Opinion
CIVIL ACTION No. 01-2048-KHV
November 8, 2002
MEMORANDUM AND ORDER
Pending before the Court is Plaintiff's' Motion for Leave to Amend Pleadings (doc. 45). As discussed in detail below, the Court will grant the motion.
I. Factual Background and Plaintiff's' Proposed Amendments
Plaintiff filed this diversity action, seeking damages for state law claims of negligence, false arrest, malicious prosecution, and abuse of process. Plaintiff alleges that Defendant, his ex-wife, orchestrated their daughter's allegations that Plaintiff had sexually abused her. He claims Defendant made false statements and actively encouraged and participated in his wrongful arrest and conviction on two counts of aggravated incest. After spending six years in prison, the Kansas Court of Appeals reversed his conviction and remanded the case for anew trial. The District Attorney's Office ultimately dismissed the case with prejudice.
On January 2, 2002, Defendant filed a motion to dismiss, and the Court dismissed Plaintiff's negligence and abuse of process claims. The Court dismissed the abuse of process claim because Plaintiff's Complaint failed to allege that Defendant acted with an ulterior purpose or motive when she employed criminal process against Plaintiff. The Court stated:
See doc. 34, filed March 27, 2002.
Although plaintiff contends in his response to defendant's motion to dismiss that defendant invoked the court's criminal jurisdiction to try to obtain an advantage in divorce court, the complaint makes no such claim. The court therefore finds that the abuse of process claim should be dismissed.
Id. at pp. 14-15.
Plaintiff seeks leave to re-plead his abuse of process claim with additional allegations of motive in an attempt to cure this deficiency. His proposed Amended Complaint alleges three motives behind Defendant's use of the court's process to bring a criminal case against Plaintiff: (1) Defendant sought to obtain an advantage in the pending divorce proceedings between herself and Plaintiff; (2) Defendant wanted Plaintiff incarcerated so she could have a personal and family life without Plaintiff's interfering presence; and (3) Defendant acted out of revenge and anger for Plaintiff having obtained a protective order against her and because Plaintiff was not able to provide substantial financial support for her and her children. The proposed Amended Complaint describes certain incidents that Plaintiff contends support these alleged motives.
II. Standard for Ruling on a Motion to Amend
Rule 15 of the Federal Rules of Civil Procedure allows one amendment of the complaint before a responsive pleading is served or within twenty days after service of the complaint. Subsequent amendments are allowed only by leave of court or by written consent of the adverse party. Leave to amend, however, is to be "freely given when justice so requires," and the Supreme Court has emphasized that "this mandate is to be heeded." The decision to grant leave to amend a complaint, after the permissive period, is within the district court's discretion and will not be disturbed absent an abuse of that discretion. The liberal granting of motions for leave to amend reflects the basic policy that pleadings should enable a claim to be heard on its merits.
Id.
Id.
Foman v. Davis, 371 U.S. 178, 182 (1962).
Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991).
Calderon v. Kan. Dep't of Social Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999). (citing Foman, 371 U.S. at 181-82).
Leave to amend may be denied when the court finds "undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment." In addition, the court may consider the timeliness of the motion to amend.
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1495 (10th Cir. 1995).
III. Analysis
Defendant opposes Plaintiff's motion on several grounds. First, she argues that the proposed amendments are nothing more than "conclusory and unsubstantiated alleged `facts'" that do not cure the defect identified by the Court in its order of dismissal. Second, she argues that the abuse of process claim is duplicative of Plaintiff's claim for false arrest and imprisonment. Third, she argues that allowing Plaintiff to amend his Complaint would cause her to incur substantial additional expense in responding to the Amended Complaint. Fourth, and finally, she argues that the case will be needlessly delayed and the Scheduling Order significantly compromised.
Doc. 48 at p. 1.
The Court finds Defendant's arguments to be without merit. Plaintiff's proposed allegations setting forth Defendant's motives in employing process against Plaintiff are sufficiently detailed and cure the deficiency found by the Court in its March 27, 2002 Order.
In addition, the proposed abuse of process claim is not duplicative of Plaintiff s false arrest claim. Abuse of process and false arrest are two distinct types of torts, and Plaintiff should be allowed to plead both causes of action.
See Porter v. Stormont-Vail Hosp., 228 Kan. 641, 645-46, 621 P.2d 411 (1980) (recognizing separate causes of action for false imprisonment/arrest and for abuse of process and setting forth elements for each). See also PIK Civil 3d 127.20 (jury instructions for false arrest/imprisonment claim); PIK Civil 3d 127.80 (jury instructions for abuse of process claim).
The fact that Defendant may incur additional expense in having to respond to the Amended Complaint is not sufficient reason for the Court to deny the motion to amend. Any time a complaint is amended the defendant is required to incur additional expense in responding to the amendments. Such an expense does not equate to "prejudice" under Rule 15. Prejudice for purposes of Rule 15 means "undue difficulty in defending a lawsuit because of a change of tactics or theories on the part of the other party." Defendant fails to show how the added expense of responding to these new allegations, which are not extensive, would cause her undue difficulty in defending against the lawsuit.
Heslop v. UCB, Inc., 175 F. Supp.2d 1310, 1313 (D. Kan. 2001) (citing LeaseAmerica Corp. v. Eckel, 710 F.2d 1470, 1474 (10th Cir. 1983); Sithon Maritime Co. v. Holiday Mansion, 111 F.R.D. 504, 508 (D. Kan. 1998)).
Finally, granting Plaintiff leave to amend will not significantly delay this action nor will it compromise any of the deadlines set forth in the Scheduling Order. Discovery is not set to close until December 15, 2002. The pretrial conference is scheduled for January 6, 2003, and the case is on the June 10, 2003 trial calendar. This schedule provides Defendant with ample time to conduct any discovery regarding these new allegations and to prepare for the pretrial conference and trial.
IV. Conclusion
For the reasons discussed above, the Court finds no basis to deny Plaintiff leave to amend. The Court finds that the interests of justice will be best served by allowing Plaintiff to amend his Complaint. Accordingly, Plaintiff's Motion for Leave to Amend Pleadings (doc. 45) will be granted.
IT IS THEREFORE ORDERED that Plaintiff's Motion for Leave to Amend Pleadings (doc. 45) is granted.
IT IS FURTHER ORDERED that pursuant to D. Kan Rule 15.1, the Clerk shall detach and file the original Amended Complaint for Damages, and it shall be deemed filed as of the date this Order is filed. Plaintiff shall serve the Amended Complaint for Damages on Defendant within ten (10) days after the Amended Complaint for Damages is deemed filed. In addition, Plaintiff shall file a separate certificate of service. Defendant shall plead in response to the Amended Complaint for Damages as set forth in D. Kan. Rule 15.1.
IT IS SO ORDERED.