Cirocco v. United States Small Business Administration, The et al
Filing
26
ORDER granting 7 Motion to Dismiss. This action is DISMISSED without prejudice. By Magistrate Judge Nina Y. Wang on 2/14/2018. (Attachments: unpublished case law)(nywlc1, )
Moreno v. Kansas City Steak Company, LLC, Slip Copy (2017)
2017 WL 2985748
2017 WL 2985748
Only the Westlaw citation is currently available.
United States District Court,
D. Kansas.
Paula MORENO, Plaintiff,
v.
KANSAS CITY STEAK COMPANY, LLC, Defendant.
Case No. 17-cv-02029-DDC-KGS
|
Signed 07/13/2017
Attorneys and Law Firms
Mark E. Meyer, The Law Offices of Mark E. Meyer, Lee's
Summit, MO, for Plaintiff.
Kyle B. Russell, Jackson Lewis PC, Overland Park, KS,
for Defendant.
Opinion
MEMORANDUM AND ORDER
Daniel D. Crabtree, United States District Judge
*1 On January 17, 2017, plaintiff Paula Moreno filed
a Complaint alleging four claims against defendant
Kansas City Steak Company, LLC. Doc. 1. In Counts
One through Three, plaintiff asserts claims under the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
In Count Four, plaintiff asserts a claim under the Kansas
Workers Compensation Act, Kan. Stat. Ann. § 44-501 et
seq.
On April 7, 2017, defendant filed a Motion for Partial
Dismissal of Plaintiff's Complaint. Doc. 6. In it, defendant
contends that the court must dismiss Counts One
through Three because plaintiff failed to exhaust her
administrative remedies. The court agrees. For the reasons
explained below, the court denies defendant's Motion for
Partial Dismissal of Plaintiff's Complaint and also grants
plaintiff leave to file an amended complaint. The amended
pleading must address the jurisdictional issues addressed
in this Order.
Background 1
Plaintiff worked for defendant from March 2009 to March
2015. In April 2012, plaintiff's work gloves caught in a
conveyor belt, injuring the smallest finger on her right
hand to the point that one of the joints was immovable.
Plaintiff received medical attention for her injury through
workers compensation benefits, and began using a splint
at work per her doctor's orders.
Over time, plaintiff's injury worsened. She began
experiencing intermittent muscle and tendon pain in her
right hand, wrist, and forearm. Eventually, the pain
spread to her shoulder. Worker's compensation again
allowed plaintiff to seek medical attention. But, when
plaintiff's treating physician advised her to see a hand
specialist, defendant refused and would not allow her
to seek further treatment. Plaintiff told defendant about
her continuing pain and discomfort several times between
2012 and 2014.
Plaintiff's supervisor questioned whether plaintiff truly
was injured and the supervisor got angry with her.
Plaintiff's supervisor physically pushed plaintiff twice,
“yelling at [her] for using her left hand instead of her
injured right hand.” Doc. 1 at 5. Some time later, plaintiff
went to human resources to inform them of the pushing
incident and to complain, again, about her continuing
injury. Plaintiff alleges that human resources told her
“that if she made a report she would not be able to work
for” defendant. Id.
On March 26, 2015, following another unpleasant
interaction between plaintiff and her supervisor,
defendant terminated plaintiff's employment. Believing
she was terminated for discriminatory reasons, plaintiff
filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“the EEOC”)
and the Kansas Human Rights Commission (“the
KHRC”). Where her KHRC Charge (“the Charge”)
asks what “unlawful employment practice” she alleged
defendant employed in violation of the Kansas Acts
Against Discrimination, Kan. Stat. Ann. § 44-1001 et seq.,
plaintiff checked the boxes for race, color, national origin,
disability, and retaliation. Doc. 2 at 4.
*2 Plaintiff's Charge alleged only the following facts: she
worked for defendant from March 16, 2009, to March 27,
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Moreno v. Kansas City Steak Company, LLC, Slip Copy (2017)
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2015, and her last position was in packaging; she is from
Mexico; her son has a disability; defendant knew about
her son's disability starting in March 2009; her supervisor
physically harassed her on December 23, 2014, by pushing
her twice; and that defendant terminated her employment
on March 27, 2015, because of her national origin and her
“association with [her] son, who has a disability.” Id. at
4–5.
The EEOC issued plaintiff a Right to Sue Letter on
October 20, 2016. She then filed this lawsuit. Her
Complaint alleges that defendant violated the ADA
by failing to accommodate her disability (i.e., her
injured finger), by retaliating against her for seeking
accommodations, and by physically harassing her and
disciplining her because of her disability. The Complaint
also alleges a retaliation claim under the Kansas Workers
Compensation Act.
Defendant has filed a Motion for Partial Dismissal.
In its Motion, defendant contends that plaintiff's ADA
claims exceed the scope of her Charge, and so plaintiff
has failed to exhaust her administrative remedies as the
ADA requires. The court considers the parties' arguments
below.
Analysis
Defendant's Memorandum in Support its Motion (Doc.
7) and Reply (Doc. 10) present a threshold procedural
question that the court must decide before it can begin
to analyze the parties' arguments. While defendant
labels its motion to dismiss as one under Federal
Rule of Civil Procedure 12(b)(6), the legal standards
section of its Memorandum in Support begins with the
following propositions: “Federal courts are courts of
limited jurisdiction. Under the ADA, a plaintiff must
exhaust administrative remedies before filing suit. ‘In
the Tenth Circuit, exhaustion of administrative remedies
is a jurisdictional prerequisite to suit.’ Thus, a district
court must dismiss unexhausted claims for lack of subject
matter jurisdiction.” Doc. 7 at 4 (citations omitted).
This language invokes Rule 12(b)(1). Defendant then
continues, mentioning—albeit briefly—the legal standard
for a Rule 12(b)(6) motion. Defendant's Reply does not
clarify its intentions. See Doc. 10 at 8 (“KCSC argues that
Plaintiff did not exhaust her administrative remedies at all
—whether her Charge was verified or not—with respect
to any claims based on her own disability, which clearly
is a jurisdictional requirement.” (citation omitted)). So,
defendant's papers alone do not permit the court to discern
whether defendant brings a Rule 12(b)(1) or Rule 12(b)(6)
motion.
But the court must determine which subdivision of the
Rule applies because “[d]ifferent standards apply to
a motion to dismiss based on lack of subject matter
jurisdiction under Rule 12(b)(1) and a motion to dismiss
for failure to state a claim under Rule 12(b)(6).” Muscogee
(Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir.
2012). If the question presented by defendant's motion
truly is a jurisdictional one, 2 then the court may not reach
any aspect of the merits of plaintiff's Complaint under a
Rule 12(b)(6) motion. As the Supreme Court explained in
Bell v. Hood:
*3 [I]t is well settled that the failure
to state a proper cause of action
calls for a judgment on the merits
and not for a dismissal for want of
jurisdiction. Whether the complaint
states a cause of action on which
relief could be granted is a question
of law and just as issues of fact it
must be decided after and not before
the court has assumed jurisdiction
over the controversy.
327 U.S. 678, 682 (1946); accord Oppenheim v. Sterling,
368 F.2d 516, 520 n.16 (10th Cir. 1966). So, typically,
the court may dismiss a complaint for failing to state a
claim for relief only after it has found that subject matter
jurisdiction exists. Id. The court thus must determine
whether defendant's motion presents a motion to dismiss
under Rule 12(b)(6) or Rule 12(b)(1) before it properly can
consider any aspect of the parties' merit arguments. See
Muscogee (Creek) Nation, 669 F.3d at 1167 (holding that
a district court erred by equating the Rule 12(b)(6) and
Rule 12(b)(1) standards when it applied the Rule 12(b)(6)
plausibility standard to the determination whether it had
subject matter jurisdiction).
Despite the Rule 12(b)(6) label defendant places on its
Motion to Dismiss, the court must construe it as a
motion under Rule 12(b)(1) if the question it presents
is jurisdictional. In other words, if the question whether
the court should dismiss plaintiff's Complaint for failure
to exhaust her administrative remedies is jurisdictional,
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then the court must consider defendant's motion as one
under Rule 12(b)(1). To decide this question, the court
relies on ADA and Title VII cases because, as the
Tenth Circuit has noted, “Title I of the ADA, which
prohibits employment discrimination on the basis of
disability, explicitly incorporates the powers, remedies,
and procedures of Title VII, making [it] clear that the
procedural requirements of those two provisions must
be construed identically.” Shikles v. Sprint/United Mgmt.
Co., 426 F.3d 1304, 1309 (10th Cir. 2005) (citing 42 U.S.C.
§ 12117(a)).
Corp., 978 F. Supp. 1382, 1392 (D. Kan. 1997) (first
citing Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir.
1996); then citing United States v. Spedalieri, 910 F.2d
707, 709 n.2 (10th Cir. 1990); then citing Morris v. State
of Kan. Dep't of Revenue, 849 F. Supp. 1421, 1428 (D.
Kan. 1994), abrogated on other grounds, Burns v. Bd. of
Comm'rs of Cty. of Jackson, Kan., 197 F. Supp. 2d 1278
(D. Kan. 2002)). The Tenth Circuit has not overruled
Shikles en banc, and the Supreme Court has not decided a
case explicitly contrary to Shikles's holding. So, the court
believes it is still bound to follow Shikles's holding.
In Shikles v. Sprint/United Management Co., the Tenth
Circuit held that “a plaintiff's exhaustion of his or her
administrative remedies is a jurisdictional prerequisite to
suit under Title VII—not merely a condition precedent to
suit.” Id. at 1317 (citing Jones v. Runyon, 91 F.3d 1398,
1399 n.1 (10th Cir. 1996)). In the years after Shikles, the
Circuit has questioned the vitality of the case's holding.
See, e.g., Wickware v. Manville, 676 Fed.Appx. 753, 767
& n.4 (10th Cir. 2017) (mentioning that the holding in
Shikles may not be good law still, but not resolving
the question and instead stating that “[c]onsequently,
even if exhaustion is not jurisdictional, it is a condition
precedent to suit” (citations omitted)); Hung Thai Pham,
630 Fed.Appx. at 737–38 (discussing whether Shikles's
holding was still good law, but declining to decide the
issue and noting instead that “even if exhaustion is
not jurisdictional, this Title VII requirement is vital,”
so “even if the exhaustion requirement is deemed to
be a condition precedent to suit, we conclude that by
indisputably failing to exhaust, Mr. Pham has failed to
satisfy this condition” (citations omitted)); Arabalo v. City
of Denver, 625 Fed.Appx. 851, 859–60, 864 (10th Cir.
2015) (mentioning that the holding of Shikles may not
be good law still, but not resolving the question). The
questions about the continuing vitality of Shikles arise
from the Tenth Circuit's decision in Gad v. Kansas State
University, 787 F.3d 1032 (10th Cir. 2015). But Gad did
not overrule Shikles—at least not explicitly. Instead, the
Circuit's decision in Gad appears limited to the question
before it in that case: whether the EEOC's verification
requirement is jurisdictional. Gad, 787 F.3d at 1038–40.
*4 The court thus concludes that defendant's motion
to dismiss, in reality, is a Rule 12(b)(1) motion and so
it considers defendant's motion under the legal standard
outlined in the next section.
Although the court is mindful of concerns about Shikles's
status after Gad, “[t]his court is bound by the published
Tenth Circuit decisions unless they have been overruled
by the Tenth Circuit sitting en banc or superseded by a
contrary Supreme Court decision.” Brand v. Mazda Motor
I. Legal Standard
The court must dismiss any case that it lacks subject
matter jurisdiction to hear. Fed. R. Civ. P. 12(h)(3). The
court must do so because “[a] court lacking jurisdiction
cannot render judgment.” Basso v. Utah Power & Light
Co., 495 F.2d 906, 909 (10th Cir. 1974) (citing Bradbury
v. Dennis, 310 F.2d 73, 74 (10th Cir. 1962)). The party
who invokes the court's jurisdiction bears the burden to
establish that it exists. Id. Here, that party is plaintiff.
Generally, a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) takes one of two forms:
a facial attack or a factual attack. Holt v. United States,
46 F.3d 1000, 1002 (10th Cir. 1995). A facial attack
questions the sufficiency of the jurisdictional allegations
in a plaintiff's complaint. Id. “In reviewing a facial
attack on the complaint, a district court must accept
the allegations in the complaint as true.” Id. (citing
Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320,
325 (6th Cir. 1990)). In contrast, a factual attack goes
beyond the complaint's allegations and challenges “the
facts upon which subject matter jurisdiction depends.”
Id. at 1003. “When reviewing a factual attack on subject
matter jurisdiction, a district court may not presume the
truthfulness of the complaint's factual allegations.” Id.
(citing Ohio Nat'l Life Ins. Co., 922 F.3d at 325). In this
context, a district “court has wide discretion to allow
affidavits, other documents, and [even conduct] a limited
evidentiary hearing to resolve disputed jurisdictional facts
under Rule 12(b)(1).” Id. (citations omitted). So, “[i]n a
factual attack under Rule 12(b)(1), the court's reference
to evidence outside the pleadings does not convert the
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Moreno v. Kansas City Steak Company, LLC, Slip Copy (2017)
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motion into a motion for summary judgment, unless the
jurisdictional question is intertwined with the merits of the
case.” Shipley v. I.R.S., No. 04-cv-2573-JWL, 2005 WL
1334617, at *1 (D. Kan. June 6, 2005) (first citing Stuart
v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th
Cir. 2001); then citing Holt, 46 F.3d at 1003; then citing
Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir. 1987));
Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320,
1324–25 (10th Cir. 2002).
Here, some question exists whether defendant's motion
presents a facial or factual attack. Plaintiff contends that
defendant's motion strays beyond the Complaint and thus
questions facts. Defendant disagrees. It contends that its
motion only questions the sufficiency of the Complaint's
jurisdictional allegations. In reality, defendant's motion
melds the two approaches.
At first glance, it looks like a factual attack. Defendant
attaches an exhibit to its Memorandum in Support.
Doc. 7-1. Typically, this approach signals that defendant
is making a factual attack challenging the complaint's
jurisdictional allegations. Cf. Shipley, 2005 WL 1334617,
at *1 (“Here, Defendant chose to make a factual attack by
offering exhibits [to] support its motion.” (footnote and
citation omitted)). But here, closer inspection leads the
court to a different conclusion.
*5 The exhibit attached to defendant's Memorandum
in Support does not challenge any of the Complaint's
jurisdictional allegations. Instead, the exhibit merely
submits plaintiff's EEOC and KHRC administrative
charges. See Doc. 7-1; see also Doc. 1 at 6–7 (referencing
exhibits to the Complaint). But defendant's motion relies
only on plaintiff's KHRC Charge and plaintiff already
had appended this Charge as an exhibit to her Complaint.
Doc. 2 at 4–5 (“EXHIBITS IN SUPPORT of Complaint”)
(filed by plaintiff). Federal Rule 10(c) makes that exhibit
part of plaintiff's Complaint. See Mountain Fuel Supply
Co. v. Johnson, 586 F.2d 1375, 1382 (10th Cir. 1978) (“We
first observe that any contention that a substantial federal
question was not set forth ‘on the face’ of the Mountain
Fuel complaint is without merit. [Rule 10(c) ] provides that
‘A copy of any written instrument which is an exhibit to
a pleading is a part thereof for all purposes.’ ” (citations
omitted)); accord City of Rome, N.Y. v. Verizon Commc'ns,
Inc., 362 F.3d 168, 175 n.4 (2d Cir. 2004). Plaintiff's EEOC
Charge is not part of her Complaint. She did not attach
it to the Complaint and objects to defendant's reliance on
it here. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th
Cir. 2010) (listing exceptions to the rule against looking
beyond the four corners of the pleadings). But, defendant
does not rely on plaintiff's EEOC Charge.
Because defendant's motion does not rely on any material
outside the pleadings, it presents a facial attack. This
conclusion means that the court applies “the same
standards under Rule 12(b)(1) that are applicable to a
Rule 12(b)(6) motion to dismiss.” Muscogee (Creek)
Nation v. Okla. Tax Comm'n, 611 F.3d 1222, 1227 n.1
(10th Cir. 2010). So, the court accepts the allegations in
plaintiff's Complaint as true. But, where the Complaint's
allegations are legal conclusions or contradict information
contained in the documents attached to it, no such
presumption of truth attaches. See GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1385
(10th Cir. 1997) (explaining that the court need not
accept “legal conclusions and factual allegations that
contradict ... a properly considered document” as true
(citing Jackson v. Alexander, 465 F.2d 1389, 1390 (10th
Cir. 1972))).
Last, plaintiff's decision to attach the EEOC's Right to Sue
Letter and her KHRC Charge to her Complaint provides
something of a governor on the Complaint's allegations.
In GFF Corp. v. Associated Wholesale Grocers, Inc., the
Circuit explained that district courts need not accept
factual allegations as true if they contradict a “properly
considered document.” Id. (citation omitted).
II. Exhaustion
“Title I of the ADA requires a plaintiff to exhaust
her administrative remedies before filing suit.” Jones
v. U.P.S., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007)
(citations omitted). To determine whether a plaintiff has
exhausted her administrative remedies, the court uses a
two-step test. Id. at 1183, 1186. In the first step, the
court asks whether the plaintiff has filed a charge of
discrimination with the EEOC. Id. at 1183. In the second,
the court must “determine the scope of the allegations
raised in the EEOC charge because ‘[a] plaintiff's claim
in federal court is generally limited by the scope of
the administrative investigation that can reasonably be
expected to follow the charge of discrimination submitted
to the EEOC.’ ” Id. at 1186 (quoting MacKenzie v. City
& Cty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005);
further citation omitted). Here, defendant concedes that
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Moreno v. Kansas City Steak Company, LLC, Slip Copy (2017)
2017 WL 2985748
plaintiff has satisfied step one. But, defendant contends
that her ADA claims cannot survive step two.
In step two, the court liberally construes plaintiff's
Charge. Id. But, plaintiff's Charge “must contain facts
concerning the discriminatory and retaliatory actions
underlying each claim; this follows from the rule that ‘each
discrete incident’ of alleged discrimination or retaliation
‘constitutes its own “unlawful employment practice” for
which administrative remedies must be exhausted.’ ” Id.
(quoting Martinez v. Potter, 347 F.3d 1208, 1210 (10th
Cir. 2003)). So, the court's inquiry “is limited to the scope
of the administrative investigation that can reasonably be
expected to follow from the discriminatory acts alleged in
the administrative charge.” Id. (emphasis in original).
*6 Here, plaintiff principally submitted her charge
of discrimination to a state administrative agency—the
KHRC. See Doc. 7-1 at 3–4 (assigned KHRC docket No.
38214-16). She then provided notice to the EEOC of her
state charge filing, notifying this federal agency that her
federal submission was made under the EECO's “dual
filing” procedure. Id. at 2. 3
Plaintiff's KHRC Charge identified the “unlawful
employment practice” that she alleged defendant had
committed. Plaintiff checked the boxes identifying race,
color, national origin, disability, and retaliation as the
types of discrimination claimed. Doc. 2 at 4. Plaintiff's
Charge alleged only the following facts: she worked for
defendant from March 16, 2009, to March 27, 2015,
and her last position was in packaging; she is from
Mexico; her son has a disability; defendant knew about
her son's disability starting in March 2009; her supervisor
physically harassed her on December 23, 2014, by pushing
her twice; and that defendant terminated her employment
on March 27, 2015, because of her national origin and her
“association with [her] son, who has a disability.” Id. at
4–5.
In her Complaint, plaintiff alleges three claims under the
ADA. She bases all three claims on her own disability—
which was caused by a workplace injury in April 2012.
This Complaint never mentions her son. Plaintiff's Charge
exhausted only an ADA claim based on her association
with her son's disability. But her Charge never alleges that
she, herself, has a disability, or that she suffered adverse
employment actions because of her disability. Her Charge
therefore does not contain facts about the discrete incident
of discrimination and retaliation relied on by Counts
One through Three of her Complaint. No “administrative
investigation [could] reasonably be expected to follow
from” plaintiff's administrative allegations about her son's
disability to plaintiff's judicial allegations that she was
disabled. Jones, 502 F.3d at 1183, 1186; see also Andrews
v. GEO Grp., Inc., 288 Fed.Appx. 514, 518 (10th Cir.
2008) (finding that the plaintiff did not exhaust her jobmodification claims because her administrative “filing
[was] devoid of any facts concerning such a request”).
Sensing her predicament, plaintiff asks the court to
consider, in addition to her Charge, a disability
questionnaire that she filled out after filing her Charge
with the KHRC. Defendant objects to plaintiff's use of
the questionnaire, arguing that the court cannot consider
the questionnaire without converting defendant's motion
into one for summary judgment. This argument creates a
dilemma that the court cannot resolve from the current
record. On one hand, defendant argues, correctly, that the
court cannot consider the contents of the administrative
questionnaire because plaintiff's Complaint does not
allege it or otherwise invoke it under Rule 10(c). See
Pacheco, 627 F.3d at 1186 (listing exceptions to the rule
against looking beyond the four corners of the pleadings).
On the other hand, plaintiff may not have alleged that the
questionnaire's contents provided a platform to establish
the jurisdictional requisite— administrative exhaustion—
because she did not know that defendant would challenge
her administrative charge's sufficiency for that requisite.
*7 In the end, the court concludes that it is not proper to
resolve this dilemma on the current motion. The parties'
filings manifest one dispute, in particular, that leads the
court to this conclusion. Plaintiff contends that a KHRC
questionnaire establishes that she exhausted her claims
based on her own alleged disability. And, indeed, the
Circuit's most recent comment on this idea—Jones v.
Needham—leaves room for this argument to succeed. See
856 F.3d 1284, 1290 (10th Cir. 2017) (“[T]here are times
in which a different filing such as an intake questionnaire,
can constitute [an administrative] charge for certain
purposes.” (citations omitted)). While the “general rule”
remains that the administrative charge defines the scope of
the administrative investigation, id., Needham recognizes
that exceptions to this general rule still exist. Also,
defendant's Reply raises a series of unanswered questions.
Did defendant receive the questionnaire before plaintiff
filed this lawsuit? And, if not, does that matter?
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The court concludes that it should not decide questions
so central to the case 4 on a record as unsettled as the
one presented by the current motion to dismiss. The court
denies the current motion because it concludes that the
current record is insufficient to decide the first question in
every federal court case: Does subject matter jurisdiction
exist? On its own motion, then, the court grants plaintiff
leave to amend her Complaint. The court establishes a
comprehensive schedule at the end of this order. Plaintiff's
amended complaint must plead sufficient material so the
court can decide whether its jurisdiction reaches plaintiff's
claims. This obligation includes each fact she relies on to
establish administrative exhaustion and thus, jurisdiction.
If defendant contends that plaintiff's amended allegations
do not suffice to establish exhaustion, it may renew
its motion to dismiss. If defendant believes the new
filing establishes jurisdiction—for the moment, anyway—
it should file an Answer. If defendant renews its motion to
dismiss, the parties' filings should discuss the implications
of the Circuit's decision in Needham, a case decided after
briefing on the current motion concluded.
The following interim schedule governs the proceedings in
this case:
(1) No later than 10 days from the date of this Order,
plaintiff must file an amended complaint alleging
all facts she relies on to establish subject matter
jurisdiction.
(2) Within 15 days of plaintiff filing her amended
complaint, defendant may file a renewed motion to
dismiss challenging the jurisdictional sufficiency of
plaintiff's amended allegations. If defendant elects
not to file such a motion to dismiss, it must file a
timely Answer.
(3) Within 15 days of any new motion to dismiss filed
by defendant, plaintiff must file her Opposition to the
motion.
(4) Defendant must file any Reply within 10 days of
plaintiff's Opposition.
Finally, consistent with Rule 1's mandate that the court
must apply the Federal Rules of Civil Procedure to
promote the just, speedy, and inexpensive resolution
of every civil case, the court stays discovery and
all other pre-trial proceedings until the jurisdictional
questions are resolved. If defendant does not file a
renewed motion to dismiss, the parties are directed
to notify Deputy Clerk Megan Garrett (by email at
KSD_Crabtree_Chambers@ksd.uscourts.gov) so that the
court can lift the stay and return the case to normal casemanagement procedures.
*8 IT IS THEREFORE ORDERED THAT defendant
Kansas City Steak Company, LLC's Motion for Partial
Dismissal of Plaintiff's Complaint (Doc. 6) is denied.
IT IS FURTHER ORDERED THAT plaintiff must file
an amended complaint within 10 days of the date of this
Order.
IT IS SO ORDERED.
All Citations
Slip Copy, 2017 WL 2985748
Footnotes
1
2
3
The facts in this section come from plaintiff's Complaint and the documents attached to her Complaint as Exhibit A. The
court explains why it relies only on these documents below at pp. 7–9.
Although some Tenth Circuit cases hold that characterizing an exhaustion requirement as jurisdictional is important “only
when the defendant has waived or forfeited the issue,” McQueen v. Colo. Springs Sch. Dist. No. 11, 488 F.3d 868, 873
(10th Cir. 2007), those cases do not consider whether Rule 12(b)(1) or 12(b)(6) applies and thus they are not on point
here. See, e.g., Hung Thai Pham v. James, 630 Fed.Appx. 735, 738 (10th Cir. 2015) (reciting the above quote after
stating that the Circuit reviewed Rule 12(b)(1) dismissals de novo, in a case where the Circuit had no need to consider
whether the motion to dismiss should be considered under Rule 12(b)(1) or Rule 12(b)(6)).
This dual filing procedure allows a person claiming that an employer has discriminated on a legally forbidden basis to
commence proceedings with a state agency charged with administrative review of such claims. When an employee
chooses to present a claim of discrimination in this fashion, the EEOC “may suspend its investigation and await the [state]
Agency's final findings and orders.” Doc. 7-1 at 1. The EEOC then may consider the state agency's findings and give them
whatever weight the EEOC deems appropriate when making its conclusion. Id.; see also EEOC v. Commercial Office
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Moreno v. Kansas City Steak Company, LLC, Slip Copy (2017)
2017 WL 2985748
4
Prods. Co., 486 U.S. 107, 110–12 (1988) (discussing the dual filing process and work-sharing agreements between state
agencies and the EEOC).
For example, an order dismissing the case, though not a judgment with claim precluding effects, effectively could end
plaintiff's opportunity to present her claims. Federal law does not include a savings statute. United States ex rel. Koch
v. Koch Indus., Inc., 188 F.R.D. 617, 632 (N.D. Okla. 1999). So, any new case filing based on enhanced jurisdictional
allegations likely would face dismissal as untimely. See id. at 632–33 (“A complaint [based on a federal cause of action]
cannot be related back to a complaint over which the court lacked subject matter jurisdiction, not because the court lacked
subject matter jurisdiction, but because the law deems the first suit to have never in fact existed.”).
End of Document
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