Woods v. Wadeson et al

Filing 20

MEMORANDUM AND ORDER granting 11 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Eric F. Melgren on 07/30/2014. Mailed to pro se party Ronald J. Woods by regular mail. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RONALD J. WOODS,
Plaintiff,

vs.

Case No. 6:14-CV-1079-EFM-KMH

LISA WADESON; ALAN BUCHANAN;
and FARM BUREAU PROPERTY &
CASUALTY INSURANCE,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Ronald J. Woods (“Plaintiff”) seeks monetary damages, both compensatory and
punitive, against Defendants Lisa Wadeson, Alan Buchanan, and Farm Bureau Property &
Casualty Insurance (“Defendants”) for damages allegedly arising out of a traffic citation issued
to Plaintiff’s daughter. This matter is before the Court on Defendants’ Motion to Dismiss (Doc.
11). For the reasons stated below, Defendants’ motion is granted.
I.

Factual and Procedural Background

The facts in this case are sparse at best and border on non-existent. Even the most careful
reading of Plaintiff’s Complaint reveals very little as to what, exactly, is at issue. It appears that
Plaintiff’s teenage daughter was involved in a traffic accident for which she received a moving
violation. At some point, this violation was reduced to a non-moving violation.

Plaintiff filed a Complaint in the United States District Court for the District of Kansas
on March 14, 2014, alleging a claim arising out of a violation of civil or equal rights, privileges,
or immunities accorded to cities of, or persons within the jurisdiction of, the United States,
pursuant to 28 U.S.C. § 1343. On that same day, Plaintiff filed motions to proceed in forma
pauperis (Doc. 3) and for the appointment of counsel (Doc. 4). On March 31, 2014, Magistrate
Judge Karen M. Humphreys granted Plaintiff’s motion to proceed in forma pauperis but denied
his motion for the appointment of counsel (Doc. 5). Plaintiff filed a motion for reconsideration
on April 2, 2014, which Magistrate Humphreys denied on May 14, 2014 (Doc. 13). Plaintiff
then filed a Notice of Interlocutory Appeal to the Tenth Circuit (Doc. 14). The Appellate Court
denied Plaintiff’s motion on June 11, 2014, citing lack of jurisdiction (Doc. 18).

While

Plaintiff’s interlocutory appeal was pending, on May 13, 2014, Defendants filed this motion to
dismiss for lack of personal jurisdiction, failure to comply with Federal Rule of Civil Procedure
8, and failure to state a claim upon which relief may be granted (Doc. 11). Plaintiff did not
respond.
II.

Legal Standard

Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the
plaintiff has failed to state a claim upon which relief can be granted.1 Upon such motion, the
court must decide “whether the complaint contains ‘enough facts to state a claim to relief that is
plausible on its face.’”2 A claim is facially plausible if the plaintiff pleads facts sufficient for the

1

FED. R. CIV. P. 12(b)(6).

2

Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009).

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court to reasonably infer that the defendant is liable for the alleged misconduct.3 The plausibility
standard reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of
the nature of the claims as well as the grounds upon which each claim rests.4 Under Rule
12(b)(6), the court must accept as true all factual allegations in the complaint, but need not afford
such a presumption to legal conclusions.5 Viewing the complaint in this manner, the court must
decide whether the plaintiff’s allegations give rise to more than speculative possibilities.6 If the
allegations in the complaint are “so general that they encompass a wide swath of conduct, much
of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable
to plausible.’”7
III.

Analysis

In their motion to dismiss, Defendants cite three possible grounds for dismissal, each of
which, in its own right, could be sufficient to dismiss Plaintiff’s Complaint. In the interest of
thoroughness, the Court discusses two of these grounds in detail below, although not necessarily
in the order as presented by Defendants.
A.

Lack of Personal Jurisdiction
Defendants allege that Plaintiff failed to properly serve any Defendant in this matter, as

Plaintiff simply sent the Complaint, via certified mail, to Farm Bureau’s Regional Office in
3

Iqbal, 566 U.S. at 678 (citing Twombly, 550 U.S. at 556).

4

See Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (internal citations omitted); see also FED.
R. CIV. P. 8(a)(2) (“A pleading that states a claim for relief must contain a short and plain statement of the claim
showing that the pleader is entitled to relief.”).
5

Iqbal, 556 U.S. at 678-79.

6

See id. at 678. (“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.”).
7

Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570).

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Manhattan, Kansas. According to Defendants, the mailings were signed for by someone in Farm
Bureau’s shipping and receiving department.8
Pursuant to Rule 4 of the Federal Rules of Civil Procedure, a federal court lacks personal
jurisdiction over a defendant if service of process is insufficient.9 Upon challenge to a court’s
jurisdiction, a plaintiff bears the burden to show, by a preponderance of the evidence, that
jurisdiction exists.10 “The parties may submit affidavits and other documentary evidence for the
Court’s consideration, and plaintiff is entitled to the benefit of any factual doubt.”11
With regard to Buchanan and Wadeson, Rule 4(e)(1) dictates that service upon an
individual may be made by following the law of the state where the district court is located or
where service is made or by:
(A) delivering a copy of the summons and of the complaint to the individual
personally; (B) leaving a copy of each at the individual’s dwelling or usual place
of abode with someone of suitable age and discretion who resides there; or (C)
delivering a copy of each to an agent authorized by appointment of by law to
receive service of process.12
Under Kansas Statutes Annotated § 60-304, service of process to an individual by return
receipt delivery “must be addressed to an individual at the individual’s dwelling or usual place
of abode and to an authorized agent at the agent’s usual or designated address.”13 Section 60-

8

Return of Service, Doc. 7. Defendants specifically note that the mailings were signed for by “Ms.
Peterson.” Defendants’ Motion to Dismiss, Doc. 12, p. 6 n.2.
9

See Nicks v. Brewer, 2010 WL 4868172, at *4 (D. Kan. Nov. 23, 2010).

10

Hagan v. Credit Union of Am., 2011 WL 6739595, at *1 (D. Kan. Dec. 22, 2011) (citing United States ex
rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 797 (10th Cir. 2002)).
11

Id. (quoting Taylor v. Osawatomie State Hosp., 2008 WL 2891011, at *1 (D. Kan. July 24, 2008)).

12

FED. R. CIV. P. 4(e)(1)-(2).

13

K.S.A. § 60-304(a).

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304 allows service of process to be sent to a defendant’s place of business only under certain
conditions. It reads:
If the sheriff, party or party’s attorney files a return of service stating that the
return receipt delivery to the individual at the individual’s dwelling or usual place
of abode was refused or unclaimed and that a business address is known for the
individual, the sheriff, party or party’s attorney may complete service by return
receipt delivery, addressed to the individual at the individual’s business
address.”14
The question, then, is whether Plaintiff complied with § 60-304(a) before attempting to
serve Defendants via certified mail at their place of business. Here, there is no indication that
Plaintiff first attempted to serve either Buchanan or Wadeson at his or her dwelling house or
usual place of abode. Nor did Plaintiff file a return on service indicating that delivery at the
individual Defendants’ dwelling or usual place of abode was refused or unclaimed. The certified
mail that went to the business address was signed by an Eva Peterson, not the individual
Defendants. There is no evidence that Peterson was authorized to accept service of process on
Buchanan’s or Wadeson’s behalf.15 It is therefore clear that Plaintiff did not restrict delivery of
the certified mail addressed to the business address to the addressee only. In short, Plaintiff
failed to perform any statutory prerequisite for business address service as provided by § 60304(a).
Service on the corporate Defendant, Farm Bureau Property & Casualty Insurance, is also
insufficient. Under Rule 4(h)(1), a corporation may be served “by delivering a copy of the
summons and of the complaint to an officer, a managing or general agent, or any other agent

14

K.S.A. § 60-304(a) (emphasis added).

15

Defendants’ Motion to Dismiss, Doc. 12, p. 6 n.2.

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authorized by appointment or by law to receive service of process . . . .”16 The Rules also
authorize service of process under the manner prescribed in Rule 4(e)(1),17 which includes any
method under state law “where the district is located or where service is made.”18
Under K.S.A. § 60-304(e), service on a corporation may be made by: (1) serving an
officer, manager, partner or a resident, managing or general agent; (2) leaving a copy of the
summons and petition or other document at any of its business offices with the person having
charge thereof; or (3) serving any agent authorized by appointment or by law to receive service
of process, and if the agent is one authorized by statute to receive service and the statute so
requires, by also mailing a copy to the defendant.19 Service by return receipt mail on an officer,
partner, or agent “must be addressed to the person at the person’s usual place of business.”20
Here, there is no evidence that Plaintiff served an officer, manager, partner, managing or
general agent, or authorized agent of Defendant Farm Bureau. Nor is there any evidence that
Plaintiff addressed the return receipt delivery specifically to an officer, partner, or agent. This is
evidenced by the fact that the Complaint was received and signed for by Peterson, the
Distribution Services Administrator for Farm Bureau’s regional office in Manhattan, Kansas.
According to Defendants, Peterson is in charge of shipping and receiving.21

16

FED. R. CIV. P. 4(h)(1)(B).

17

FED. R. CIV. P. 4(h)(1)(A).

18

FED. R. CIV. P. 4(e)(1).

19

K.S.A. § 60-304(e)(1)-(3).

20

K.S.A. § 60-304(e).

21

Defendants’ Motion to Dismiss, Doc. 12, p. 6 n.2.

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There is no

indication that she is an officer, partner, or agent authorized to receive service of process on
behalf of the corporation. Therefore, Plaintiff’s service was insufficient.
The Court, however, is aware that Plaintiff is proceeding in forma pauperis. As such,
Judge Humphreys, in her order granting Plaintiff’s motion to proceed in forma pauperis, directed
“the clerk of the court [to] take the appropriate steps to serve defendants with the summons and
complaint as provided under 28 U.S.C. 1915(d) and Fed. R. Civ. P. 4(c)(2).”22 It therefore
appears that the clerk of court, not Plaintiff, was responsible for the insufficient service on all
Defendants. Given that Plaintiff was not responsible for the insufficient service, the Court denies
Defendants’ motion to dismiss on this ground.
Ordinarily, the Court would allow Plaintiff an extension of time to cure this defect.
However, as outlined below, even if Plaintiff properly served Defendants with the Complaint, at
least as the Complaint stands in its current form, Plaintiff still fails to plead allegations sufficient
to invoke federal subject matter jurisdiction under 28 U.S.C. § 1343. As such, the Court will not
require Plaintiff to complete this futile act.
B.

Lack of Subject Matter Jurisdiction
Defendants argue that, although Plaintiff seemingly files suit under 28 U.S.C. § 1343, this

statute is purely procedural and requires Plaintiff to set forth a specific violation of the
constitution or federal law, something Plaintiff fails to do. As such, Defendants argue, Plaintiff’s
claims must be dismissed under Rule 12(b)(6) for failure to state a claim.

22

Order Granting Plaintiff’s Motion to Proceed In Forma Pauperis, Doc. 5, p. 1.

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Plaintiff claims that jurisdiction arises “because of violation of the civil or equal rights,
privileges, or immunities accorded to citizens of, or persons within the jurisdiction of, the United
States (28 U.S.C. § 1343).”23 The Tenth Circuit has frequently held that
§ 1343 creates no independent substantive cause of action, but is a jurisdictional
statute that provides the federal courts with subject-matter jurisdiction to hear a
civil rights conspiracy claim under 42 U.S.C. § 1985, a claim for deprivation of
one’s civil rights under color of state law, or a claim for violation of any Act of
Congress providing for the protection of civil rights.24
Here, Plaintiff does not remotely allege either a civil rights conspiracy claim under 42
U.S.C. § 1985 or a violation of any Act of Congress providing for the protection of civil rights.25
Nor does he allege deprivation of civil rights “under color of state law.” In fact, to do so,
Plaintiff would have to show that “the party charged with the deprivation [was] a person who
may be fairly said to be a state actor . . . or because his conduct is otherwise chargeable to the
State.”

26

In his Complaint, Plaintiff alleges, albeit in extremely vague terms, that Defendant

Wadeson “refuse to obey the ruling by the Municipal Court, which the City District Attorney
change the ticket to non-moving violation, which my daughter didn’t cause the accident.”27
Plaintiff fails to mention how Defendant Wadeson is a state actor. Furthermore, Plaintiff fails to
mention Defendants Buchanan or Farm Bureau at all in the substantive portion of the Complaint,
never mind how either of these two Defendants are state actors.

23

Complaint, Doc. 1, p. 3.

24

Lewis v. Stevenson, 123 Fed. Appx. 885, 886 (10th Cir. Feb. 8, 2005).

25

Complaint, Doc. 1.

26

Elliot v. Chrysler Fin., 149 F. App’x 766, 768-69 (10th Cir. Sept. 2, 2005).

27

Complaint, Doc. 1, p. 3. Quotations from the Complaint are verbatim and include all grammar and
spelling errors.

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The Court recognizes Plaintiff’s pro se status and notes that a pro se plaintiff’s pleadings
are to be construed liberally and are generally held to a less stringent standard than formal
pleadings drafted by lawyers.28 This means that “if the court can reasonably read the pleadings
to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff’s
failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading requirements.”29 The court, however,
does not have to assume the role of advocate for the pro se litigant.30 Here, Plaintiff simply fails
to provide any context or language such that the Court could reasonably read the pleadings to
state a valid claim for a civil rights violation upon which he could prevail.
Therefore, because the Complaint does not assert a cognizable claim for violation under
28 U.S.C. § 1343, Plaintiff fails to invoke federal subject matter jurisdiction.

As such,

Defendants’ motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6), is granted.31

28

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

29

Id.

30

Id.

31

The Court notes that Defendants also seek to dismiss Plaintiff’s Complaint for failure to comply with
Federal Rule of Civil Procedure 8. Because the Court dismisses Plaintiff’s Complaint for lack of federal subject
matter jurisdiction, it regards this argument as moot.

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IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 11) is
hereby GRANTED.
IT IS SO ORDERED.
Dated this 30th day of July, 2014.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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