Scott, Sr. v. Cowley Distributing, Inc.
MEMORANDUM AND ORDER finding as moot 9 Motion to Dismiss for Failure to State a Claim; granting 11 Motion to Amend Complaint.; granting in part and denying in part 13 Motion to Dismiss for Lack of Jurisdiction;The motion to dismiss is denied and the motion to transfer is granted. This case is hereby transferred to the United States District Court for the Western District of Missouri, Central Division; denying 16 Motion to Strike. Signed by Chief District Judge Julie A Robinson on 9/20/2017.Mailed to pro se party James Scott Sr by certified mail ; Certified Tracking Number: 70123460000082626573 (ydm) [Transferred from ksd on 9/21/2017.]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES SCOTT, SR.,
Case No. 16-2831-JAR-JPO
COWLEY DISTRUBTING, INC.,
MEMORANDUM AND ORDER
Plaintiff James Scott brings this action pro se against his employer, Defendant Cowley
Distributing, Inc., alleging claims of discrimination and retaliation on the basis of his religion
and race, and a separate claim alleging a racially hostile work environment. Before the Court are
several motions: Defendant’s Motion to Dismiss for Failure to State a Claim Upon Which Relief
Can be Granted Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (Doc. 9), Motion to Dismiss
for Improper Venue or in the Alternative to Transfer (Doc. 13), and Motion to Strike Plaintiff’s
Response to Defendant’s Reply to Plaintiff’s Suggestions in Opposition to Defendant’s Motion
to Dismiss (Doc. 16); and Plaintiff’s Motion to File First Amended Complaint (Doc. 11).
As described more fully below, Plaintiff’s motion for leave to amend is granted, and
Defendant’s motions to dismiss are denied. The Court grants Defendant’s alternative request for
transfer to the Western District of Missouri Central Division. Finally, the Court denies
Defendant’s motion to strike. Because Plaintiff’s brief in opposition to Defendant’s first motion
to dismiss included a motion for leave to amend,1 Defendant’s reply to the motion may also be
construed as a response to the motion for leave to amend.2 Thus, Plaintiff was entitled to file a
reply under this District’s local rules.3
Motion for Leave to Amend
Plaintiff is entitled to amend once as a matter of course 21 days after service of a motion
under Rule 12(b), if it is a pleading to which a responsive pleading is required.4 Plaintiff’s
motion to amend was filed 21 days after Defendant’s motion to dismiss under Fed. R. Civ. P.
12(b)(1) and 12(b)(6). He has not previously amended, so he is entitled to amend once as a
matter of course. Plaintiff’s motion to file his proposed First Amended Complaint5 is therefore
granted, and the Clerk is directed to file the proposed pleading. The Court considers Plaintiff’s
amended pleading when ruling on Defendant’s motions to dismiss and transfer.
Motion to Dismiss under Fed. R. Civ. P. 12(b)(1) for Lack of Subject Matter
Jurisdiction and under 12(b)(6) for Failure to State a Claim
Defendant’s first motion to dismiss was styled as a motion to dismiss under both Rule
12(b)(1) and 12(b)(6). The basis for Defendant’s subject matter jurisdiction challenge was that
the Plaintiff failed to allege sufficient facts in the original Complaint to demonstrate the presence
of a federal question under 28 U.S.C. § 1331. Because Plaintiff proceeds pro se, the Court
construes his pleadings liberally.6 However, the Court does not assume the role of advocate.7
Also, Plaintiff's pro se status does not excuse him from “the burden of alleging sufficient facts on
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (providing that the Court must construe pro se
See D. Kan. R. 7.1.
Fed. R. Civ. P. 15(a)(1)(B).
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
which a recognized legal claim could be based.”8 Plaintiff is not relieved from complying with
the rules of the court or facing the consequences of noncompliance.9
Federal courts are courts of limited jurisdiction and, as such, must have a statutory or
constitutional basis to exercise jurisdiction.10 A court lacking jurisdiction must dismiss the case,
regardless of the stage of the proceeding, when it becomes apparent jurisdiction is lacking.11 The
party who seeks to invoke federal jurisdiction bears the burden of establishing that such
jurisdiction is proper.12 “Thus, plaintiff bears the burden of showing why the case should not be
dismissed.”13 Mere conclusory allegations of jurisdiction are not enough.14 However, the Court
“is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule
56 summary judgment motion when resolution of the jurisdictional question is intertwined with
the merits of the case.”15
Defendants challenge the Court’s subject matter jurisdiction by arguing that Plaintiff fails
to allege sufficient facts to support a claim under Title VII.16 Here, because jurisdiction is
predicated on the existence of a federal question, determining whether the original or amended
Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994)).
Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); see United States v. Hardage, 58 F.3d 569, 574
(10th Cir. 1995) (“Federal courts have limited jurisdiction, and they are not omnipotent. They draw their
jurisdiction form the powers specifically granted by Congress, and the Constitution, Article III, Section 2, Clause
1.”) (internal citations omitted).
Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995), abrogated on other grounds by Dart
Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547 (2014).
Montoya, 296 F.3d at 955.
Harms v. IRS, 146 F. Supp. 2d 1128, 1130 (D. Kan. 2001).
United States ex rel. Hafter, D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir.
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
See, e.g., Doc. 10 at 7 (“Scott has plead no essential elements showing any alleged discriminatory action
on behalf of Cowley.”), 8 (“Scott plead nothing that rises to the level of harassment.”).
pleading contains a short and plain statement of the grounds for the court’s jurisdiction requires
an evaluation of the substantive claim.17 Thus the Court must convert Defendant’s motion to
dismiss for lack of subject matter jurisdiction into a Rule 12(b)(6) motion. But because the
original Complaint is no longer operative, this motion is moot.18 The Court has reviewed the
Amended Complaint and is satisfied that it alleges a federal question—it clearly alleges claims
under Title VII and 42 U.S.C. § 1981, federal statutes.
Motion to Dismiss under Fed. R. Civ. P. 12(b)(3) for Improper Venue, or in the
Alternative, Motion to Transfer
Having granted the motion for leave to amend, and having satisfied itself of the Court’s
subject matter jurisdiction, the Court turns to Defendant’s motion for improper venue under Rule
12(b)(3). Plaintiff did not timely respond to the motion, so the Court issued an Order to Show
Cause why the motion should not be granted as unopposed. Plaintiff responded with several
arguments about why this case should not be dismissed for improper venue, but stated that he did
not object to the Court transferring this case for the convenience of the parties and in the interest
Motion to Dismiss for Improper Venue under Fed. R. Civ. P. 12(b)(3)
28 U.S.C. § 1391(b) guides the Court in determining whether venue is appropriate. First,
venue is appropriate in a district in which the defendant resides.19 Second, venue is appropriate
in “a judicial district in which a substantial part of the events or omissions giving rise to the
Holt, 35 F.3d at 1003 (“The jurisdictional question is intertwined with the merits of the case if subject
matter jurisdiction is dependent on the same statute which provides the substantive claim in the case.”).
Defendant makes the conclusory argument in the reply brief that the Amended Complaint does not cure
the jurisdictional defect, but fails to coherently explain why. Doc. 12 at 6. Plaintiff’s Complaint repeatedly alleges
discriminatory and retaliatory conduct on the basis of his religion and race. Without commenting on whether these
allegations state a claim upon which relief may be granted—a separate question—they clearly allege that Defendant
discriminated and retaliated against him on the basis of his race and religion. These allegations arise under federal
statutes and are sufficient to invoke the Court’s jurisdiction under 28 U.S.C. § 1331.
28 U.S.C. § 1391(b)(1).
claim occurred, or a substantial part of property that is the subject of the action is situated.”20
Finally, if there is no other district in which the case can be brought, it can be brought in any
judicial district in which the defendant is subject to personal jurisdiction.21 The procedure for
deciding a motion to dismiss for improper venue is generally the same as on a motion to dismiss
for personal jurisdiction.22 In the absence of an evidentiary hearing, as in this case, the plaintiff
must make only a prima facie showing of venue to defeat a motion to dismiss.23 Allegations in a
complaint are accepted as true if they are plausible, non-conclusory, and non-speculative, to the
extent that they are not controverted by submitted affidavits.24 When a defendant has produced
evidence to support its venue challenge, a plaintiff has a duty to come forward with competent
proof in support of the jurisdictional allegations of the complaint.25 The court resolves all factual
disputes in favor of the plaintiff.26 Conflicting affidavits are also resolved in the plaintiff’s favor,
and “the plaintiff’s prima facie showing is sufficient notwithstanding the contrary presentation
by the moving party.”27
First, despite having styled this motion as a motion to dismiss for improper venue,
Defendant apparently also challenges personal jurisdiction because it argues that Kansas
exercising personal jurisdiction would “offend traditional notions of ‘fair play and substantial
Id. § 1391(b)(2).
Id. § 1391(b)(3).
Mohr v. Margolis, Ainsworth & Kinlaw Consulting, Inc., 434 F. Supp. 2d 1051, 1058 (D. Kan. 2006).
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007)); Pytlik v. Prof’l Res., Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989); Behagen
v. Amateur Basketball Ass’n of U.S.A., 744 F.2d 731, 733 (10th Cir. 1984), cert. denied, 471 U.S. 1010 (1985).
Pytlik, 887 F.2d at 1376.
Dudnikov, 514 F.3d at 1070.
Behagen, 744 F.2d at 733.
justice.’”28 Federal courts follow state law “in determining the bounds of their jurisdiction over
persons.”29 To establish personal jurisdiction over a defendant, a plaintiff must show that
jurisdiction is proper under the laws of the forum state and that the exercise of jurisdiction would
not offend due process.30 The Kansas long-arm statute is construed liberally so as to allow
jurisdiction to the full extent permitted by due process, therefore the Court proceeds directly to
the constitutional analysis.31
The due process analysis is comprised of two steps. First, the court must consider
whether the defendant has such minimum contacts with the forum state “that he should
reasonably anticipate being haled into court there.”32 If the requisite minimum contacts are
found, the Court will proceed to the second step in the due process analysis—ensuring that the
exercise of jurisdiction “does not offend ‘traditional notions of fair play and substantial
Given the facts alleged in the Amended Complaint, and the admitted ties to Kansas set
forth in the affidavit of John A. Cowley, attached to the motion, Defendant understandably does
not dispute that it has minimum contacts with the State of Kansas. Defendant has a distribution
center in Lenexa, Kansas, which is where Plaintiff begins each of his workdays as a delivery
driver. Plaintiff picks up magazines and books at the Lenexa distribution center, and proceeds to
his delivery route, which has stops in both Kansas and Missouri. Cowley’s affidavit does not
Doc. 14 at 4.
Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014).
Intercon, Inc. v. Bell Atl. Internet Sols., Inc., 205 F.3d 1244, 1247 (10th Cir. 2000).
Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Coop., 17 F.3d 1302, 1305 (10th Cir. 1994) (citing
Volt Delta Res., Inc. v. Devine, 740 P.2d 1089, 1092 (Kan. 1987)).
Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1159–60 (10th Cir. 2010) (citing OMI
Holdings, Inc., 149 F.3d at 1091).
See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980) (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)).
controvert Plaintiff’s verified contentions in his response to the order to show cause that: (1) the
disciplinary meeting in March 2016 referenced in the Amended Complaint and in Cowley’s
affidavit took place in Lenexa, Kansas; (2) Plaintiff hand-delivered his grievance to an HR
officer at the Lenexa facility; (3) Plaintiff met with managers about his grievance at the Lenexa
facility in June 2016; (4) the alleged racially hostile comments by other employees happened at
the Lenexa facility; (5) Plaintiff complained about the lack of promotional opportunities to a
manager at the Lenexa facility; and (6) Plaintiff was disciplined about loading his van on an “off
day” at the Lenexa facility. The presence of a distribution facility in the State of Kansas creates
a strong showing of minimum contacts. Moreover, Plaintiff’s allegations above, which are
uncontroverted by Cowley’s affidavit, are sufficient to demonstrate venue in this District is
appropriate under § 1391(b)(2).34
Defendant argues that it would be unreasonable for this Court to exercise personal
jurisdiction, despite its minimum contacts with the State of Kansas. Once a plaintiff has made a
minimum contacts showing, a defendant “must present a compelling case that the presence of
some other considerations would render jurisdiction unreasonable.”35 This requires the weighing
of the following factors: (1) the burden on defendant; (2) the forum state’s interest in resolving
the dispute; (3) the plaintiff’s interest in receiving convenient and effective relief; (4) the
interstate judicial system’s interest in obtaining the most efficient resolution of controversies;
and (5) the shared interest of the several states in furthering fundamental substantive social
policies.36 Further, in this second step of the analysis, the court should consider the strength of
Defendant refers to the § 1391(b) subsections as “factors.” These are not factors; they are independent
grounds for determining venue.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985).
Employers Mut. Cas. Co., 618 F.3d at 1161.
the defendant’s minimum contacts.37 If these factors are strong, they may serve to establish the
reasonableness of jurisdiction even if plaintiff’s showing of minimum contacts is weak.38 Given
the strength of minimum contacts in this case, the Defendant’s burden to show unreasonableness
is heavy. Although Defendant’s principle place of business is in Jefferson City, Missouri, it has
a distribution center in Lenexa, Kansas. Thus, the burden on Defendant to travel to neighboring
Kansas where it already conducts part of its business is low. Kansas has an interest in resolving
this dispute to the extent the alleged discriminatory and retaliatory conduct occurred in Kansas.
Defendant provides no reason why it could not obtain effective and convenient relief in Kansas
versus Missouri federal court. And Defendant can point to no substantive social policies that
would render jurisdiction over Defendant in Kansas unreasonable. The Court easily finds that
subjecting Defendant to personal jurisdiction in Kansas would not offend due process.
Motion to Transfer Venue under 28 U.S.C. § 1404(a)
In the alternative, Defendant asks the Court to transfer this matter to the Western District
of Missouri, Central Division. 28 U.S.C. § 1404(a) allows the Court to transfer a case to any
district where it might have been brought “for the convenience of the parties and witnesses” and
“in the interest of justice.”39 The parties do not dispute that this matter could have been brought
in the Western District of Missouri. In determining whether to grant a motion to transfer, this
Court considers the following discretionary factors:
the plaintiff’s choice of forum; the accessibility of witnesses and
other sources of proof, including the availability of compulsory
process to insure attendance of witnesses; the cost of making the
necessary proof; questions as to the enforceability of a judgment if
one is obtained; relative advantages and obstacles to a fair trial;
TH Agrig. & Nutrition, LLC v. Ace European Grp. Ltd., 488 F.3d 1282, 1292 (10th Cir. 2007).
OMI Holdings, Inc. v. Royal Ins. Co, 149 F.3d 1086, 1095 (10th Cir. 1998); Pro Axess, Inc. v. Orlux
Distrib., Inc., 428 F.3d 1270, 1280 (10th Cir. 2005).
28 U.S.C. § 1404(a).
difficulties that may arise from congested dockets; the possibility
of the existence of questions arising in the area of conflict of laws;
the advantage of having a local court determine questions of local
law; and, all other considerations of a practical nature that make a
trial easy, expeditious and economical.40
Here, Plaintiff’s choice of forum carries little weight because he is not a resident of the
State of Kansas.41 In the Tenth Circuit, the convenience of witnesses is the single most
important factor in deciding a motion to transfer.42 The movant has the burden to demonstrate
inconvenience by: (1) identifying witnesses and their locations; (2) indicating the materiality of
their testimony; and (3) showing that the witnesses are unwilling to come to trial, that deposition
testimony would be unsatisfactory, or that the use of compulsory process would be necessary.43
Some of the facts giving rise to this litigation occurred in Missouri, Plaintiff drives his company
vehicle to his home in Missouri each evening, Defendant’s employment and business decisions
are made in Jefferson City, Missouri, and Plaintiff’s employment records are maintained in
Defendant has met its burden of demonstrating through Cowley’s affidavit that litigating
this case in the Central District of Missouri would be more convenient, and that transfer is in the
interest of justice. There is already a pending separate case over alleged unpaid wages in that
court being litigated between these parties. Plaintiff does not object to transfer. Thus, this Court
will grant Defendant’s motion to transfer this matter to the Western District of Missouri, Central
Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991) (quoting Tex. Gulf
Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir. 1967)).
Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1168 (10th Cir. 2010).
Id. (quoting Cook v. Atchison, Topeka & Santa Fe Ry. Co., 816 F. Supp. 667, 669 (D. Kan. 1993)).
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to File
First Amended Complaint (Doc. 11) is granted. The Clerk is directed to file Plaintiff’s proposed
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss for Failure to State a
Claim Upon Which Relief Can be Granted Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)
(Doc. 9) is moot.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike Plaintiff’s Response to
Defendant’s Reply to Plaintiff’s Suggestions in Opposition to Defendant’s Motion to Dismiss
(Doc. 16) is denied.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss for Improper Venue
or in the Alternative to Transfer (Doc. 13) is granted in part and denied in part. The motion
to dismiss is denied and the motion to transfer is granted. This case is hereby transferred to the
United States District Court for the Western District of Missouri, Central Division.
IT IS SO ORDERED.
Dated: September 20, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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