Nkemakolam et al v. St. John's Military School et al

Filing 69

MEMORANDUM AND ORDER granting 21 Motion by defendant St. John's Military School to strike the exhibits attached to plaintiffs' amended complaint; denying 19 motion by defendant St. John's Military School to dismiss the claims agai nst it or alternatively to compel arbitration of those claims; and denying 31 Motion by defendant St. John's Military School to designate Topeka as the place of trial. The Clerk of Court shall strike the exhibits attached to plaintiffs' amended complaint from the record of the case. Signed by District Judge John W. Lungstrum on 6/26/2012. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

YOLANDA NKEMAKOLAM,
as Parent and Next Friend of K.N., et al.,

)
)
)
Plaintiffs,
)
)
v.
)
)
ST. JOHN’S MILITARY SCHOOL, et al.,
)
)
Defendants.
)
)
_______________________________________)

Case No. 12-2132-JWL

MEMORANDUM AND ORDER
The matter is presently before the Court on the motion by defendant St. John’s
Military School to dismiss the claims against it or alternatively to compel arbitration of
those claims (Doc. # 19). For the reasons set forth below, the motion is denied. The
matter is also before the Court on the motion by defendant St. John’s Military School to
strike the exhibits attached to plaintiffs’ amended complaint (Doc. # 21). That motion
is granted. Finally, the motion by defendant St. John’s Military School to designate
Topeka as the place of trial (Doc. # 31) is denied.

I.

Motion to Dismiss or Stay
A.

Factual Background

By their first amended complaint, seven plaintiffs have asserted claims against St.
John’s Military School (“St. John’s”) and two other defendants based on allegations of
mistreatment of students enrolled at St. John’s. Six of the plaintiffs are parents asserting
claims on behalf of their minor children; one former student asserts claims on his own
behalf.
In the case of each of the seven former students, a parent or guardian entered into
an enrollment contract with St. John’s that contained the following paragraph:
I understand that Cadet privileges will be suspended and academic credits,
transcripts, diploma, and other evidence of school accomplishments may
be withheld in the event of non-payment of any sums payable to the
School hereunder. Any disagreements, disputes, or potential causes of
action of any kind between St. John’s Military School and the
Parent/Guardian shall be submitted to final and binding arbitration to be
conducted according to the then-applicable rules of the American
Arbitration Association. Venue for the arbitration shall be in Salina,
Kansas. The obligation to arbitrate shall not be binding with respect to
claims by St. John’s Military School against the Parent/Guardian arising
out of the Parent/Guardian’s default under the Non-Negotiable Promissory
Note payable to St. John’s Military School. The parties agree that the
laws of the State of Kansas shall govern all actions or proceedings
between St. John’s Military School and the Parent/Guardian. For purposes
of entering a judgment on any arbitration award or for any other court
proceeding, whether initiated by me or by the School, the parties further
agree and consent that personal jurisdiction, subject matter jurisdiction,
and venue shall exclusively be the District Court of Saline County,
Kansas.
(Emphasis added.) The students themselves did not execute the contract.

2

B.

Governing Standards

St. John’s filed its motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), (3), and
(6), but in so moving it relies on evidence outside the complaint. Such a motion must
be treated as one for summary judgment. See Fed. R. Civ. P. 12(d). If neither party is
prejudiced, a court may convert a motion to dismiss to a motion for summary judgment
without further notice or opportunity for additional briefing. See Bizilj v. St. John’s
Military School, 2008 WL 4394713, at *1 (D. Kan. Sept. 24, 2008). Neither party is
prejudiced in this case, as defendant’s brief specifically addresses Bizilj, in which this
rule was applied, and plaintiffs’ brief cites the standard governing motions for summary
judgment. See id. (finding no prejudice in that case).
Summary judgment is appropriate if the moving party demonstrates that there is
“no genuine dispute as to any material fact” and that it is “entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
C.

Analysis

St. John’s seeks dismissal or a stay on the basis of its argument that the claims
against it must be submitted to arbitration pursuant to the above-quoted provision in the
agreement signed by the students’ parents or guardians. In Bizilj, Judge Murguia of this
District considered and rejected this argument by this same defendant based on a similar
arbitration provision in defendant’s enrollment contract. See Bizilj, 2008 WL 4394713,

3

at *2-3.1 Judge Murguia found no indication in the contract that the parties (St. John’s
and the parents) intended to include the minor students’ claims within the scope of the
arbitration provision. See id. at *3. Judge Murguia noted in that regard that the
contract’s terms focused on the obligations of St. John’s and the parents and that the
contract did not state that it was for the benefit of the children or that the children’s
rights were being waived. See id. (citing Fleetwood Enters., Inc. v. Gaskamp, 280 F.3d
1069, 1077 (5th Cir. 2002)).
Faced with Bizilj, St. John’s argues that Judge Murguia’s opinion is not binding
on this Court and was incorrectly decided. The Court finds the reasoning in Bizilj to be
sound and persuasive, however, and it follows Judge Murguia in concluding that the
arbitration provision does not encompass claims held by the minor students.
St. John’s cites cases supporting the position that a parent may enter into an
enforceable contract and agree to arbitration on behalf of her minor child. Plaintiffs do
not dispute that such contracts are possible, however. Similarly, in Bizilj, Judge Murguia
acknowledged that possibility.

See id. (citing cases cited by St. John’s here).

Nevertheless, Judge Murguia held, and this Court agrees, that there is no such contract

1

The provision in Bizilj stated that “[a]ny disagreements between SJMS and the
Parent/Guardian” were to be submitted to arbitration. St. John’s has since amended the
arbitration provision in its form enrollment contract to apply to “[a]ny disagreements,
disputes, or potential causes of action of any kind between St. John’s Military School
and the Parent/Guardian.” That change is not material, however, as the addition of
“disputes” and “causes of action” does not affect the scope of the provision as it relates
to claims asserted by minor students.
4

here, as the arbitration provision expressly applies only to disputes or claims held by the
parents or guardians who signed the contract, and does not apply also to claims held by
the students or even to claims arising out of the students’ enrollment or the enrollment
contract generally.2
With respect to the actual language of its arbitration provision, St. John’s only
argues that the provision must have been intended to cover students’ claims because in
Kansas a minor’s cause of action must be brought by a guardian. See Bonin v.
Vannaman, 261 Kan. 199, 212 (1996). The fact that a signatory may also be able to file
legal claims on behalf of non-signatories, however, does not suggest that all such claims
were intended to be included within the arbitration provision. The provision here applied
to the parent-signatories’ disputes or causes of action. As made clear by the Kansas case
cited by St. John’s, although the parent must bring the lawsuit, the cause of action
belongs to the minor child. See id. (“if a minor has a cause of action, it must be pursued
by a guardian”). Thus, the arbitration provision did not encompass causes of action held

2

The particular contractual term at issue thus distinguishes the present case from
the cases cited by St. John’s for the proposition that a parent may agree to arbitration on
behalf of a child. See Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392, 395 (Fla.
2005) (parent expressly signed contract on behalf of minor); Leong ex rel. Leong v.
Kaiser Foundation Hosps., 788 P.2d 164, 166 (Haw. 1990) (arbitration provision applied
to any claims arising out of rendition of services under the contract); Hojnowski v. Vans
Skate Park, 901 A.2d 381, 384 (N.J. 2006) (contract spoke in terms of minor as party,
with required signature of parent or guardian); Cross v. Carnes, 724 N.E.2d 828, 831
(Ohio Ct. App. 1998) (arbitration provision applied to any dispute arising out of release
or appearance of minor on television show); see also Hojnowski, 901 A.2d at 394
(distinguishing contrary cases on the basis of the language of particular contractual terms
at issue).
5

by the students, who did not sign the enrollment contract.
In its reply brief, St. John’s also argues that dismissal is mandated by the
contract’s forum selection clause, which applies to judgments on arbitration awards and
other court proceedings “initiated” by the parent-signatories. St. John’s suggests that the
parents “initiated” the present court case by filing it on behalf of their minor children.
As a preliminary matter, the Court does not entertain arguments made for the first time
in a reply brief. See, e.g., U.S. Fire Ins. Co. v. Bunge N. Am., Inc., 2008 WL 3077074,
at *9 n.7 (D. Kan. Aug. 4, 2008) (court will not consider issues raised for first time in
reply brief) (citing Minshall v. McGraw Hill Broadcasting Co., 323 F.3d 1273, 1288
(10th Cir. 2003)).
In addition, this argument fails on its merits. The Court concludes as a matter of
law that the forum selection clause is not broader in scope than the arbitration clause to
which it refers, as there is still no indication, based on a reading of the entire contractual
paragraph, that the parties intended to include students’ claims within the scope of the
provision. Moreover, the Court interprets the term “initiated” to mean proceedings
brought by the parents in their own name. See Bizilj, 2008 WL 4394713, at *2-3
(rejecting the argument by St. John’s under both the arbitration and forum selection
clauses).3

3

The Court also notes that this argument by St. John’s would not apply to the
claims of one plaintiff whose claim is asserted by a parent who did not sign the
enrollment contract, or to the claims of the former student who brought the claims on his
(continued...)
6

Accordingly, the Court concludes that the present suit is not precluded by the
enrollment contracts signed by parents or guardians of the former students whose claims
have been asserted here, and the Court therefore denies the motion to dismiss or stay.4

II.

Motion to Strike Exhibits

Pursuant to Fed. R. Civ. P. 12(f), defendant St. John’s moves to strike two
exhibits attached to plaintiffs’ amended complaint. As set forth in the complaint, the
first exhibit is a copy of an x-ray showing a broken bone suffered by one plaintiff, and
the second exhibit is a copy of a photograph of one plaintiff bound by tape.
Plaintiffs first respond that this motion is untimely because it was electronically
filed seven minutes after St. John’s filed its answer. Plaintiffs are correct that Rule 12(f)
allows for a court to act upon a motion filed before a party responds to the pleading at
issue, and that St. John’s did not file its motion before it filed its answer. Nevertheless,
the Court will not deny the motion as untimely for two reasons. First, the two filings
were essentially simultaneous, see 5C Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1361 (noting that courts have considered motions filed
simultaneously with answers as having been filed first), and the Court may strike matters

3

(...continued)

own behalf.
4

In light of this ruling, the Court need not address plaintiffs’ arguments based on
issue preclusion or the tuition refund given by St. John’s to one plaintiff.
7

from a pleading on its own motion at any rate, see id. § 1380 (because Rule 12(f) allows
a court to act on its own motion, courts will consider untimely motions). Second,
plaintiffs have filed a motion for leave to amend their complaint, which defendants have
only partially opposed, and the proposed second amended complaint contains these same
exhibits and two additional photographs; thus, even if the Court did not address this
motion, the same issue would likely arise in the context of the amended complaint.
Plaintiffs also argue that the Court should strike the motion for failure to comply
with D. Kan. Rule 7.1, which requires that a motion be accompanied by a brief, and D.
Kan. Rule 7.6, which sets forth the required contents for a brief. The Court will not
strike the motion on this basis. In furtherance of efficiency and economy, this Court
routinely allows parties to file shorter motions that also contain the party’s argument
within the same document. The clear intent of Rule 7.1 is to ensure that a party does not
seek relief by motion without also providing argument and authority, and St. John’s has
provided both in this motion. See D. Kan. Rule 7.1(a)(4) (court may relieve parties of
complying with the rule). Moreover, the argument by St. John’s adequately covers the
matters set forth in Rule 7.6.
Turning to the merits of the motion, the Court first rejects the argument by St.
John’s that the exhibits to plaintiffs’ complaint should be stricken as scandalous, see Fed.
R. Civ. P. 12(f), as the x-ray and photograph do not offend the dignity of the Court, are
related to plaintiffs’ factual allegations, and do not degrade any defendant’s moral
character any more than do the allegations themselves. See Dean v. Gillette, 2004 WL
8

3202867, at *1 (D. Kan. June 8, 2004).
The Court does conclude, however, that these exhibits should be stricken as
immaterial, see Fed. R. Civ. P. 12(f), for the reason this photograph and x-ray were not
properly included in plaintiffs’ complaint under the Federal Rules of Civil Procedure.5
The Rules consistently describe pleadings as containing “statements” and “allegations”,
see Fed. R. Civ. P. 8, 9, and such language does not contemplate photographs or other
objects. See Cabot v. Wal-Mart Stores, Inc., 2012 WL 1378529, at *2-3, 7 (D.N.M. Apr.
10, 2012). Rule 10, which is titled “Form of Pleadings,” addresses exhibits to pleadings
as follows: “A copy of a written instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.” Fed. R. Civ. P. 10(c). The courts that have considered this
issue have concluded that the Rules thus do not contemplate the attachment of exhibits,
such as photographs, that are not written instruments. For instance, the Third Circuit has
stated: “The case law demonstrates, however, that the types of exhibits incorporated
within the pleadings by Rule 10(c) consist largely of documentary evidence, specifically
contracts, notes, and other writings on which a party’s action or defense is based.” See
Rose v. Bartle, 871 F.2d 331, 339 n.3 (3d Cir. 1989) (internal quotation omitted)
(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
1327) (holding that an attached affidavit was not a “written instrument” under Rule 10(c)

5

St. John’s raised this issue in its reply brief, and the Court would ordinarily not
consider an issue raised in that fashion, as noted above. The Court considers the issue
on its own motion as permitted by Rule 12(f), however, particularly given plaintiffs’
pending motion to file an amended complaint that includes these and additional exhibits.
9

and thus was not properly considered part of the pleadings). Similarly, in Perkins v.
Silverstein, 939 F.2d 463 (7th Cir. 1991), the Seventh Circuit commented on the
complaint before it as follows: “The newspaper articles, commentaries and editorial
cartoons which Perkins attached to the complaint referencing this ‘scandal’ are not the
type of documentary evidence or ‘written instruments’ which Fed. R. Civ. P. 10(c)
intended to be incorporated into, and made a part of, the complaint.” Id. at 467 n.2
(citing 5 Wright & Miller § 1327); see also Cabot, 2012 WL 1378529, at *8
(photographs are not “written instruments” contemplated by Rule 10(c)).
In this case, the x-ray and photograph attached to plaintiffs’ complaint are not
intended as assertions of fact or expressly incorporated into the body of the complaint;
rather, they are clearly intended as evidence to support specific factual allegations by
plaintiffs. They are not “written instruments” and thus are not the types of exhibit
contemplated by Rule 10 as proper attachments to a pleading.6 Accordingly, the exhibits
are immaterial, and the Court orders them stricken for that reason.7

III.

Motion to Designate Topeka as the Place of Trial

6

The Court does not foreclose the possibility that a photograph could have such
declarative value, and could properly be admitted or denied as an allegation, such that
its inclusion in a pleading would not be improper. The exhibits at issue here, however,
do not meet that standard.
7

Any amended complaints filed by plaintiffs in the future, including the amended
complaint presently proposed for filing by plaintiffs, should not include such exhibits.
10

In initiating this suit, plaintiffs designated Kansas City as the place of trial. St.
John’s now asks the Court to change that designation to Topeka pursuant to D. Kan.
Rule 40.2.
D. Kan. Rule 40.2(e) provides:
The court is not bound by the requests for place of trial. It may determine
the place of trial upon motion or in its discretion.
The parties have agreed that the following standards, set forth by this Court in a previous
case, govern the resolution of the instant motion:
In considering a motion for intra-district transfer, the courts of this district
generally look to the same factors relevant to motions for change in venue
under 28 U.S.C. § 1404(a).
. . . This statute grants a district court broad discretion in deciding
a motion to transfer based on a case-by-case review of convenience and
fairness. The court considers the following factors in determining whether
to transfer the case: (1) plaintiff’s choice of forum; (2) the convenience of
the witnesses; (3) the accessibility of witnesses and other sources of proof;
(4) the possibility of obtaining a fair trial; and (5) all other practical
considerations that make a trial easy, expeditious and economical.
The party seeking to transfer the case has the burden of proving that
the existing forum is inconvenient. Generally, unless the balance weighs
strongly in favor of transfer, the plaintiff’s choice of forum is not
disturbed. However, because that rule turns on the assumption that the
plaintiff resides in the chosen forum, it is largely inapplicable if, as here,
the plaintiff does not reside there.
Twigg v. Hawker Beechcraft Corp., 2009 WL 1044942, at *1-2 (D. Kan. Apr. 20, 2009)
(Lungstrum, J.) (citations and footnote omitted).
The Court concludes that St. John’s has not met its burden to justify a transfer to
Topeka. First, although the Court’s deference to plaintiffs’ choice of forum is lessened
11

by the fact that they do not reside in Kansas, plaintiffs’ designation of Kansas City as the
place of trial remains at least a factor to be considered. See id. at *2. Second, although
Topeka is closer to Salina, where St. John’s is located and where plaintiffs’ claims arose,
the presence of a large airport makes Kansas City a more convenient forum for plaintiffs,
who must travel to Kansas.

Thus, although Topeka might be marginally more

convenient for St. John’s and its witnesses, that factor is at least counter-balanced by the
loss in convenience to plaintiffs and other witnesses residing outside the state, such as
former students of St. John’s, plaintiffs’ physicians, and other potential expert witnesses,
that would occur with a transfer to Topeka.
St. John’s has not shown that witnesses or other sources of proof would be any
more accessible if the trial were moved to Topeka; thus, the third factor does not weigh
in favor of transfer here. With respect to the fourth factor, St. John’s has in other
proceedings in this case raised the specter of an unfair trial resulting from media
coverage. Thus, to the extent that this factor bears any weight in this case, it weighs in
favor of keeping the trial a greater distance from Salina. Fifth, the fact that counsel both
for St. John’s and for plaintiffs have their offices in the Kansas City area weighs against
the requested transfer.
In summary, a consideration of the applicable factors does not favor the requested
change of the place of trial from Kansas City to Topeka. For that reason, the motion by
St. John’s is denied.

12

IT IS THEREFORE ORDERED BY THE COURT THAT the motion by
defendant St. John’s Military School to dismiss the claims against it or alternatively to
compel arbitration of those claims (Doc. # 19) is denied.

IT IS FURTHER ORDERED BY THE COURT THAT the motion by defendant
St. John’s Military School to strike the exhibits attached to plaintiffs’ amended complaint
(Doc. # 21) is granted. The Clerk of Court shall strike those exhibits from the record
of the case.

IT IS FURTHER ORDERED BY THE COURT THAT the motion by defendant
St. John’s Military School to designate Topeka as the place of trial (Doc. # 31) is denied.

IT IS SO ORDERED.

Dated this 26th day of June, 2010, in Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

13