Opinion
No. 00-4208-SAC.
March 11, 2002.
MEMORANDUM AND ORDER
The case comes before the court on the partial motion to dismiss filed by the defendant Professional Recovery Services, Inc. ("PRS") (Dk. 12). The plaintiff Michael D. Caputo filed this action alleging the defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692; violated the Kansas Consumer Protection Act, K.S.A. 50-623; and committed the state law torts of fraud and intentional infliction of emotional distress. The defendant PRS seeks to dismiss the state law torts alleged in count three (fraud) and count four (intentional infliction of emotional distress).
RULE 12(B)(6) STANDARDS
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), or unless an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993); see Hospice of Metro Denver, Inc. v. Group Health Ins. of Oklahoma, 944 F.2d 752, 753 (10th Cir. 1991) ("Dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(6) requires the legal determination that the plaintiff can prove no set of facts in support of his claim to entitle him to relief.") (citations omitted). The Tenth Circuit has observed that the federal rules "`erect a powerful presumption against rejecting pleadings for failure to state a claim.'" Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488, 1496 (10th Cir. 1995) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir. 1986)).
Although plaintiff need not precisely state each element of its claims, it must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Put another way, "`conclusory allegations without supporting allegations are insufficient to state a claim.'" Erikson v. Pawnee County Bd. of County Com'rs, 263 F.3d 1151, 1154 (10th Cir. 2001) (quoting Hall, 935 F.2d at 1110), petition for cert. filed, 70 U.S.L.W. 3482 (Jan. 23, 2002) (No. 01-10). "[A]llegations of conclusions or opinions are not sufficient when no facts are alleged by way of the statement of the claim." Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th Cir. 1977); see Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990) (district court is not required to accept "footless conclusions of law" in deciding motion to dismiss). "`It is true that the Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which a claim is based. Nevertheless, a plaintiff must allege sufficient facts to outline a cause of action, proof of which is essential to recovery.'" Stevens v. Umsted, 131 F.3d 697, 700 (7th Cir. 1997) (quoting Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047 (1986)).
Nor is it the court's function "to weigh potential evidence that the parties might present at trial." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). Rather, a court judges the sufficiency of the complaint accepting as true all well-pleaded facts, Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), and drawing all reasonable inferences from those facts in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881 (1998). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir. 1989).
Rule 9(b) of the Federal Rules of Civil Procedure states: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." This heightened pleading requirement serves to provide defendants adequate notice of the plaintiff's claim, to protect defendants from reputational damage caused by "improvident charges of wrongdoing," and to "inhibit the institution of strike suits." Farlow v. Peat, Marwick, Mitchell Co., 956 F.2d 982, 986 (10th Cir. 1992) (quotation omitted). This does not mean that Rule 8's principle of "simple, concise and direct" pleadings is to be ignored. Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir. 1997). But it does mean that to survive a motion to dismiss, an allegation of fraud must "set forth the time, place, and contents of the false representation, the identity of the party making the false statements and the consequences thereof." Id. (citing Lawrence Nat'l Bank v. Edmonds, 924 F.2d 176, 180 (10th Cir. 1991)). Put another way, the plaintiff must set out the "who, what, where, and when" of the alleged fraud. See Phillips USA, Inc. v. Allflex USA, Inc., 1993 WL 191615 (D.Kan. May 21, 1993); Nal II. Ltd. v. Tonkin, 705 F. Supp. 522, 525-26 (D.Kan. 1989).
ANALYSIS AND DISCUSSION
Count Three — Fraud
The defendant PRS argues that count three does not allege with particularity, as required by Fed.R.Civ.P. 9(b), what the plaintiff reasonably relied upon, what the plaintiff did in reliance, and what injuries were sustained as a result of that reliance. In his memorandum opposing the defendant's motion, the plaintiff identifies the particular representations on which he relied, how he relied on them, and the injuries he sustained. The plaintiff, however, refers to matters nowhere alleged in his first amended complaint. Thus, the court finds that count three does not allege with particularity these required elements of a fraud claim. The court further finds it possible that plaintiff could plead facts that might cure this deficiency in an amended complaint. Therefore, the court exercises the discretion provided it by Fed.R.Civ.P. 15(a) and grants the plaintiff leave to file an amended complaint as to his fraud claim within fifteen days of the filing date of this order to conform to the pleading requirements imposed by Rule 9(b).Count Four — Intentional Infliction of Emotional Distress
The defendant PRC argues the plaintiff's complaint fails to allege the facts sufficient to support his conclusory statements and to clear the two threshold requirements to liability for outrage. Alternatively, PRC argues that Kansas law does not recognize an employer's vicarious liability for an employee's intentional infliction of emotional distress. The plaintiff responds that the Fair Debt Collection Practices Act is what society has deemed to be decent behavior and that a jury could find here that the defendant's conduct was "outrageous" or intolerable in a civilized society. The plaintiff argues the defendant's agent knew that the plaintiff was a disabled Vietnam War veteran and that the harassment and misrepresentations would injure him. The plaintiff also insists the court should not dismiss his claim without some formal discovery. The plaintiff finally argues that vicarious liability is appropriate here.
Generally, an employer is not liable for the intentional torts of an employee unless they are committed while the employee is acting within the scope of his employment or in furtherance of his employer's business, and not with a purpose personal to the employee. Williams v. Community Drive-In Theater, Inc., 214 Kan. 359, Syl. ¶ 3, 520 P.2d 1296 (1974). The defendant relies on the Tenth Circuit holding that has not allowed harassment by co-workers to proceed on a theory of vicarious liability. Bolden v. PRC Inc., 43 F.3d 545, 554 (10th Cir. 1994), cert. denied, 516 U.S. 826 (1995) (applying Kansas law); see Anspach v. Tomkins Indus., Inc., 817 F. Supp. 1499, 1507 (D.Kan. 1993), aff'd, 51 F.3d 285 (10th Cir. 1995) (Table) (employer is not vicariously liable for extreme and outrageous treatment of one employee by another employee). See also Braun v. Dillon Companies, Inc., 1995 WL 261142, at *14 (D.Kan. Apr. 19, 1995). Rather than an allegation of an employee's alleged intentional tortious act against a co-employee, this case involves an employee's tortious actions committed in an apparent attempt to collect a debt for his employer, a debt collection agency. On its face, the plaintiff's complaint alleges a sufficient factual basis for possible vicarious liability.
To establish a claim of intentional infliction of emotional distress under Kansas law, a plaintiff must demonstrate four elements: (1) the conduct of defendant must be intentional or in reckless disregard of plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between defendant's conduct and plaintiff's mental distress; and (4) plaintiff's mental distress must be extreme and severe. Miller v. Sloan, Listrom, Eisenbarth, Sloan and Glassman, 267 Kan. 245, 257, 978 P.2d 922 (1999). Conduct is not extreme and outrageous unless a civilized society would regard it as exceeding the bounds of decency or utterly intolerable. Wiehe v. Kukal, 225 Kan. 478, 482, 592 P.2d 860 (1979). Liability also depends on clearing two threshold determinations by the court that "the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and . . . [that] the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it." Roberts v. Saylor, 230 Kan. 289, 292-93, 637 P.2d 1175 (1981). Courts routinely have dismissed claims of outrage when all the elements were not alleged or when, as here, the alleged conduct could not be considered extreme and outrageous. Gudenkauf v. Stauffer Communications, Inc., 922 F. Supp. 461, 464 (D.Kan. 1996) (citations omitted).
The plaintiff's allegations are not sufficient in detail for this court to say that the plaintiff could prove a set of facts in support of his claim which would entitle him to relief. Other than saying they are false, the complaint does not allege the nature and character of those representations such that they could reasonably be regarded as so extreme and outrageous as to permit recovery. For that matter, the plaintiff makes only conclusory allegations concerning his extreme distress. Discovery has proceeded in this case, and the plaintiff has had more than sufficient time to learn the facts necessary to allege in bringing such a claim. Uncertain whether plaintiff can cure these pleading deficiencies, the court will give the plaintiff leave to file an amended complaint as to his outrage claim within fifteen days of the filing date of this order. See Moten v. American Linen Supply Co., 155 F.R.D. 202, 205 (D.Kan. 1994).
IT IS THEREFORE ORDERED that the partial motion to dismiss filed by the defendant Professional Recovery Services, Inc. (Dk. 12) is granted insofar as the allegations of counts three and four are found to be insufficient but that the plaintiff is given leave to file an amended complaint concerning these counts within fifteen days of the filing date of this order.