Opinion
CIVIL ACTION No. 02-2483-KHV
April 11, 2003.
MEMORANDUM AND ORDER
Midwestern Motor Coach Company filed suit against the City of Lenexa and its recreation supervisor, Susan Blattner, because of a letter which defendants sent to citizens, stating why the City had ceased its business relationship with plaintiff. Plaintiff alleges that the letter disparaged and slandered its business and interfered with its business relationships. This matter is before the Court on Defendants' Motion To Dismiss (Doc. #12) filed January 23, 2003. For reasons set forth below, defendants' motion is sustained.
Standards For Motions To Dismiss Under Rule 12(b)(1)
The Court may exercise jurisdiction only when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994), and must "dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F. Supp. 279, 281 (D.Kan. 1995) (quoting Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); see also Fed.R.Civ.P. 12(h)(3). The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. See Basso, 495 F.2d at 909. When federal jurisdiction is challenged, plaintiff bears the burden of showing why the case should not be dismissed. See Jensen v. Johnson County Youth Baseball League, 838 F. Supp. 1437, 1439-40 (D.Kan. 1993).
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take two forms: facial attacks on the complaint or factual attacks on the accuracy of those allegations. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Defendants' motion falls within the latter category because it relies on evidence outside the complaint. In such event, the Tenth Circuit has set forth the following standard:
A party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.
Id. at 1003 (citations omitted).
Factual Background
The pertinent jurisdictional facts are undisputed and may be summarized as follows: From approximately 1997 through 2002, Midwestern Motor Coach Company provided transportation for the City of Lenexa for activities which included trips to the Golden Eagle Casino. The City ceased its business relationship with plaintiff effective July 31, 2002, purportedly because plaintiff did not comply with minimum insurance standards which the City's legal department and risk managers had established.
See Complaint (Doc. #1); Memorandum In Support Of Defendant's Motion To Dismiss (Doc. #12) filed January 23, 2003; plaintiff's Memorandum In Opposition To Motion To Dismiss (Doc. #14) filed February 12, 2003 ("Plaintiff's Memorandum") and attachments.
On August 9, 2002, Susan Blattner, the City recreation supervisor, sent a letter to individuals who had previously participated in city-sponsored trips to the Golden Eagle Casino. See attachment to Complaint (Doc. #1) filed September 23, 2002. The letter read in part:
. . . . Our next scheduled Golden Eagle trips for the remainder of this year [are]: August 21st, September 23rd, and November 4th. We hope that you will still join us. Recently we had to drop Midwestern Coach lines as our bus company to serve you on these trips. Our City's Legal Department will not allow us to continue to use this company due to the lack of their insurance coverage. We wanted to continue to offer you the opportunity to go on these popular trips so I have contracted out with Crossroad Tours. Crossroad Tours is a reputable company whom I have had the privilege of working with for the past (9) nine years. We use this company on all of our other day and overnight trips. We will still offer Lenexa Parks and Recreation representatives on all of the Golden Eagle trips and offer you the same price of $15 per person with cash back of $15 when you get off the bus.
Recently, Midwestern Motorcoach Company sent you an orange postcard announcing a trip going out on the same day (August 21st) as our scheduled trip. They are able to offer this trip for free. They are also planning to depart from Costco's. They apparently want to conflict with our scheduled trip and possibly other trips. I just want to be sure that you understand that we are no longer affiliated with Midwestern Motorcoach Company. We still plan on departing from our Lenexa Senior Center.
Id.
On August 12, 2002, plaintiff's counsel sent a letter to Blattner, asking her to immediately identify the recipients of the letter of August 9, mail to each recipient a follow-up letter which retracts the disparaging statements about plaintiff, and cease and desist from further disparagement of plaintiff's business. See Exhibit 2 to Plaintiff's Memorandum. On August 15, 2002, Eric R. Arner, a senior Assistant City Attorney, replied by letter to plaintiff's counsel. In the letter, Arner asked plaintiff's counsel to direct future correspondence to him and stated that "[f]or purposes of K.S.A. 12-105b, the City does not interpret your August 12, 2002 letter to Susan Blattner as a claim." Exhibit 3 to Plaintiff's Memorandum (Doc. #14) at 1. Arner denied that Blattner's letter was improper, but noted that Blattner would send a follow-up letter to the original recipients to clarify the situation. See id.
On August 16, 2002, Blattner sent a follow-up letter to recipients of the earlier letter, regarding the trip set for August 21. She stated, in part:
As I stated earlier, we have scheduled a number of very successful trips with Midwestern Motor Coach Company. Our Legal Department requires certain standards for those companies providing services for our City programs. Unfortunately, some of our long standing business relationships, like that of Midwestern Motor Coach Company have been impacted by these requirements thus ending a successful five year relationship with the Lenexa Parks and Recreation. Midwestern Motor Coach Company does carry all of the insurance coverage required to operate their business but not to the level and type of coverage required by our Legal Department. I wish continued success to Midwestern Motor Coach Company.
Exhibit 4 to Plaintiff's Memorandum (Doc. #14).
On August 20, 2002, plaintiff's counsel sent a reply letter to Arner. See Exhibit 5 to Plaintiff's Memorandum (Doc. #14). Plaintiff's counsel summarily stated that "[b]y any fair reading of K.S.A. 12-105b, our letter of 12 August 2002 states a claim, and then some." Id. at 1. Plaintiff's counsel noted that he had not received Blattner's follow-up letter, but that any settlement offer short of plaintiff's original demand likely would be unsatisfactory. See id. at 1.
Plaintiff filed suit against the City and Blattner on September 23, 2002, alleging that when it promoted tours on the same dates as city tours, Blattner sent a letter which falsely disparaged, impugned and slandered plaintiff's business and interfered with its business relationships and customers. See Complaint (Doc. #1) ¶ 3. The City seeks to dismiss plaintiff's complaint for failure to comply with K.S.A. § 12-105b(d).
Analysis
The City seeks dismissal because plaintiff did not provide written notice of its tort claims, as required by K.S.A. § 12-105b(d). Section 12-105b(d) provides, in relevant part:
Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: (1) The name and address of the claimant and the name and address of the claimant's attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested.
The purpose of the notice requirement is to sufficiently advise the municipality of the time and place of the injury and give it an opportunity to ascertain the character and extent of the injury sustained. See Bradford v. Mahan, 219 Kan. 450, 457, 548 P.2d 1223, 1230 (1976); Tucking v. Bd. of Comm'rs of Jefferson County, 14 Kan. App. 2d 442, 448, 796 P.2d 1055, 1059 (1990). "The notice requirements in K.S.A. § 12-105b(d) are mandatory and a condition precedent to bringing a tort claim against a municipality." Miller v. Brungardt, 916 F. Supp. 1096, 1098 (D.Kan. 1996); see Zeferjohn v. Shawnee County Sheriff's Dep't, 26 Kan. App. 2d 379, 382, 988 P.2d 263, 266 (1999).
Substantial compliance is required under Section 12-105b(d). See K.S.A § 12-105b(d) (substantial compliance constitutes valid filing of claim). Substantial compliance only occurs, however, if plaintiff makes an attempt to state each element of the notice. Tucking, 14 Kan. App. 2d at 446-47, 796 P.2d at 1058. In order to substantially comply with Section 12-105b(d), "a plaintiff must attempt to supply the information required by each of the five elements of the statute if relevant to the facts of the case; omission of one or more relevant elements makes the notice fatally insufficient." Tucking, 14 Kan. App. 2d at 442, syl. ¶ 3, 796 P.2d at 1056; see Wiggins v. Hous. Auth. of Kansas City, Kan., 19 Kan. App. 2d 610, 613, 873 P.2d 1377, 1380 (1994).
Plaintiff asserts that its first letter to the city recreation supervisor, and its later letter to an assistant city attorney, satisfy the requirements of Section 12-105b(d) — or at least substantially comply with such requirements. The Court assumes without deciding that plaintiff satisfied the five specific requirements as to the contents of the notice: (1) the name and address of the claimant and the name and address of the claimant's attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested. The Court finds, however, that plaintiff did not substantially comply with the statute because it did not file notice with the city clerk or governing body.
Plaintiff argues that it substantially complied with the notice statute because it sent notice to the assistant city attorney, who represents the City's "governing body." Kansas courts have held that notice filed with the city clerk is a condition precedent to filing an action against a municipality, and the fact that city officials may be aware of the incident or the claim does not enable such officials to waive the requirements of the statute. See Huffman v. City of Prairie Village, Kan., 980 F. Supp. 1192, 1206 (D. Kan. 1997). Moreover, a letter to a city attorney does not comply. Id.; see Zeferjohn, 26 Kan. App. 2d at 381, 988 P.2d at 266 (filing notice with county counselor does not literally or substantially comply with statute). The Kansas statute is clear. Plaintiff's letters to the recreation supervisor and an assistant city attorney do not constitute substantial compliance with the requirement that plaintiff "fil[e] the notice with the clerk or governing body of the municipality." K.S.A. § 12-105b(d).
Plaintiff also argues that the notice requirement of Section 12-105b(d) does not apply to its claim against Blattner personally. The Court disagrees. Section 12-105b(d) applies not only to claims against a municipality, but also to claims against municipal employees acting within the scope of their employment. King v. Pimentel, 20 Kan. App. 2d 579, 589, 890 P.2d 1217, 1225 (1995) (legislature intended written notice of claim under Section 12-105b(d) as prerequisite for suit against municipal employees who cause injury or damages to another while acting within scope of employment); see Knorp v. Albert, 29 Kan. App. 2d 509, 513, 28 P.3d 1024, 1028 (2001); Nelson v. City of Shawnee, Kan., 1998 WL 100216, at *3 (D.Kan. Feb. 24, 1998); Miller, 916 F. Supp. at 1100. Because defendants have raised the issue of notice to a city employee in a motion to dismiss, the Court considers only the facts alleged in plaintiff's complaint. Id. at 1100-01. In the complaint, plaintiff alleges that Blattner "as Lenexa's Recreation Supervisor" took certain wrongful actions and that "Lenexa through Blattner" is liable. Complaint (Doc. #1) ¶¶ 3-4. Because plaintiff alleges that Blattner was acting in her capacity as recreation supervisor of the City, plaintiff is required to comply with the notice requirements of Section 12-105b(d), as to its claim against Blattner personally.
The Court is not unsympathetic to plaintiff's argument that Section 12-105b(d) is a technical requirement which will delay plaintiff's claim and increase its litigation costs. At the same time, the City immediately notified plaintiff that its notice was defective under Section 12-105b(d). Plaintiff did not attempt to correct its notice or to determine why the City considered the notice defective. Moreover, proper notice under Section 12-105b(d) is a condition precedent to suit against a municipal corporation. See Zeferjohn, 26 Kan. App. 2d at 382, 988 P.2d at 266. Unless a plaintiff substantially complies with each of the statutory requirements, the Court cannot excuse non-compliance based on equitable considerations.
IT IS THEREFORE ORDERED that Defendants' Motion To Dismiss (Doc. #12) filed January 23, 2003 be and hereby is SUSTAINED. Plaintiff's complaint is dismissed without prejudice for failure to satisfy the notice requirements of K.S.A. § 12-105b(d).