Arbogast v. State of Kansas

Filing 24

MEMORANDUM AND ORDER granting in part and denying in part 20 Motion for Leave to File Surreply Memorandum; denying as moot 23 Motion to Strike Surreply; granting 8 Motion to Dismiss. Signed by Chief District Judge Julie A Robinson on 12/28/2017. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KATHLEEN ARBOGAST,
Plaintiff,
v.

Case No. 17-CV-4049-JAR-JPO

STATE OF KANSAS, by and through the
DEPARTMENT OF LABOR,
Defendants.

MEMORANDUM AND ORDER
Plaintiff brings this action against the State of Kansas by and through the Department of
Labor, alleging claims of discrimination and retaliation in violation of the Rehabilitation Act, 29
U.S.C. § 794. This matter comes before the Court on Defendants’ Motion to Dismiss (Doc. 8),
Plaintiff’s Motion for Leave to File Surreply Memorandum (Doc. 20), and Defendants’ Motion
to Strike Surreply (Doc. 23). The motions are fully briefed and the Court is prepared to rule. For
the reasons explained below, the Court grants in part and denies in part Plaintiff’s motion for
leave to file a surreply, denies Defendants’ motion to strike as moot, and grants Defendants’
motion to dismiss.
I.

Procedural Background and Factual Allegations
Beginning in April 2001 until August 1, 2011, Plaintiff was employed by Defendant State

of Kansas in the Workers Compensation Division of the Kansas Department of Labor
(“KDOL”). Plaintiff suffers from asthma, which impairs her breathing. In April 2008, Plaintiff
began raising concerns with her supervisors about fragrances in the workplace, which aggravated
her asthma. Plaintiff alleges that Defendant KDOL took several measures to alleviate the effects
of her asthma in the workplace, but that she continued to have problems.

On May 23, 2011, Plaintiff requested intermittent leave under the Family and Medical
Leave Act (“FMLA”) due to her asthma. Plaintiff's request was denied. On June 3, 2011,
Plaintiff filed a complaint with the United States Department of Labor (“DOL”) regarding her
denial of leave pursuant to the FMLA. The DOL found that KDOL had violated the FMLA. On
July 25, 2011, Plaintiff received a letter from Karin Brownlee, who was then Secretary of
KDOL, detailing the chronology of Plaintiff's complaints about the perfume issue and
Brownlee's intent to terminate Plaintiff's employment. In response to Brownlee's letter, Plaintiff
met with and wrote a letter to Brownlee explaining why she had to continue to complain,
outlining her work in the department, and suggesting a possible reassignment as a feasible
alternative. A few days later, Plaintiff received a letter from Brownlee explaining that her
employment was terminated, effective August 3, 2011, for insubordinate and disruptive
behavior.
Plaintiff appealed her termination to the Kansas Civil Service Board (the “Board”).
During her appeal hearing, Plaintiff and KDOL were represented by counsel, several witnesses
testified, and evidence was submitted. The Board affirmed Plaintiff's termination in a final order
issued on March 9, 2012. Plaintiff did not exercise her right to reconsideration of the Board’s
order under K.S.A. § 77-529(a).
Plaintiff originally filed suit in a separate case, Case No. 13-cv-4007-JAR, against two
Defendants: (1) “State of Kansas, Department of Labor,” and (2) Karin Brownlee. She alleged
claims of discrimination and retaliation in violation of the Rehabilitation Act, 29 U.S.C. § 701 et
seq., claims parallel to those she brings in this case.1 KDOL moved to dismiss Plaintiff’s
Complaint on two grounds: (1) it lacked the capacity to be sued under Kansas law, and (2)

1

Plaintiff also brought two claims under the FMLA in her previous case, which she does not allege here.

2

Eleventh Amendment immunity. This Court denied the motion, holding that KDOL waived its
Eleventh Amendment immunity when it accepted federal funds, and thus its capacity argument
was also ineffectual.2 On appeal, the Tenth Circuit affirmed the denial of immunity, but declined
to address the capacity argument.3
On remand, and after the deadline to amend the pleadings expired, KDOL renewed its
motion to dismiss on the grounds that it lacked the capacity to be sued. The Court granted the
motion, holding that KDOL lacked the capacity to be sued individually under Kansas law.4
Plaintiff appealed the Court’s ruling, and the Tenth Circuit affirmed.5 Plaintiff then filed this
action against Defendants State of Kansas, by and through the Department of Labor, on June 16,
2017.
II.

Motion for Leave to File Surreply
Plaintiff moves for leave to file a surreply memorandum to Defendants’ motion to

dismiss. Plaintiff argues Defendants made two new arguments in their reply, and thus Plaintiff
should be given leave to respond to those arguments. Before proceeding to the substance of
these arguments, the Court addresses two apparent procedural defects in Plaintiff’s motion.
First, Plaintiff filed her proposed surreply without first obtaining leave from the Court to
do so. On November 7, 2017, Plaintiff filed her motion for leave to file surreply, in which she
stated that “[t]he surreply memorandum which the plaintiff seeks leave to file is attached to this
motion.”6 But rather than attaching the proposed surreply to her motion, Plaintiff filed her

2

Arbogast v. Kan., Dep’t of Labor, No. 13-CV-4007-JAR/KMH, 2014 WL 1308915, at *6–7 (D. Kan. Mar.
31, 2014).
3

Arbogast v. Kan., Dep’t of Labor, 789 F.3d 1174, 1180 (10th Cir. 2015).

4

Arbogast v. Kan., Dep’t of Labor, No. 13-4007-JAR, 2016 WL 4719277, at *3 (D. Kan. Sept. 9, 2016).

5

Arbogast v. Kan., Dep’t of Labor, 686 F. App’x 556, 557 (10th Cir. 2017).

6

Doc. 20 at 2.

3

surreply as a separate document without awaiting the Court’s ruling on her motion for leave.
While the Court does not find that this procedural defect alone warrants denial of Plaintiff’s
motion, the Court reminds Plaintiff and her counsel that parties must first obtain leave of the
Court before filing surreplies.7
Second, Plaintiff filed her motion for leave to file surreply eighteen days after Defendants
filed their reply.8 D. Kan. Rule 6.1(d) provides that the deadline for any replies is 14 days after
the service of a response, but Rule 6.1(d) does not provide a deadline for filing surreplies. Thus,
although Plaintiff exceeded the time allowed for the filing of any replies when she filed her
motion, she did not exceed any deadline explicitly stated in Rule 6.1(d). Accordingly, the Court
proceeds to the substance of Plaintiff’s motion.
Under D. Kan. Rule 7.1(c), briefing on motions is limited to the motion and supporting
memorandum, a response, and a reply.9 Surreplies typically are not allowed.10 Rather, courts
“reserve leave for rare circumstances as ‘where a movant improperly raises new arguments in a
reply.’”11 “The rules governing the filing of surreplies ‘are not only fair and reasonable, but they
assist the court in defining when briefed matters are finally submitted and in minimizing the
battles over which side should have the last word.’”12
Plaintiff argues Defendants make the following two new arguments in their reply
regarding the applicable statute of limitations: (1) under K.S.A. § 60-513(b), Kansas courts
7

McShares, Inc. v. Barry, 979 F. Supp. 1338, 1341 (D. Kan. 1997) (citations omitted).

8

See Docs. 18 and 20.

9

COPE v. Kan. State Bd. of Educ., 71 F. Supp. 3d 1233, 1238 (D. Kan. 2014) (citing Taylor v. Sebelius,
350 F. Supp. 2d 888, 900 (D. Kan. 2004)).
10

Id.

11

McShares, Inc., 979 F. Supp. at 1341 (quoting E.E.O.C. v. Int’l Paper Co., 1992 WL 370850, at *10 (D.
Kan. Oct. 28, 1992)).
12

COPE, 71 F. Supp. 3d at 1238 (quoting Humphries v. Williams Nat. Gas Co., No. 96-4196-SAC, 1998
WL 982903, at *1 (D. Kan. Sept. 23, 1998)).

4

charge parties with constructive notice of public records; and (2) under K.S.A. § 60-518, the
“substantially similar” test does not apply where a defendant in the second suit was not named in
the original action. The Court considers these arguments in turn.
In their reply to Plaintiff’s response to the motion to dismiss, Defendants argue that
Kansas courts charge parties with constructive notice of public records, and that “a party charged
with constructive notice cannot claim ignorance of public records in order to toll the statute of
limitations.”13 Further, Defendants argue that “[w]hether a statute existed giving the Kansas
Department of Labor capacity to sue or be sued was a matter of public record, a question of law,
not fact, upon which Plaintiff was under constructive notice at all applicable times.”14
In their original memorandum in support of their motion, Defendants argued that
“Plaintiff has known all along that the State had something to do with her employment” and that
“[t]he law upon which the dismissal of 13-CV-4007 was based was not new.”15 Thus,
Defendants suggested in their original briefing that Plaintiff was on notice all along that the State
of Kansas was involved in her termination. But not until their reply did Defendants argue that
Plaintiff had constructive notice of the State of Kansas’ capacity to be sued, or that this
constructive notice barred any tolling under K.S.A. § 60-513(b). Indeed, Defendants did not
make any argument as to the effect of § 60-513(b) in their original briefing. Thus, Defendants’
argument in their reply as to § 60-513(b) and constructive notice is new.
Plaintiff’s argument that this action was tolled under K.S.A. § 60-513(b) is central to her
response to Defendants’ motion to dismiss.16 The Court must therefore consider this argument,

13

Doc. 18 at 2 (quoting Wille v. Davis, 650 F. App’x 627, 630 (10th Cir. 2016)).

14

Id. at 2–3.

15

Doc. 9 at 7.

16

See Doc. 17 at 5–8.

5

and Defendants’ arguments regarding § 60-513(b) in their reply, in determining the outcome of
Defendants’ motion. Because Defendants’ arguments as to § 60-513(b) are new, the Court finds
that Plaintiff must be given an opportunity to respond. Plaintiff’s motion is therefore granted as
it relates to Defendants’ argument that courts charge parties with constructive notice of public
records under K.S.A. § 60-513(b).
Plaintiff also argues Defendants’ argument that the “substantially similar” test does not
apply under K.S.A. § 60-518 where a defendant in the second suit was not named in the original
action is a new argument that Defendants make for the first time in their reply. But in their
original memorandum in support of their motion to dismiss, Defendants argued that “K.S.A. [§]
60-518 does not apply because the parties are obviously not the same in this action as in the
previous action.”17 Specifically, Defendants cited the following passage from Taylor v.
International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, AFLCIO18 in arguing that § 60-518 does not apply:
The savings statute applies only if the original action and subsequent action are
substantially the same. Where the parties and the relief sought in the new action
are different from those in the original action, the actions are not substantially the
same, and the savings statute does not apply. In addition, where the relief sought
is the same in both actions, but the defendants are different, the actions are not
substantially the same for purposes of the saving statute.19
As this passage demonstrates, Defendants argued in their original brief that actions are not
“substantially the same” for purposes of § 60-518 when a new defendant in the second suit was
not named in the original action. Accordingly, the Court finds that Plaintiff was on notice of this
argument at the time of her response, and therefore the Court denies Plaintiff’s motion for leave
to file a surreply as it relates to this argument.
17

Doc. 9 at 10.

18

968 P.2d 685, 689 (Kan. Ct. App. 1998).

19

Doc. 9 at 11 (quoting Taylor, 968 P.2d at 689).

6

In sum, Plaintiff was not on notice of Defendants’ argument that Kansas courts charge
parties with constructive notice of public records under K.S.A. § 60-513 when she filed her
response. Plaintiff’s motion is therefore granted as it relates to this argument. She was,
however, on notice of Defendants’ argument that actions are not “substantially similar” under
§ 60-518 where a defendant in a second action was not named as a defendant in the original
action. The Court therefore denies Plaintiff’s motion as it relates to this argument. Because
Plaintiff previously filed her surreply, she need not re-file the document with the Court. The
Court has considered Plaintiff’s arguments in her surreply related to § 60-518.
III.

Motion to Strike
Defendants move to strike Plaintiff’s surreply, arguing that it is untimely and filed

without leave of the Court. The Court has considered these arguments above, and has granted in
part and denied in part Plaintiff’s motion for leave to file a surreply.20 Accordingly, the Court
denies Defendants’ motion to strike as moot.
IV.

Motion to Dismiss
Defendants move to dismiss Plaintiff’s Complaint under Fed. R. Civ. P. 12(b)(6) because

it is untimely and because it otherwise fails to state claims of discrimination or retaliation under
the Rehabilitation Act. Plaintiff responds that her Complaint was timely filed and that it states
claims for both discrimination and retaliation under the Rehabilitation Act.
A.

Legal Standard

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must present
factual allegations, assumed to be true, that “raise a right to relief above the speculative level”

20

See supra Part II.

7

and must contain “enough facts to state a claim to relief that is plausible on its face.”21 “[T]he
complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of
mustering factual support for these claims.”22 The plausibility standard does not require a
showing of probability that a defendant has acted unlawfully, but requires more than “a sheer
possibility.”23 “[M]ere ‘labels and conclusions,’ and ‘a formulaic recitation of the elements of a
cause of action’ will not suffice; a plaintiff must offer specific factual allegations to support each
claim.”24 Finally, the Court must accept the nonmoving party’s factual allegations as true and
may not dismiss on the ground that it appears unlikely the allegations can be proven.25
The Supreme Court has explained the analysis as a two-step process. For the purposes of
a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but]
we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”26 Thus,
the court must first determine if the allegations are factual and entitled to an assumption of truth,
or merely legal conclusions that are not entitled to an assumption of truth.27 Second, the court
must determine whether the factual allegations, when assumed true, “plausibly give rise to an
entitlement to relief.”28 “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”29
21

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

22

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

23

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

24

Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at

25

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

26

Id.

27

Id. at 679.

28

Id.

29

Id. at 678.

555).

8

B.

Discussion

1.

Application of K.S.A. § 60-513(b)

“For federal causes of action created prior to 1990 for which ‘Congress has not
established a time limitation for a federal cause of action, the settled practice [is] to adopt a local
time limitation as federal law if it is not inconsistent with federal law or policy to do so.’”30
Under K.S.A. § 60-513(a)(4), “an action for injury to the rights of another, not arising on
contract, and not herein enumerated,” must be brought within two years. In Levy v. Kansas
Department of Social and Rehabilitation Services, the Tenth Circuit held that Rehabilitation Act
claims are subject to the two-year statute of limitations under K.S.A. § 60-513(a)(4).31 The
parties here agree that § 60-513(a)(4) provides the applicable statute of limitations for Plaintiff’s
Rehabilitation Act claims.32 Accordingly, the Court finds that Plaintiff’s claims are subject to
the two-year statute of limitations under § 60-513(a)(4).
“[W]hen a federal statute is deemed to borrow a State’s limitations period, the State’s
tolling rules are ordinarily borrowed as well because ‘[i]n virtually all statutes of limitations the
chronological length of the limitation period is interrelated with provisions regarding tolling.’”33
K.S.A. § 60-513 incorporates the following tolling provision:
(b) Except as provided in subsections (c) and (d), the causes of action listed in
subsection (a) shall not be deemed to have accrued until the act giving rise to the
cause of action first causes substantial injury, or, if the fact of injury is not
reasonably ascertainable until some time after the initial act, then the period of
limitation shall not commence until the fact of injury becomes reasonably

30

Levy v. Kan. Dep’t of Soc. & Rehab. Servs., 789 F.3d 1164, 1171–72 (10th Cir. 2015) (quoting Wilson v.
Garcia, 471 U.S. 261, 266–67 (1985)).
31

Id. at 1174.

32

See Doc. 17 at 5; Doc. 18 at 3.

33

Heimeshoff v. Hartford Life & Acc. Ins. Co., 134 S. Ct. 604, 616 (2013) (quoting Hardin v. Straub, 490
U.S. 536, 539 (1989)).

9

ascertainable to the injured party, but in no event shall an action be commenced
more than 10 years beyond the time of the act giving rise to the cause of action.34
Defendants argue that the tolling provision under § 60-513(b) does not apply here
because Plaintiff was aware of her injury at the time of her termination in August 2011.
Defendants contend that this accrual date is consistent with Levy, in which the Tenth Circuit
found that the plaintiff’s Rehabilitation Act claims accrued on the date of employment
termination.35 Plaintiff argues that an injury is not “reasonably ascertainable” under § 60-513(b)
until a plaintiff learns that the injury is caused or associated with some act of the defendant.36
She contends her claim did not accrue until June 2015, when the Tenth Circuit issued its decision
in her previous case and held that KDOL’s capacity to be sued was an issue separate from
KDOL’s sovereign immunity. She argues that it was not reasonably ascertainable until that time
that her injury was caused by an act of the State of Kansas.
Defendants cite Wille v. Davis, an unpublished Tenth Circuit opinion in which the court
explained that “the term ‘reasonably ascertainable’ carries with it an obligation to investigate
available factual sources.”37 In Wille, the plaintiffs were members of a class of 300 plaintiffs in a
previous case that was the subject of a global settlement in 2002.38 The Tilzers, who were also
plaintiffs in the class settlement group, filed a legal malpractice suit against the class attorney in
2003, alleging that the global settlement agreement was “governed by Rule 4-1.8(g) of the
Missouri Rules of Professional Conduct, and that [the class attorney] failed to make the

34

K.S.A. § 60-513(b).

35

Levy, 789 F.3d at 1174.

36

Benne v. Int’l Bus. Machs. Corp., 87 F.3d 419, 427 (10th Cir. 1996) (“Kansas’ ‘fact of injury’ standard
postpones the running of the limitations period until the time the plaintiff is able to determine that her injury may be
caused by some act of the defendant.”).
37

650 F. App’x 627, 630 (10th Cir. 2016) (citing Bi-State Dev. Co. v. Shafer, Kline & Warren, Inc., 990
P.2d 159, 162 (Kan. 1999)).
38

Id. at 628–29.

10

disclosures required by that rule.”39 In April 2009, the Kansas Supreme Court ruled the
settlement agreement was an aggregate settlement agreement and thus the class attorney was
required to make disclosures under Rule 4-1.8(g).40 The pleadings in the Tilzer case, however,
were filed under seal, and the Tilzers’ attorney was barred from contacting any of the other
plaintiffs involved in the global settlement until December 2009.41
After the Tilzers’ attorney contacted the plaintiffs in Wille about the Tilzer case in 2011,
the plaintiffs filed their own legal malpractice claims against the class attorney on September 29,
2011.42 The defendant moved for summary judgment, arguing that the plaintiffs’ claims were
time barred.43 The plaintiffs argued that under § 60-513(b), they could not have discovered their
injury until they were contacted by the Tilzers’ attorney and learned about the Kansas Supreme
Court’s decision in that case.44 The plaintiffs argued that the decision in the Tilzers’ case
“imparted knowledge of facts that were not previously known.”45 Affirming the district court’s
grant of summary judgment in favor of the defendant, the Tenth Circuit explained that even
assuming the plaintiffs’ injuries were not reasonably ascertainable until the Tilzer decision, the
plaintiffs’ claims were time barred because they filed their claim more than two years after the
Tilzer decision was issued in April 2009.46 The court held that because “Kansas courts charge
parties with constructive notice of public records . . . [a]ny facts disclosed by the Tilzer case were

39

Id. at 629.

40

Id.

41

Id.

42

Id.

43

Id.

44

Id. at 630.

45

Id.

46

Id.

11

a matter of public record as soon as the decision was issued by the Kansas Supreme Court.”47
Thus, the accrual date for the plaintiffs’ injuries was in April 2009, rather than in 2011 when the
Tilzers’ attorney informed the plaintiffs of the result in that case.
Defendants argue that as in Wille, Plaintiff here had constructive notice at all times of
“[w]hether a statute existed giving the Kansas Department of Labor capacity to sue or be sued at
law.”48 Thus, her claim accrued at the time of her termination in 2011. Plaintiff, however,
argues that Wille supports her position because the Tenth Circuit’s 2015 decision in her previous
case “imparted knowledge of facts that were not previously known.”49 Specifically, she
contends
[t]he facts which were not previously known are that the acceptance of federal
funds by the Kansas Department of Labor (“KDOL”) does not render ineffectual
KDOL’s arguments regarding its lack of capacity to be sued; or in other words,
that the issue of the KDOL’s lack of capacity is separate from the issue of the
KDOL’s waiver of sovereign immunity.50
Defendants respond that the Wille decision did not find that the plaintiffs’ claims accrued
at the time of the Tilzer decision, but simply “assumed,” in dicta, that the Tilzer decision
provided them with knowledge of new facts. Additionally, Defendants argue that the Tenth
Circuit’s decision did not impart any knowledge of new facts, but instead simply raised an issue
of law regarding KDOL’s capacity to be sued. Finally, Defendants contend that they raised the
capacity issue as a question separate from KDOL’s immunity in its answer and motion to dismiss
in Plaintiff’s previous case in 2013, before the Tenth Circuit raised the issue in its ruling in
2015.51
47

Id. (citing Stephens v. Van Arsdale, 608 P.2d 972, 981 (Kan. 1980)).

48

Doc. 18 at 2–3.

49

Doc. 21 at 3 (quoting Wille, 650 F. App’x at 630).

50

Id.

51

Doc. 22 at 9.

12

Having reviewed the parties’ arguments, the Court finds that Plaintiff’s injury was
reasonably ascertainable before the Tenth Circuit’s decision in June 2015. Plaintiff was aware of
the “fact of injury” on August 1, 2011, when she received a letter of dismissal from Karin
Brownlee.52 She argues that she could not determine who caused the injury until the Tenth
Circuit issued its ruling raising the capacity to sue issue in June 2015.53 But the Tenth Circuit’s
decision simply pointed to a legal issue regarding the KDOL’s capacity to be sued. It did not
impart knowledge of any facts as to who had a role in terminating Plaintiff’s employment.
Plaintiff was aware of those facts as of August 1, 2011.
In Wille, the court assumed that the Tilzer decision imparted knowledge of additional
facts to the plaintiffs because the Tilzer decision made clear that the settlement agreement was an
aggregate settlement and thus the class attorney was required to make disclosures under Rule 41.8(g).54 The court assumed that before the issuance of the Tilzer decision, the plaintiffs could
not have reasonably known that they had a malpractice claim against the class attorney.55 Here,
by contrast, the Tenth Circuit’s decision did not provide knowledge of any facts indicating that
the State of Kansas had something to do with Plaintiff’s injury. In fact, the Tenth Circuit’s
decision did not even mention the State of Kansas as a potential party, but instead simply
indicated that KDOL’s capacity to be sued was an issue separate from its sovereign immunity.56
The Tenth Circuit’s discussion of the legal capacity of KDOL did not shed any new light
on the factual issue of whether Plaintiff’s injury “was associated with, or caused by, some act of

52

See Doc. 1 at 5.

53

Doc. 17 at 7.

54

See Wille v. Davis, 650 F. App’x 627, 629 (10th Cir. 2016).

55

See id.

56

See Arbogast v. Kan., Dep’t of Labor, 789 F.3d 1174, 1180 (10th Cir. 2015).

13

the State of Kansas.”57 Plaintiff’s knowledge of the State of Kansas’ involvement in her
termination was reasonably ascertainable at the time of her termination in 2011. Indeed, in her
previous case, Plaintiff alleged that she began her employment with “Defendant, State of
Kansas,” in April 2001, and that Karin Brownlee was the Secretary of Labor for the State of
Kansas.58 Thus, Plaintiff was aware of the State of Kansas’ involvement in her alleged injury at
the time she filed her Complaint in her original case.
As explained above, Plaintiff was on notice of the State of Kansas’ involvement in her
alleged injury at the time of her termination in 2011. While the Tenth Circuit’s decision in 2015
raised the legal issue of KDOL’s capacity to be sued, it did not provide any new facts as to the
State’s involvement in Plaintiff’s alleged injury. Accordingly, the Court finds that the tolling
provisions under K.S.A. § 60-513(b) do not apply to Plaintiff’s claim.
2.

Application of K.S.A. § 60-518

Plaintiff also argues that her Complaint is timely under K.S.A. § 60-518. Section 60-518
provides that “[i]f any action be commenced within due time, and the plaintiff fail in such action
otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff
. . . may commence a new action within six (6) months after such failure.” Section 60-518 is a
saving statute that does not alter the general period of limitations, but rather “is intended to give
a party who brought an action in time, which was disposed of otherwise than upon the merits
after the statute of limitations had run, a [period] of grace in which to reinstate his case and

57

Doc. 17 at 7.

58

Arbogast v. Kan., Dep’t of Labor, Case No. 13-4007-JAR-KMH, Doc. 1 at 2.

14

obtain a determination upon the merits.”59 Section 60-518 applies only where the original case
and new case are “substantially similar.”60
Plaintiff contends this action is timely because it was filed within six months of April 21,
2017, the date the Tenth Circuit affirmed dismissal of her previous case. Defendants argue this
case is not “substantially similar” to Plaintiff’s original case because the State of Kansas was not
a party in the original action. Thus, Defendants argue, § 60-518 does not save this action.
Therefore, the question for this Court is whether the two actions are “substantially similar” for
purposes of § 60-518.
Defendants point to Taylor v. International Union of Electronic, Electrical, Salaried,
Machine and Furniture Workers, AFL-CIO, in which the Kansas Court of Appeals noted that:
The saving statute applies only if the original action and subsequent action are
substantially the same. Where the parties and the relief sought in the new action
are different from those in the original action, the actions are not substantially the
same, and the saving statute does not apply. In addition, where the relief sought is
the same in both actions, but defendants are different, the actions are not
substantially the same for purposes of the saving statute.61
In Brown v. Alma, Inc., this Court, citing Taylor, held that two actions were not “substantially
similar” where the second action added a new defendant.62 Defendants argue that these cases
stand for the proposition that adding a new defendant defeats the substantial similarity between
two otherwise parallel cases under § 60-518.
Plaintiff cites Seaboard Corporation v. Marsh Inc. for the proposition that the
substantially similar test does not require an identity of parties, so long as “the two actions
concern the same conduct, transaction, or occurrence and the first action provides adequate
59

Seaboard Corp. v. Marsh Inc., 284 P.3d 314, 321 (Kan. 2012).

60

Taylor v. Casey, 66 F. App’x 749, 751 (10th Cir. 2003).

61

968 P.2d 685, 689 (Kan. Ct. App. 1998).

62

No. 06-2548-JAR, 2007 WL 3046706, at *2 (D. Kan. Oct. 16, 2007).

15

notice to the defendant.”63 In Seaboard, the plaintiff argued that § 60-518 applied because it had
opted out of a previous class settlement against the defendants and dismissed its claims less than
six months before filing its complaint.64 The Kansas Supreme Court held that § 60-518 saved
the action because although the claims in the plaintiff’s case were not identical to the claims in
the prior class action, the claims arose out of the same conduct, transaction, or occurrence and all
the defendants named in the second action had been named in the class action.65 The court
emphasized that it was not concerned that not all defendants in the class action had been named
in the plaintiff’s action. Rather, the court explained that:
The critical point is that both Marsh and AIG were named in the MDL action and
had notice of the potential claims against them. To require a plaintiff asserting an
individual action to name every defendant named in a class action, many of whom
a plaintiff may have no complaint against, amounts to “court-ordered malicious
prosecution.” Moreover, such a requirement would contravene the purpose of the
application of K.S.A. 60–518 in the class action context. We conclude a plaintiff
who files an individual action after a failure of a class action otherwise than on
the merits can rely on K.S.A. 60–518 even if the plaintiff does not sue every
defendant in the class action.66
Plaintiff argues that under the reasoning of Seaboard, this case is substantially similar to
Plaintiff’s original action, even though Defendant State of Kansas was not named in the original
action, because the two cases involve the same conduct, transaction, or occurrence, and
Plaintiff’s original action provided Defendant adequate notice of her claims. Furthermore,
Plaintiff contends the Seaboard decision supersedes the holdings of earlier cases, including
Taylor, that the parties in a new action must be the same as in the original action for two cases to
be “substantially similar.”

63

284 P.3d 314, 335 (Kan. 2012).

64

Id. at 316.

65

Id. at 335–36.

66

Id. at 336 (citations omitted).

16

The Court finds that this action is not substantially similar to Plaintiff’s original suit
against KDOL because the State of Kansas was not a party to that litigation. As in Brown, “this
action adds a new defendant, [the State of Kansas], in contravention of the rule issued in
Taylor.”67 Plaintiff argues that the intervening ruling in Seaboard requires a different result in
this case than in Brown. But the Court is not convinced that the holding in Seaboard conflicts
with the result in Brown. In Seaboard, the court did not address the circumstances at issue in
Brown or here, where a defendant is named in a new suit but not named in the original suit.
Rather, the court in Seaboard addressed the opposite situation, where one of the defendants
named in the original suit is left out of the new suit.68 The court held that under those
circumstances the two cases were substantially similar, despite that all parties named in the
original action were not named in the new action. But the court was careful not to extend its
ruling to the situation at issue here. Indeed, the court noted that “[t]he critical point is that both
Marsh and AIG were named in the MDL action and had notice of the potential claims against
them.”69 Thus, the ruling in Seaboard does not dictate the result in this case.
The Court finds that where, as here, a defendant is named in a new suit but not named in
the original action, the two suits are not “substantially similar” for purposes of § 60-518 because
the newly added defendant does not have adequate notice of the potential claims against it.70
Therefore, § 60-518 does not apply to save Plaintiff’s claims.

67

Brown, 2007 WL 3046706, at *2.

68

Seaboard, 284 P.3d at 336.

69

Id. at 336.

70

Brown, 2007 WL 3046706, at *2; see also Int’l Union of Electronic, Electrical, Salaried, Machine &
Furniture Workers, AFL-CIO, 968 P.2d 685, 689 (Kan. Ct. App. 1998); Seaboard, 284 P.3d at 335.

17

C.

Conclusion

In sum, the Court finds that Plaintiff’s claim accrued in 2011 at the time of her
termination, when she became aware of the “fact of injury.”71 The tolling provisions under
K.S.A. § 60-513(b) do not apply because the Tenth Circuit’s 2015 decision in her previous case
did not provide Plaintiff with knowledge of facts of which she was not already aware. Plaintiff
was aware of the State of Kansas’ alleged involvement in her termination, and even argued to the
Tenth Circuit that she named the State in her original action.72 Thus, Plaintiff’s argument that
she became aware of the State of Kansas’ involvement in her injury only after the Tenth Circuit’s
2015 ruling is unavailing. Additionally, the Court finds that the Kansas saving statute, K.S.A. §
60-518, does not apply to Plaintiff’s claims. The State of Kansas was not named in Plaintiff’s
original action, and therefore this action is not “substantially similar” to the original action.
Accordingly, because Plaintiff’s claim accrued in 2011 at the time of her termination, because
the tolling provisions under § 60-513(b) do not apply, and because the Kansas saving statute
does not apply, the Court finds that this action, commenced on June 16, 2017, is untimely. The
Court therefore grants Defendants’ motion to dismiss.73
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for Leave
to File Surreply Memorandum (Doc. 20) is granted in part and denied in part, as described
above.
IT IS FURTHER ORDERED BY THE COURT that Defendants’ Motion to Strike
Surreply (Doc. 23) is denied as moot.
71

See K.S.A. § 60-513(b) (“if the fact of injury is not reasonably ascertainable until some time after the
initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable
to the injured party.”).
72

Arbogast v. Kan., Dep’t of Labor, 686 F. App’x 556, 557 (10th Cir. 2017).

73

Because the Court finds that Plaintiff’s Complaint is untimely, the Court does not address Defendants’
alternative argument that the Complaint otherwise fails to state a claim under Fed. R. Civ. P. 12(b)(6).

18

IT IS FURTHER ORDERED BY THE COURT that Defendants’ Motion to Dismiss
(Doc. 8) is granted.
IT IS SO ORDERED.
Dated: December 28, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

19