Opinion
Case No. 03-4181-JAR.
January 19, 2005
MEMORANDUM ORDER AND OPINION GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
This matter comes before the Court on defendants Kansas County Association Mulitline Pool's (KCAMP) and Thomas Job's Motion to Dismiss (Doc. 26). Defendants KCAMP and Job seek dismissal of plaintiffs' First Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons set forth below, defendants' motion is granted in part and denied in part.
Rule 12(b)(6) Standard
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Dismissal is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." "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."
Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citation omitted).
Mounkes v. Conklin, 922 F. Supp. 1501, 1506 (D. Kan. 1996) (quotation omitted).
On a Rule 12 (b)(6) motion, the court judges the sufficiency of the complaint accepting as true the well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. The court construes the allegations in the light most favorable to the plaintiff. 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." "[I]f the facts narrated by the plaintiff `do not at least outline or adumbrate' a viable claim, his complaint cannot pass Rule 12(b)(6) muster." Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interest of justice.
Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987).
Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
Associated Gen. Contractors v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Mounkes v. Conklin, 922 F. Supp. at 1506 (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988) (quotation omitted)).
Id.
Background
Mindful of the standard applicable to a Rule 12(b)(b) motion to dismiss, the Court has drawn the following facts from plaintiffs' First Amended Complaint.
In response to your formal request, I contacted KCAMP to inquire about the release of the document to your office. As you are aware, K-CAMP requested that I do an investigation of the incident.
. . .
Per Wendell Cowan, K-CAMP is advising me not to release the document, and have asked that I keep the statement confidential.
Defendant KCAMP is an insurance association that issued a policy of insurance to Lincoln County. Defendant Job is an employee and administrator of KCAMP.
On January 22, 2002, the Board of County Commissioners of Lincoln County (BOCC) purported to terminate Jackson from his job as a Sheriff's Deputy on the basis of "unsatisfactory job performance." Nielander disputed the BOCC's authority to terminate a Sheriff's Deputy and continued Jackson's employment. On February 28, 2002, after amending its personnel policy, the BOCC again tried to terminate Jackson's employment due to "unsatisfactory job performance." Nielander continued to dispute the authority of the BOCC to terminate Jackson and continued Jackson's employment as a Sheriff's Deputy.
On March 1, 2002, O'Hare sent a letter to Nielander stating: "In light of the complaints to my office, I did an independent internal investigation as county counselor for the Board of County Commissioners, which has authority over all aspects of county affairs, and on behalf of KCAMP and Mr. Wendell Cowan as a risk management matter." O'Hare also noted that the BOCC retained Mr. Cowan to represent it in any further litigation with the Lincoln County Sheriff.
On March 6, 2002, the BOCC filed a lawsuit in Lincoln County District Court, Case Number 02-C-1 (Lincoln County Lawsuit), seeking to enjoin Nielander from employing Jackson as a Sheriff's Deputy and to enjoin Jackson from holding employment as a Lincoln County Sheriff's Deputy. While the lawsuit was pending, defendant Job, an employee and administrator of KCAMP, authored a letter to the BOCC urging it to make "immediate changes . . . in the operation and management of the Lincoln County Sheriff Department." Job urged the BOCC to terminate Jackson's employment. Job also told Nielander that Jackson was a "bad apple" and urged Nielander to dismiss Jackson. The Lincoln County District Court granted the requested injunction and enjoined Nielander, in his capacity as Sheriff, from employing Jackson as Deputy and enjoined Jackson from holding employment with Lincoln County. Some time in April 2002, Jackson filed a grievance and requested a hearing pursuant to the personnel policies of Lincoln County, but this request was never granted.
Jackson and Nielander appealed the district court's injunction to the Kansas Supreme Court. The Kansas Supreme Court reversed the district court and vacated the injunction holding that the BOCC did not have the authority or ability to supersede a sheriff's power to appoint, promote, demote or dismiss his or her personnel. Both in the district court and on appeal, the BOCC was represented by Wendall Cowan, an attorney regularly retained by defendant KCAMP to defend its insureds.
Following the Kansas Supreme Court's decision vacating the injunction, Nielander and Jackson filed the instant lawsuit in state court asserting various claims under 42 U.S.C. § 1983 and Kansas common law, including: (1) violation of Jackson's due process and deprivation of Jackson's liberty interest (Count I); (2) conspiracy to deprive Jackson of a liberty interest, to abuse process, and to maliciously prosecute plaintiffs (Count II); (3) abuse of process (Count III); (4) malicious prosecution (Count (IV); (5) tortious interference with an existing contractual relationship; (Count V); (6) civil conspiracy to abuse process; maliciously prosecute; and interfere with an employment contract (Count VI); and (7) defamation and false light invasion of privacy (Count VII). The lawsuit was then removed to this Court. Defendants seek dismissal of all of plaintiffs' claims for a host of reasons. The Court addresses plaintiffs' claims in turn, save plaintiffs' conspiracy claims, which the Court reaches last.
Analysis
Count I — Violation of Due Process/Denial of Liberty Interest
In Count I, Jackson alleges that his due process was violated when he requested a hearing pursuant to the personnel policies of Lincoln County, but was not granted a hearing, and that he was denied the liberty interest in his good name when three individual county commissioners and O'Hare made stigmatizing statements about him, and took other action against him. Defendants seek dismissal because plaintiffs have not alleged that they (1) acted under color of state law; (2) played a role in denying Jackson's request for a hearing; and (3) made stigmatizing statements about Jackson.
1. Violation of Due Process
In order to state a claim for violation of due process under 42 U.S.C. § 1983, a plaintiff must allege that defendants acted under color of state law and deprived the plaintiff of a federal or constitutional right. To act under color of state law for § 1983 purposes does not require that the defendant be an officer of the State; it is enough that he is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting "under color" of law for purposes of § 1983 actions. Where a plaintiff has alleged private defendants have engaged in more than one allegedly unconstitutional act, it is important to note that "an individual or entity may be engaged in state action for one purpose but not for another." As such, the proper inquiry is whether the defendants' conduct constitutes state action in the specific instance, not whether they can be given a blanket description of "state actor."
Zhu v. Fisher, Cavanaugh, Smith Lemon, P.A., 151 F. Supp. 2d 1254, 1258 (D. Kan. 2001).
Bailey v. Kenney, 791 F. Supp. 1511, 1522 (D. Kan. 1992).
Id.
Keeling v. Schaefer, 181 F. Supp. 2d 1206, 1228 (D. Kan. 2001).
Id.
In this instance, plaintiffs bring a claim for violation of due process stemming from the BOCC's denial of a hearing requested by Jackson. Plaintiffs do not plead, however, that KCAMP and Job were willful participants in the decision to deny Jackson a hearing. Indeed, the allegations in Count I relate to the actions of the BOCC, three individual county commissioners, and O'Hare. Jackson pleads that he filed a grievance and requested a hearing pursuant to the personnel policies of Lincoln County, but that he was not granted a hearing. He does not allege that KCAMP or Job denied him a hearing or were involved in the BOCC's decision to deny the hearing so as to act under color of state law. Because plaintiffs have not pled that KCAMP and Job acted under color of state law, plaintiffs' § 1983 due process claim against these defendants must be dismissed.
2. Deprivation of a Liberty Interest
To state a claim for deprivation of a liberty interest in good name and employment, a plaintiff must assert that: (1) the defamatory statements impugned his good name, reputation, honor, or integrity; (2) the defamatory statements were false; (3) the defamatory statements occurred in the course of terminating plaintiff and foreclosed other employment opportunities; and (4) the defamatory statements were published. Jackson claims that he was denied the liberty interest in his good name when three commissioners and O'Hare made stigmatizing statements about him, which "were made public by virtue of statements made to the effect that Jackson abused and harassed specific citizens." These allegations cannot give rise to a claim against KCAMP and Job because plaintiffs have not pled that KCAMP and Job made these statements; nor any other statements that Jackson abused citizens.
Cooper v. Sedgwick County, Kan., 206 F. Supp. 2d 1126, 1138-39 (D. Kan. 2002).
Plaintiffs additionally allege that "Job told Nielander that Jackson was a `bad apple' and urged Nielander to dismiss Jackson." Defendants aver that an allegation that someone is a "bad apple" is not a stigmatizing statement, which would impugn one's good name, reputation, honor, or integrity. Whether a statement is stigmatizing is a question for the court. A statement is not stigmatizing if it merely alleges incompetence, negligence, low productivity and dereliction. In order for a statement to be stigmatizing, a statement must allege dishonesty, stealing or some other allegation that gives rise to a "badge of infamy," public scorn, or the like. When a statement is ambiguous and susceptible to a number of different interpretations, this weighs in favor of finding the statement not stigmatizing. Here, the statement that Jackson was a "bad apple" is not the type of allegation that gives rise to a badge of infamy, nor does it clearly allege dishonesty. The statement might merely suggest that Jackson was incompetent. The Court concludes that such an ambiguous statement is not sufficiently stigmatizing to implicate a liberty interest; thus, the Court grants KCAMP's and Jackson's motion to dismiss this claim.
Warren v. City of Junction City, Kan., 176 F. Supp. 2d 1118, 1132 (D. Kan. 2002) (citing Melton v. City of Oklahoma, 928 F.2d 920, 927-28 (10th Cir. 1991)).
See Sullivan v. Stark, 808 F.2d 737, 739 (10th Cir. 1987); Stritz; v. United States Postal Serv., 602 F.2d 249, 252 (10th Cir. 1979).
See Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 256 n. 16 (5th Cir. 1984); Bailey v. Kirk, 777 F.2d 567, 580, n. 18 (10th Cir. 1985).
See Wulf v. City of Wichita, 883 F.2d 842, 870 (10th Cir. 1989).
Count III — Abuse of Process
In Count III, plaintiffs allege that defendants made a knowing or illegal use of process for the purpose of harassing or causing hardship to plaintiffs. KCAMP and Job urge that plaintiffs cannot bring an abuse of process claim pursuant to § 1983 because they are not state actors. In addition, KCAMP and Job assert that the abuse of process claim fails under either § 1983 or state law for they did not file suit against defendants nor were they parties to the Lincoln County lawsuit.
It is unclear whether plaintiffs bring this claim as a § 1983 claim or merely pursuant to Kansas state law. To state an abuse of process claim under Kansas law, plaintiffs must prove that: (1) defendants made an illegal, improper or perverted use of civil process; (2) defendants had an ulterior motive or purpose in exercising the illegal, improper or perverted use of civil process; and (3) plaintiff was damaged by the abuse of process. To state a § 1983 abuse of process claim, plaintiffs must plead the common law elements of abuse of process as well as a constitutional violation.
Stegall v. Great Am. Ins. Co., 996 F. Supp. 1060, 1069 (D. Kan. 1998) (citing Kansas law).
See Taylor, 82 F.3d 1556, 1561 (10th Cir. 1996).
Plaintiffs argue that KCAMP and Job engaged in abuse of process by encouraging the BOCC to fire Jackson or face cancellation of an insurance policy and by asking O'Hare to conduct an investigation of the Huehl complaint. Neither of these allegations refers to the misuse of legal process. Plaintiffs also stress that throughout the Lincoln County lawsuit the BOCC was represented by Bud Cowan, an attorney regularly represented by KCAMP, but the mere fact that the BOCC was represented by an attorney who commonly defends KCAMP's insureds does not lead to the conclusion that KCAMP or Job improperly used lawfully obtained process for illegitimate means. It is well settled that an attorney may represent more than one client. Plaintiffs are then left with only a conclusory allegation that KCAMP and Job abused process, and such an allegation is insufficient to survive a 12(b)(6) motion to dismiss. Thus, the Court concludes that regardless of whether this claim is asserted pursuant to Kansas state law or § 1983, it must be dismissed for failure to state a claim as to defendants KCAMP and Job.
Count IV — Malicious Prosecution
Plaintiffs bring a malicious prosecution claim against defendants in Count IV of their First Amended Complaint. KCAMP and Job urge that this malicious prosecution claim must be dismissed because plaintiffs have failed to allege any facts that KCAMP and Job were involved in any way in the Lincoln County lawsuit. Even if they were involved in the lawsuit, KCAMP and Job urge that dismissal is still proper because plaintiffs cannot establish that KCAMP and Job acted without probable cause or with malice.
Again, it is unclear whether plaintiffs assert their malicious prosecution claim pursuant to Kansas common law or § 1983. To state a malicious prosecution claim under Kansas law, plaintiffs must allege that defendants initiated, continued or procured a lawsuit without probable cause and with malice and that such lawsuit ended in favor of plaintiffs and that, as a result, plaintiffs suffered damages. To state a § 1983 malicious prosecution claim, a plaintiff must plead the common law elements of malicious prosecution as well as a constitutional violation. 1. Initiation, Continuation or Procurement of the Lawsuit
Lindenman, 875 P.2d at 974 (citing Nelson v. Miller, 607 P.2d 438 (Kan. 1980)).
Taylor, 82 F.3d at 1561.
KCAMP and Job first argue that plaintiffs have not pled that they initiated, continued or procured the Lincoln County Lawsuit, or were even involved in the lawsuit. It is not necessary, however, that the defendant actually be a party to the prior lawsuit in order to have initiated, continued or procured the lawsuit. Instead, a person may be liable for malicious prosecution if the person was affirmatively active in the initiation or continuance of the prior action. For instance, a co-conspirator who procured the filing of prior action may be held liable.
Nelson, 607 P.2d at 443.
Id. (citing Restatement (Second) of Torts § 674).
Id.
In the instant case, plaintiffs allege that "KCAMP and Job engaged in malicious prosecution by encouraging the BOCC to fire Jackson or face termination of the insurance policy." Plaintiffs do not allege that KCAMP and Job filed the Lincoln County lawsuit. Nor do plaintiffs plead that KCAMP and Job were affirmatively active in the initiation or continuance of the Lincoln County lawsuit. Rather, plaintiffs aver that the BOCC commenced the lawsuit. Because plaintiffs have failed to allege that KCAMP and Job initiated, procured or continued the Lincoln County lawsuit, the Court must dismiss plaintiffs' malicious prosecution claim against KCAMP and Job.
2. Without Probable Cause
Additionally, KCAMP and Job urge that plaintiffs cannot establish that defendants acted without probable cause in their alleged procurement of the Lincoln County lawsuit. "Probable cause for instituting a proceeding exists when there is reasonable grounds for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious or prudent person in the belief that the party committed the act of which he or she is complaining." Probable cause to institute civil proceedings requires no more than a reasonable belief that there is a chance that a claim may be held valid upon adjudication. Furthermore, "[i]f the facts are undisputed, the question of probable cause is one for the court to decide as a matter of law."
Lindenman, 875 P.2d at 974.
See Prof. Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 62-63 (1993) (citation omitted).
Nelson, 607 P.2d at 444.
Here, plaintiffs base the conclusion that defendants acted without probable cause on the fact that the Kansas Supreme Court ultimately held that the BOCC did not have the authority or ability to supersede a sheriff's power to appoint, promote, demote or dismiss his personnel. In so ruling, though, the Kansas Supreme Court was reversing the lower court's decision that enjoined Nielander from employing Jackson as Deputy and enjoined Jackson from holding employment with Lincoln County. In the criminal arena, the Kansas Supreme Court has held that absent fraud, perjury, or other corrupt means in obtaining the judgment, a plaintiff's conviction in the underlying case conclusively establishes the existence of probable cause. Plaintiffs attempt to distinguish their claim from state law precedent by arguing that a different rule applies in the civil context. The Tenth Circuit, in Vanover v. Cook, has analyzed this issue and concluded that the Kansas Supreme Court would adopt the prevailing rule that, like in a criminal case, a favorable resolution of a claim in a civil case before the district court in the original action conclusively establishes probable cause. This Court is bound by Tenth Circuit law and therefore concludes that plaintiffs' failure to plead the absence of probable cause provides another reason for dismissal of this claim.
See Smith v. Parman, 172 P. 33, 34 (Kan. 1918).
260 F.3d 1182 (10th Cir. 2001).
Id. at 1190.
3. With Malice
Lastly, KCAMP and Job urge that plaintiffs' malicious prosecution claim should be dismissed because plaintiffs failed to plead that defendants acted with malice in their procurement of the Lincoln County lawsuit. Because the Court has determined that plaintiffs have failed to plead that KCAMP and Job initiated, procured or continued the Lincoln County Lawsuit, or acted without probable cause in doing so, both essential elements of a malicious prosecution claim, the Court need not reach this issue.
Count V — Tortious Interference
In Count V, plaintiffs allege that defendants tortiously interfered with employment between Nielander and Jackson. KCAMP and Job suggest that dismissal is proper because plaintiffs have not alleged a breach of Jackson's employment contract, or that if a breach did occur, that the breach resulted from the intentional actions of KCAMP and Job. In addition, KCAMP and Job argue that plaintiffs have not identified any intentional misconduct on the part of KCAMP and Job.
The elements essential to recovery for tortious interference with contract are: (1) the existence of a contract between the plaintiff and a third party; (2) the wrongdoer's knowledge thereof; (3) his or her intentional procurement of its breach; (4) the absence of justification; and (5) resulting damage to the plaintiff. Plaintiffs have alleged that KCAMP and Job intentionally interfered in the contract between Nielander and Jackson by encouraging the BOCC to fire Jackson or face cancellation of the insurance policy. The BOCC did attempt to fire Jackson twice and eventually filed an injunction which removed Jackson from Nielander's employ. These allegations suggest both a breach of an employment agreement and an intentional procurement of that breach by KCAMP and Nielander. Thus, defendants' motion to dismiss plaintiffs' tortious interference claim must be denied.
Brown Mackie Coll. v. Graham, 768 F. Supp. 1457, 1460 (D. Kan. 1991), aff'd, 981 F.2d 1149 (10th Cir. 1992); Dickens v. Snodgrass, Dunlap Co., 872 P.2d 252, 257 (Kan. 1994).
Count VII — Defamation and False Light Invasion of Privacy
In Count VII, plaintiffs bring a defamation and false light invasion of privacy claim against defendants. KCAMP and Job urge dismissal of these claims on the basis that they are barred by the one-year statute of limitations and because plaintiffs fail to allege that either KCAMP or Job authored or spoke defamatory statements.
1. Defamation
A one-year statute of limitations applies to defamation claims. The statements upon which plaintiffs base their claims occurred no later than June 9, 2002, the date of the email authored by Dawn Harlow. Plaintiffs did not file this lawsuit until August 5, 2003, more than one year after the communication of the allegedly defamatory statements.
See K.S.A. 60-514(a) ("The following actions must be brought within one year: (a) an action for libel or slander.").
Plaintiffs urge that their claim is not time barred by virtue of K.S.A. 12-105(b)(d). Section 12-105b(d) requires any party with a claim against a municipality that could give rise to a tort action to provide the municipality with written notice of the claim. The notice requirement is mandatory and a condition precedent to bringing a claim against a municipality. When proper notice is given pursuant to § 12-105b(d), the statute of limitations is extended by the number of days between the date the notice is filed and the date the claim is rejected, up to a maximum of 120 days.
See K.S.A. 12-105b(d).
Miller v. Brungardt, 916 F. Supp. 1096, 1099 (D. Kan. 1996).
Here, plaintiffs suggest that the statute of limitations for bringing their defamation claim was extended by 120 days because they properly filed a notice of claim with the BOCC. Section 12-105b(d), though, applies to claims against a municipality and municipal employees acting within the scope of their employment. KCAMP is not a municipality and neither KCAMP nor Job are employees of the BOCC or Lincoln County. Plaintiffs have provided no authority for the proposition that § 12-105b(d) extends the statute of limitations for private, non-municipal employees. The Court's research has likewise uncovered no such case. Thus, the Court determines that plaintiff's defamation claim against defendants KCAMP and Job is governed by a one-year statute of limitations, which expired prior to plaintiffs filing suit.
King v. Pimentel, 890 P.2d 1217, 1225 (Kan.Ct.App. 1995).
See K.S.A. 12-105a(a) (defining municipality).
Even assuming, arguendo, that plaintiffs' defamation claim against KCMAP and Job is timely, the claim fails nonetheless as plaintiffs have failed to allege that KCAMP and Job communicated any false and defamatory words. The elements of defamation under Kansas law are: (1) false and defamatory words; (2) communication to a third party; and (3) resulting harm to the reputation of the person defamed. "To effectively plead a defamation claim under Kansas law, a plaintiff must set forth the alleged defamatory words published, the names of those persons to whom they were published and the time and place of their publication." In their First Amended Complaint, plaintiffs identify two allegedly defamatory statements by Dwight Heller, chair of the BOCC, along with an email message authored by Dawn Harlow, Lincoln County Clerk. Plaintiffs do not set forth any defamatory words communicated by KCAMP or Job. Thus, dismissal of plaintiffs' defamation claim against KCAMP and Job is appropriate.
El-Ghori v. Grimes, 23 F. Supp. 2d 1259, 1269 (D. Kan. 1998).
Marten v. Yellow Freight Sys., Inc., 993 F. Supp. 822, 829 (D. Kan. 1998).
2. False Light Invasion of Privacy
Defendants urge, without legal citation, that the one-year statute of limitation applicable to defamation actions applies to false light invasion of privacy claims. False light invasion of privacy, however, is separate and distinct from defamation. Kansas law does not expressly provide for a statute of limitations for false light claims; thus the two-year "tort catch-all" statute of limitations applies to such claims. The publications underlying plaintiffs' false light claim occurred on April 4, 2002, and June 9, 2002, and plaintiffs filed this lawsuit on August 5, 2002, well within the two-year limitations period.
The case cited by defendants in support of this allegation discusses defamation, rather than false light invasion of privacy.
Rinsley v. Brandt, 446 F. Supp. 850, 858 (D. Kan. 1977).
See id.
Kansas law also recognizes four types of invasion of privacy claims, including false light invasion of privacy. The elements of a false light claim are: (1) a publication of some kind must be made to a third party; (2) the publication must falsely represent the person; and (3) that representation must be highly offensive to a reasonable person. Plaintiffs' false light claim is based upon the same allegations underlying their defamation claim, i.e., that a member of the BOCC and the County Clerk published false statements. Plaintiffs do not allege that KCAMP or Job made a publication to a third person that placed plaintiffs in a false light. Even in the context of a Rule 12(b)(6) motion to dismiss, the Court may not assume that "the defendants have violated the . . . laws in ways that have not been alleged." Thus, the Court concludes that this claim must be dismissed for failure to state a claim against KCAMP and Job.
Dominguez v. Davidson, 974 P.2d 112, 121 (Kan. 1999).
Id.
Associated Gen. Contractors v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Count II Count VI — Conspiracy Claims
In Count II, plaintiffs allege that "[d]efendants conspired to deprive plaintiff Jackson of his liberty interest in his good name and reputation" and that "[d]efendants further conspired to abuse process, maliciously prosecute plaintiffs, through a state court injunction action to acquire relief to which they were not entitled." Plaintiffs also allege a civil conspiracy claim in Count VI, namely that defendants conspired to abuse process, maliciously prosecute plaintiffs, and to intentionally interfere in the employment contract between Nielander and Jackson. Defendants seeks dismissal on the grounds that: (1) plaintiffs fail to plead facts sufficient to establish willful participation in a joint activity; (2) plaintiffs fail to plead the conspiracy with the requisite specificity; (3) KCAMP and Job did not file suit against plaintiffs, nor did they initiate, procure, or continue the Lincoln County lawsuit; and (4) plaintiffs fail to allege facts sufficient to establish a meeting of the minds.
Plaintiffs have not indicated whether their conspiracy claims arise under federal or state law. To prove a conspiracy between private parties and state actors to violate constitutional rights actionable under § 1983, a plaintiff must show a joint participation, agreement, or meeting of the minds to violate such constitutional rights. A plaintiff must establish both the deprivation of the constitutional right and the existence of the conspiracy. The elements of a civil conspiracy claim under Kansas law are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds; (4) one or more unlawful overt acts; and (5) damages as a proximate result thereof. To state a claim for civil conspiracy under both state and federal law, plaintiffs must plead facts to establish the elements of civil conspiracy and may not rely on conclusory allegations. 1. Conspiracy to Deprive Jackson of his Good Name and Reputation
Martin v. Stites, 203 F. Supp. 2d 1237, 1253 (D. Kan. 2002).
Id.
Meyer Land Cattle Co. v. Lincoln County Conservation Dist., 31 P.3d 970, 976 (Kan.Ct.App. 2001) (citing Stoldt v. City of Toronto, 678 P.2d 153 (Kan. 1984)).
See Martin v. Stites, 31 F. Supp. 2d 926, 932-33 (D. Kan. 1998) (discussing civil conspiracy arising under § 1983); see also Browning v. Blair, 218 P.2d 233, 239 (Kan. 1950) (discussing civil conspiracy claim arising under Kansas law).
Plaintiffs refer to the following facts to support their claim that defendants conspired to deprive Jackson of his good name and reputation: (1) the April 8, 2002 letter from Job to the BOCC; (2) that the BOCC twice tried to terminate Jackson; (3) the February 25, 2002 letter from O'Hare to Nielander, which indicates that she was following KCAMP's instructions in refusing to provide Nielander with Huehl's statement; (4) the March 1, 2002 letter from O'Hare to Nielander indicating that O'Hare was handing the Huehl incident on behalf of KCAMP and its attorney; (5) O'Hare's statements that Jackson's traffic stop of Huehl was illegal and that Huehl had been beaten by a law enforcement officers, as well as her request that the administrative proceedings against Huehl be dismissed; (6) the email from Dawn Harlow to all state County Clerks; (7) the initiation of the Lincoln County Lawsuit; and (8) letters from the individual Commissioners stating that it was KCAMP's suggestion that Jackson be terminated.
None of plaintiffs' allegations, however, suggest that KCAMP and Job conspired with the other defendants to deprive Jackson of his liberty interest in his good name. Plaintiffs do not aver that KCAMP and Job and the other defendants shared the common goal of impugning Jackson's good name during the course of his termination. Rather, plaintiffs' allegations appear to suggest a conspiracy to terminate Jackson's employment. Because plaintiffs have not alleged facts to establish the elements of civil conspiracy to deprive Jackson of his good name involving defendants KCAMP and Job, this claim, whether arising under federal or state law, must be dismissed as to these defendants.
2. Conspiracy to Abuse Process and Maliciously Prosecute Plaintiffs
Plaintiffs also allege that defendants conspired to abuse process and to maliciously prosecute plaintiffs. "Although Kansas has recognized civil conspiracy as an actionable tort, conspiracy does not become actionable without the commission of some wrong that would give rise to a cause of action independent of the conspiracy." In Nardyz v. Fulton Fire Insurance Co., the Kansas Supreme Court explained:
Knight v. Neodesha, Kan., Police Dept., 620 P.2d 837, 843 (Kan.Ct.App. 1980); Meyer Land Cattle Co., 31 P.3d at 977.
101 P.2d 1045 (1940).
The conspiracy, not being the gravamen or gist of the action . . . an allegation of conspiracy does not in and of itself allege a cause of action . . . an allegation of conspiracy does not warrant a recovery, if there is no right of action independent of the conspiracy. For example, a conspiracy to defame or injure the reputation or social standing of a plaintiff is actionable; but, since the gist of a civil action for conspiracy to defame is the defamation itself, it follows that if no action could have been maintained for the alleged defamation, no action can be maintained for the conspiracy to defame. Thus, the question of whether a cause of action has been stated depends in large part upon the underlying torts alleged against the individual defendants.
Id. at 1048.
The Court has already determined that plaintiffs' underlying state law abuse of process and malicious prosecution claims against KCAMP and Job must be dismissed as a matter of law. Because plaintiffs cannot establish that KCAMP and Job abused process or maliciously prosecuted plaintiffs, plaintiffs cannot show a conspiracy to commit these torts under Kansas law. As a result, the Court must dismiss these conspiracy claims against KCAMP and Job arising under state law for failure to state a claim.
KCAMP and Job also urge that plaintiffs' § 1983 conspiracy claims for abuse of process and malicious prosecution must be dismissed for failure to state a claim. In pleading conspiracy under § 1983, a plaintiff must allege specific facts showing an agreement and concerted action among the alleged co-conspirators. In other words, a plaintiff fails to state a claim for conspiracy absent specific facts showing a "meeting of the minds" among the alleged co-conspirators.
Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994).
See id. at 1268.
Plaintiffs have alleged no facts suggesting a meeting of the minds or agreement between KCAMP, Job and the Lincoln County defendants to abuse legal process. With respect to plaintiffs' malicious prosecution claim, plaintiffs have alleged that KCAMP and Job urged the BOCC to terminate Jackson as Deputy or face cancellation of an insurance policy. While the BOCC ultimately effectuated this termination by filing a lawsuit and obtaining a court-ordered injunction, plaintiffs have not alleged that KCAMP, Job and the BOCC agreed to file the lawsuit against Jackson. At most, plaintiffs' allegations suggest an agreement to terminate Jackson's employment. Thus, the Court must dismiss plaintiffs' § 1983 conspiracy claims for malicious prosecution and abuse of process against Jackson and KCAMP. 3. Conspiracy to Tortiously Interfere
Plaintiffs allege that defendants conspired to tortiously interfere with the employment between Jackson and Nielander. Defendants urge that plaintiffs rely only upon conclusory allegations and have not pled facts to establish the elements of a civil conspiracy; namely that there was no agreement or meeting of the minds. The Court disagrees; plaintiffs have alleged that KCAMP and Job urged Nielander to fire Jackson, and urged the BOCC to terminate Jackson's employment or face cancellation of an insurance policy. Plaintiffs have adequately pled their conspiracy to tortiously interfere with employment so to survive a Rule 12(b)(6) motion to dismiss.
IT IS THEREFORE ORDERED BY THE COURT that defendants' Motion to Dismiss (Doc. 26) is granted in part and denied in part.