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Smith v. Swift Transportation Co. Inc.

United States District Court, D. Kansas

March 18, 2014



RICHARD D. ROGERS, District Judge.

This is an employment action brought by the plaintiff, proceeding pro se, against his former employer under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq. This matter is presently before the court upon defendant's motion to dismiss. The defendant contends that the court should dismiss plaintiff's complaint for (1) failure to comply with the court's orders of October 7, 2013 and January 14, 2014; and (2) failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).[1]


The history of this case is extensive, even though the case has not proceeded beyond the complaint stage. Plaintiff, proceeding pro se, filed this action on May 23, 2013. He later filed an amended complaint on July 11, 2013. The amended complaint was 120 pages. The discrimination claims asserted were vague and some were incomprehensible. In an order issued on October 7, 2013, the court reviewed the complaint and the accompanying documents as follows:

In the form provided by the court, plaintiff indicates that the "discrimination" occurred from October 2010 to May 2013. He has further indicated that the nature of the case is "mistaken identity." He suggests that he has been subjected to "sexual harassment and defamation of character." In the section requesting the essential facts of his claim, he has stated:
"Ramona Robertson went out of her way to help me obtain my job at SWIFT Transportation under the impression I was my older brother Anthony Smith, who's in the entertainment business around the Metro Area. Every since she learn I wasn't him, I been put threw (sic) hell! From her and co-workers labeling me as a St. Thug and such. Not only that; she turn out to be related to my sons mother; now Ramona has slandered my name threwout (sic) her co-workers." Commc'ns, Inc., 2011 WL 2680688 at *5 (D.Kan. July 7, 2011). Plaintiff has not pointed to any new material raised in defendant's reply brief or any other exceptional circumstances that would justify a surreply. Accordingly, the court shall not consider the matters raised in plaintiff's surreply. Even if the court were to consider this material, we would not find that it changes the decision reached in this memorandum and order.
In an attached charge of discrimination filed with the Kansas Human Rights Commission on April 24, 2013, plaintiff indicated that he was rehired on or about September 12, 2012, and he currently works as an owner/operator. He states that during his employment he was subjected to adverse term and conditions including but not limited to being addressed by managers as a "street thug" and "gang member." He notes that "generally" his managers do not treat him with respect. He contends that the actions of Swift Transportation were taken because of his race, black, and his sex, male.
The other documents before the court indicate that plaintiff was hired by Swift on October 13, 2010 as a driver. He was terminated on April 12, 2011. He was later rehired. On December 4, 2012, plaintiff entered into a Contractor Agreement with Swift, thus becoming an owner-operator truck driver. In the agreement, the parties agreed to "conclusive and binding" arbitration of A[a]ll disputes arising under, arising out of or relating to this Agreement..., and any disputes arising out of or relating to the relationship created by this Agreement, including any claims or disputes arising under or relating to any state or federal laws, statutes or regulations... in accordance with Arizona's Arbitration Act and/or the Federal Arbitration Act."

In that order, the court granted defendant's motion to compel arbitration in part and denied it in part. The court stayed the action pending the resolution of the arbitration proceedings for all claims asserted by plaintiff arising after December 4, 2012. The court denied defendant's motion to dismiss for improper venue and granted the defendant's motion for a more definite statement in part. In granting the motion for more definite statement, the court found that framing a response to the plaintiff's complaint would be "extremely difficult." The court noted that plaintiff's claims were "difficult to discern." The court stated that plaintiff should focus on the claims that occurred prior to December 4, 2012. Plaintiff responded with a second amended complaint and defendant again sought a more definite statement. The court again granted the defendant's motion. The court once again found that plaintiff's complaint remained deficient. The court stated:

The court is in agreement with the arguments raised by the defendant. The amended complaint is a mishmash of various allegations and complaints by plaintiff. He has not followed the guidelines established by the court in our earlier order. The court will give plaintiff one more chance to repair his amended complaint. Once again, the court expects plaintiff to comply with the guidelines set forth by the court in the earlier order. Failure to do so may result in the dismissal of these claims.

Plaintiff then filed his third amended complaint. The filing of this complaint led to the filing of the instant motion.


The defendant initially argues that the court should dismiss this action for plaintiff's failure to plead with the specificity ordered by the court in its prior orders. The defendant notes that plaintiff has identified two forms of sexual harassment in this complaint, quid pro quo and hostile work environment, but has failed to "identify a single fact to support such claims." The defendant also asserts, in the alternative, that the court should dismiss this action for failure to state a claim upon which relief can be granted under Rule 12(b)(6). The defendant argues that plaintiff's third amended ...

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