In Cases Involving Activity That May Be Protected Under the Free Speech Clause, an Appellate

Free Speech necessitates review of whole record. “In cases involving activity that may be protected under the Free Speech Clause, "an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Lytle v. City of Haysville, 138 F.3d 857, 862 (10th Cir. 1998) (internal quotation marks omitted).

60-211 standard

Wood v. Groh, 7 P.3d 1163 (Kan., 2000) staes that Kansas courts often look to the case law on the federal rules as guidance for interpretation of our own rules, as the Kansas rules of civil procedure were patterned after the federal rules. Stock v. Nordhus, 216 Kan. 779, 782, 533 P.2d 1324 (1975) (noting that the Kansas courts have traditionally followed the interpretation of federal procedural rules and that the federal case law is highly persuasive). Although Fed. R. Civ. Proc. 11 is not identical to K.S.A. 1999 Supp. 60-211, the intent behind the rules is the same. The purpose of both rules is to deter "repetition of improper conduct." Waltz v. County of Lycoming, 974 F.2d 387, 390 (3d Cir. 1992).

Wood v. Groh, 7 P.3d 1163 (Kan., 2000)

60-211 Was not ordered in Appeals court

The district court gave careful consideration to the arguments made by Hesston

and concluded that the dissenters presented genuine issues of fact and law as to the conduct of the 1989 merger. On appeal, Hesston has added nothing to its arguments which convinces this court to depart from the decision reached by the district court. We conclude there was substantial competent evidence to support the district court's finding that neither [254 Kan. 992] the dissenters nor their counsel violated K.S.A.1993 Supp. 60-211.

Hesston Corp., Matter of, 870 P.2d 17 at 49, 254 Kan. 941 (Kan., 1994)

KDOT responds, however, that the Court of Appeals correctly failed to consider whether sanctions were appropriate under K.S.A. 2002 Supp. 60-211, since Telegram never requested such sanctions nor briefed the issue on appeal. We agree with KDOT. The statute expressly provides for sanctions "during the pendency of the action but not later than 10 days after the entry of judgment." K.S.A 2002 Supp. 60-211(c). However, Telegram did not request sanctions under 60-211 at any time, much less within 10 days after entry of judgment, nor did it ever present the matter to the district court. Issues not raised before the district court cannot be raised on appeal. Dalmasso v. Dalmasso, 269 Kan. 752, 765, 9 P.3d 551. Additionally, Telegram failed to brief the issue to the Court of Appeals. Issues cannot be raised for the first time at this level. Hephner v. Traders Ins. Co., 254 Kan. 226, 231, 236, 864 P.2d 674. The Court of Appeals was correct in failing to assess sanctions under K.S.A. 2002 Supp. 60-211.

Telegram Publishing Co., Inc. v. Kansas Department of Transportation (Kan., 2003)

Effectiveness of Bret Landrith

In evaluating conduct defending Bolden’s liberty interests in retaining his janitorial contract and two houses, an appropriate standard would be that articulated in Bullock v. Carver, 2002 C10 815 (USCA10, 2002) for habeas corpus proceedings:

“[W]e apply the general ineffective assistance of counsel standard identified by the Supreme Court in Strickland v. Washington, 466 U. S. 668 (1984). Romano v. Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002) (applying Strickland). Under Strickland, a petitioner must satisfy a two-part test in order to prevail on an ineffective assistance of counsel claim. First, he must demonstrate that his attorney's "performance was deficient" and "fell below an objective standard of reasonableness." Strickland, 466 U. S. at 687-88. In applying this test, we give considerable deference to an attorney's strategic decisions and "recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Second, a habeas petitioner must show that the trial counsel's deficient performance prejudiced him, which requires a showing that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U. S. at 694. [emphasis added]

Bullock v. Carver, 2002 C10 815 (USCA10, 2002).

Service of Process

In pertinent part, Rule 4(h)(1) provides that, unless a defendant waives service, service must be made "in a judicial district of the United States in the manner prescribed for individuals by" Rule 4(e)(1).

The defendants City Of Topeka, Harry Felker, Jay Oyler, Mike Mcgee, Kevin Rooney, Meg Perry, and Jeff White entered their appearance when the two City attorneys appeared and under the rule’s recognition of alternative state law effective service:

“(e) SERVICEUPONINDIVIDUALS WITHIN AJUDICIALDISTRICTOF THE UNITEDSTATES. Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in any judicial district of the United States: (1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State;” [emphasis added]

F.R.Civ. P. Rule 4 (e)(1). The alternative state law recognition of effective service utilized by the plaintiffs is found under K.S.A. 60-303 (e):

“(e) Acknowledgment or appearance. An acknowledgment of service on the summons is equivalent to service. The voluntary appearance by a defendant is equivalent to service as of the date of appearance.” [emphasis added].

The application of K.S.A. 60-303(e) has been recognized as an equivalent of service by Kansas courts. See Lindenman v. Umscheid, 255 Kan. 610, 875 P.2d 964, 978 (1994); "[t]he filing of an entry of appearance shall have the same effect as service" andDotson v. State Highway Comm'n, 426 P.2d 138, 143 (Kan. 1967) ("[Defendant's] execution and filing of written entry of appearance was equivalent to service of process (K.S.A. 60-203), and [defendant] thereby submitted himself to the court's jurisdiction.

The defendants City Of Topeka, Harry Felker, Jay Oyler, Mike Mcgee, Kevin Rooney, Meg Perry, and Jeff White waived the requirement of service of process through their voluntary appearance in the form of a response motion dated 2/20/2003 that did not object to personal jurisdiction. The requirement of personal jurisdiction is intended to protect a defendant's liberty interests, and because it represents an individual right, it can be waived. Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702-03 (1982).

The locus in which a defendant is sued is a privilege which may be lost by waiver or consent. See Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979) (both personal jurisdiction and venue are privileges of defendant and may be waived by parties). Rule 12 not only contemplates the lodging of certain defenses at the earliest point in a lawsuit, it mandates a waiver of those defenses if not presented at the first available opportunity. See United States v. 51 Pieces of Real Property, Roswell, N.M., 17 F.3d 1306, 1314 (10th Cir. 1994) (failure to object to court's exercise of personal jurisdiction in the first response waives defense); FDIC v. Oaklawn Apartments, 959 F.2d 170 at 175 (10th Cir. 1992).("If a party files a pre-answer motion and fails to assert the defenses of lack of jurisdiction or insufficiency of service, he waives those defenses.").

Kansas law (echoing established federal waiver principles under Fed.R.Civ.P. 12) also clearly holds that the defense of insufficient service may be asserted, and thereby preserved, in a responsive pleading or motion. See Kan. Stat. Ann. §60-212(b),(h); City of Hutchinson ex rel. Human Relations Comm'n v. Hutchinson, Kan. Office of State Employment Serv., 517 P.2d 117, 122-23 (Kan. 1973). None of the defendants asserted the defense of insufficient service until shortly before the pretrial conference and Bolden effected service before the conference convened.

The effect of the court’s proper action of issuing a recommendation instead of abruptly dismissing Harry Felker, Jay Oyler, Mike Mcgee, Kevin Rooney, Meg Perry, and Jeff White was that there could then be no dismissal based on a failure to have jurisdiction over the parties:

“In contrast, because filing an entry of appearance effects service under § 60-203(c), once counsel formally took such action on defendants' behalf prior to any responsive pleading, defendants could not thereafter contest the sufficiency of service by answer or motion--but this had nothing to do with defense preservation/waiver under Rule 12. A defense cannot be preserved or waived unless it exists, and, with service already accomplished under § 60-203(c), there was no insufficient-service defense to "preserve" when defendants responded to the complaint.” [ emphasis added ].

Jenkins v. City of Topeka, 136 F.3d 1274 at 1276 (C.A.10 (Kan.), 1998). A parallel may be drawn with the present circumstances. The court raised concern over the possible lack of jurisdiction over some of the defendants was been extinguished by their voluntary appearance before an order of voluntary dismissal had been made. The late voluntary dismissal order was indeed finally made erroneously in the absence of any preserved defense.

Bolden with good cause believed the defendants, employees the City by ordinance was required to represent. The same two attorneys that had represented them in the state action appeared on their behaldf in the federa action. However the time for effecting service of process on a complaint involving a federal question can be extended even without a showing of good cause:

“The court merely notes, however, that the defendant is apparently unaware that the 1993 amendment to Rule 4(j) [now 4(m)] "authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown." Fed.R.Civ.P. 4, Advisory Committee Notes, 1993 Amendments.See Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir.1995) ("The plain language of Rule 4(m), however, broadens the district court's discretion by allowing it to extend the time for service even when the plaintiff has not shown good cause."); Hunsinger v. Gateway Management Associates, 169 F.R.D. 152, 154 (D.Kan. 1996) (extending time for service in exercise of its discretion). If this were a federal question case, the court would exercise its discretion under Rule 4(m) and extend the time for service under the circumstances of this case.”

Wheaton v. Ahrens, 983 F.Supp. 970 at fn. 4 (Kan., 1997). In ordering the individual defendants to be dismissed, the court defeated substantial justice and allowed the City to “sandbag” Bolden who had good reason to fear redundant service where similar civil rights plaintiffs had their process servers harassed and intimidated, even stalked by city officials following written memo directives:

“However, International Inns' counsel represented the employer at Barkins and Kellup's EEOC hearings and received copies of the right-to-sue letters. Several cases of this Court have held that notice to counsel constitutes notice to a client for Rule 15(c) purposes. Hendrix v. Memorial Hospital of Galveston County, 776 F.2d 1255, 1258 (5th Cir.1985) (new defendant shared mailing address and attorneys with original defendant); Kirk, 629 F.2d at 407 (new defendant, the sheriff, was represented throughout suit by the same attorney who represented original defendant, the sheriff's office); Montalvo v. Tower Life Building, 426 F.2d 1135, 1147 (5th Cir.1970) (new defendant's attorney filed the answer to the original complaint; hence the defendant "must have received adequate notice of the institution of the suit"). Ramirez v. Burr, 607 F.Supp. 170, 174 (S.D.Tex.1984) (individual board members received notice when the board and its director were served, especially since all had the same counsel); Morrison v. Lefevre, 592 F.Supp. 1052, 1057-58 (S.D.N.Y.1984) (prison officials added to suit had notice through attorney they shared with prison officials named in original complaint). This Court has also held, in a case involving another Holiday Inn, that the true owner of the defendant hotel received notice of the suit when the owner participated in the EEOC hearings leading up to the suit. Marks v. Prattco, Inc., 607 F.2d 1153, 1156 (5th Cir.1979). Although Holiday Inns and International Inns are separate entities, it is clear that International Inns was aware of the suit against Holiday Inns through the shared counsel. Moreover, International Inns points to no prejudice from Barkins and Kellup's mistake. This Court will not allow International Inns to "sandbag" its opponent by waiting until the expiration of the limitations period to point out an error recognizable well before.”

Harkins v. International Inns, Inc., 825 F.2d 905 (C.A.5 (La.), 1987)

Extension of Discovery

The magistrate judge denied Bolden’s request for extension of discovery Apdx. 673. In considering this issue, the appellant notes that the district court has wide discretion in its regulation of pretrial matters. Doelle v. Mountain States Tel. & Tel., 872 F.2d 942, 947 (10th Cir.1989).

In Smith v. United States, 834 F.2d 166, (10th Cir.1987), the court identified several relevant factors in reviewing decisions concerning whether discovery should be reopened. These include:1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence. Smith, 834 F.2d at 169.

In Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507 at 1514 (C.A.10 (Okl.), 1990), the discovery deadline had been extended several times, over the defendant's objections, to accommodate the plaintiffs. Bolden’s discovery was not extended and later was not reopened when requested orally to resolve an issue still open at the last case management conference held on 6/10/2004 Apdx pg. 1272. The record suggests that the plaintiffs did not make diligent use of the long period the court originally provided for discovery, and the matters they sought to investigate further (relating to the improper use of a trade secret) primarily involved entities which were not parties to the lawsuit. Consequently, we conclude that the district court did not abuse its discretion in denying the plaintiffs' motion to reopen discovery.”

Here, Bolden did not have enough time to complete discovery and even though the magistrate proposed a lengthy extension of the summary judgment brief due date which was ordered by the presiding judge date and voluntary discovery still continued no extension of discovery was permitted Bolden.

“Where the opposing party has not had sufficient time to complete discovery or otherwise marshal facts to oppose the motion, application may be made under Rule 56(f) for a continuance of the proceedings pending completion of discovery. If the opposing party fails to take advantage of Rule 56(f), summary judgment may be entered, if otherwise appropriate. British Airways Board v. Boeing Co., 585 F.2d 946, 954 (9th Cir. 1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979); Corbin v. Pan Am. World Airways, Inc., 432 F.Supp. 939, 945 (N.D. Calif. 1977).”

THI-Hawaii, Inc. v. First Commerce Financial Corp., 627 F.2d 991 at 994 (C.A.9 (Hawaii), 1980). Where summary judgment proceedings were continued, no reason existed as a basis to deny Bolden an extension of discovery. “[A] decision made in the absence of a basis is an abuse of discretion." Darden v. Illinois Bell Telephone Co., 797 F.2d 497, 502 (7th Cir.1986).

Well Settled That Bolden’s 1983 claims are not precluded by state proceeding