Muathe v. Fleming

ERIC MUATHE, et al., Plaintiffs, v. LORI FLEMING, et al., Defendants.

Case No. 16-CV-2108-JAR-GLR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

November 17, 2016

MEMORANDUM AND ORDER

Plaintiffs Eric Muathe, Julie Stover, Kasey King, and forty-five other individuals bring this action alleging various federal civil rights and state law claims. Plaintiffs are members of the "Summary Judgment Group," an unincorporated association that is focused on perceived corruption of judges in Crawford County, Kansas. Plaintiffs allege that Defendants interfered with a contract that Plaintiffs had with Defendant My Town Media, Inc. ("My Town") to run radio advertisements aimed at collecting signatures in an attempt to remove Crawford County judges. This matter comes before the Court on Defendants Lori Fleming and Kurtis Loy's Motion to Dismiss (Doc. 7), Defendants Joe Manns and My Town's Motion to Dismiss for Lack of Jurisdiction and For Failure to State a Claim (Doc. 12), Defendants Manns and My Town's Motion to Strike Amended Complaint (Doc. 15), Defendants Fleming and Loy's Motion to Strike (Doc. 17), Plaintiffs' Motion for Leave to file Second Amended Complaint (Doc. 22), and Defendants Manns and My Town's Motion for Leave to File Supplemental Memorandum in Support of Their Pending Motion to Dismiss (Doc. 33).

The Court first addresses the motions to strike and motion for leave to amend because if leave is granted, the motions to dismiss the First Amended Complaint are moot. As described more fully below, the Court grants the motion to strike the Second Amended Complaint and finds that the motion for leave to amend should be granted in part and denied in part. The Court finds that the proposed amendments are futile with respect to all claims of Plaintiffs other than those asserted by Kasey King. The proposed amendments are also futile with respect to Counts 1, 2, 5, and 7 of the proposed Second Amended Complaint, and with respect to Count 3 as it relates to Manns and My Town. The proposed amendments are not futile and will be allowed with respect to King's claims in proposed Counts 4 and 6, and with respect to Count 3 as it relates to Defendants Wachter, Fleming, and Loy. The Court also grants Defendants Manns and My Town's motion to file supplemental memorandum. Finally, the Court finds that the motions to dismiss the First Amended Complaint are moot.

I. Procedural Background

On Febraury 18, 2016, Plaintiffs Eric Muathe, Julie Stover, Kasey King, and fifteen other Plaintiffs filed their original Complaint against Defendants Lori Fleming, Kurt Loy, My Town Media, Inc., and Joe Manns, alleging the following claims: (1) violation of Plaintiffs' rights under 42 U.S.C. § 1985; (2) violation of Plaintiffs' rights under 42 U.S.C. § 1981; (3) violation of Plaintiffs' rights under 42 U.S.C. § 1983; (4) breach of contract; (5) fraud; (6) tortious interference with contractual relations; and (7) defamation.¹ Plaintiffs filed their First Amended Complaint on May 13, which added thirty additional Plaintiffs.² Defendants Fleming and Loy filed their motion to dismiss on June 29, and Defendants Manns and My Town filed their motion to dismiss on July 25.³ Plaintiffs subsequently filed a Second Amended Complaint, without leave of the Court, on July 27.⁴ The Second Amended Complaint adds Bill Wachter as a Defendant and inserts additional factual allegations.⁵ Defendants filed motions to strike the Second Amended Complaint the following day.⁶

On July 14, Plaintiffs filed a Motion for Extension of Time to respond to Defendants Fleming and Loy's motions for dismissal and stay of discovery.⁷ The motion did not state whether there had been prior consultation with other parties before the filing of the motion, as required by the Local Rule.⁸ Defendants filed a response in opposition to the motion on July 28.⁹ The Court granted Plaintiffs' motion in part, and extended Plaintiffs' response deadline until July 29.¹⁰ In granting the extension, the Court noted that Plaintiffs' motion did not state whether there had been prior consultation with other parties before the filing of the motion, and reminded Plaintiffs of their obligation to comply with the Local Rules.¹¹

Plaintiffs did not file a response by the July 29 deadline. Instead, Plaintiffs filed a motion on August 1 seeking leave to file the response out of time.¹² Plaintiffs' counsel explained that he had left the country because of a death in the family on July 27 and could not access the Internet on July 29 to request another extension of time. Defendants responded to the motion for leave on August 12.¹³ Plaintiffs filed their proposed response to the motion to dismiss on August 14.¹⁴ The Court entered a Memorandum and Order on August 18 denying Plaintiffs' motion to file response out of time.¹⁵ In denying the motion, the Court referenced its previous extension of the deadline, Plaintiffs' failure to meet the extended deadline, and Plaintiffs' history of noncompliance with the Local Rules in this case. On August 15, Plaintiffs filed a Motion for Leave to File Second Amended Complaint Nunc Pro Tunc.¹⁶ On November 14, Defendants Manns and My Town filed their motion for leave to file supplemental memorandum.

II. Motions to Strike

After Defendants filed their respective motions to dismiss, Plaintiffs filed a Second Amended Complaint on July 27, 2016.¹⁷ Defendants My Town and Manns filed a Motion to Strike the Second Amended Complaint, and Defendants Fleming and Loy joined in this motion.¹⁸ Pursuant to Fed. R. Civ. P. 15(a), "[a] party may amend its pleading once as a matter of course" within 21 days after serving it, or within 21 days after service of a responsive pleading or a Rule 12 motion.¹⁹ Thereafter, "a party may amend its pleadings only with the opposing party's written consent or the court's leave."²⁰ By filing their Second Amended Complaint prior to seeking consent from Defendants or leave from this Court, Plaintiffs failed to comply with the requirements of the Federal Rules. Accordingly, the Court grants Defendants' motions to strike.

III. Motion for Leave to Amend

A. Legal Standards

Under Rule 15(a), leave to amend a complaint is freely given when justice so requires. Rule 15 is intended "to provide litigants 'the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.'"²¹ Courts may deny leave to amend, however, based on "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, [or] futility of amendment."²² Whether to allow a proposed amendment after the permissive period addresses the sound discretion of the court.²³

B. Factual Allegations and Claims Asserted in the Proposed Second Amended Complaint

The First Amended Complaint alleged seven counts pursuant to federal civil rights statutes and state law theories of liability tied to the removal of Plaintiffs' advertisement campaign on a local radio station. Plaintiffs' proposed Second Amended Complaint adds additional factual allegations and an additional Defendant, Bill Wachter.²⁴ The following facts are accepted as true for purposes of the motion for leave to amend.

The forty-eight individual Plaintiffs in this case are members of the so-called "Summary Judgment Group," an unregistered association created to "advance [the members'] constitutional rights to freedom of speech and the right[] to petition the government," and to express displeasure with perceived conflicts of interest between local attorneys and judges in Crawford County, Kansas. Defendants Lori Fleming and Kurtis Loy are sitting Crawford County district judges. In February 2015, Plaintiffs began a petition drive to summon a grand jury to remove Judges Fleming and Loy from office.

As part of their petition drive, Plaintiffs entered into a contract with My Town on February 16, 2015, for advertisement spots on My Town's FM 100.7 ESPN radio station.²⁵ Pursuant to the agreement, My Town would create and produce the content for advertisements for Plaintiffs' signature drive. Plaintiffs' advertisements would air during the popular morning sports show "Mike and Mike" at 7:55 a.m. each day for thirty days. Plaintiffs paid My Town the agreed fees for airing Plaintiffs' advertisement spots for thirty days. On February 16, Plaintiff Kasey King tendered full payment of the advertisement purchase to My Town. On February 17, My Town created and produced a sample advertisement spot for Plaintiffs' review and approval. Plaintiffs approved the advertisement, and on February 18 and February 19 My Town ran Plaintiffs' advertisement spots as the parties agreed.²⁶

On February 18 or February 19, Judges Fleming and/or Loy became aware of the advertisement on FM 100.7. Judges Fleming and Loy then had a discussion on either February 18 or February 19, during which they discussed the advertisement and agreed to "use their position[s] as sitting judges of the Eleventh Judicial District of Kansas to prevent and stop plaintiffs'" radio advertisement. Judges Fleming and Loy allegedly agreed to have Judge Fleming use her position as a judge to persuade My Town's attorney, Defendant Bill Wachter, to pull Plaintiffs' advertisement off the radio.²⁷ Plaintiffs claim that Judge Fleming then sent Wachter an email from Judge Fleming's official court-assigned email account, in which she described the advertisement and attributed it to "Eric Muathe and posse cometaut." Judge Fleming also explained in the email that her children had heard the advertisement, and told Wachter to "get it off." Wachter and Judge Fleming allegedly worked together at the same law firm before Judge Fleming took the bench, and Wachter practiced before Judge Fleming at the time of the alleged conversation. After Wachter received the email, Wachter and Judge Fleming allegedly had another conversation in which they...