Opinion
No. 03-4210-SAC
March 16, 2004
MEMORANDUM AND ORDER
The case comes before the court on the pro se plaintiffs' response to the court's order to show cause in writing why the defendant Wal-Mart Stores, Inc.'s partial motion to dismiss should not be granted as uncontested pursuant to D.Kan. Rule 7.4. The defendant Wal-Mart Stores, Inc. filed its motion on December 24, 2003, seeking an order that would dismiss Donna M. West as a named plaintiff and that would dismiss the following, "Wal-Mart, Inc.," "Wal-Mart Transportation, Inc.," "Wal-Mart," "Wal-Mart Private Fleet," and "Wal-Mart Associates, Inc." as named defendants. (Dk. 9). When the time for filing a response passed without anything from the plaintiffs, the court issued an order to show cause. (Dk. 11). The plaintiffs now have filed a response asking the court to deny the defendant's motion. (Dk. 18).
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "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." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). A court judges the sufficiency of the complaint accepting as true all well-pleaded facts, as distinguished from conclusory allegations, Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), and drawing all reasonable inferences from those facts in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881 (1998). 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." Associated General Contractors v. California State Council of Carpenters, 449 U.S. 519, 526 (1983) (footnote omitted). The court liberally construes the allegations of a pro se complaint. See Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 806 (10th Cir. 1999). However, the court cannot "assume the role of advocate for the pro se litigant," "construct arguments or theories for the plaintiff in the absence of any discussion of those issues," or "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The defendant points out that the complaint identifies Donna M. West as a plaintiff in the caption but that she is not a party named in the body of the complaint, that the complaint does not allege any claims directly by her or on her behalf, and that she did not sign the complaint. For these reasons, the defendant asks the court to dismiss Ms. West from the action for failure to state a claim upon which relief can be granted. The plaintiffs respond that Ms. West is listed on the reverse side of the civil complaint, that the complaint does not allege any claims against the defendants as the pro se complaint form did not ask for them, and that she signed the complaint on page five. The court grants the defendant's motion to have Ms. West deleted from the caption of the complaint and this case, as no claim has been alleged by her on her behalf. The effort to articulate a claim on Ms. West's behalf in the response to the show cause order is not the proper way to amend a complaint.
In its motion, the defendant Wal-Mart Stores, Inc. admits the plaintiff is one of its employees, and it accordingly has filed an answer to the plaintiff's complaint. The defendant argues that "Wal-Mart, Inc." is not a legally established corporation upon whom process can be served. The defendant also contends that the plaintiff's complaint does not further identify as parties or allege any claims against the following defendants appearing in the caption: "Wal-Mart," "Wal-Mart Transportation, Inc.," "Wal-Mart Private Fleet" and "Wal-Mart Associates, Inc." In his response to the show cause order, the plaintiff concedes Wal-Mart Stores, Inc. is the proper defendant, but he also contends that the Wal-Mart Private Fleet is the defendant's subsidiary which employs him, that he drives truck for Wal-Mart Transportation, and that he hauls freight for a number of other Wal-Mart subsidiaries. The plaintiff believes all of these subsidiaries should be included in the complaint and considered in any damage award. The plaintiff recognizes that he has not asserted any claims against these named and unnamed subsidiaries and that he has not otherwise identified them as additional defendants in his complaint. The court grants the defendant's motion to have these other named defendants deleted from the caption of the complaint and this case, because the complaint does not properly identify them as parties to this suit and does not allege any claims against them. As stated above, the plaintiff's response to the show cause order is not the proper way for adding parties to this suit or for amending a complaint to add claims.
IT IS THEREFORE ORDERED that the defendant's motion to dismiss (Dk. 9) is granted insofar as the plaintiff's complaint fails to allege any claims for Donna M. West and fails to identify those other named Wal-Mart subsidiaries as defendants and to allege claims against them.