Kraemer v. United Parcel Service et al

Filing 152

OPINION AND ORDER: GRANTING 57 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, MOTION to Dismiss for Lack of Jurisdiction by Defendant Equal Employment Opportunity Commission The and GRANTING 84 MOTION to Dismiss by Defendant United Parcel Servic e. SEVERING AND REMANDING the remaining claims against dfts William Richards PC, the Law Offices of McNeeley Stephensen, Thopy, and Harrold, Haulers Insurance Company, Indiana Farm Bureau, the American Society for the Prevention of Cruelty to Anima ls, the Humane Society of the United States, the American Kennel Club, Inc., and the Grant CountySheriff's Department to the Grant County Circuit Court; DENYING all remaining motions 19 , 61 , 63 , 68 , 70 , 72 , 77 , 78 , 80 , 82 , 86 , 106 , 108 , 109 , 112 , 120 , 140 , 141 , and 143 as moot. Signed by Judge Robert L Miller, Jr on 3/26/2015. (lhc)(cc: Certified copy to Grant County Circuit Court)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KIMBERLY SUE KRAEMER,

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Plaintiff
vs.
UNITED PARCEL SERVICE, et al.,
Defendants

CAUSE NO. 1:14-CV-170

OPINION AND ORDER
Kimberly Kraemer filed a pro se complaint in state court asserting a variety
of claims against multiple defendants. United Parcel Service and the Equal
Employment Opportunity Commission removed the case to federal court under 28
U.S.C. §§ 1331 and 1442, contending that consent of the eight remaining
defendants wasn’t necessary because the claims against them didn’t arise under
federal law or invoke supplemental jurisdiction. Magistrate Judge Cosbey agreed
and directed the parties to show cause why the claims against the “non-joining
defendants” – William Richards PC, the Law Offices of McNeeley Stephensen,
Thopy, and Harrold, Haulers Insurance Company, Indiana Farm Bureau, the
American Society for the Prevention of Cruelty to Animals, the Humane Society of
the United States, the American Kennel Club, Inc., and the Grant County Sheriff’s

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Department – shouldn’t be severed and remanded to the Grant County Circuit
Court under 28 U.S.C. § 1441(c)(2).1
Ms. Kraemer’s response to that order generated a flood of filings, including
the ten motions to dismiss and eleven miscellaneous motions now before the
court. For the reasons that follow, the court grants the motions to dismiss by
defendants UPS and the EEOC, severs the claims against the non-joining
defendants, and denies the remaining motions as moot.

I. BACKGROUND
Ms. Kraemer’s complaint contains multiple “allegations” of alleged
wrongdoing by the defendants, a lengthy and disjointed “explanation” of those
allegations, and 150 pages of random documents, but provides little or no insight
into the legal basis of the claims she asserts. Briefly summarized, Ms. Kraemer
alleges that:
1. McNeeley, Stephenson, Thopy & Harrold, Brett Haacker, and Scott
Richards (attorneys for Indiana Farm Bureau and Haulers Insurance
Company) brought a “fraudulent insurance case” against her after an
automobile accident in March 2012, “conspired ... to prevent the drivers
involved in the accident from testifying ...”, and engaged in conduct that

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Ms. Kraemer and five of the non-joining defendants (the AKC, ASPCA,
Humane Society, Haulers Insurance Company, and the Grant County Sheriff’s
Department) responded to the show cause order.

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violated the professional standards of ethical conduct and the “law” during
the course of that litigation. (Allegations 1 and 9; Explanation of
Allegations).
2. UPS “improperly and unlawfully” retaliated against her and
terminated her employment in February 2011, after she complained about
being sexually harassed, stalked, and discriminated against by a male
supervisor, and “perpetrated a fraud ... by placing her in an ‘Employee
Dispute Resolution Program’ ... in an attempt to dissuade Ms. Kraemer from
filing charges against UPS.” (Allegations 2-5, 8, 12, 14-18; Explanation of
Allegations).
3. “One or more attorneys provided improper and unethical legal
advice to [UPS], which advice resulted in retaliatory action being initiated
against [Ms. Kraemer],” and violated her “Equal Employment Opportunity
Rights”. (Allegation 7)
4. The EEOC failed to investigate her complaint against UPS.
(Allegation 10).
5. The Grant County Sheriff’s Department refused to investigate her
complaints of “harassment, stalking, and death treats”. (Allegations 6 and
19).
6. “Through the use of legal means, United Parcel Service, Mr. Brett
Haacker and his law firm [McNeeley, Stephenson, Thopy, and Harrold], ...

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Indiana Farm Bureau Insurance, [and] the American Society for the
Prevention of Cruelty to Animals (ASPCA) ... perpetrated ‘legal harassment’
and ‘legal stalking’ of [Ms.] Kraemer.” (Allegation 11).
7. UPS conspired with the ASPCA, Humane Society of the United
States, and “insurance companies” to pass laws that “prevent citizens from
owning property including animals”, to “defeat animal laws that benefit
United Parcel Service”, and to “harass” and “target” Ms. Kraemer and other
animal rights advocates and breeders because they “attack[] [their]
propaganda.” (Allegation 13; Explanation of Allegations).
8. The AKC and “some of its members” harassed Ms. Kraemer,
“attack[ed] [her] mother by trying to revoke her dog’s registration status”,
and, in 2008, aided a third party “in stealing intellectual property” –
information contained in an article published by an unidentified English
scientist. (Allegation 20; Explanation of Allegations).
The employment-related claims against UPS and the EEOC were properly
removed under 28 U.S.C. §§ 1441(c)(1)(A) and 1442(a)(1). As Magistrate Judge
Cosbey noted, the remaining claims don’t appear to be federal claims or to form
part of the same case or controversy as the claims against UPS and the EEOC.
Judge Cosbey ordered the parties to show cause why the claims against the nonjoining defendants shouldn’t be severed and remanded to the Grant County
Circuit Court [Doc. No. 11].

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In her response, Ms. Kraemer argued that the defendants were involved in
a “conspiracy to harass” and that their actions alone and together violated the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., the
Lobbying Disclosure Act of 1995, 2 U.S.C. § 1601, the Animal Enterprise
Terrorism Act, 18 U.S.C. § 43, the First Amendment, and various other federal
laws and regulations. She concludes that the claims are related and that the court
should retain jurisdiction over the entire matter.
The AKC, ASPCA, and Humane Society agree that the court has jurisdiction,
but for different reasons. The AKC surmises that the complaint could be read to
allege a claim for copyright infringement because Indiana law doesn’t recognize
a claim for “theft of intellectual property” (the language in the complaint), and that
the court would have original and exclusive jurisdiction over that claim under 28
U.S.C. § 1338(a). It also contends that the court would have supplemental
jurisdiction because the complaint alleges that the defendants engaged in a
“conspiracy to harass” the plaintiff. The ASPCA and Humane Society take it a step
further, arguing that the court has original and supplemental jurisdiction over the
claims asserted against them because the complaint and subsequent filings (Ms.
Kraemer’s response to the show cause order) allege violations of numerous federal
statutes, the First Amendment, and federal regulations, as well as a “conspiracy
to harass.” All three defendants filed motions to dismiss under Fed. R. Civ. P.
12(b)(6) [Doc. Nos. 19, 63, and 86].

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Haulers Insurance Company and the Grant County Sheriff’s Department
conceded in their responses to the show cause order that the claims against them
weren’t related to the federal claims against UPS and the EEOC and should be
severed and remanded, but they filed motions to dismiss [Doc. Nos. 68 and 80]
after Ms. Kraemer asserted that federal laws had been violated.
Indiana Farm Bureau, the Law Offices of McNeely, Stephenson, Thopy &
Harrold, and William R. Richards, P.C. followed with their own motions to dismiss
[Doc. Nos. 77, 78, and 82].

II. DISCUSSION
A. The Motions to Dismiss UPS and the EEOC
The exercise of supplemental jurisdiction is a matter of discretion, not a
matter of right, and can be declined for a variety of reasons, including dismissal
of all claims over which the court has original jurisdiction. See 28 U.S.C. § 1367(a)
and (c); City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 172-73 (1997).
It’s generally undisputed that the court has original jurisdiction over the claims
asserted against UPS and the EEOC, so discussion should begin with the motions
to dismiss those claims.
When considering a Rule 12(b)(6) motion to dismiss, the court must
construe the complaint in the light most favorable to the plaintiff, accept all
well-pleaded facts as true, and draw all inferences in her favor. Reynolds v. CB

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Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). But Fed. R. Civ. P. 8(a)(2)
"demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). "To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. at 678
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 570); see also Morrison v. YTB
Int'l, Inc., 649 F.3d 533, 538 (7th Cir. 2011); Brooks v. Ross, 578 F.3d 574, 581
(7th Cir. 2009). A claim is plausible if "the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atlantic Corp. v.
Twombly, 550 U.S. at 555 (the allegations “must be enough to raise a right to
relief above the speculative level” and give the defendant fair notice of the claims
being asserted and the grounds upon which they rest). See also Swanson v.
Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010)("the plaintiff must give enough
details about the subject-matter of the case to present a story that holds
together.").
Mindful of her pro se status, the court reads Ms. Kraemer’s pleadings and
filings liberally, see Donald v. Cook County Sheriff's Dept., 95 F.3d 548, 555 (7th
Cir. 1996); Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998) ("The essence
of liberal construction is to give a pro se plaintiff a break when, although [s]he

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stumbles on a technicality, [her] pleading is otherwise understandable."), but finds
them factually and legally deficient.
“A civil action alleging a Title VII violation must be filed within 90 days of
receiving a right-to-sue notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1).”
Threadgill v. Moore U.S.A., Inc., 269 F.3d 848 (7th Cir. 2001). The right-to-sue
notice attached to Ms. Kraemer’s complaint was dated April 29, 2011, and shows
that her charge against UPS was dismissed. Ms. Kraemer waited more than three
years to file the present action against UPS, and hasn’t provided a viable basis for
tolling the 90 day period. Her employment-related claims against UPS are time
barred.
Ms. Kraemer’s related claim against the EEOC for its alleged failure to
investigate her charges against UPS fails as a matter of law, and must be
dismissed. "It is well established that a private-sector employee has no cause of
action against the EEOC for its failure to process a charge of discrimination."
Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000); see also McCottrell v.
EEOC, 726 F.2d 350, 351 (7th Cir. 1984).

B. Severance of the Remaining Claims
As a general rule, jurisdiction is determined at the time of removal and
nothing filed after a notice of removal affects the court’s jurisdiction. St. Paul
Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 293 (1938); In re Burlington

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N. Santa Fe Ry. Co., 606 F.3d 379, 380-81 (7th Cir. 2010); In re Shell Oil, 970
F.2d 355, 356 (7th Cir. 1992) (per curiam). “[T]hough it is sometimes possible for
a plaintiff who sues in federal court to amend away jurisdiction, removal cases
present concerns about forum manipulation that counsel against allowing a
plaintiff’s post-removal amendments to affect jurisdiction.” In re Burlington N.
Santa Fe Ry. Co., 606 F.3d at 381. See also Rockwell Int’l Corp. v. United States,
549 U.S. 457, 473-474 and n. 6 (2007)).
Ms. Kraemer’s response to the show cause order and subsequent filings
show a clear desire to remain in federal court, but she can’t amend her complaint
by asserting new factual allegations and legal theories in response to the motions
to dismiss. Agnew v. Nat’l Collegiate Athletic Assn., 683 F.3d 328, 348 (7th Cir.
2012); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984).
Even if she could, Ms. Kraemer hasn’t alleged any facts that would support her
federal claims and “would allows the court to draw the reasonable inference that
the defendant[s] [are] liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (the
allegations “must be enough to raise a right to relief above the speculative level”
and give the defendant fair notice of the claims being asserted and the grounds
upon which they rest). See also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th
Cir. 2010) ("the plaintiff must give enough details about the subject-matter of the
case to present a story that holds together.")

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Ms. Kraemer’s claims involve three separate and distinct events: the
termination of her employment in February 2011, an automobile accident in
March 2012, and purported harassment and “stalking” related to Ms. Kraemer’s
involvement in animal rights issues. The claims against McNeeley, Stephenson,
Thopy and Harrold, William Richards PC, Indiana Farm Bureau, and Haulers
Insurance arise out of litigation related to an automobile accident that occurred
more than a year after the termination of Ms. Kraemer’s employment and have no
relationship to her past employment or to the EEOC’s alleged failure to investigate
Ms. Kraemer’s claims of sexual harassment and discrimination. The claims
against the AKC, ASPCA, and Humane Society appear to involve alleged acts of
harassment relating to Ms. Kraemer’s advocacy for animal rights, while the claims
against the Grant County Sheriff’s Department involve the Department’s alleged
failure to investigate Ms. Kraemer’s claims of harassment and threats dating back
to 2008.
The only common thread between those claims and the federal claims
asserted against UPS and the EEOC appears to be Ms. Kraemer’s conclusory
assertion that McNeeley, Stephenson, Thopy & Harrold, Indiana Farm Bureau,
and the ASPCA “conspired” with UPS to “perpetrate[] ‘legal harassment’ and ‘legal
stalking’.” The complaint has no factual allegations that would support such a
claim or show that the remaining claims asserted against the non-joining

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defendants “form part of the same case or controversy” as the federal claims
against UPS and the EEOC.
To the extent the complaint could be read to allege that the AKC engaged
in conduct that violated federal copyright laws it is factually and legally
insufficient. The plaintiff must be the legal or beneficial owner of a copyright to
state a claim for which relief can be granted under the Copyright Act. See 17
U.S.C. § 501(b); Hyperquest, Inc. v. N’Site Solutions, Inc., 632 F.3d 377, 381 (7th
Cir. 2011). Ms. Kraemer hasn’t alleged any facts from which the court could find
or infer that she is the legal or beneficial owner of the copyright that was allegedly
appropriated.
The non-employment claims against the non-joining defendants aren’t
within the court’s original or supplemental jurisdiction and so must be severed
and remand to the state court from which the action was removed. 28 U.S.C. §
1441(c)(2).

C. Miscellaneous Motions
Ms. Kraemer filed eleven motions seeking, among other things, to add the
President of the United States as a party, to remove yet another unrelated state
court case to federal court, to enjoin the Humane Society, ASPCA, and United
States Department of Agriculture from violating the copyright laws, to enter
judgment against Scott Richards and William R. Richards, P.C., and to sanction

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various defendants under Fed. R. Civ. P. 11(b). In light of the foregoing, those
motions [Doc. Nos. 61, 70, 72, 106, 108, 109, 112, 120, 140, 141, and 143] and
the non-joining defendants’ motions to dismiss [Doc. Nos. 19, 63, 68, 77, 78, 80,
82, and 86] are denied as moot.

III. CONCLUSION
For the foregoing reasons, the court:
(1) GRANTS the motions to dismiss by UPS and the EEOC [Doc. Nos.
[57 and 84];
(2) SEVERS AND REMANDS the remaining claims against defendants
William Richards PC, the Law Offices of McNeeley Stephensen, Thopy, and
Harrold, Haulers Insurance Company, Indiana Farm Bureau, the American
Society for the Prevention of Cruelty to Animals, the Humane Society of the
United States, the American Kennel Club, Inc., and the Grant County
Sheriff’s Department to the Grant County Circuit Court; and
(3) DENIES all remaining motions [Doc. Nos. 19, 61, 63, 68, 70, 72,
77, 78, 80, 82, 86, 106, 108, 109, 112, 120, 140, 141, and 143] as moot.
SO ORDERED.
ENTERED:

March 26, 2015

/s/ Robert L. Miller, Jr.
Judge
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United States District Court

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