Opinion
Case No. 99-2402-JWL
November, 2000
MEMORANDUM AND ORDER
This case arises out of an employment contract allegedly entered into by plaintiff, a Delaware corporation with its principal office in Overland Park, Kansas, and defendant, an individual who is a citizen and domiciliary of Bombay, India. The employment contract provides, among other things, that defendant would not, for one year following termination, solicit plaintiff's employees nor disclose plaintiff's confidential information. On June 22, 1999, plaintiff filed suit, contending that defendant violated the above protective covenant provisions of the contract. Since that time, the parties have filed numerous motions and the court has responded by issuing numerous orders. Today, the court has before it two motions to dismiss filed by defendant (Docs. 53 62), as well as two related motions-defendant's motion for reconsideration of the court's September 28, 2000 Order, which found good cause for plaintiff to file a response out of time to defendant's motions to dismiss (Doc. 93), and plaintiff's motion to strike defendant's reply to plaintiff's response to the court's show cause order (Doc. 92). Also pending before the court is Defendant's Motion to Renew Jurisdiction Issue (Doc. 104), which the court construes as a motion for dismissal under the doctrine of forum non conveniens. As discussed below, the court denies all five motions.
In many of its briefs filed in response to motions made by defendant, plaintiff includes a prayer for attorney's fees and sanctions. To the extent that they were not requested in a separately filed motion, the court does not consider these prayers for relief. See Fed.R.Civ.P. 11(c)(1)(A).
Defendant's Motions to Dismiss and Related Motions
Before ruling on the motions related to dismissal, a brief discussion of the procedural background surrounding these motions is useful. Their genesis is defendant's "Motion for Dismissal," which defendant filed as part of his response to plaintiff's motion for summary judgment on August 8, 2000 (Doc. 53). After one month had passed without plaintiff filing a response to the motion, defendant filed a second "Motion for Dismissal of Plaintiff's Suit" (Doc. 62). Rather than grant defendant's first motion to dismiss as an uncontested motion under D. Kan. R. 7.4, the court issued an order on September 13, 2000, requiring plaintiff to show good cause why the motion should not be granted, in light of plaintiff's failure to file a timely response (Doc. 65). On September 28, 2000, plaintiff responded to the court's show cause order (Doc. 69). Plaintiff's response stated that plaintiff did not receive copies of defendant's two motions to dismiss and that plaintiff believed that defendant mailed the motions to a street address slightly different than the address of plaintiff's attorney. The court found this reason satisfactory and extended the time in which plaintiff could file a response to defendant's motions to dismiss (Doc. 71).The court's order finding good cause and extending the time provided plaintiff to respond to the motions to dismiss led defendant to file the first motion before the court today-a motion for reconsideration of that order (Doc. 93). Defendant's motion for reconsideration states that the certificates of mailing on file with the court show that defendant addressed his first motion to dismiss to the correct address of plaintiff's attorney, and that, although defendant addressed his second motion to dismiss to a slightly different address than that of plaintiff's attorney, plaintiff's attorney had previously responded to other correspondence so addressed. While the court does not dispute the facts pled in defendant's motion, the court nonetheless declines to reconsider its previous order which found good cause for plaintiff's failure to file a response. Whether the motions to dismiss were properly addressed or not is not the deciding factor on this issue. Rather, the factor that influenced the court to find good cause was the fact that plaintiff did not receive a copy of the motions. Because defendant does not argue or produce evidence to the contrary, the court will not reconsider its earlier order. Defendant's motion for reconsideration (Doc. 93) is denied.
To the extent that defendant's motion also seeks reconsideration of the court's order extending plaintiff's time to respond to the show cause order by three days, defendant's motion is further denied; defendant states no facts which support such reconsideration.
The court's denial of defendant's motion for reconsideration of the court's order that found good cause leads to the court's ruling on the second motion pending before it-plaintiff's motion to strike defendant's reply to plaintiff's response to the show cause order (Doc. 92). Because the court has held, and has not reconsidered its holding, that plaintiff had good cause for his failure to file a timely response to defendant's motions to dismiss, plaintiff's current motion to strike a pleading related to this issue is moot.
Plaintiff's motion to strike also requested that the court strike two additional pleadings filed by defendant. The court has referred that portion of the motion to Magistrate Judge Waxse (Doc. 101).
Having ruled on the two ancillary motions, the court may now proceed to consider defendant's two motions to dismiss. Defendant filed his first motion to dismiss on August 8, 2000 (Doc. 53), and his second motion to dismiss on September 8, 2000 (Doc. 62). Plaintiff argues in its response that both motions must be denied because they were filed outside the time period set out in the court's December 23, 1999 Scheduling Order (Doc. 16). The court agrees. Pursuant to the Scheduling Order, all motions to dismiss were required to be filed on or before January 13, 2000. Even if defendant's motions are liberally construed as motions for summary judgment, they are nonetheless untimely, as dispositive motions were required to be filed on or before June 9, 2000. Defendant has not sought leave of court to file his motions out of time, and although defendant is proceeding pro se and contends that he is "unaware of procedures and rules," the court has stated numerous times that a party's pro se status does not excuse him from complying with the court's rules. See, e.g., ORI, Inc. v. Lanewala, No. 99-2402-JWL, 2000 WL 1472732, at *1 (D.Kan. Aug. 22, 2000); Lynn v. Simpson, No. 97-3209-JWL, 2000 WL 745324, at *5 (D.Kan. April 10, 2000); Stewart v. Toyota, No. 98-2337-JWL, 1999 WL 233286, at *2 (D.Kan. March 8, 1999). The court therefore denies defendant's motions to dismiss as untimely. See SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1518 (10th Cir. 1990) ("The Federal Rules of Civil Procedure generally require entry of a scheduling order covering time limits for the completion of major events during the course of a civil action . . . [which] are not to be modified by the trial court except when authorized by local rule upon a showing of good cause."); Nave v. Artex Mfg., Inc., No. 96-2002-EEO, 1997 WL 195913, at *1 (D.Kan. April 16, 1997) (denying motion as untimely under a deadline established in the Scheduling Order); Zapata v. IBP, Inc., No. 93-2366-EEO, 1997 WL 728129, at *1 (D.Kan. Nov. 19, 1997) (same).
Defendant's Motion for Dismissal for Forum Non Conveniens
The fifth and final motion addressed by the court is entitled "Defendant's Motion to Renew Jurisdiction Issue" (Doc. 104). While the title of this motion speaks of jurisdiction, the body of the motion actually requests that the court dismiss the case pursuant to the doctrine of forum non conveniens. Although this motion is unrelated to defendant's motions to dismiss, it suffers from the same deficiency-untimeliness. The Tenth Circuit has not addressed the issue of time limits governing the filing of motions to dismiss for forum non conveniens, but most courts that have addressed the issue, while setting no definitive deadline, require that such motions be filed before the case has progressed to the point that the plaintiff has incurred significant expense in preparing the case for trial (an inconvenience the doctrine is meant to relieve). See, e.g., In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1165 (5th Cir. 1987); Creamer v. Creamer, 482 A.2d 346, 353 (D.C. Cir. 1984); Lugones v. Sandals Resorts, Inc., 875 F. Supp. 821, 823 (S.D. Fl. 1995). The court believes that the Tenth Circuit would follow the rule set forth by the Fifth Circuit in In re Air Crash: "a defendant must assert a motion to dismiss for forum non conveniens within a reasonable time after the facts and circumstances which serve as a basis for the motion have developed and become known or reasonably knowable to the defendant." 821 F.2d 1147, 1165 (citing Wright, Miller Cooper, Federal Practice Procedure: Jurisdiction § 3828, at 291 (2d ed. 1986)). Applying this rule, the court denies defendant's motion to dismiss for forum non conveniens as untimely.
The facts and circumstances cited by defendant in support of his motion were known to him, or were reasonably knowable, at the time that he removed this case to federal court on September 7, 1999. For example, the facts that defendant "resides in India [and] was employed in India," and that "most of the witnesses are in India," are not facts that have unexpectedly arisen in recent months. A reasonable time for defendant to have brought a motion for dismissal on forum non conveniens grounds, therefore, would have been prior to the January 13, 2000 deadline for filing motions to dismiss for lack of venue. As venue and forum non convenience are closely related issues, see Rivendell Forest Prods., v. Canadian Pac., 2 F.3d 990, 992 (10th Cir. 1993), the court would have carefully considered the merits of the most appropriate place to bring this suit had defendant raised the issue at that time. Even after this deadline had passed, the court may have nonetheless found a motion to dismiss for forum non conveniens timely had it been filed before the June 9, 2000 dispositive motion deadline. But again, defendant allowed this case to proceed past both the date of the final pretrial conference (which defendant did not attend) and past the date of the dispositive motion deadline, without raising the issue. The parties have nearly completed discovery and have filed over twenty motions in this case, expending much time and resources in the process. It is simply too late for defendant to file a motion to dismiss after the dispositive motion deadline and at this advanced stage in the proceedings. Defendant's motion to dismiss for forum non conveniens is denied.
IT IS THEREFORE ORDERED that defendant's Motion for Dismissal (Doc. 53) and Motion for Dismissal of Plaintiff's Suit (Doc. 62) are denied. Defendant's motion for reconsideration of the court's September 28, 2000 Order (Doc. 93) is denied. Plaintiff's motion to strike defendant's reply to plaintiff's response to the court's show cause order (Doc. 92) is denied. Finally, defendant's Motion to Renew Jurisdiction Issue (Doc. 104) is denied.
IT IS SO ORDERED.