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Gruis v. Herald

United States District Court, Tenth Circuit

December 30, 2013

KATHERINE GRUIS, Plaintiff(s),
v.
LORI HERALD, Kroger Accounting Services — Hutchinson, DAVID B. DILLON, President, The Kroger Co., and THE KROGER CO., dba KROGER SHARED SERVICE CENTER — HUTCHINSON, dba DILLON COMPANIES, INC., dba CITY MARKET, Defendant(s)

RECOMMENDATION ON MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT (Docket No. 14)

MICHAEL J. WATANABE, Magistrate Judge.

This case was referred to the undersigned by an Order Referring Case entered by Judge Philip A. Brimmer on May 21, 2013. (Docket No. 15).

After the pro se plaintiff filed her original Complaint, Judge Brimmer issued an Order to Show Cause in which he ordered that on or before August 24, 2013, plaintiff shall show cause why the case involves a dispute between citizens of different states and should not be dismissed for lack of subject matter jurisdiction (Docket No. 4). Judge Brimmer stated in that Order:

In determining whether the complaint reveals an appropriate basis for subject matter jurisdiction, the Court first notes that the complaint does not reveal the factual basis for plaintiff's claims. Instead, plaintiff attempts to rely on cross-references to attached documents. See Docket No. 1 at 3 (citing attached exhibits in the "Facts" section of the complaint). Upon review of those attachments, the Court is unable to identify any facts that would indicate that this case in any way "arise[s] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Rather, it appears that plaintiff is a current or former employee of defendant The Kroger Co. ("Kroger") and that plaintiff objects to Kroger's withholding of taxes from her paycheck. See Docket No. 1 at 10. The affidavits include no facts that indicate how the constitutional provisions she cites, or any others, are implicated by her employer's withholding of taxes. Although she alleges that defendants were somehow acting as agents of the Internal Revenue Service, Docket No. 1 at 5, ¶ 14.g., she provides no facts that support that characterization. In fact, her complaint alleges that "all defendants, especially Lori Herald, and [David B.] Dillon, were acting within the scope of their presumed duties as employees and Chief Executive Office[r] (President) of Defendant KROGER[.]" Docket No. 1 at 5, ¶ 17. In sum, plaintiff's filings fail to adequately invoke the Court's federal question jurisdiction.
In her complaint, plaintiff did not alternatively allege that the Court could exercise diversity jurisdiction over this case. See 28 U.S.C. § 1332(a)(1) ("The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interests and costs, and is between... citizens of different States."). The complaint contains information indicating that the Court may have diversity jurisdiction over this case. See Docket No. 1 at 1, 6. The Court, however, has insufficient information to assure itself that such is the case. See, e.g., 28 U.S.C. § 1332(c)(1) (providing that "a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business"); Hertz Corp. v. Friend, ___ U.S. ____, 130 S.Ct. 1181, 1192 (2010) (holding that a corporation's "principal place of business" is "the place where a corporation's officers direct, control, and coordinate the corporation's activities.").

(Docket No. 4 at 2-3). Thereafter, Judge Brimmer entered an Order of Dismissal (Docket No. 5) because plaintiff did not file a response to the Order to Show Cause, and this action was dismissed for lack of subject matter jurisdiction. Final Judgment was then entered by the Clerk. (Docket No. 6).

Over a month later, however, plaintiff moved to reopen the case. (Docket No. 7). Judge Brimmer granted the plaintiff's motion, vacated the Order of Dismissal, and directed the plaintiff to "file an amended complaint setting forth the basis of the Court's subject matter jurisdiction and the citizenship of each party...." (Docket No. 12). Judge Brimmer further stated in that Order:

In order to establish a basis for the Court's subject matter jurisdiction in this case, plaintiff must plead facts establishing that she is a citizen of a different state than each defendant. Plaintiff sets forth facts indicating that she is a citizen of Colorado and that Lori Herald is a citizen of Kansas. Docket No. 7 at 2. Moreover, the corporate disclosure statement submitted by defendants Lori I Co., and Dillon Companies, Inc. indicates that The Kroger Co. is incorporated in Ohio. Docket No. 10 at 102. However, plaintiff does not set forth any facts regarding the citizenship of defendant David B. Dillon, nor does she state the location of The Kroger Co.'s principal place of business. Plaintiff must sufficiently allege the citizenship of all parties or else this case will be dismissed for lack of subject matter jurisdiction.

(Docket No. 12 at 2-3).

Plaintiff then filed an Amended Complaint (Docket No. 13) in which she asserts the following. The action is brought pursuant to 42 U.S.C. §§ 1983, 1985, 1986, and 1988 and invokes jurisdiction of this court pursuant to 28 U.S.C. §§ 1343(A)(3)(4), 1331, 1332(a)(1), and 1332(c)(1). Plaintiff lives in Colorado. Defendant Lori Herald ("Herald") lives in Kansas and is an accountant for defendant The Kroger Co. ("Kroger") and was acting as an accountant for the City Market in Colorado. Kroger was and is a corporation of Ohio, registered in Kansas and Colorado. Defendant David B. Dillon ("Dillon") is a citizen of Ohio and was the president and CEO of Kroger. Plaintiff references attached exhibits, but there are no such attachments to that amended pleading. In addition, there is no page 4 for the amended pleading. Aside from the additions concerning the locations of the defendants, the amended pleading is identical to the original Complaint (Docket No. 1) to which such referenced exhibits are attached, and page 4 was included. Viewed as a whole, plaintiff alleges that starting on August 17, 2011, money was taken out of her pay by Herald and given to the Internal Revenue Service ("IRS") without plaintiff's permission. Herald was acting as an agent of the IRS and violated various constitutional rights of the plaintiff. Herald's actions constituted theft of compensation and interfered with plaintiff's contract with the IRS. Herald changed plaintiff's W-4 without permission, citing plaintiff under a charge of "IRS Federal W-4 Lockout." Kroger failed and/or neglected to train and supervise its employees. Kroger is liable under the doctrine of respondeat superior for the acts of its employees. Plaintiff seeks substantial compensatory and punitive damages.

Now before the court for a report and recommendation is the defendants' Motion to Dismiss Plaintiff's Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim and pursuant to 12(b)(2) for lack of personal jurisdiction over Herald.[1] (Docket No. 14). Plaintiff filed a Response (Docket No. 18), and defendants filed a Reply (Docket No. 20). The court has carefully considered these motions papers as well as applicable Federal Rules of Civil Procedure and case law. In addition, the court has taken judicial notice of the court file. The court now being fully informed makes the following findings, conclusions of law, and recommendation that the motion to dismiss be granted.

A motion to dismiss pursuant to Rule 12(b)(6) alleges that the complaint fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "A complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) if it does not plead enough facts to state a claim to relief that is plausible on its face.'" Cutter v. RailAmerica, Inc. , 2008 WL 163016, at *2 (D. Colo. Jan. 15, 2008) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do...." Twombly , 550 U.S. at 555 (citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Id . "[A] plaintiff must nudge [] [his] claims across the line from conceivable to plausible' in order to survive a motion to dismiss.... Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, L.L.C. v. Schneider , 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Twombly , 127 S.Ct. at 1974).

"[P]lausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiff[] ha[s] not nudged [his] claim[] across the line from conceivable to plausible.'" Khalik v. United Air Lines , 671 F.3d 1188, 1191 (10th Cir. 2012). Furthermore, "[t]he nature and specificity of the allegations required to state a plausible claim will vary based on context." Id . "[T]he Twombly/Iqbal standard is a wide middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do.'" Id.

For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the court must accept all well-pled factual allegations in the complaint as true and resolve all reasonable inferences in the plaintiff's favor. Morse v. Regents of the Univ. of Colo. , 154 F.3d 1124, 1126-27 (10th Cir. 1998); Seamons v. Snow , 84 F.3d 1226, 1231-32 (10th Cir. 1996). However, "when legal conclusions are involved in the complaint the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to [those] conclusions'...." Khalik , 671 F.3d at 1190 (quoting Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009)). "Accordingly, in examining a complaint under Rule ...


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