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PHALP v. CITY OF OVERLAND PARK, KANSAS, (D.Kan. 2002)
JULIE A. ROBINSON, United States District Judge.
This matter comes before the Court on Plaintiff's Motion to Review Magistrate Judge's Denial of Motion for Leave to File Amended Complaint Out of Time, Or in the Alternative, Motion for Clarification (Doc. 212). For the reasons set forth below, the motion is denied.
A district court's review of a magistrate judge's decision on a nondispositive pretrial matter is governed by 28 U.S.C. § 636(b)(1). The corresponding Fed.R.Civ.P. 72(a) states "[t]he district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." A magistrate's ruling on a motion for leave to file an amended complaint or a supplemental complaint is a nondispositive ruling subject to review under this deferential standard. The court, applying the clearly erroneous standard, must affirm the magistrate judge's order unless it has the definite and firm conviction from all the evidence that error has occurred.
See also D. Kan. Rule 72.1.4.
See, e.g., First Savings Bank, F.S.B. v. U.S. Bancorp, 184 F.R.D. 363, 366 (D.Kan. 1998); Deghand v. Wal-Mart Stores, Inc., 904 F. Supp. 1218, 1220 (D.Kan. 1995); Resolution Trust v. Fidelity Deposit Co. of Maryland, 885 F. Supp. 228, 229 (D.Kan. 1995). But see Pedro v. Armour Swift-Eckrich, 118 F. Supp.2d 1155, 1157 (D.Kan. 2000) (applying de novo standard of review to denial of motion to amend to add party on ground of futility). Although not applicable in this case, the Court notes that even under the de novo standard of review, plaintiffs' motion for review would be denied.
See Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)); see also Smith v. MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan. 1991) ("Because a magistrate is afforded broad discretion in the resolution of nondispositive discovery disputes, the court will generally grant the magistrate great deference and overrule the magistrate's determination only if this discretion is clearly abused.")
Plaintiff takes issue with Judge Waxse's characterization of what plaintiffs seek to accomplish with an amended complaint: "adding" a claim under the Americans with Disabilities Act (ADA); and "revising" the § 1983 claim to include a claim for violation of the substantive due process clause. Plaintiffs argued to Judge Waxse, and argue in this motion for review, that the amended complaint would serve to clarify, not add claims or change theories. They point out that in Count III of the original complaint, which is styled "Civil Action for Deprivation of Rights Pursuant to 42 U.S.C. § 1983," it was alleged that the decedent, Aubrey Phalp, suffered from a disability recognized under the ADA, and that the defendants discriminated against her on the basis of this disability. Also, in Count III, they alleged that the decedent was: (1) "entitled to all of the rights, privileges, and immunities secured to her by the Constitution and laws of the State of Kansas and the Constitution and laws of the United States[;]"and (2) that the defendant police officers acts deprived decedent of "[h]er right to not be deprived of life, liberty, or property without due process of law secured to her by the Fifth and Fourteenth Amendments to the Constitution of the United States."
42 U.S.C. § 12101 et seq.
Because the plaintiffs seek to accomplish their "clarification" by adding a count stating a claim under the ADA and by editing Count III to specifically allege a violation of substantive due process, Judge Waxse's characterization was accurate. Moreover, the basis for Judge Waxse's denial of the plaintiffs' motion for leave to file an amended complaint was that it was out of time. Under the scheduling order, the parties' deadline to file motions to amend was February 16, 2001. Just ten days shy of a year later, plaintiffs filed the motion for leave to file amended complaint. In their motion for review, plaintiffs neither assert nor demonstrate that Judge Waxse's thorough analysis and conclusion that plaintiffs had failed to show good cause for allowing the amendment was clearly erroneous or contrary to law. The Court thus denies plaintiffs' motion for review.
With respect to plaintiffs' alternative request, the Court declines to "clarify" that the original complaint provides adequate notice of claims for ADA and a violation of § 1983 by virtue of the substantive due process clause. Nothing in Judge Waxse's order forecloses plaintiffs from raising this argument; in fact, the issue is addressed in the pending motion for summary judgment filed by the City of Overland Park.
IT IS THEREFORE ORDERED, that Plaintiffs' Motion to Review Magistrate Judge's Order Denying Leave to File Amended Complaint, Or in the Alternative, Motion for Clarification (Doc. 212) is hereby DENIED.
IT IS SO ORDERED.
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