Jenkins-Dyer v. Drayton et al

Filing 47

MEMORANDUM AND ORDER granting in part and denying in part 37 Plaintiff's Motion for Leave to Amend Complaint. Signed by Magistrate Judge David J. Waxse on 05/27/2014. (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ISOKE N. JENKINS-DYER,

)
)
Plaintiff,
)
)
v.
)
)
ANITA L. DRAYTON, et al.,
)
)
Defendants.
)
__________________________________________)

CIVIL ACTION
No. 13-2489-JAR-DJW

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s pro se Motion For Leave To File Plaintiff’s
Second Amended Complaint (ECF No. 37). Plaintiff seeks to amend her complaint to state with
more particularity her allegations against Defendant ExxonMobil Corporation under the
Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”), and to add as a
party defendant Douglas F. Garrison, ExxonMobil Employee Benefits Plan Administrator. For
reasons stated below, the Court grants Plaintiff’s motion.
I.

Background Information
On July 19, 2013, Plaintiff filed her petition pro se in the District Court of Wyandotte

County, Kansas. She names two defendants, Anita L. Drayton and ExxonMobil Corporation,
against whom she alleges intentional torts arising out of Defendants’ allegedly wrongful
withholding of proceeds of an employee benefit plan.1 Plaintiff’s petition does not set out

1

ECF No. 7.
1

separate causes of action against each Defendant and it makes no mention of ERISA.2 On
September 18, 2013, ExxonMobil filed a notice of removal, asserting that this Court has
jurisdiction over Plaintiff’s claims because the petition alleges a cause of action under ERISA.3
Both Defendants sought an extension of time to answer or otherwise respond to the petition, and
before the new deadline Defendants filed separate motions to dismiss under Federal Rule of
Civil Procedure 12(b).4 Plaintiff then moved to amend her complaint to set forth separate counts
against each Defendant and to state two ERISA claims against ExxonMobil.5 One month later
Plaintiff filed a motion for summary judgment.6 Before the Court ruled on the motions, Plaintiff
filed a second motion for leave to amend.7 In her second motion, Plaintiff repeats the amended
allegations from her first motion and also seeks to add another defendant, Douglas F. Garrison,
to her ERISA claims.
II.

Legal Standards
Rule 15 of the Federal Rules of Civil Procedure allows a party to amend the party’s

pleading once as a matter of course (1) within 21 days after serving it or (2) within 21 days after

2

Plaintiff alleges that Drayton converted the employee benefit proceeds to her own
personal use and benefit and that Drayton’s claim was fraudulent and amounted to conversion.
Plaintiff alleges that ExxonMobil was negligent and that its actions also amounted to conversion.
3

ECF No. 1.

4

ECF No. 13 (Defendant Anita L. Drayton Wood’s Motion to Dismiss); ECF No. 15
(Defendant ExxonMobil Corporation’s Motion to Dismiss).
5

ECF No. 23.

6

ECF No. 30.

7

ECF No. 37. Upon filing her second motion for leave to amend, the Court entered an
order denying as moot Plaintiff’s first motion for leave to amend. See ECF No. 38.
2

a responsive pleading or a Rule 12(b), (e), or (f) motion is served.8 Subsequent amendments are
allowed only by leave of court or by written consent of the adverse party.9 Leave to amend is a
matter committed to the sound discretion of the district court,10 and the court “should freely give
leave when justice so requires.”11 A district court should refuse leave to amend “only upon a
showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive,
failure to cure deficiencies by amendments previously allowed, or futility of amendment.”12 A
proposed amendment is futile if the amended complaint would be subject to dismissal.13
The Court also liberally construes the pleadings of a pro se plaintiff.14 This does not
mean, however, that the Court must become an advocate for the pro se plaintiff.15 Liberally
construing a pro se plaintiff’s complaint means that “if the court can reasonably read the
pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the
plaintiff’s failure to cite proper legal authority, [her] confusion of various legal theories, [her]
poor syntax and sentence construction, or [her] unfamiliarity with pleading requirements.”16

8

Fed. R. Civ. P. 15(a)(1).

9

Fed. R. Civ. P. 15(a)(2).

10

Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991).

11

Fed. R. Civ. P. 15(a)(2).

12

Wilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010) (internal citation omitted).

13

Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007).

14

See Jackson v. Integral, Inc., 952 F.2d 1260, 1261 (10th Cir. 1991).

15

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

16

Id.
3

III.

Analysis
Plaintiff acknowledges Defendants’ motions to dismiss and urges the Court to give her an

opportunity to amend her pleading before dismissing her case for failure to state a claim upon
which relief can be granted. As drafted, Plaintiff’s Second Amended Complaint recognizes that
her allegations relating to ExxonMobil’s employee savings plan should be framed as ERISA
causes of action and that the plan administrator is a proper party defendant.17 ExxonMobil and
Drayton argue that Plaintiff’s motion should be denied as futile and they repeat and/or
specifically incorporate arguments from their briefs in support of their respective motions to
dismiss. While a plaintiff’s motion to amend and a defendant’s motion to dismiss often have
arguments in common, as they do here, they do not share the same legal standard. Thus, even if
the case is ultimately disposed of through a renewed motion to dismiss, that does not
automatically make amendment futile as a matter of law.
A.

Futility

It is well settled that a court may deny a motion to amend as futile if the proposed
amendment would not withstand a motion to dismiss or if it otherwise fails to state a claim.18
Dismissal of a claim under Rule 12(b)(6) is appropriate only when it appears “beyond a doubt”
that a party can prove no set of facts in support of the theory of recovery that would entitle her to
relief.19 The issue before this Court is therefore not whether Plaintiff ultimately will prevail on
17

See 29 U.S.C. § 1132(a)(1)(B) (benefits due); 29 U.S.C. § 1132(a)(3) (breach of
fiduciary duty); 29 U.S.C. § 1132(c) (penalty for failure to provide copies of plan documents).
18

Lyle v. Commodity Credit Corp., 898 F. Supp. 808, 810 (D. Kan. 1995) (citing Ketchum
v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992)).
19

Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d
1302, 1304 (10th Cir. 1998).
4

her ERISA and intentional tort claims, but whether she is entitled to offer evidence to support
her allegations.20
1.

Drayton’s Opposition

Drayton argues that Plaintiff’s proposed Second Amended Complaint is futile because it
does not provide a basis for the Court to exercise personal jurisdiction over Drayton. Drayton
has also filed a motion to dismiss Plaintiff’s petition for lack of personal jurisdiction.21 In
opposing Plaintiff’s motion to amend, Drayton raises a single argument, i.e. that Plaintiff has
asserted no new factual allegation which would permit the Court to exercise jurisdiction.
Drayton incorporates the arguments she made in her memorandum in support of her motion to
dismiss and in her reply in further support thereof.22 Drayton has not articulated a basis for the
Court to deny Plaintiff an opportunity to file and serve her Second Amended Complaint.
Instead, Drayton asserts that the pleading is futile because the Court lacks jurisdiction and she
specifically denies that the proposed Second Amended Complaint asserts relevant new factual
allegations. Accordingly, Drayton has not set forth a reason for the Court to deny Plaintiff’s
motion to amend.
2.

ExxonMobil’s Opposition

ExxonMobil asserts that the marriage between Connington Wood and Defendant Drayton
was valid, and that as a consequence Plaintiff’s benefits due and fiduciary duty claims (both
asserted in Count I) cannot stand as a matter of law. ExxonMobil relies on a telephone call that
20

See Baumann v. Hall, No. 98-2126-JWL, 1998 WL 513008, at *1 (D. Kan. July 15,
1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
21

See ECF No. 13.

22

See ECF No. 41 at 1-2.
5

counsel made to the Clerk of Harris County, Texas, as support for the validity of the marriage.
In the face of Plaintiff’s allegation that Wood was incapable of entering into a valid marriage –
an allegation which the Court assumes as true – the Court does not find that a telephone call
constitutes dispositive evidence to the contrary.
ExxonMobil also asserts that Plaintiff’s claims against it are barred by applicable statutes
of limitations and refers the Court to its briefing in support of its motion to dismiss.23 In general,
a cause of action for benefits due under ERISA accrues when an application for benefits is
denied.24 With respect to the benefits due claim in Count I, Plaintiff asserts that she appealed a
notice from ExxonMobil dated February 21, 2008 informing her that it intended to award
benefits to Drayton, and that she has not received a reply to her appeal. In other words, Plaintiff
contends that she has not received a final denial and her claim is therefore timely. Because the
issue is one of accrual, it applies to statutes of limitations regardless of their source. Plaintiff’s
benefit due claim in Count I is therefore not barred by the statutory or contractual limitations
periods.
With respect to the breach of fiduciary duty claim, also set forth in Count I, ExxonMobil
recognizes that allegations of concealment extend the limitations period to six years.25 Plaintiff’s
proposed Second Amended Complaint contains numerous allegations that Defendants concealed
information from her.26 Accordingly, neither is the breach of fiduciary duty claim in Count I
23

See ECF No. 26.

24

See, e.g., Held v. Mfrs. Hanover Leasing Corp., 912 F.2d 1197, 1205-06 (10th Cir.

25

See 29 U.S.C. § 1113.

26

ECF No. 37-1 ¶¶ 50-57.

1990).

6

barred by the statutory limitations period.
Finally, ExxonMobil argues that Plaintiff’s claim for damages for failure to provide
requested documents (Count II) is a penalty claim and is therefore barred by a borrowed oneyear Kansas state statute of limitations.27 Plaintiff takes issue with ExxonMobil’s
characterization of her claim for damages under 29 U.S.C. § 1132(c)(1)(B) as an action for
statutory penalty, arguing that the claim is governed by the limitation provisions found in 29
U.S.C. § 1113. Plaintiff cites no support for her assertion, however, and courts have rejected the
notion that a Section 1132(c)(1)(B) claim is governed by Section 1113.28
The Court finds that Count II is subject to the one-year statute of limitations in K.S.A.
60-514. Plaintiff asserts that she requested information from ExxonMobil on October 10, 2007,
and again on November 1, 2007. The statute of limitations for a Section 1132(c)(1)(B) claim
expired in 2008. Plaintiff filed her lawsuit on September 18, 2013.29 Accordingly, the Court
denies as futile Plaintiff’s motion to amend her complaint with respect to the proposed Count
II.30
B.

Issue Preclusion

ExxonMobil takes issue with certain allegations in Plaintiff’s proposed Second Amended

27

See Palenske v. Westar Energy, Inc., Case No. 04-4167-JAR, 2005 WL 2455750, at *2
(D. Kan. October 5, 2005) (finding K.S.A. 60-514 to be most analogous statute of limitations for
claim under 29 U.S.C. § 1132(c) for refusal to provide requested information, and citing cases
from other district courts applying various states’ limitations periods for actions upon a statute
assessing a penalty).
28

E.g., Meyer v. Phillip Morris, Inc., 569 F. Supp. 1510, 1512 (E.D. Mo. 1983).

29

See ECF No. 1-1.

30

See ECF No. 37-1 at 13-14.
7

Complaint which describe two earlier interpleader lawsuits concerning Connington Wood’s
employee life insurance policy and benefits under his ExxonMobil pension and disability plans.31
Plaintiff alleges that the issues in this case are the same as were present in the intervenor
lawsuits, and that both lawsuits resulted in an award of benefits in her favor.32
ExxonMobil asserts that Plaintiff’s allegations about the earlier lawsuits “appear to make
a new argument.”33 ExxonMobil identifies the argument as one of issue preclusion and asserts
that it does not apply in this case,34 but ExxonMobil does not articulate how its position relates to
or opposes Plaintiff’s motion to amend her complaint. Plaintiff is entitled to set forth factual
allegations in a complaint without having to precisely set forth her theory or theories of recovery,
and she is also permitted to state inconsistent claims.35 The Court will not prevent a plaintiff,
particularly one who is proceeding pro se, from including factual allegations in her pleading
which might ultimately be necessary to support a theory of relief.36 “Liberality in amendment is
important to assure a party a fair opportunity to present his claims and defenses.”37 The place for

31

See proposed Plaintiff’s Second Amended Complaint (ECF No. 37-1) at 8-9 ¶¶ 41-49.

32

Id. at 8-9 ¶¶ 42-43, 46-47.

33

ECF No. 40 at 12.

34

Id. at 12-14.

35

Fed. R. Civ. P. 8(a), (d)(3).

36

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (liberally construing pro se
pleading means that pleading should be allowed if reasonable reading shows valid claim stated,
even if various legal theories confused).
37

Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994) (quoting Freeman
v. Continental Gin Co., 381 F.2d 459, 469-70 (5th Cir. 1967).
8

such precision will be in the pretrial order that ultimately will be entered in this case.38
IV.

Conclusion
For the reasons set forth above, the Court finds that in the interests of justice Plaintiff

should be granted leave to amend her Complaint except as to Count II of her proposed Second
Amended Complaint. The Court finds that amendment of Count II would be futile. The Court
further finds that Plaintiff’s motion is timely and that amendment as to all but Count II will not
cause Defendants undue prejudice. Accordingly, Plaintiff’s motion for leave to amend will be
granted in part and denied in part.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to File Plaintiff’s
Second Amended Complaint (ECF No. 37) is granted as to all but Count II. In accordance with
D. Kan. Rule 15.1(b), Plaintiff shall electronically file and serve her Second Amended
Complaint within fourteen (14) days of the date of this Order.
IT IS FURTHER ORDERED that Plaintiff shall have fourteen (14) days from the date
of filing of this Order to serve a summons and the Second Amended Complaint on Douglas F.
Garrison. Newly added defendant Douglas F. Garrison shall plead in response to Plaintiff’s
Second Amended Complaint as set forth in Fed. R. Civ. P. 12(a)(1).
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Plaintiff’s
Second Amended Complaint (ECF No. 37) is denied as to Count II.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 27th day of May, 2014.

38

See Moral v. Hagen, Case No. 10-2595-KHV, 2013 WL 1660484, at *7 (D. Kan. April
17, 2013) (pretrial order controls course of action and finalizes claims, issues, defenses, and
theories of damages).
9

s/ David J. Waxse
David J. Waxse
United States Magistrate Judge

10