iqbal decisions as crafting a new “refined standard” whereby “plausibility refers to ‘the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” ’ ” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting in turn Twombly, 550 U.S. at 570, 127 S.Ct. 1955)).

On a motion to dismiss or for judgment on the pleadings, courts apply the general rule of considering only the contents of the complaint. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir.2010). Exceptions include the following: documents incorporated by reference in the complaint; documents referred to in and central to the complaint, when no party disputes its authenticity; and “ ‘matters of which a court may take judicial notice.’ ” Id. (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)). In this circuit, the exception has been explained that:

if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is...