Schwab v. Kobach, Case No. 18-2488-DDC-GEB

• Decision Date: 25 September 2019
• Docket Number: Case No. 18-2488-DDC-GEB
• Parties: RAYMOND R. SCHWAB AND AMELIA D. SCHWAB, Plaintiffs, v. KRIS KOBACH, et al., Defendants.
• Court: U.S. District Court — District of Kansas

RAYMOND R. SCHWAB ANDAMELIA D. SCHWAB, Plaintiffs, v. KRIS KOBACH, et al., Defendants.

Case No. 18-2488-DDC-GEB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

September 25, 2019

MEMORANDUM AND ORDER

This matter comes before the court on 11 pending motions to dismiss filed by 24 of the defendants in this case. The case was transferred to this court from the District of Colorado, where pro se plaintiffs Raymond and Amelia Schwab had filed both an 84-page Complaint (Doc. 1) and a form complaint, docketed as an "Amended Complaint" (Doc. 7). The "Amended Complaint" appears to supplement plaintiffs' original Complaint because it references pages in the original Complaint. And, plaintiffs assert, they "were asked . . . to file the complaint using a specific format and template so they placed the same complaint on the form provided by the court." Doc. 107 at 1. Thus, the court construes Doc. 1 and Doc. 7 as the Complaint when addressing defendants' dismissal arguments in this case. This interprets plaintiffs' filings liberally and thus holds them to a more forgiving standard than pleadings drafted by experienced counsel.¹

Plaintiffs also have filed a "Joint Motion to Withdraw"² (Doc. 102), which asks the court to dismiss the claims against five defendants without prejudice. Three of those defendants—Kris Kobach, Randy Debenham, and Blake Robinson—have responded to that motion.

Finally, plaintiffs have filed a "Joint Request for Judicial Notice that All Required Pleadings and Responses Have Been Entered and a Request to Rule on Motions or Set Hearing Date to Hear and Rule on Motions."³ Doc. 121. This motion asks the court to rule on the pending motions. Because this Order rules all pending motions, the court denies plaintiffs' most recent motion—Doc. 121—as moot.

The court addresses all 11 motions to dismiss and plaintiffs' "Joint Motion to Withdraw" in this Order. For reasons explained below, the court makes the following rulings:

First, the court grants plaintiffs' motion to dismiss all claims asserted against defendants Kris Kobach,⁴ Rhonda Eisenbarger, Deja Jackson, Randy Debenham, and Blake Robinson.

Second, the court grants the motions to dismiss filed by Miranda Johnson; Sunflower CASA Project, Inc. ("CASA"); Barry Wilkerson, Bethany Fields, Carla Swartz, Julia Goggins,the Riley County Police Department ("RCPD") and Pathways Family Services, LLC ("Pathways"); and Theresa Freed,⁵ Kendra Baker, Gina Mier-Hummel,⁶ Angie Suther, Kim Yoxell,⁷ and the Kansas Department for Children and Families ("KDCF").

Third, the court grants in part and denies in part the motions to dismiss filed by St. Francis Community Services, Inc. ("St. Francis");⁸ Lora Ingels; Kathy Boyd, Laura Price, and Kaylee Posson; KVC Behavioral Healthcare, Inc. ("KVC"); and Pawnee Mental Health Services, Inc. ("PMHS").

Last, the court orders plaintiffs to serve defendants Theresa Freed, Kendra Baker, Phyllis Gilmore, Angie Suther, and Kim Yoxell—all sued in their individual capacities—properly, no later than October 25, 2019.

The rest of this Order explains the reasons for the court's decisions. It begins with plaintiffs' "Joint Motion to Withdraw." Concluding that plaintiffs intended for their joint motion to dismiss certain claims against some defendants, the court analyzes it under the familiar rubric of Rule 41. Then, the court turns to defendants' 11 motions to dismiss.I. Plaintiffs' "Joint Motion to Withdraw" (Doc. 102)

On February 8, 2019, plaintiffs filed a "Joint Motion to Withdraw" their claims against defendants Kobach, Eisenbarger, Jackson, Debenham, and Robinson. Doc. 102. Plaintiffs filed their motion after defendants Debenham, Robinson, and Kobach filed their Motions to Dismiss (Docs. 59 & 64). The docket does not reflect that plaintiffs ever served Eisenbarger or Jackson with a summons. For reasons explained below, the court grants plaintiffs' motion.

A. Legal Standard for Voluntary Dismissal

Federal Rule of Civil Procedure 41(a)(1) allows a plaintiff to dismiss a claim voluntarily without a court order under certain circumstances. "[T]he plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment[.]" Fed. R. Civ. P. 41(a)(1)(A), 41(a)(1)(A)(i). Specifically, a "motion to dismiss under Rule 12 does not terminate the right of dismissal by notice." Davidson v. Thompson, No. 18-3084-SAC, 2019 WL 1317465, at *1 (D. Kan. Mar. 22, 2019).

Also, Federal Rule of Civil Procedure 41(a)(2) permits a plaintiff to dismiss a case voluntarily "only by court order, on terms that the court considers proper." "The rule is designed primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions." Brown v. Baeke, 413 F.3d 1121, 1123 (10th Cir. 2005) (citation omitted). Ordinarily, district courts should grant a Rule 41(a)(2) dismissal without prejudice "[a]bsent 'legal prejudice' to the defendant." Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997).

As the court explained in City of Scranton v. Orr Wyatt Streetscapes, No. 18-4035-DDC-TJJ, 2018 WL 4222414, at *1-2 (D. Kan. July 16, 2018), a plaintiff may dismiss voluntarily allclaims against fewer than all defendants under Rule 41(a)(1)(A)(i). Allowing a plaintiff to stipulate to dismiss fewer than all defendants from a multi-defendant case—instead of requiring plaintiff to file an amended pleading—advances the aims of Federal Rule of Civil Procedure 1, which directs federal courts to construe the Rules "to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1.

B. Analysis

1. The court grants plaintiffs' "Joint Motion to Withdraw" their claims against defendant Kobach, in his individual capacity, and defendant Schwab, in his official capacity.

Plaintiffs' motion asserts that they have inadequate resources to pursue their claims against Mr. Kobach. Thus, they ask the court to dismiss the claims against him. But, because Mr. Kobach has filed a Motion to Dismiss, plaintiffs maintain their "right of dismissal by notice." Davidson, 2019 WL 1317465, at *1. As Mr. Kobach explains in his response to plaintiffs' motion, the court should construe the motion—at least, as it applies to him—as a notice of voluntary dismissal under Fed. R. Civ. P. 41(a)(1)(A)(i), since Mr. Kobach has not filed an answer or a motion for summary judgment. The court thus construes plaintiffs' motion as a voluntary dismissal under Rule 41. And with plaintiffs' filing, they have dismissed voluntarily defendant Mr. Kobach from the case. The court notes that this dismissal applies to both the official capacity claims against current Secretary of State Scott Schwab and the individual capacity claims against Kris Kobach. The court thus dismisses both defendants from this action. Mr. Kobach's Motion to Dismiss (Doc. 64) is denied as moot.

2. The court grants plaintiffs' "Joint Motion to Withdraw" their claims against Rhonda Eisenbarger and Deja Jackson.

Plaintiffs' motion also asserts that they were unable to locate and serve Rhonda Eisenbarger and Deja Jackson, both named as defendants in plaintiffs' Complaint. Doc. 1 at 2.The motion asks the court to dismiss the claims against Ms. Eisenbarger and Ms. Jackson without prejudice. Again, plaintiffs failed to serve Ms. Eisenbarger and Ms. Jackson and, as one would expect, neither Ms. Eisenbarger nor Ms. Jackson has filed a response of any kind. Thus, as it applies to Ms. Eisenbarger and Ms. Jackson, Rule 41(a)(1)(A)(i) permits plaintiffs to maintain their "right of dismissal by notice." Davidson, 2019 WL 1317465, at *1. The court construes plaintiffs' motion—as it applies to Ms. Eisenbarger and Ms. Jackson—as a notice of voluntary dismissal under Fed. R. Civ. P. 41(a)(1)(A)(i), since neither has filed any responsive pleading.

3. The court grants plaintiffs' "Joint Motion to Withdraw" their claims against defendants Randy Debenham and Blake Robinson and denies those defendants' Motion to Dismiss (Doc. 59) as moot.

Plaintiffs' Motion to Withdraw also seeks to withdraw their claims against Mr. Debenham and Mr. Robinson. Plaintiffs filed their motion after Mr. Debenham and Mr. Robinson filed a Motion to Dismiss that, alternatively, moves for summary judgment "to the extent that facts beyond the allegations of the Complaint are necessary to resolve the issues." Doc. 60 at 1. Also, as our local rule 56.1(f) requires, Mr. Debenham and Mr. Robinson filed a "Notice to Pro Se Litigants Who Oppose a Motion for Summary Judgment." Doc. 61.

Although plaintiffs have filed a motion to withdraw their claims against Mr. Debenham and Mr. Robinson voluntarily after these defendants have filed a motion to dismiss or in the alternative, summary judgment, the court follows a recent decision from our court and construes plaintiffs' motion as a notice of voluntary dismissal. See Davidson, 2019 WL 1317465, at *1 (concluding that plaintiff's "motion to withdraw . . . should have been considered a notice of unilateral voluntary dismissal under Rule 41(a)(1)" after defendant filed a motion to dismiss). Courts are divided on the question of "what procedural event transforms a pending, undecidedmotion to dismiss into one for summary judgment for the purposes of Rule 41(a)(1)(A)(i)." 8 J.W. Moore et al., Moore's Federal Practice - Civil § 41.33 (3d ed. 2010). But, Moore's Federal Practice explains,

[t]he better view is that a formal, court-ordered conversion is required: thus, a notice of dismissal may be vacated only if filed after the time that the court has actually reviewed the motion to dismiss, determined whether to include or exclude the extraneous matters, notified the parties of the conversion to Rule 56, and expressly afforded the parties a reasonable opportunity to present materials relevant to a motion for summary judgment.

Id.; see also 9 Charles Alan Wright & Arthur R....