United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
The plaintiff Michele Rene Hart Goolsby ("Goolsby") in February of 2014 filed an action in the District Court of Riley County, Kansas, alleging she had been employed by the defendant in Manhattan, Kansas, and was terminated in retaliation for suffering an on-the-job injury and for filing and pursuing a workers' compensation claim. (Dk. 1-2). In March, the defendant Management & Training Corporation ("Management") removed the action to federal court on the basis of diversity jurisdiction. (Dk. 1). The defendant Management also filed an answer which included, "Plaintiff's claim and cause of action is rendered invalid and legally insufficient by operation of the Transparency in Lawsuits Protection Act (K.S.A. 60-5201)." (Dk. 7, ¶ 12). On April 23, 2014, Management filed the pending motion to certify the following question of state law pursuant to K.S.A. 60-3201:
In light of the 2012 transparency in lawsuits protection act, which provides in part, "Courts of this state shall not construe a statute to imply a private right of action in the absence of such express language" does Kansas continue to recognize a private cause of action for workers compensation retaliation?
(Dk. 10, p. 1). The plaintiff opposes the motion, (Dk. 16), and the defendant has replied (Dk. 17). The court denies the motion to certify for the following reasons.
The Uniform Certification of Questions of Law Act, K.S.A. 60-3201, authorizes the Kansas Supreme Court to:
answer questions of law certified to it by... a United States district court... when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the court of appeals of this state.
Kan. Stat. Ann. § 60-3201. In this circuit, a novel question of law governed by unsettled state law makes certification appropriate, but it is never compelled. Pehle v. Farm Bureau Life Ins. Co., 397 F.3d 897, 900 n.1 (10th Cir. 2005). "Certification is not to be routinely invoked whenever a federal court is presented with an unsettled question of state law." Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988) (citation omitted). "[U]nder the diversity statutes the federal courts have the duty to decide questions of state law even if difficult or uncertain." Enfield ex rel. Enfield v. A.B. Chance Co., 228 F.3d 1245, 1255 (10th Cir. 2000) (internal quotation marks and citations omitted). "Certification is within the sound discretion of the federal court, and is appropriate when it will conserve the time, energy, and resources of the parties as well as of the court itself." Hartford Ins. Co. v. Cline, 427 F.3d 715, 716-17 (10th Cir. 2005) (internal quotation marks and citations omitted). In the exercise of that discretion, the court finds that certification is not compelled here and that between the state court decisions and the general weight of authority there is sufficient guidance for resolving this particular question of state law.
In 2012, the Kansas Legislature passed the Transparency in Lawsuits Protection Act, K.S.A. 60-5201, ("TLPA") that reads:
(a) This section shall be known as the transparency in lawsuits protection act and shall be part of and supplemental to the Kansas code of civil procedure.
(b) It is the intent of the legislature that no statute, rule, regulations or other enactment of the state shall create a private right of action unless such right is expressly stated therein.
(c) Any legislation enacted in this state creating a private right of action shall contain express language providing for such a right. Courts of this state shall not construe a statute to imply a private right of action in the absence of such express language.
(d) Nothing in this act shall be construed to prevent the breach of any duty imposed by law from being used as the basis for a cause of action under any theory of recovery otherwise recognized by law, including, but limited to, theories of recovery under the law of torts or contract.
The defendant argues for an interpretation of this statute that would have the Kansas Legislature abrogating Kansas common law that establishes the tort of retaliatory discharge for exercising rights under the Kansas Workers Compensation Act ("KWCA"). From the testimony offered in support of this legislation and the observations of commentators later, the plaintiff counters that this statute appears to have been aimed at restricting the doctrine of negligence per se in Kansas and that subsection (d) is applicable here. In reply, the defendant expansively read the statute as applying to any effort to imply ...