Ramsey v. Advance Auto Parts
Filing
17
MEMORANDUM AND ORDER granting 9 Motion to Dismiss. AAPI shall be dismissed without prejudice. Defendant ASCI's motion to dismiss 5 is granted in part and denied in part. The court shall dismiss plaintiff's state law retaliation claim and any FMLA claims governed by a two-year statute of limitations. Plaintiff's FMLA claims alleging willful violations of the statute shall not be dismissed. Signed by District Judge Richard D. Rogers on 6/29/2015. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JODY RAMSEY,
Plaintiff,
v.
Case No. 15-4854-RDR
ADVANCE STORES COMPANY, INC.,
and ADVANCE AUTO PARTS, INC.,
Defendants.
MEMORANDUM AND ORDER
This is an action alleging violations of the Americans with
Disabilities
(“FMLA”).
Act
(“ADA”)
Plaintiff
and
also
the
Family
alleges
Medical
Act
against
retaliation
Leave
her
exercise of rights under the Kansas Workers’ Compensation Act in
violation of Kansas law.
We assume, but the amended complaint
does not directly state, that this case arises from plaintiff’s
employment and discharge from a position at an Advance Auto
Parts store.
Parts,
amended
second
Inc.
Plaintiff’s original complaint named Advance Auto
as
the
complaint
defendant.
to
sole
add
But,
defendant.
Advance
the
Plaintiff
Stores
amended
has
Company,
complaint
filed
Inc.
as
refers
“defendant” in singular form as plaintiff’s employer.
an
a
to
And one
of the issues before the court involves the identification of
plaintiff’s one-time employer.
1
Plaintiff
asserts
subject
matter
jurisdiction
under
28
U.S.C. § 1331 with supplemental jurisdiction over the state law
claim.
This case is now before the court upon two motions to
dismiss, one filed on behalf of each defendant.
I.
THE COURT SHALL GRANT THE MOTION TO DISMISS OF DEFENDANT
ADVANCE AUTO PARTS, INC. (“AAPI”).
A.
Standards for a Rule 12(b)(2) motion
Defendant AAPI argues that it should be dismissed for lack
of
personal
jurisdiction
and
brings
pursuant to FED.R.CIV.P. 12(b)(2).
motion
to
dismiss
for
lack
its
motion
to
dismiss
of
When a defendant files a
personal
jurisdiction
under
FED.R.CIV.P. 12(b)(2), the burden shifts to plaintiff to make a
prima facie showing of personal jurisdiction.
AST Sports Sci.,
Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1056-57 (10th Cir.
2008).
This
may
be
accomplished
by
demonstrating
with
an
affidavit or other written materials, facts that if true would
support jurisdiction over the defendant.
OMI Holdings, Inc. v.
Royal Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998).
The court
does not accept as true those allegations in the complaint which
are contradicted by defendant’s affidavits. Melea, Ltd. v. Jawer
SA, 511 F.3d 1060, 1065 (10th Cir. 2007).
the
prima
facie
case,
the
court
disputes in favor of the plaintiff.
F.3d at 1057.
must
But, when evaluating
resolve
all
factual
AST Sports Science, 514
If the court conducted an evidentiary hearing
2
upon defendant’s motion, then plaintiff would be required to
establish
jurisdiction
Richardson
v.
Fowler
(D.Kan. 2003).
by
a
preponderance
Envelope
Co.,
288
of
the
F.Supp.2d
evidence.
1215,
1219
But, since the court is proceeding without a
hearing at this stage, the question is whether plaintiff has
made a prima facie showing of jurisdiction.
B.
Id.
Evidence and allegations before the court
AAPI’s
Bliss,
a
company.
motion
is
supported
Director
of
Rewards
by
and
an
affidavit
Human
from
Resources
for
Marie
the
The affidavit states that AAPI is a publicly owned
company organized under the laws of Delaware which does not
operate any stores, employ any employees, have any offices, own
or lease any property, pay any taxes, maintain a registered
agent for service, or conduct any business in Kansas.
According
to the affidavit, Advance Stores Company, Inc. (“ASCI”) is a
privately owned company organized under the laws of Virginia
which owns and operates many stores, including stores in Kansas.
As already noted, the amended complaint in this case does
not identify which defendant employed plaintiff.
complaint
names
two
complaint
refer
to
“Plaintiff
2005.”
began
her
defendants,
“defendant”
employment
Doc. No. 3, ¶ 8.
the
in
with
facts
singular
Although the
alleged
in
the
form,
as
in:
Defendant
in
November
The amended complaint does not allege
3
by
name
that
AAPI
took
any
action
for,
with,
or
against
plaintiff.
The amended complaint alleges that AAPI “owns and operates
several
retail,
service,
Doc. No. 3, ¶ 5.
and
distribution
sites
in
Kansas.”
In response to AAPI’s motion to dismiss,
plaintiff alleges that AAPI’s website states:
Headquartered in Roanoke, Va., Advance Auto Parts,
Inc.,
the
largest
automotive
aftermarket
parts
provider in North America, serves both professional
installer and do-it-yourself customers.
Advance
operates
over
5,200
stores,
over
100
Worldpac
branches, and serves approximately 1,325 independentowned Carquest branded stores in 49 states, Puerto
Rico, the Virgin Islands and Canada. Advance employs
approximately 73,000 Team Members.
Doc. No. 14, p. 1.
Plaintiff further notes that the website
reveals several stores in Kansas.
It should be noted that the
website is www.advanceautoparts.com and that one may access it
by using a search engine to look for either defendant on the
internet.
In reply to plaintiff’s response to the motion to dismiss,
AAPI asserts that it is a holding company which conducts all of
its operations through ASCI, a wholly owned subsidiary, and its
subsidiaries which operate 5,261 stores in the United States,
Canada,
Puerto
substantiates
Rico
this
and
claim
the
U.S.
with
Virgin
reference
to
Islands.
the
2014
Report of AAPI to the Securities and Exchange Commission.
4
AAPI
Annual
Doc.
No. 15-1.
The report may be accessed through the same Advance
Auto Parts website referenced by plaintiff.
C.
The Kansas long-arm statute governs this dispute.
Ordinarily,
federal
courts
follow
the
state
law
of
the
state where the district court is located when determining the
limits
Bauman,
of
their
134
jurisdiction
S.Ct.
746,
over
753
persons.
(2014).
Daimler
This
course
AG
v.
appears
appropriate here where there apparently is no federal statute
authorizing service of process1 and reference to the Kansas longarm statute appears consistent with FED.R.CIV.P. 4(e), (h) and
(k)(1)(A).
So,
the
court
service of process.
makes
reference
to
Kansas
law
on
Dudnikov v. Chalk & Vermilion Fine Arts,
Inc., 514 F.3d 1063, 1070 (10th Cir. 2008).
D.
Plaintiff has not made a prima facie showing that the
Kansas long-arm statute would support the extension of personal
jurisdiction over AAPI.
The Kansas long-arm statute provides for service of process
on
parties
outside
the
state
of
Kansas.
K.S.A.
60-308.
According to subsection (b) of the statute, a person submits to
the
jurisdiction
of
Kansas
courts
for
any
claim
for
relief
arising from such acts as transacting business in the state or
committing
a
tortious
act
in
the
1
state
or
entering
into
an
There is no claim that the ADA or the FMLA provide for service of process on
defendants. It appears to the court that neither statute does. See Karraker
v. Rent-A-Center, Inc., 239 F.Supp.2d 828, 839-40 (C.D.Ill. 2003)(ADA);
Jordan v. Tomlinson & Associates, Inc., 2000 WL 230223 *1 (D.Me.
1/7/2000)(FMLA and ADA).
5
express or implied contract with a resident of the state or
“having contact with the state which would support jurisdiction
consistent
Kansas.
with
the
constitutions
of
the
United
K.S.A. 60-308(b)(A),(B), (E) and (L).
States”
and
Since the long-
arm statute may extend to a defendant outside of Kansas whenever
that
defendant’s
contacts
with
Kansas
make
the
exercise
of
personal jurisdiction consistent with the Constitution, usually
disputes as to personal jurisdiction boil down to whether the
exercise of personal jurisdiction would be consistent with due
process.
See Goodyear Dunlop Tires Operations, S.A. v. Brown,
131 S.Ct. 2846, 2853 (2011)(Due Process Clause of the Fourteenth
Amendment
sets
the
outer
boundaries
of
a
state
tribunal’s
authority to proceed against a defendant); Tomelleri v. MEDL
Mobile,
Inc.,
statute
is
2015
WL
1957801
coextensive
with
*3
due
(D.Kan.
process
4/29/2015)(long-arm
clause,
so
long-arm
statute inquiry and due process inquiry merge).
In general, due process analysis has two steps:
1) whether
the defendant has such minimum contacts with the forum state
that
it
should
reasonably
anticipate
being
haled
into
court
there; and 2) if the defendant has minimum contacts with the
forum
state,
defendant
whether
would
offend
substantial justice.
Holdings,
Inc.,
exercising
149
traditional
personal
notions
jurisdiction
of
fair
play
over
and
AST Sports Science, 514 F.3d at 1057; OMI
F.3d
at
1091.
6
“Minimum
contacts”
are
reviewed to determine whether they are sufficient to support
“specific
jurisdiction”
or
“general
“specific
jurisdiction,”
the
contacts
jurisdiction.”
must
be
With
continuous
and
systematic and also give rise to the liabilities sued upon.
Daimler AG, 134 S.Ct. at 754 (quoting International Shoe Co. v.
Washington, 326 U.S. 310, 317 (1945)).
may
be
exercised
when
a
foreign
“General jurisdiction”
corporation’s
“continuous
corporate operations within a state [are] so substantial and of
such a nature as to justify suit against it on causes of action
arising from dealings entirely distinct from those activities;”
in other words, “when their affiliations with the State are so
continuous and systematic as to render them essentially at home
in the forum State.”
Id. (interior quotations and citations
omitted).
In this case, two questions appear to be raised: first,
whether plaintiff has established a prima facie showing that
AAPI was plaintiff’s employer and thus had such direct contacts
with Kansas giving rise to plaintiff’s claims or such contacts
which rendered AAPI essentially at home in Kansas that the court
has
personal
jurisdiction
over
AAPI;
and,
second,
whether
plaintiff has established a prima facie showing that AAPI had
such substantial control over plaintiff’s employer that AAPI’s
contacts with Kansas should be considered to have given rise to
7
plaintiff’s
claims
or
rendered
AAPI
essentially
at
home
in
Kansas that the court has personal jurisdiction over AAPI.
The court does not believe plaintiff has made a prima facie
showing that defendant AAPI was plaintiff’s employer.
Plaintiff
has presented only an excerpt from a website which apparently is
connected to both AAPI and ASCI.
The excerpt does not expressly
state that AAPI owns or operates the store where plaintiff once
worked
or
that
AAPI
employed
plaintiff.
It
states
that
“Advance” operates over 5,200 stores and employs 73,000 team
members.
The same website contains a link to AAPI’s financial
statement
to
the
SEC
which
states
that
AAPI
conducts
its
operations through its wholly owned subsidiary - ASCI, and its
subsidiaries.
Bliss,
who
has
This is consistent with the affidavit from Ms.
stated
that
AAPI
does
not
operate
stores
or
employ persons in Kansas.
Plaintiff has not attempted to prove that AAPI exercises
substantial control over ASCI.
A holding or parent company is
generally treated separately from its subsidiary unless “’there
are
circumstances
entity.’”
justifying
the
disregard
of
the
corporate
Sprint Communications, L.P. v. Cox Communications,
Inc., 896 F.Supp.2d 1049, 1057 (D.Kan. 2012)(quoting Quarles v.
Fuqua
Indus.,
Inc.,
504
F.2d
1358,
1362
(10th
Cir.
1974)).
Usually, substantial control and direction over a subsidiary is
needed to subject a parent corporation to jurisdiction on the
8
basis of the actions of a subsidiary.
Id. at 1058 (quoting
Ablulimir v. U-Haul Co. of Kan., 2011 WL 2746094 *3 (D.Kan.
7/13/2011).
Plaintiff has the burden of proving such control
and direction.
B-S Steel of Kansas v. Texas Industries, Inc.,
229 F.Supp.2d 1209, 1219 (D.Kan. 2002).
Plaintiff has failed to
make such a showing.
Under
plaintiff
these
has
circumstances,
failed
to
make
the
a
court
prima
concludes
facie
showing
that
that
exercising personal jurisdiction over AAPI would comport with
the Kansas long-arm statute or the United States Constitution.
Therefore,
the
court
shall
grant
defendant
AAPI’s
motion
to
dismiss.
II. THE MOTION TO DISMISS OF DEFENDANT ASCI SHALL BE GRANTED IN
PART AND DENIED IN PART.
Defendant ASCI has filed a motion to dismiss pursuant to
FED.R.CIV.P. 12(b)(6).
ASCI argues that Counts III, IV, V and
VI should be dismissed as outside the statute of limitations.
These counts allege violations of the FMLA and retaliation for
exercising
plaintiff’s
rights
under
the
Kansas
Workers
Compensation Act.
A.
Rule 12(b)(6) standards
Defendant
12(b)(6).
brings
this
motion
pursuant
to
FED.R.CIV.P.
Under that rule, the court requires that a complaint
contain enough fact allegations, taken as true, to state a claim
9
that
is
not
merely
conceivable,
but
plausible
on
its
face.
Khalik v. United Air Lines, 671 F.3d 1188, 1190-91 (10th Cir.
2012).
A presumption of truth, as mentioned, extends to factual
allegations, but does not extend to formal legal recitations,
labels, or conclusions.
Id.
When assessing a statute of limitations argument upon a
motion to dismiss, the question before the court is whether “the
dates given in the complaint make clear that the right sued upon
has been extinguished.”
Aldrich v. McCulloch Prop., Inc., 627
F.2d 1036, 1041 n.4 (10th Cir. 1980); see also, Dummar v. Lummis,
543
F.3d
614,
619
(10th
Cir.
2008)(if
pivotal
question
for
application of statute of limitations is apparent on the face of
the
complaint,
dismiss).
the
issue
may
be
resolved
on
a
motion
to
The court may consider not only the complaint itself,
but also attached exhibits and documents incorporated into the
complaint by reference.
Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009) cert. denied, 558 U.S. 1148 (2010).
B.
Plaintiff’s two-year FMLA claims and state law claims
are untimely filed.
According
to
the
amended
discharged on September 5, 2012.
complaint,
plaintiff
was
Plaintiff did not file the
original complaint until February 23, 2015, more than two years
after her discharge.
There is a two-year limitations period for
bringing a claim of retaliation against the exercise of rights
10
under the Kansas Workers Compensation statute. Pfeifer v. Fed.
Express Corp., 304 P.3d 1226, 1228 (Kan. 2013).
The limitations
period for bringing a claim alleging a non-willful violation of
the FMLA is also two years.
29 U.S.C. § 2617(c)(1).
There is a
three-year limitations period for willful violations.
29 U.S.C.
§ 2617(c)(2).
Plaintiff
alleges
that
the
limitations
period
should
be
tolled from the date she filed an administrative complaint on
December 14, 2012, until she received a right-to-sue letter for
her ADA claim on January 12, 2015.
proving
tolled.
that
the
running
Aldrich, supra.
of
a
Plaintiff has the burden of
limitations
period
should
be
Plaintiff asserts that she filed this
lawsuit about five months after her two-year deadlines for FMLA
and retaliation claims had passed because she could not sue
without the right-to-sue letter from the EEOC and also to avoid
claim-splitting.
Doc. No. 13, pp. 9-10.
The court rejects plaintiff’s tolling argument.
no
administrative
claim
(see
exhaustion
Medlock
v.
Fred
requirement
Finch
for
There is
bringing
a
Home,
2014
Children’s
FMLA
WL
4756055 *6 (N.D.Cal. 9/24/2014)), or for bringing a state law
claim
for
compensation
retaliation
rights.
against
While,
the
there
exercise
is
an
of
workers
administrative
exhaustion requirement for bringing a claim under the ADA, the
time necessary to exhaust the administrative procedures for an
11
ADA claim does not justify tolling the statute of limitations on
plaintiff’s other claims.
In Johnson v. Railway Exp. Agency, Inc., 421 U.S. 454 ,
465-66 (1975), the Court held that pursuing an administrative
charge under Title VII did not toll the statute of limitations
for an action under 42 U.S.C. § 1981.
This holding has been
cited by another court to support a ruling that the limitations
period
for
proceedings
a
FMLA
related
claim
to
is
other
not
tolled
claims.
by
administrative
Shannon
v.
City
of
Philadelphia, 1999 WL 126097 *5 (E.D.Pa. 3/5/1999); see also,
Arrigo
v.
Link
Stop,
Inc.,
2013
WL
6094581
*2
(W.D.Wis.
11/20/2013)(because the FMLA has no exhaustion requirement, the
limitations period may run before a claim under Title VII or the
ADA, even though the claims arise from the same events); Atwood
v.
Oregon
Dept.
of
Transp.,
2008
WL
803020
*8
n.2
(D.Ore.
3/20/2008)(same analysis, citing Shannon); Fialho v. Girl Scouts
of
Milwaukee
Area,
Inc.,
2007
WL
1246433
*2
(E.D.Wis.
4/30/2007)(same analysis, citing Shannon); Palenske v. Westar
Energy,
Inc.,
2005
WL
2455750
(D.Kan.
10/5/2005)(refusing
equitable tolling where there is no evidence that plaintiff was
lulled into inaction by her employer state or federal agencies
or the court).
Like the FMLA, plaintiff’s state law retaliation claim is
an independent claim without an exhaustion requirement.
12
The
court
finds
retaliation
that
claim
the
limitations
also
is
not
period
tolled
for
by
plaintiff’s
administrative
proceedings connected to a different cause of action.
To
timely
avoid
claim-splitting,
complaint
alleging
the
plaintiff
claims
could
governed
have
by
a
filed
a
two-year
limitations period and asked for a stay until she received a
right-to-sue letter which would allow her to add her ADA claim.
C. Plaintiff has adequately alleged a willful violation of
the FMLA for which there is a three-year limitations period.
“Willful conduct” is considered to be actions which are
known to violate the FMLA or are taken in reckless disregard of
Bass v. Potter, 522 F.3d 1098, 1103-04 (10th Cir.
the FMLA.
2008).
The amended complaint alleges that plaintiff was an
eligible employee as defined by FMLA; that plaintiff availed
herself of the FMLA protection because of a serious medical
condition;
that
defendant
was
aware
of
plaintiff’s
serious
medical condition; that defendant interfered with plaintiff’s
right to FMLA leave; and that defendant retaliated against and
fired plaintiff for taking FMLA leave.
Plaintiff also alleges
that defendant’s “retaliatory conduct” was willful.
The
court
believes
these
allegations
are
sufficient
state a plausible claim of a willful violation of the FMLA.
to
See
Mesmer v. Charter Communications, Inc., 2015 WL 3649287 *3-4
(W.D.Wash.
6/11/2015)(allegations
13
that
defendant
denied
leave
and imposed discipline and terminated plaintiff for requesting
leave
are
sufficient
to
support
claim
of
a
willful
FMLA
violation); Battle v. Alexandria, 2015 WL 1650246 *6 (E.D.Va.
4/14/2015)(allegation of a retaliatory demotion states a claim
of a willful violation); Tolston-Allen v. City of Chicago, 2014
WL
1202742
refused
*3-4
(N.D.Ill.
plaintiff
FMLA
3/21/2014)(allegations
leave
suffices
to
that
allege
a
City
willful
violation); Moore v. Washington Hospital Center, 2012 WL 2915165
*4
(D.Md.
presumed
7/16/2012)(noting
willfulness
in
that
a
retaliation
number
of
courts
cases).
The
have
court
acknowledges that defendant ASCI has cited contrary authority.2
But, willfulness may be more easily inferred from plaintiff’s
allegations than from the allegations in those cases.
Moreover,
the court remains mindful that the statute of limitations is an
affirmative defense which a plaintiff is not required to negate
in a complaint.
1335,
1342
n.2
See Caplinger v. Medtronic, Inc., 784 F.3d
(10th
Cir.
2015)(defendants
must
prove
their
affirmative defenses, plaintiffs need not disprove them in their
complaints).
When raising a statute of limitations defense in a
Rule 12(b)(6) motion, the defendant must demonstrate that the
allegations in the complaint plead plaintiff out of court.
See
Aldrich, supra (a statute of limitations defense may be resolved
2
McDonald v. SEIU Healthcare Pennsylvania, 2014 WL 4672493 (M.D.Pa.
9/18/2014); Solorzano v. Railway & Indus. Services, Inc., 2010 WL 234972
(N.D.Ill. 1/15/2010).
14
upon
a
Rule
complaint
12(b)(6)
make
clear
extinguished.”).
statute
of
motion
that
the
the
right
dates
sued
given
upon
in
has
the
been
Here, it is not clear that the three-year
limitations
inapplicable.
“when
for
willful
FMLA
violations
is
Therefore, the court shall deny the motion to
dismiss as to FMLA claims alleging a willful violation.
III.
CONCLUSION
In
conclusion,
motion to dismiss.
the
court
Doc. No. 9.
prejudice from this case.
shall
grant
defendant
AAPI’s
AAPI shall be dismissed without
Defendant ASCI’s motion to dismiss
(Doc. No. 5) shall be granted in part and denied in part.
The
court shall dismiss plaintiff’s state law retaliation claim and
any FMLA claims governed by a two-year statute of limitations.
Plaintiff’s
FMLA
claims
alleging
willful
violations
of
the
statute shall not be dismissed.
IT IS SO ORDERED.
Dated this 29th day of June, 2015.
s/Richard D. Rogers_________
UNITED STATES DISTRICT JUDGE
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?