Fuller v. State of Kansas, Department of Children & Families
Filing
47
MEMORANDUM AND ORDER denying 41 defendants' Motion to Dismiss. See Order for details. Signed by District Judge Daniel D. Crabtree on 03/21/2018. (tvn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CLARA R. FULLER,
Plaintiff,
v.
Case No. 16-2415-DDC-JPO
STATE OF KANSAS, DEPARTMENT
OF CHILDREN & FAMILIES, et al.,
Defendants.
____________________________________
MEMORANDUM AND ORDER
This case arises out of an employment dispute. Plaintiff Clara R. Fuller alleges that
defendant the Kansas Department of Children and Families (“DCF”) discriminated against her
because of her race, gender, and age through defendants Stephanie Henderson, Lewis Kimsey,
Lisa Locke, and Sandra Kimmons (collectively, the “DCF employees”). The defendants did so,
she asserts, when DCF both hired and fired her. Plaintiff, proceeding pro se, has filed an
Amended Complaint (Doc. 33) asserting claims under Title VII, the Age Discrimination in
Employment Act (“ADEA”), and 42 U.S.C. § 1983 against the DCF employees in their official
and individual capacities. The Amended Complaint does not name DCF as a defendant. But the
court already has ruled that any suit brought here against the DCF employees in their official
capacity is, in effect, a suit against DCF. Doc. 36 at 3. See also Bell v. City of Topeka, Kan., No.
06-4026-JAR, 2007 WL 628188, at *3 (D. Kan. Feb. 26, 2007) (“Official capacity suits are
treated in all respects as suits against the underlying entity.”).
This matter comes before the court on defendants’ Motion to Dismiss (Doc. 41).
Defendants move to dismiss all claims for two reasons. First, defendants argue that plaintiff
never served the DCF employees properly and thus Federal Rule of Civil Procedure 12(b)(5)
requires the court to dismiss this action against them. Second, defendants argue that, under Rule
12(b)(6), the court must dismiss the Amended Complaint because it fails to state a claim for
relief. While the theory of defendants’ motion is intricate and the analysis is a nuanced one, the
court ultimately concludes that plaintiff served the DCF employees improperly both in their
official and individual capacities. So, the court does not have jurisdiction yet over defendants
and cannot decide whether the Amended Complaint states a claim for relief. See Fed. R. Civ. P.
4(k) (providing that the court only has personal jurisdiction over defendants when plaintiff
properly serves them); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)
(“ʻWithout jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to
declare the law, and when it ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.’” (quoting Ex parte McCardle, 74 U.S. (7 Wall.)
506, 514 (1868))). The court thus denies that aspect of defendants’ motion with leave to refile
after plaintiff serves all defendants properly. The court directs the Clerk’s office to prepare
summonses for the DCF employees both in their official and individual capacities, as described
later in this Order. The court explains its reasoning, below.
I.
Service of Process
The DCF employees argue that plaintiff never served them properly. The United States
Marshals Service mailed the summonses for the four DCF employees sued in both their
individual and official capacities to DCF’s local office in Topeka, Kansas. The DCF employees
argue that this method of service can’t effect service of the official capacity suits because
plaintiff never served DCF’s chief executive officer or the Attorney General of Kansas. Doc. 42
at 5. Defendants also argue that the Marshals Service never effected service of the individual
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capacity suits because plaintiff never personally served them or mailed the summonses to their
residences. Doc. 42 at 6.
The court first addresses the DCF employees’ argument about service on them in their
official capacity. When plaintiff brings a suit against government officials in their official
capacity, plaintiff really brings a suit against the officials’ office. Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989). So, plaintiff must serve the government officials in their official
capacity in a fashion authorized by the Federal Rules or state law for serving a governmental
entity. See Schalk v. Gallemore, 906 F.2d 491, 498 (10th Cir. 1990) (explaining that when a
plaintiff sues officials in their official capacity, plaintiff must give notice to their employer).
Plaintiff can accomplish this in one of two ways. First, plaintiff can deliver the summonses
personally to the chief executive officer of the agency at which the official works. Fed. R. Civ.
P. 4(j)(2)(A). Or second, plaintiff can send the summonses via certified mail to the Attorney
General of Kansas. Kan. Stat. Ann. § 60-304(d); see also Fed. R. Civ. P. 4(j)(2)(B) (allowing
service on a governmental entity in any manner allowed by state law). Since mailing the
summonses to the DCF employees’ office is not a method authorized by the Federal Rules or
Kansas law for service on government officials sued in their official capacity, the DCF
employees correctly argue that plaintiff never served them with an official capacity suit properly.
But this shortcoming provides no reason to dismiss plaintiff’s Amended Complaint.
When a plaintiff proceeding in forma pauperis provides the Clerk’s Office with all the necessary
information, “the court simply will instruct the clerk’s office and U.S. Marshal to correct the
defects in service without dismissing the action.” Garland v. Kan. Dep’t of Revenue, No. 934241-SAC, 1994 WL 66614, at *1 n.2 (D. Kan. Jan. 31, 1994). So, even though the DCF
employees are technically correct that the U.S. Marshals’ service on them in their official
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capacity was defective, they do not deserve the requested dismissal. See, e.g., id. (denying a
motion to dismiss for insufficient service because the court granted plaintiff in forma pauperis
status); see also Davenport v. Wal-Mart Stores, Inc., No. 14-cv-2124-JAR-JPO, 2014 WL
3361729, at *3 (D. Kan. July 9, 2014) (same). At most, defendants’ motion presents an
opportunity to correct a mistake for which plaintiff is not accountable. The court thus directs the
Clerk of the Court to prepare and issue summonses for the DCF employees in their official
capacity. Also, the court directs the United States Marshals Service to serve these new
summonses along with a copy of the Amended Complaint either by delivering the summonses to
DCF’s chief executive officer or sending the summonses via certified mail to the Attorney
General of Kansas.
Turning to the issue of service on the DCF employees in the suit against them in their
individual capacity, plaintiff can serve officials sued in their individual capacity in any manner
allowed by the Federal Rules of Civil Procedure or state law for serving an individual. Fulcher
v. City of Wichita, 445 F. Supp. 2d 1271, 1275 (D. Kan. 2006). Typically, plaintiffs serve
individuals by personally serving them, Fed. R. Civ. P. 4(e)(2)(A), or by mailing the summonses
to the individuals’ home, Kan. Stat. Ann. § 60-304(a). But Kansas law also allows plaintiff to
serve individuals by leaving copies of the summons and Complaint at the individuals’ work but
only if plaintiff tries to serve the individuals at their home and the service is refused or
unclaimed. Kan. Stat. Ann. § 60-304(a). And plaintiff must file a return of service explaining
that service was refused or unclaimed for the court to allow this type of service. Id.
Here, plaintiff has filed no return of service saying that service on the DCF employees’
homes was refused or unclaimed. So, plaintiff never served the DCF employees in their
individual capacity properly. But, again, this shortcoming provides no reason to dismiss
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plaintiff’s Amended Complaint. When a plaintiff proceeding in forma pauperis provides the
Clerk’s Office with all the necessary information, “the court simply will instruct the clerk’s
office and U.S. Marshal to correct the defects in service without dismissing the action.”
Garland, 1994 WL 66614, at *1 n.2. So, while the DCF employees are correct that the United
States Marshals served them with the individual capacity suits defectively, they are not entitled
to the requested dismissal. See, e.g., id. (denying a motion to dismiss for insufficient service
because the court granted plaintiff in forma pauperis status); see also Davenport, 2014 WL
3361729, at *3 (same). At most, defendants’ motion presents an opportunity to correct a mistake
for which plaintiff is not accountable. The court thus directs the Clerk of the Court to prepare
and issue summonses for the DCF employees in their individual capacity. Plaintiff must provide
the Clerk with any information that would allow the Marshals Service to serve the DCF
employees personally or at their homes.
If plaintiff is unable to provide this information, she must file an affidavit providing that
she does not know where the DCF employees live and that she believes the DCF employees
work in Kansas. See Kan. Stat. Ann. § 60-304(h) (providing a way for plaintiff to serve an
individual when she does not know where the individual lives). In this circumstance, plaintiff
can request that the United States Marshals Service direct “an officer, partner, managing or
general agent[,] or the individual having charge over” the DCF employees’ office to allow the
Marshals to serve the DCF employees. Id.
The court makes one final observation about all this back and forth on service of process.
The court has addressed service issues twice now even though it seems undisputed that all
defendants know about the current lawsuit. The rules of service of process are important; but at
some point, enough is enough. Plaintiff filed this case nearly two years ago. The parties have
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not even begun discovery. Instead, defendants’ counsel has filed repeated motions challenging
procedural defects that do not prejudice her clients. Plaintiff has made some errors; but she lacks
the experience practicing law possessed by sophisticated lawyers. The rules for litigating a case
in federal court can be tricky. The court anticipates a pro se plaintiff might stumble when trying
to conform to these rules. The court reminds defendants’ counsel that arguments that “would
exalt form over substance” are not favorites of our court. Melcher v. United States, No. 12-1183EFM-GLR, 2012 WL 5289627, at *3 (D. Kan. Oct. 23, 2012). If defendants find legitimate
shortcomings in the merits of plaintiff’s case, by all means they should litigate them zealously.
But technical arguments that needlessly delay a case do not conform to Rule 1 of the Federal
Rules of Civil Procedure. See Fed. R. Civ. P. 1 (“[The Federal Rules of Civil Procedure] should
be construed, administered, and employed by the court and the parties to secure the just, speedy,
and inexpensive determination of every action and proceeding.”).
II.
Conclusion
For reasons outlined above, the court denies defendants’ Motion to Dismiss (Doc. 41)
without prejudice, with leave to refile after they are served properly. The court otherwise denies
the motion.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ Motion to
Dismiss (Doc. 41) is denied.
IT IS FURTHER ORDERED THAT the Clerk of the Court must prepare and issue
summonses to the United States Marshals Service, who must serve the DCF employees in their
official capacity these new summonses along with a copy of the Amended Complaint. The
Marshals Service must serve the DCF employees in their official capacity either by personally
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serving the DCF chief executive officer—Gina Meier-Hummel—or by sending the summonses
via certified mail to the Attorney General of Kansas.
IT IS FURTHER ORDERED THAT the Clerk of the Court must prepare and issue
summonses to the United States Marshals Service, who must serve the DCF employees in their
individual capacity these new summonses along with a copy of the Amended Complaint by
either personally serving the DCF employees or mailing via certified mail the summonses to
their residences. If plaintiff cannot provide information that would allow the Marshals to serve
the DCF employees personally or at their homes, plaintiff can file an affidavit that to the best of
her knowledge, the DCF employees work in Kansas and plaintiff does not know where they live.
She can then request that the Marshals ask the manager of the DCF employees’ office to allow
them to serve the DCF employees in their individual capacity.
IT IS SO ORDERED.
Dated this 21st day of March, 2018, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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