Opinion
No. 04-4080-SAC.
November 9, 2004
MEMORANDUM AND ORDER
The case comes before the court on a motion to dismiss filed by the Adjutant General's Office and the State of Kansas (Dk. 15) and the court's order (Dk. 31) to show cause why this motion should not be considered and decided as an uncontested motion pursuant to D. Kan. Rule 7.4. The plaintiff has not filed a response to this motion or to the show cause order. Rule 7.4 warns that uncontested motions "ordinarily will be granted without further notice." Following its local rules, the court will consider and decide the pending motion as uncontested.
The motion purports to be filed by two defendants, the Adjutant General's Office and the State of Kansas. The plaintiff's petition does not name the State of Kansas as a separate defendant and refers to the Adjutant General's Office as a state agency.
The defendant first challenges that the plaintiff's service of process was insufficient, because Major General Tod M. Bunting is not authorized to accept service under state law. Rule 4(j) of the Federal Rules of Civil Procedure specifies two methods for serving process on a state governmental organization: (1) deliver a copy of the summons and complaint to the "chief executive officer" of the governmental organization, or (2) serve the summons and complaint in the manner prescribed by state law. Kansas requires service on the attorney general or an assistant attorney general, K.S.A. 60-304(d), and the plaintiff did not attempt service using this second method. The defendant's memorandum does not specifically show how service upon Major General Tod Bunting, the Adjutant General of Kansas, is not service on the "chief executive officer" of the Adjutant General's Department of the State of Kansas in accordance with the first method recognized in Fed.R.Civ.P. 4(j). Though the burden of proving satisfactory process may rest with the plaintiff, the defendant is required first to lodge specific objections. Oltremari v. Kansas Social Rehabilitative Service, 871 F. Supp. 1331, 1349 (D. Kan. 1994). The defendant's motion fails to meet this objection threshold.
K.S.A. 48-204 provides that: "The adjutant general shall be in control of the military department of the state and subordinate only to the governor in matters pertaining to this department."
The court will dismiss a cause of action for failure to state a claim when "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief," Poole v. County of Otero, 271 F.3d 955, 957 (10th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), or when an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). "[N]either a State nor its officials, acting in their official capacities are 'persons'" against whom a claim for damages can be brought pursuant to 42 U.S.C. § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Thus, the movant is entitled to dismissal on the § 1983 claim.
As for the plaintiff's negligence claim, the movant argues it has Eleventh Amendment immunity from suit in federal court. The Eleventh Amendment bars actions for damages "against a state in federal court, even by its own citizens, unless the state waives that immunity." Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000). This Eleventh Amendment immunity extends to entities created by state governments which operate as agencies or instrumentalities of the states. Id. The Adjutant General's Office in "joining the removing of this case to federal court waived its Eleventh Amendment immunity." Lapides v. Board of Regents, 535 U.S. 613, 624 (2002). The movant offers the court no other grounds for granting its motion to dismiss the negligence claim.
IT IS THEREFORE ORDERED that the defendant Adjutant General's Office's of the State of Kansas is granted as to the 42 U.S.C. § 1983 claim and denied as to the negligence claim.