Taylor et al v. Prince et al

Filing 10

MEMORANDUM AND ORDER sustaining 5 Motion to Dismiss for Failure to State a Claim. The Court dismisses Darryl Taylor's claims against Virginia Van Valkenburg (Counts 6, 7 and 8). The Court stays Susan Taylor's claims against Virgini a Van Valkenburg (Counts 6, 7 and 8). IT IS FURTHER ORDERED that Susan Taylor and Virginia Van Valkenburg comply with the mandatory mediation provision of the Pre-Inspection Agreement And Notice Of Inspection filed February 6, 2018. Signed by District Judge Kathryn H. Vratil on 6/6/2018. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DARRYL TAYLOR and
SUSAN TAYLOR,

)
)
)
Plaintiffs,
)
)
v.
)
)
HYRUM PRINCE, et al.,
)
)
Defendants.
)
__________________________________________)

CIVIL ACTION
No. 18-2053-KHV

MEMORANDUM AND ORDER
On December 21, 2017, Darryl Taylor and Susan Taylor filed suit against Hyrum Prince,
Amy Prince and Virginia Van Valkenburg. Notice Of Removal (Doc. #1) filed January 31, 2018,
¶ 1. Plaintiffs seek damages from Hyrum Prince and Amy Prince (“the Princes”), who allegedly
misrepresented the condition of a home which they sold to plaintiffs, and Van Valkenburg, who
allegedly failed to discover defects while inspecting the home. Petition For Damages (Doc. #1-1),
¶¶ 9-14. This matter comes before the Court on Defendant Virginia Van Valkenburg’s Motion To
Dismiss Or Compel Mediation (Doc. #5) filed February 6, 2018. For reasons stated below, the
Court sustains defendant’s motion.1
Legal Standard
In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as
true all well-pleaded factual allegations and determines whether they plausibly give rise to an

1

Plaintiffs requested oral argument on this motion. Plaintiffs’ Memorandum In
Opposition To Defendant Virginia Van Valkenburg’s Motion To Dismiss Or Compel Mediation
(Doc. #7) filed February 27, 2018 at 6. Oral argument would not have materially assisted the
disposition of the instant motion. Thus, plaintiffs’ request is overruled.

entitlement of relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to dismiss,
a complaint must contain sufficient factual matter to state a claim which is plausible – not merely
conceivable – on its face. Id. at 679-80; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In
determining whether a complaint states a plausible claim for relief, the Court draws on its judicial
experience and common sense. Iqbal, 556 U.S. at 679. The Court need not accept as true those
allegations which state only legal conclusions. See id.
Plaintiffs bear the burden of framing their claim with enough factual matter to suggest that
they are entitled to relief; it is not enough to make threadbare recitals of a cause of action
accompanied by conclusory statements. See Twombly, 550 U.S. at 556. Plaintiffs make a facially
plausible claim by pleading factual content from which the Court can reasonably infer that defendant
is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Plaintiffs must show more than a sheer
possibility that defendant has acted unlawfully – it is not enough to plead facts that are “merely
consistent with” defendant’s liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which
offers labels and conclusions, a formulaic recitation of the elements of a cause of action or naked
assertions devoid of further factual enhancement will not stand. Iqbal, 556 U.S. at 678. Similarly,
where the well-pleaded facts do not permit the Court to infer more than the mere possibility of
misconduct, the pleading has alleged – but has not “shown” – that the pleader is entitled to relief.
Id. at 679.
The Court does not analyze potential evidence that the parties might produce or resolve
factual disputes when ruling on a Rule 12(b)(6) motion. Jacobsen v. Deseret Book Co., 287 F.3d
936, 941 (10th Cir. 2002). The Court accepts well-pleaded allegations as true and views them in the
light most favorable to the non-moving party. Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d

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1226, 1236 (10th Cir. 1999). In addition to the complaint, the Court “may consider documents
referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do
not dispute the documents’ authenticity.” Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th
Cir. 2007) (quoting Jacobsen, 297 F.3d at 941).
Factual And Procedural Background
Briefly summarized, plaintiffs allege as follows:
In 2015, plaintiffs entered into a contract with the Princes to purchase property in Overland
Park, Kansas. Petition For Damages (Doc. #1-1), ¶¶ 9-10. Among other things, the Princes
represented to plaintiffs that (1) the crawl space had no deterioration problems; (2) the property did
not have water leakage, wood rot or plumbing issues; (3) they had not attempted to repair any
defects, and all material alterations to the property had been completed in compliance with relevant
codes; (4) they did not know of any mold on the property; and (5) they had disclosed all material
information about the property. Id., ¶ 11.
Before closing on the property, plaintiffs hired Van Valkenburg to inspect the home. Id.,
¶¶ 3, 12. The inspection noted several problems but failed to disclose issues concerning the crawl
space, plumbing, floor joists and mold. Id., ¶¶ 13-15. In July of 2015, plaintiffs completed their
purchase of the property. Id., ¶ 15.
Approximately six months later, a dishwasher fell through the kitchen floor of the home. Id.,
¶ 17. In the following months, repair efforts revealed that the property had leaks and significant
mold growth. Id., ¶¶ 18-19. Plaintiffs also discovered signs that the Princes had attempted to
conceal defects and had made repairs which did not comply with housing codes. Id., ¶¶ 19-21.
On December 21, 2017, plaintiffs filed suit in the District Court of Jackson County, Kansas.

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Notice Of Removal (Doc. #1), ¶ 1. Plaintiffs seek damages from the Princes and Van Valkenburg
under multiple common law causes of action and the Kansas Consumer Protection Act, K.S.A. § 50623 et seq. See generally Petition For Damages (Doc. #1-1). On January 31, 2018, Van Valkenburg
removed the action to this Court. Notice Of Removal (Doc. #1).
On February 6, 2018, Van Valkenburg filed the pending motion to dismiss or compel
mediation.2 Defendant seeks dismissal of all claims against her: (1) breach of contract (Count 6),
(2) negligence (Count 7) and (3) negligent misrepresentation (Count 8).3 See Motion To Dismiss
Or Compel Mediation (Doc. #5) at 3-6. Defendant’s motion largely relies on the inspection contract
– the Pre-Inspection Agreement And Notice Of Inspection (the “Agreement”) – which outlines the
services which she agreed to provide plaintiffs. Id. at 2; see Doc. #5-1. Defendant attached the
Agreement as an exhibit to her motion.4 In relevant part, it provides as follows:
Client: Sue Taylor
***
Date: June 23, 2015
The purpose of this inspection is to provide the client with information about the
condition of the house at the time of the inspection. It will be a visual,
nondestructive examination of the major components of the home and will be
conducted in accordance with the Standards of Practice and Code of Ethics of the

2

The Princes did not join Van Valkenburg in moving to dismiss. For ease of
reference, the rest of this order refers to Van Valkenburg as “defendant.”
3

Plaintiffs allege separate negligent misrepresentation claims against the Princes and
Van Valkenburg but identify both claims as Count 5. See Petition For Damages (Doc. #1-1) at 9-10,
12. In light of this presumed typographical error, the Court refers to the negligent misrepresentation
claim against Van Valkenburg as Count 8.
4

The complaint refers to the Agreement, and the parties do not dispute its authenticity.
See Petition For Damages (Doc. #1-1), ¶ 57 (“Defendant Van Valkenburg by virtue of the
employment contract was obligated to perform a proper Property inspection”) (emphasis added).
Thus, the Court may consider the contract while deciding defendant’s motion. Alvarado, 493 F.3d
at 1215.
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American Society of Home Inspectors (ASHI) and the Kansas Home Inspector
Standard of Practice. (A copy of these Standards is available upon request.)
The inspector will provide a written report that is the sole property of the client.
Copies of the report or summary will be provided to the other parties involved with
the client’s permission to disclose such information.
***
The following systems will be examined and described: Roof, attic, walls, floors,
doors, windows, stairs, fireplaces (partial), foundation, grading, exterior, electric,
plumbing, heat and central air conditioning.
***
To the extent allowed by law, the maximum liability of Van Valkenburg Home
Inspections is limited to the inspection fee.
If there are any concerns in the future regarding the results of the inspection, the
client should call the inspector who will answer questions and who reserves the right
to re-inspect the property before repairs are made. Van Valkenburg Home
Inspection will not pay for repairs made unless we have the opportunity to reexamine the item before it is repaired, except in the case of emergency repair.
Complaints must be filed within one year of the inspection.
If there are disputes related to the inspection, the client agrees to participate in
mediation to resolve the issue. A mediator will be mutually-chosen who is familiar
with local civil laws and the Standards of Practice of the American Society of Home
Inspectors. If this mediation doesn’t resolve the conflict then the inspection report
shall be submitted for final and binding arbitration under Rules and Procedures of
the Expedited Arbitration of Home Inspection Disputes of Construction Arbitration
Services, Inc. Both parties agree to the final judgment. Legal expenses will be paid
by the client if the case is settled without fault to the inspector.
***
I have read and understand the above terms. I give permission for verbal and
written information regarding the results of this inspection to be shared with
the parties involved.
Doc. #5-1 at 1-2 (emphasis in original). Notably, only Susan Taylor and defendant signed the
Agreement. Id. at 2.
Analysis
Defendant seeks dismissal on three grounds. First, she contends that the Agreement
shortened the applicable statute of limitations to one year from the date of inspection and thus,
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plaintiffs failed to timely file their claims. Id. at 4-5. Second, defendant asserts that Darryl Taylor
lacks standing in light of plaintiffs’ statement that he is not bound by the Agreement because he did
not sign it. Defendant Virginia Van Valkenburg’s Reply In Support Of Her Motion To Dismiss Or
Compel Mediation (Doc. #8) filed March 12, 2018 at 1-4; see Plaintiffs’ Memorandum In
Opposition (Doc. #7) at 2. Third, defendant asserts that the Agreement requires that the parties
mediate any disputes related to the inspection. Id.
I.

Time Barred Pursuant To The Agreement
Defendant asserts that the Agreement shortened Kansas’s five-year statute of limitations for

contract-based claims to one year. Motion To Dismiss Or Compel Mediation (Doc. #5) at 4-5; see
K.S.A. § 60-511 (five years for actions on “agreement, contract, or promise in writing”). Defendant
relies the following one-sentence paragraph in the Agreement: “Complaints must be filed within one
year of the inspection.” Doc. #5-1 at 2. She asserts that this provision bars all claims because
plaintiffs filed suit approximately two and a half years after the inspection – on December 21, 2017.
Motion To Dismiss Or Compel Mediation (Doc. #5), ¶ 7. In response, among other things, plaintiffs
assert that the relevant provision “fail[s] to give an ordinary person . . . fair notice that they are
surrendering valuable legal remedies and rights” – i.e. the Agreement is ambiguous. Plaintiffs’
Memorandum In Opposition (Doc. #7) at 5.
Whether a written contract is ambiguous is a matter of law for the Court. Simon v. Nat’l
Farmers Org., 250 Kan. 676, 680, 829 P.2d 884, 888 (1992). To be ambiguous, a contract must
contain “provisions or language of doubtful or conflicting meaning, as gleaned from a natural and
reasonable interpretation of its language.” Id. In other words, “the application of pertinent rules of
interpretation to the face of the instrument [must] leave[] it genuinely uncertain which one of two

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or more meanings is the proper meaning.” Clark v. Prudential Ins. Co. of Am., 204 Kan. 487, 491,
464 P.2d 253, 256 (1970) (citations omitted). “In construing a contract, the intent of the parties is
the primary question; meaning should be ascertained by examining the documents from all corners
and by considering all of the pertinent provisions, rather than by critical analysis of a single or
isolated provision; and reasonable rather than unreasonable interpretations are favored.” Akandas,
Inc. v. Klippel, 250 Kan. 458, Syl. ¶ 1, 827 P.2d 37, 39-40 (1992).
The effect of the provision in question turns on the parties’ intended meaning of “complaint.”
In colloquial use, a complaint refers to an “act or action of expressing protest, censure or
resentment” or “an expression of injustice.” Webster’s Third New International Dictionary 464
(1986). Under this construction, the one-year restriction would likely refer to the Agreement’s
informal complaint procedure, wherein defendant suggests that she may pay for repairs if the client
reports post-inspection “concerns” in a proper fashion. Doc. #5-1 at 2. In some legal contexts, on
the other hand, a complaint means an “initial pleading that starts a civil action.” Complaint, Black’s
Law Dictionary (10th ed. 2014). But see K.S.A. §§ 60-203, 60-207 (civil action commenced by
filing “petition”). If used in this sense, the provision could arguably shorten the generally applicable
statute of limitations.

Because both interpretations appear reasonable, the presumption of

“reasonable rather than unreasonable interpretations” does not resolve the imprecise language of the
Agreement. Akandas, 250 Kan. at 465, 827 P.2d at 44.
Further, viewing the disputed provision in the context of the contract as a whole does not
clarify the parties’ intended definition of complaint. Id. at Syl. ¶ 1, at 39-40; Arnold v. S.J.L. of
Kan. Corp., 249 Kan. 746, 749, 822 P.2d 64, 67 (1991). The Agreement does not define complaint
or use the term in other provisions. Discussion of the informal complaint procedure in the preceding

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paragraph refers to “concerns.” See Doc. #5-1 at 2. In the paragraph immediately following the
disputed provision, the Agreement provides that the parties must mediate and then arbitrate
“disputes” related to the inspection. Id.
After reviewing the Agreement as a whole and the complaint, the Court remains uncertain
of the meaning of the disputed provision. In light of this ambiguity, the Court cannot resolve the
question of fact concerning the parties’ intent. Integrated Living Cmtys, Inc. v. Homestead Co., LC,
106 F. Supp. 2d 1141, 1143 (D. Kan. 2000) (if contract ambiguous, question of fact concerning
parties’ intent); Jacobsen, 287 F.3d at 941. Thus, the Court overrules defendant’s motion on this
ground.
II.

Darryl Taylor’s Standing
In response to defendant’s argument that plaintiffs’ claims are time-barred, plaintiffs assert

that “Darryl Taylor is not bound by the Agreement” because he did not sign it. Plaintiffs’
Memorandum In Opposition (Doc. #7) at 5; see Doc. #5-1 at 2 (only Susan Taylor’s signature). In
reply, defendant asserts that the Court should dismiss Darryl Taylor’s claims for lack of standing.
Virginia Van Valkenburg’s Reply (Doc. #8) at 2.5
A.

Breach Of Contract (Count 6)

In Kansas, a person who is not a party to a contract lacks standing to sue for its breach,
unless the person has a special status with respect to the contract such as that of a third-party

5

Defendant raises this argument for the first time in her reply. However, because it
“merely responds to matters placed in issue by the response,” it is properly asserted. See Vonlintel
v. Eagle Comms., Inc, No. 14-4125-KHV, 2015 WL 5093271, at 1 (D. Kan. Aug. 28, 2015).
Further, plaintiffs did not seek leave to file a surreply which is the proper course of action for
responding to arguments raised in a reply brief. Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d
1186, 1192 (10th Cir. 2006) (court cannot forbid response to new arguments in reply); see Sheldon
v. Khanal, No. 07-2112-KHV, 2008 WL 474262, at *4 n.4 (D. Kan. Feb. 19, 2008).
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beneficiary, corporate successor or assignee of a contracting party. Bevill Co. v. Sprint/United
Mgmt. Co., 77 F. App’x 461, 462 (10th Cir. 2003); see Kansas ex rel. Stovall v. Reliance Ins. Co.,
278 Kan. 777, 793, 107 P.3d 1219, 1230-31 (2005). As to Count 6, defendant asserts that Darryl
Taylor lacks standing to pursue a breach of contract claim because he was not a party to the
Agreement. Virginia Van Valkenburg’s Reply (Doc. #8) at 2.
Plaintiffs admit that Darryl Taylor was not a party to the Agreement and do not allege that
he acquired third-party beneficiary status. Plaintiffs’ Memorandum In Opposition (Doc. #7) at 5;
see Petition For Damages (Doc. #1-1), ¶ 57 (defendant obligated to perform proper inspection “by
virtue of employment contract”). Further, the Agreement identifies Susan Taylor as the client and
provides that its “purpose . . . is to provide the client with information” and the written inspection
report “is the sole property of the client.” Doc. #5-1 at 1. While the Agreement also states that
information may be shared with third parties, the complaint does not allege that defendant intended
to benefit Darryl Taylor in any way. Because Darryl Taylor does not allege that he was a party to
the Agreement or had any special status with respect to it, he does not have standing to pursue a
breach of contract claim. Thus, the Court sustains defendant’s motion to dismiss Darryl Taylor’s
breach of contract claim, Count 6, on this ground.
B.

Negligence (Count 7)

To prove negligence, plaintiffs must establish that (1) defendant owed them a duty;
(2) defendant breached that duty; (3) the breach caused plaintiffs’ injury; and (4) plaintiffs sustained
damages. Adams v. Bd. of Sedgwick Cty. Comm’rs., 289 Kan. 577, 585-86, 214 P.3d 1173, 1179
(2009). In Kansas, a party can maintain a negligence claim related to a contract by alleging that
defendant breached “a duty imposed by law, a wrong independent of contract.” Malone v. Univ.

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of Kan. Med. Ctr., 220 Kan. 371, 374, 552 P.2d 885, 888 (1976).
Defendant asserts that in light of his admission that he is not bound by the Agreement,
Darryl Taylor does not sufficiently allege that she “owed him any legal duty in connection with the
home inspection.” Virginia Van Valkenburg’s Reply (Doc. #8) at 3.6 Darryl Taylor alleges that
defendant owed him a duty because he was a “purchaser[] of the [p]roperty.” Petition For Damages
(Doc. #1-1), ¶ 57.
This vague allegation likely refers to the common law duty of a service provider to perform
“in a workmanlike manner and to exercise reasonable care in doing [] work.” David v. Hett,
293 Kan. 679, 697, 270 P.3d 1102, 1113 (2011) (quoting Gilley v. Farmer, 207 Kan. 536, 542, 485
P.2d 1284, 1289 (1971)). This legal duty however, only extends to parties to a contract. See Coker
v. Siler, 48 Kan. App. 2d 910, 918, 304 P.3d 689, 695 (2013) (implied warranty of workmanlike
performance “exist[s] only when the parties have negotiated an underlying agreement for
consideration”) (emphasis added); Corral v. Rollins Protective Servs. Co., 240 Kan. 678, Syl. ¶ 6,
732 P.2d 1260, 1261 (1987) (while not arising from contracts, implied warranties protect parties to
agreement). Unlike Susan Taylor, Darryl Taylor is not a party to the Agreement. Accordingly,
plaintiff does not allege that defendant owed him a common law duty to perform her work in a
workmanlike fashion. Darryl Taylor does not allege any alternative duty that defendant owed him.
Thus, the Court sustains defendant’s motion to dismiss Darryl Taylor’s negligence claim, Count 7,

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Defendant asserts that Darryl Taylor lacks standing, or the “right to make a legal
claim,” but she argues that he fails to properly allege negligence and negligent misrepresentation
claims. Virginia Van Valkenburg’s Reply (Doc. #8) at 3; Kansas Nat’l Educ. Ass’n v. State,
305 Kan. 739, 746, 387 P.3d 795, 801 (2017) (quoting Gannon v. State, 298 Kan. 1107, 1121, 319
P.3d 1196, 1209 (2014)). Accordingly, the Court analyzes whether Darryl Taylor sufficiently
alleges these claims – an inquiry distinct from whether he maintains standing to sue.
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on this ground.
C.

Negligent Misrepresentation (Count 8)

To state a claim for negligent misrepresentation, plaintiffs must allege that (1) defendant
failed to exercise reasonable care in obtaining or communicating false information; (2) plaintiffs
relied on the information that defendant supplied for their benefit and guidance; and (3) plaintiffs
suffered damages in a transaction that defendant intended to influence. Stechschulte v. Jennings,
297 Kan. 2, 22, 298 P.3d 1083, 1098 (2013).
Defendant asserts that Darryl Taylor has not alleged the second element. Plaintiffs allege
that they “were two of the people for whose benefit and guidance the information was supplied or
the [sic] two of the persons that the Princes knew the information would be communicated to by
their agent.” Petition For Damages (Doc. #1-1), ¶ 71 (emphasis added).
This allegation falls short. First, plaintiffs allege that co-defendants (the Princes), not
Van Valkenburg, meet the second element of negligent misrepresentation – i.e. the Princes knew that
plaintiffs would benefit or use the information provided. Id. Second, notwithstanding this presumed
typographical error, the Agreement contradicts plaintiffs’ allegation that Van Valkenburg intended
to provide information to benefit Darryl Taylor. The Agreement provides that its “purpose . . . is
to provide the client with information” and that the written inspection report “is the sole property
of the client.” Doc. #5-1 at 1. As noted, it identifies Susan – not Darryl – Taylor as the client. Id.
While the Agreement also states that “[c]opies of the report or summary will be provided to other
parties involved,” plaintiffs do not allege specific facts which show that defendant knew of
Darryl Taylor or his involvement in the real estate transaction. With respect to Darryl Taylor, the
current allegations constitute a formulaic recitation of the elements of negligent misrepresentation.

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The complaint lacks necessary factual enhancement. See Iqbal, 556 U.S. at 678. Accordingly, the
Court sustains defendant’s motion to dismiss Darryl Taylor’s negligent misrepresentation claim,
Count 8, on this ground.
III.

Compel Mediation
With respect to the claims of Susan Taylor, defendant asserts that the Court should enforce

the Agreement’s mandatory mediation provision. Motion To Dismiss Or Compel Mediation
(Doc. #5) at 5. Susan Taylor agrees to mediate but contends that “it would be most beneficial after
the parties’ initial disclosures.” Plaintiffs’ Memorandum In Opposition (Doc. #7) at 5.
In Kansas, the “freedom to contract is not to be interfered with lightly.” Idbeis v. Wichita
Surgical Specialists, P.A., 279 Kan. 755, 770, 112 P.3d 81, 91 (2005) (quoting Weber v. Tillman,
259 Kan. 457, 474, 913 P.2d 84, 96 (1996)).7 Thus, when contracts include mandatory alternative
dispute resolution procedures, courts shall enforce such provisions as written. See R&F, LLC,
2008 WL 294517, at *2 (court has authority to enforce mandatory mediation clause). Kansas courts
generally presume that “mediation clauses . . . require a plaintiff to pursue mediation before filing
a claim, even in the absence of explicit language requiring that mediation precede litigation.”
Vanum Constr. Co. v. Magnum Block, LLC, 45 Kan. App. 2d 54, 62, 245 P.3d 1069, 1075 (2010)
(citing Santana v. Olguin, 41 Kan. App. 2d 1086, 1092-94, 208 P.3d 328, 333 (2009); Crandall v.
Grbic, 36 Kan. App. 2d 179, 197, 138 P.3d 365, 379 (2006)).

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Because defendant’s motion seeks to compel mediation, the Court does not analyze
the Agreement under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. Salt Lake Tribune
Publ’g Co., LLC v. Mgmt. Planning, Inc., 390 F.3d 684, 689 (10th Cir. 2004) (process must
resemble classic arbitration to be considered under FAA); see Doc. #5-1 at 2 (must mediate claims
before arbitration); see also R&F, LLC v. Brooke Corp., No. 07-2175-JWL, 2008 WL 294517, at *2
(D. Kan. Jan. 31, 2008) (premature to decide whether parties must arbitrate claims when contract
requires arbitration of issues not resolved through mediation).
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The Agreement provides that “the client agrees to participate in mediation to resolve []
issue[s related to the inspection].” Doc. #5-1 at 2. Plaintiffs fail to cite any authority or provide any
argument in support of their proposal to postpone enforcement of the mandatory mediation provision
until after the parties’ initial disclosures. Plaintiffs’ Memorandum In Opposition (Doc. #7) at 5. In
fact, the presumption that mediation precede litigation weighs against such delay. Vanum Const.
Co., 45 Kan. App. 2d at 62, 245 P.3d at 1075. Thus, the Court compels the parties to mediate the
claims of Susan Taylor pursuant to the terms of the Agreement.
When enforcing a mandatory alternative dispute resolution provision, the Court retains
discretion to dismiss or to stay the action. Pulse Sys., Inc. v. SleepMed Inc., No. 15-cv-1392-JTM,
2016 WL 738201, at *4 (D. Kan. Feb. 23, 2016). In conjunction with her motion to compel
mediation, defendant does not specify whether she seeks to dismiss or stay this action. Because
plaintiffs assert claims against co-defendants which remain pending, the Court compels mediation
and stays Susan Taylor’s claims against this defendant.
IT IS THEREFORE ORDERED that Defendant Virginia Van Valkenburg’s Motion To
Dismiss Or Compel Mediation (Doc. #5) filed February 6, 2018 is SUSTAINED. The Court
dismisses Darryl Taylor’s claims against Virginia Van Valkenburg (Counts 6, 7 and 8). The Court
stays Susan Taylor’s claims against Virginia Van Valkenburg (Counts 6, 7 and 8).
IT IS FURTHER ORDERED that Susan Taylor and Virginia Van Valkenburg comply with
the mandatory mediation provision of the Pre-Inspection Agreement And Notice Of Inspection
(Doc. #5-1) filed February 6, 2018.
Dated this 6th day of June, 2018 at Kansas City, Kansas.
s/ Kathryn H. Vratil
Kathryn H. Vratil
United States District Judge
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