Opinion
CIVIL ACTION No. 01-3235-CM.
October 24, 2002.
MEMORANDUM AND ORDER
Pending before the court are defendants Merdelin Johnson and Donna Smith's Motion to Dismiss (Doc. 25), plaintiff's Response to Show Cause Order (Doc. 32), plaintiff's Motion to File Response to Defendants Johnson and Smith's Motion to Dismiss Out of Time (Doc. 33), and plaintiff s Motion to File Response to Defendants Johnson and Smith's Motion to Dismiss Out of Time (Doc. 34). As set forth below, defendants Johnson and Smith's Motion to Dismiss is granted. Plaintiff's Motion to File Response to Defendants Johnson and Smith's Motion to Dismiss Out of Time and Motion to File Response to Defendants Johnson and Smith's Motion to Dismiss Out of Time is also granted.
I. Plaintiff's Response to Show Cause Order and Motions to File Response Out of Time
Defendants Donna Smith and Merdelin Johnson filed a motion to dismiss this case for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) on July 17, 2002 (Doc. 25). In this court, a party has 20 days in which to file a timely response to a motion to dismiss. D. Kan. R. 6.1(e)(2). Because plaintiff had not responded to the motion to dismiss, on August 27, 2002, the court issued an Order to Show Cause (Doc. 30) requiring plaintiff to show good cause in writing by September 12, 2002, why defendants Smith and Johnson's Motion to Dismiss should not be granted as unopposed.
Plaintiff filed his response to the show cause order on September 12, 2002, along with a motion to file his response to the motion to dismiss out of time. In his response to the show cause order, plaintiff states that he had intended to file his response to the Motion to Dismiss on August 14, 2002, the same day plaintiff states he mailed a Notice of Service of Interrogatories in the matter. Plaintiff stated that in the process of copying the interrogatories and motions, he inadvertently failed to mail the response. Further, plaintiff stated his failure to respond to the motion to dismiss was due to a filing error, and not for the purpose of delay. Defendants have not responded to plaintiff's response to the show cause order or to plaintiff's motion for extension of time.
Although Fed.R.Civ.P. 6(b) authorizes the court to extend a time period during which a plaintiff must perform an act, an extension may be granted after expiration of a filing deadline upon a showing of "excusable neglect." Fed.R.Civ.P. 6(b)(2). Simple inadvertence, mistake of counsel, or ignorance of the rules "usually does not suffice" to demonstrate excusable neglect. Putnam v. Morris, 833 F.2d 903, 905 (10th Cir. 1987) (quoting Winters v. Teledyne Moveable Offshore, Inc., 776 F.2d 1304, 1305 (5th Cir. 1985) (internal citation omitted)). Further, "some showing of good faith on the party seeking the enlargement and some reasonable basis for noncompliance within the time specified," is generally required to justify an extension of time. Id.
The court is not persuaded that plaintiff's reason for filing his Response to plaintiff s Motion to Dismiss in an untimely manner is justified by good cause. Although the court believes plaintiff's failure to file in a timely manner was not for the purpose of delay, plaintiff's explanation that he misfiled the papers demonstrates inadvertence rather than excusable neglect. Plaintiff's status as a pro se prisoner does not lessen plaintiff's duty to comply with the procedural rules of this court. See McNeil v. United States, 508 U.S. 106, 113 (1993) ("While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed, and have held that some procedural rules must give way because of the unique circumstance of incarceration, we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel." (internal citations omitted)).
However, because dismissal for failure to comply with local rules is an extreme sanction usually appropriate "only where a lesser sanction would not serve the interest of justice," Meade v. Grubbs, 841 F.2d 1512, 1521 (10th Cir. 1988), the court grants plaintiff's Motions to File Response to Defendants Johnson and Smith's Motion to Dismiss Out of Time and proceeds to an analysis of the merits of defendants' motion to dismiss. See id. at 1522 (finding district court abused its discretion by granting defendants' motions to dismiss after denying pro se plaintiff's motion for extension of time where plaintiff failed to comply with local rule, finding there had been no "clear record of delay or contumacious conduct" justifying dismissal).
II. Motion to Dismiss
Defendants Johnson and Smith move to dismiss on the grounds that the court lacks general or specific general jurisdiction over defendants. Plaintiff, a former minister and employee of the United Methodist Church, alleges that defendant General Board of Pension and Health Benefits of the United Methodist Church, Inc. (hereinafter "the Board"), the administrator of plaintiff s pension plan, acted in an arbitrary, capricious, and negligent manner in administering his pension benefits. Defendants Johnson and Smith are team members of the Board's benefits determination department and are residents of Illinois.
A plaintiff opposing a motion to dismiss for lack of personal jurisdiction bears the burden of establishing that exercise of personal jurisdiction over the defendant is proper. Kuenzle v. HTMS port-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir. 1996). The court has discretion to consider a motion to dismiss for lack of personal jurisdiction on the basis of affidavits and other written material. Black Veatch Constr., Inc. v. Abb Power Generation, 123 F. Supp.2d 569, 572 (Kan. 2000) (citing Behagen v. Amateur Basketball Ass'n, 744 F.2d 731, 733 (10th Cir. 1984)). If the motion to dismiss is submitted prior to trial on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing to avoid dismissal for lack of personal jurisdiction. Id. Although the plaintiff will be required to prove the factual basis for jurisdiction by a preponderance of the evidence at trial, on a pretrial motion to dismiss, all factual disputes are resolved in favor of the plaintiff. Id. If the plaintiff makes the required prima facie showing that personal jurisdiction exists, "a defendant must present a compelling case demonstrating 'that the presence of some other considerations would render jurisdiction unreasonable.'" OMI Holdings, Inc. v. Royal Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)).
Federal courts in Kansas may exercise personal jurisdiction over a nonresident defendant as determined by Kansas law. Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Co-op, 17 F.3d 1302, 1304 (10th Cir. 1994) (citing Fed.R.Civ.P. 4(e)). Kansas courts employ a two-step analysis to determine personal jurisdiction. First, the court must analyze whether it has jurisdiction under the Kansas long-arm statute, Kan. Stat. Ann. § 60-308(b). Second, the court turns to the question whether exercising jurisdiction would be proper under the Due Process Clause. Envtl. Ventures Inc. v. Alda Servs. Corp., 868 P.2d 540, 543, 19 Kan. App. 2d 292, 295 (1994).
Plaintiff has not identified any provision of the Kansas long-arm statute as a basis for jurisdiction in this case in his Second Amended Complaint or in his response to defendants' motion to dismiss. While plaintiff's failure to demonstrate that jurisdiction is proper under the long-arm statute alone could justify dismissal of the case, the court recognizes that exercising personal jurisdiction over defendants Johnson and Smith would be unconstitutional under the Due Process Clause. "The Kansas long-arm statute is liberally construed to assert personal jurisdiction over nonresidents to the full extent permitted by the Due Process Clause of the Fourteenth Amendment." Oxford Transp. Serv. v. MAB Refrigerated Transport, Inc., 792 F. Supp. 710, 712 (Kan. 1992).
Courts employ a two-step analysis in examining whether personal jurisdiction exists under the Due Process Clause. First, the court must find a defendant had sufficient "minimum contacts" with the forum state. See Int'l Shoe v. Washington, 326 U.S. 310, 316 (1945). If the court finds such contacts, it must next analyze whether exercising personal jurisdiction "would offend traditional notions of fair play and substantial justice." Burger King, 471 U.S. at 472. A defendant may be subject to either general or specific jurisdiction. General jurisdiction lies when the defendant's contacts with the forum state, even if unrelated to the plaintiff's claims, are "sufficiently 'continuous and systematic' such that the exercise of jurisdiction is 'reasonable and just.'" Application to Enforce Admin. Subpoenas Duces Tecum of the SEC v. Knowles, 87 F.3d 413, 418 (10th Cir. 1996) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984)). Specific jurisdiction exists when the defendant has "purposefully availed" himself of the forum state, and the plaintiff's claims arise out of those specific contacts. Id. (citing Burger King, 471 U.S. at 472). "Purposeful availment analysis turns upon whether the defendant's contacts are attributable to his own actions or solely to the actions of the plaintiff . . . [and generally] requires . . . affirmative conduct by the defendant which allows or promotes the transaction of business within the forum state." Rambo v. Am. S. Ins. Co., 839 F.2d 1415, 1420 (10th Cir. 1988) (quoting Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 840 (9th Cir. 1986)). A court's exercise of personal jurisdiction over an employer does not, by itself, justify the exercise of personal jurisdiction over its employees. Dodson Int'l Parts, Inc. v. Altendorf, 181 F. Supp.2d 1248, 1253 (Kan. 2001).
Moreover, an employee becomes subject to personal jurisdiction for his actions arising out of the scope of his employment only when the employee's personal interests or motives are at issue in the claims, or the employee was a "primary participant" in the claims. Id. at 1255. Given this standard, the court turns to the question whether defendants Johnson and Smith had the minimum contacts required for this court to exercise personal jurisdiction over them.
A. Defendant Smith
Defendant Smith states she does not own property in Kansas, has never resided in the state, and has never traveled to the state. Her primary responsibility as an employee in the Board's benefits determination department is to prepare form letters to Pension Plan participants based on information she receives from other employees, and she does not possess supervisory or decisionmaking authority in the administration of the pension plans. In his response, plaintiff neither refutes these facts, nor provides any evidence of additional contacts between defendant Smith and the state of Kansas. Further, the only contact between defendant Smith and the state of Kansas that plaintiff proffers is that plaintiff himself contacted defendant Smith through the U.S. Mail.
B. Defendant Johnson
Like defendant Smith, defendant Johnson does not own property in Kansas, and has never resided in nor traveled to the state. Her primary responsibilities as an employee in the benefits determination department of the Board consist of inputting data to establish annuities for pension plan participants and maintaining records. She does not possess supervisory or decision-making authority in the administration of the plans. In his second amended complaint, plaintiff states that defendant Johnson had the following contacts with the state of Kansas (1) plaintiff contacted defendant Johnson by telephone on February 16, 2001; (2) defendant Johnson contacted plaintiff by telephone on February 19, 2001; (3) plaintiff s sister, Evelyn Cerven, contacted defendant Johnson by telephone on February 19, 2001; (4) plaintiff wrote to defendant Johnson on March 26, 2001.
C. Analysis
The court finds that it cannot exercise general or specific jurisdiction over defendants Smith or Johnson. Defendant Smith's receipt of mail from plaintiff cannot be regarded as sufficiently continuous and systematic to support the exercise of general jurisdiction. Cf. Helicopteros, 466 U.S. at 416 (finding business trip to forum state by company officer and receipt of checks drawn on bank in forum state were insufficient grounds for general jurisdiction). Similarly, the phone call made by defendant Johnson to plaintiff does not demonstrate continuous and systematic contacts between defendant Johnson and the state of Kansas. Moreover, the unilateral contacts by plaintiff and his sister to defendant Johnson at the Board's Illinois cannot support a finding of general jurisdiction.
Although a single letter or phone call may support the exercise of specific jurisdiction if it creates a "substantial connection" with the forum state, here, defendants Smith and Johnson's receipt of communications from plaintiff does not constitute the type of affirmative conduct needed to support a finding that defendants Smith and Johnson purposefully availed themselves of the privilege of doing business in the state. Furthermore, the single telephone call by defendant Johnson cannot substantiate a finding of specific jurisdiction. In that call, defendant Johnson informed plaintiff she had received one of his letters and told him the date upon which his payments would start. Such a call did not effect a substantial connection between defendant Johnson and plaintiff in Kansas. Consequently, the court finds the exercise of specific jurisdiction over defendant Smith would not be consistent with constitutional due process principles. Accord Rambo, 839 F.2d at 1420 (finding no minimum contacts in communications between defendants and plaintiffs in forum state that were required because plaintiffs moved into the forum state, and were not the result of defendants' purposeful availment).
Lastly, the court finds plaintiff has not shown the court should exercise personal jurisdiction over defendants Johnson and Smith merely because the court has personal jurisdiction over their employer, the Board. Plaintiff has not shown that defendants Smith or Johnson had a "personal interest" at stake in, or were "primary participants" in, the administration of plaintiff's benefits plan. Absent such a showing, the court cannot exercise personal jurisdiction over them because they were acting within the scope of their employment with the Board. The court grants defendants Johnson and Smith's motion to dismiss for lack of personal jurisdiction.
III. Order
IT IS THEREFORE ORDERED that defendants Johnson and Smith's Motion to Dismiss (Doc. 25) is granted. Defendants Johnson and Smith are hereby dismissed.
IT IS FURTHER ORDERED that plaintiff's Motion to File Response to Defendants Johnson and Smith's Motion to Dismiss Out of Time (Doc. 33) is granted.
IT IS FURTHER ORDERED that plaintiff's Motion to File Response to Defendants Johnson and Smith's Motion to Dismiss Out of Time is granted (Doc. 34).