Bogle v. Luvata Franklin, Inc.

Filing 16

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 3/28/2013. IT IS HEREBY ORDERED that Defendant's motion for partial judgment on the pleadings, (Docket No. 10 ), is GRANTED, and Bogle's claim for intentional infliction of emotional distress is DISMISSED. cc: Counsel (CDF)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:12-CV-00200-TBR
JOHN BOGLE

Plaintiff

v.
LUVATA FRANKLIN, INC.

Defendant

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendant Luvata Franklin, Inc.’s Motion
for Partial Dismissal or Partial Judgment on the Pleadings. (Docket No. 10.) Plaintiff
John Bogle has responded, (Docket No. 11), and Defendant has replied, (Docket No.
15). This matter is now ripe for adjudication. For the reasons that follow, the Court
will GRANT Defendant’s motion for partial judgment on the pleadings.
BACKGROUND
Bogle has been employed by Defendant for some forty years. In early 2012, he
applied and interviewed for a position but was not selected, and the job was given to
another of Defendant’s employees. Bogle filed this discrimination action on November
28, 2012, alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12201
et seq., the Age Discrimination and Employment Act, 29 U.S.C. § 621 et seq., and the
Kentucky Civil Rights Act, Ky. Rev. Stat. § 344.010 et seq.. (Docket No. 1, at 1-4.)
Bogle also stated a cause of action for intentional infliction of emotional distress (IIED)
under Kentucky law. (Docket No. 1, at 5.)

Page 1 of 5

STANDARD
Motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) and motions
for judgment on the pleadings under Rule 12(c) are adjudicated using the same
standard. JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577 (6th Cir. 2007); Roger
Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 389 (6th Cir. 2007). When
considering either a Rule 12(b)(6) or 12(c) motion, the Court will presume that all the
well-pleaded material allegations of the pleadings are true and will draw all reasonable
inferences in favor of the nonmoving party. Total Benefits Planning Agency v. Anthem
Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008); JPMorgan, 510 F.3d at
581. However, the Court need not accept as true legal conclusions or unwarranted
factual inferences. Total Benefits, 552 F.3d at 434; JPMorgan, 510 F.3d at 581-82.
Under Rule 12(b)(6) motion to dismiss, a complaint may be attacked for failure
“to state a claim upon which relief can be granted.” “[O]nly a complaint that states a
plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). A Rule 12(c)
motion for judgment on the pleadings may be granted only if the moving party is clearly
entitled to judgment,” JPMorgan, 510 F.3d at 581 (quoting S. Ohio Bank v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)), and “when no
material issue of fact exists and the party making the motion is entitled to judgment as a
matter of law,” id. at 582 (quoting Paskvan v. City of Cleveland Civil Serv. Comm’n,
946 F.2d 1233, 1235 (6th Cir. 1991)).

Page 2 of 5

DISCUSSION
Defendant seeks dismissal of Bogle’s IIED claim under Rules 12(b)(6) and
12(c), on the basis that Bogle’s IIED claim is subsumed by his claim under the
Kentucky Civil Rights Act. (Docket No. 10.) Rule 12 provides that a motion asserting
the defense of failure to state a claim upon which relief can be granted “must be made
before pleading if a responsive pleading is allowed.” Still, Rule 12(h)(2) provides that
such a defense can be raised after an answer has been filed by a Rule 12(c) motion for
judgment on the pleadings. Fed. R. Civ. P. 12(h)(2); see also Morgan v. Church’s Fried
Chicken, 829 F.2d 10, 11 (6th Cir. 1987). Thus, because Defendant filed the instant
Motion after filing its Answer, the Court will treat it as a Rule 12(c) motion for
judgment on the pleadings.
The tort of IIED, formerly “outrage,” was recognized by the Kentucky Supreme
Court in Craft v. Rice, 671 S.W.2d 247 (Ky. 1984). Under Kentucky law, IIED serves as
a “gap filler” to provide a remedy when other means of redress are unavailable. Brewer
v. Hillard, 15 S.W.3d 1, 8 (Ky. Ct. App. 1999); Rigazio v. Archdiocese of Louisville, 853
S.W.2d 295, 299 (Ky. Ct. App. 1993). Defendant argues that because recovery for
Bogle’s alleged emotional distress is available under the Kentucky Civil Rights Act, he
cannot maintain his IIED claim. The Court agrees.
Kentucky courts have consistently held that where a plaintiff pursues relief
under the Kentucky Civil Rights Act, a claim of IIED based on the same employer
conduct is barred. See, e.g., Kroger Co. v. Buckley, 113 S.W.3d 644, 646 (Ky. Ct. App.
2003) (“[W]hen a plaintiff prosecutes a KRS Chapter 344 claim and an outrageous
conduct claim concurrently, the former preempts the latter. . . . [A] KRS Chapter 344
Page 3 of 5

claim preempts a common law IIED/outrageous conduct claim.”); Wilson v. Lowe’s
Home Ctr., 75 S.W.3d 229, 239 (Ky. Ct. App. 2001) (holding that a plaintiff’s “IIED
claim against [his employer] was subsumed by his KRS Chapter 344 claims”); accord
Messick v. Toyota Motor Mfg., Ky., Inc., 45 F. Supp. 2d 578, 582 (E.D. Ky. 1999). Both
this Court and in the Eastern District of Kentucky have applied this Kentucky case law
in the context of motions under Rules 12(b)(6) and 12(c), and have held that an IIED
claim fails and must be dismissed where a plaintiff also pursues relief under the
Kentucky Civil Rights Act. See, e.g., LaPorte v. B.L. Barbert Int’l, No. 5:09-CV-219TBR, 2010 WL 1542500, at *4 (W.D. Ky. April 16, 2010) (granting a Rule 12(b)(6)
motion to dismiss a plaintiff’s IIED claim as preempted by his claims under the
Kentucky Civil Rights Act); Thompson v. Next-Tek Finishing, LLC, No. 3:09-CV-940-S,
2010 WL 1744621, at *2 (W.D. Ky. Apr. 28, 2010) (granting a Rule 12(c) motion for
judgment on the pleadings on a plaintiff’s IIED claim as preempted under the Kentucky
Civil Rights Act); Price v. TJX Cos., Inc., No. 5:11-CV-319-JMH, 2012 WL 1565235,
at *3 (E.D. Ky. May 2, 2012) (granting a Rule 12(c) motion and dismissing an IIED
claim as barred by the plaintiff’s claims under the Kentucky Civil Rights Act).
Therefore, because Bogle pursues claims under the Kentucky Civil Rights Act, his IIED
claim arising out of the same events fails and must be dismissed.

Page 4 of 5

CONCLUSION
For these reasons, the Court concludes that no genuine issue of material fact
exists and that Defendant is entitled to judgment as a matter of law on Bogle’s claim for
intentional infliction of emotional distress. Accordingly;
IT IS HEREBY ORDERED that Defendant’s motion for partial judgment on the
pleadings, (Docket No. 10), is GRANTED, and Bogle’s claim for intentional infliction
of emotional distress is DISMISSED.
IT IS SO ORDERED.
Date:

cc:

March 28, 2013

Counsel

Page 5 of 5