Lindsey v. Parnell Corporate Services, U.S., Inc. et al

Filing 36

MEMORANDUM AND ORDER taking under advisement 24 DEFENDANTS' PARNELL, INC. AND PARNELL U.S. 1, INC.'S MOTION TO DISMISS; granting in part and denying in part 28 MOTION FOR LEAVE TO CONDUCT DISCOVERY BEFORE RESPONDING TO DEFENDANTS' MOTION TO DISMISS/MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANTS' MOTION TO DISMISS (to the extent indicated in this order); granting in part and denying in part 31 MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT (as stated in this o rder). Plaintiff is granted until December 4, 2017, to file an amended complaint curing the deficiencies identified by defendants; if no such complaint is filed by that date, the court will grant the motion to dismiss as to defendants Parnell, Inc. and Parnell U.S. 1, Inc. Signed by District Judge J. Thomas Marten on 11/20/2017. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JENNIFER LINDSEY,
Plaintiff,
v.

Case No. 17-2016-JTM

PARNELL CORPORATE SERVICES, U.S., INC.;
PARNELL INC.; and PARNELL U.S. 1, INC.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff filed this action under Title VII of the Civil Rights Act claiming gender
discrimination and retaliation against three related corporate entities. The matter is now
before the court on a motion to dismiss by two of the defendants (Dkt. 24), on plaintiff’s
motion for leave to conduct discovery (Dkt. 28), and on plaintiff’s motion for leave to
amend the complaint (Dkt. 31).
I. Summary
Plaintiff’s complaint alleges that the three named defendants were each her
“employer” within the meaning of Title VII, 42 U.S.C. § 2000e(b). Plaintiff alleges she
was subjected to a hostile work environment on account of gender while she was
employed with the defendants and was constructively discharged when she
complained of the harassment. (Dkt. 1).
Defendants Parnell, Inc. and Parnell U.S. 1, Inc. move for dismissal pursuant to
Fed. R. Civ. P. 12(b)(6). They admit plaintiff was an employee of defendant Parnell

Corporate Services, U.S., Inc., but argue she has failed to plausibly allege she was
employed by either Parnell, Inc. or Parnell U.S. 1. (Dkt. 25 at 1). They argue plaintiff has
failed to allege any facts to support a claim against these two defendants under either
the “single employer” or “joint employer” test of Title VII case law. (Id. at 3-5). In
response, plaintiff seeks leave to conduct discovery into the relationship between these
entities. (Dkt. 29 at 1). Alternatively, plaintiff asks that she be allowed additional time to
either respond to the motion or to file an amended complaint. Plaintiff also separately
moves to amend the complaint to add claims for breach of contract, quantum meruit,
and unjust enrichment. For their part, defendants argue plaintiff is not entitled to
discovery prior to responding to the Rule 12(b)(6) motion, and that plaintiff’s proposed
amendment to the complaint should be denied as futile.
II. Discussion
The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the
pleadings. See Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003) (“the purpose of
such motions is to test ‘the sufficiency of the allegations within the four corners of the
complaint after taking those allegations as true’”). Because of that, the court agrees with
defendants that delaying the motion so plaintiff can first pursue discovery is not
warranted. Discovery may be appropriate in response to a motion to dismiss where
jurisdiction is at issue. See Hemphill v. Pershing, LLC, 2017 WL 3149290, *4 (D. Kan. July
25, 2017) (refusal to grant discovery on a Rule 12(b)(1) motion challenging jurisdiction
may be abuse of discretion). But defendants’ motion does not challenge jurisdiction, and

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the legal sufficiency of the allegations does not depend upon whether plaintiff can
garner evidence to support them.
The complaint alleges that the defendants share the same principal address, but
does not otherwise allege anything to show that Parnell, Inc. or Parnell U.S. 1, Inc. could
be regarded as plaintiff’s employer for purposes of Title VII. See Knitter v. Corvias
Military Living, LLC, 758 F.3d 1214, 1225-26 (10th Cir. 2014) (outlining factors such as
jointly co-determining the terms and conditions of employment or common ownership
or management that can make multiple entities an employer under Title VII).
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim is plausible when it
contains factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id. at 556. The rules of pleading do not
demand detailed factual allegations, but they do require more than labels or
conclusions.
In the context of multiple corporate entities, merely labeling the entities as
“employers” is not sufficient to plausibly show they bear liability. See Miller v. Dillon
Companies, Inc., No. 15-4946-DDC, 2016 WL 2894696, at *10 (D. Kan. May 18, 2016)
(“Plaintiff’s conclusory allegations that Kroger employed her are insufficient to state a
claim”). Cf. Crumpley v. Associated Wholesale Grocers, Inc., No. 16-2298-DDC, 2017
1364839 (D. Kan. Apr. 13, 2017) (complaint sufficiently alleged joint employer liability

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where it alleged that defendant had the power to terminate his employment, supervise
him, give him work assignments, and dictate work rules).
Plaintiff’s complaint does not contain facts showing that Parnell, Inc. or Parnell
U.S. 1, Inc. could be liable for the alleged misconduct. Plaintiff conceivably could
overcome these deficiencies by amending the complaint.1 Under the circumstances, the
court will hold off on granting the motion to dismiss as to Parnell Inc. and Parnell U.S.
1, Inc., and will grant plaintiff’s request for a short extension to file an amended
complaint, should she wish to do so. If no complaint curing these deficiencies is filed
within the allotted time (two weeks), the court will grant the motion to dismiss these
two parties.
The court will treat plaintiff’s separate motion for leave to amend the complaint
(Dkt. 31) in similar fashion. This proposed amendment seeks to add claims of breach of
contract, unjust enrichment, and quantum meruit. Defendants object for the same
reasons indicated above – because the allegations do not show that Parnell, Inc. and
Parnell U.S. 1, Inc. were plaintiff’s employer or that they contracted with her. The court
agrees that plaintiff’s proposed amended complaint (Dkt. 31-1) fails to allege facts
showing that Parnell, Inc. or Parnell U.S. 1, Inc. could be liable on these additional
claims, although defendants do not argue the amendment would be futile as to Parnell
Corporate Services U.S., Inc. The court will grant plaintiff two weeks to file an amended

1 Factual contentions in a complaint may be presented based on a good faith belief that they will likely
have evidentiary support after a reasonable opportunity for discovery. See Fed. R. Civ. P. 11(b)(3).
Moreover, leave to amend a complaint is granted freely under Rule 15(a), and the emergence of facts in
discovery could well justify amending a complaint, particularly where the information concerns intricate
corporate structures best known to the defendants.

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complaint asserting these additional claims as to Parnell Corporate Services, Inc., and, if
she corrects the deficiencies concerning Parnell, Inc. or Parnell U.S. 1, Inc., as to those
defendants as well.
The photographs contained within plaintiff’s current complaint should be
deleted from any amended complaint that is filed, as these are evidentiary materials
rather than a written statement within the contemplation of the rules. See Rowan v.
Sunflower Elec. Power Corp., No. 15-CV-9227-JWL-TJJ, 2015 WL 8024320, at *2 (D. Kan.
Dec. 4, 2015); Nkemakolam v. St. John’s Military Sch., 876 F. Supp. 2d 1240, 1246–47 (D.
Kan. 2012) (“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.”).
IT IS THEREFORE ORDERED this 20th day of November, 2017, that
defendants’ Motion to Dismiss (Dkt. 24) is taken under advisement. Plaintiff is granted
until December 4, 2017, to file an amended complaint curing the deficiencies identified
by defendants; if no such complaint is filed by that date, the court will grant the motion
to dismiss as to defendants Parnell, Inc. and Parnell U.S. 1, Inc.
IT IS FURTHER ORDERED that plaintiff’s Motion for Discovery or Leave (Dkt.
28) is GRANTED IN PART AND DENIED IN PART to the extent indicated in this
order; and that plaintiff’s Motion to Amend the Complaint (Dkt. 31) is GRANTED IN
PART AND DENIED IN PART as stated in this order.
___s/ J. Thomas Marten______
J. THOMAS MARTEN, JUDGE
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