United States District Court, D. Kansas
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This is an action alleging violations of the Americans with Disabilities Act ("ADA") and the Family Medical Leave Act ("FMLA"). Plaintiff also alleges retaliation against her exercise of rights under the Kansas Workers' Compensation Act in violation of Kansas law. We assume, but the amended complaint does not directly state, that this case arises from plaintiff's employment and discharge from a position at an Advance Auto Parts store. Plaintiff's original complaint named Advance Auto Parts, Inc. as the sole defendant. Plaintiff has filed an amended complaint to add Advance Stores Company, Inc. as a second defendant. But, the amended complaint refers to "defendant" in singular form as plaintiff's employer. And one of the issues before the court involves the identification of plaintiff's one-time employer.
Plaintiff asserts subject matter jurisdiction under 28 U.S.C. § 1331 with supplemental jurisdiction over the state law claim. This case is now before the court upon two motions to dismiss, one filed on behalf of each defendant. I. THE COURT SHALL GRANT THE MOTION TO DISMISS OF DEFENDANT ADVANCE AUTO PARTS, INC. ("AAPI").
A. Standards for a Rule 12(b)(2) motion
Defendant AAPI argues that it should be dismissed for lack of personal jurisdiction and brings its motion to dismiss pursuant to FED.R.CIV.P. 12(b)(2). When a defendant files a motion to dismiss for lack of personal jurisdiction under FED.R.CIV.P. 12(b)(2), the burden shifts to plaintiff to make a prima facie showing of personal jurisdiction. AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1056-57 (10th Cir. 2008). This may be accomplished by demonstrating with an affidavit or other written materials, facts that if true would support jurisdiction over the defendant. OMI Holdings, Inc. v. Royal Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998). The court does not accept as true those allegations in the complaint which are contradicted by defendant's affidavits. Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1065 (10th Cir. 2007). But, when evaluating the prima facie case, the court must resolve all factual disputes in favor of the plaintiff. AST Sports Science, 514 F.3d at 1057. If the court conducted an evidentiary hearing upon defendant's motion, then plaintiff would be required to establish jurisdiction by a preponderance of the evidence. Richardson v. Fowler Envelope Co., 288 F.Supp.2d 1215, 1219 (D.Kan. 2003). But, since the court is proceeding without a hearing at this stage, the question is whether plaintiff has made a prima facie showing of jurisdiction. Id.
B. Evidence and allegations before the court
AAPI's motion is supported by an affidavit from Marie Bliss, a Director of Rewards and Human Resources for the company. The affidavit states that AAPI is a publicly owned company organized under the laws of Delaware which does not operate any stores, employ any employees, have any offices, own or lease any property, pay any taxes, maintain a registered agent for service, or conduct any business in Kansas. According to the affidavit, Advance Stores Company, Inc. ("ASCI") is a privately owned company organized under the laws of Virginia which owns and operates many stores, including stores in Kansas.
As already noted, the amended complaint in this case does not identify which defendant employed plaintiff. Although the complaint names two defendants, the facts alleged in the complaint refer to "defendant" in singular form, as in: "Plaintiff began her employment with Defendant in November 2005." Doc. No. 3, ¶ 8. The amended complaint does not allege by name that AAPI took any action for, with, or against plaintiff.
The amended complaint alleges that AAPI "owns and operates several retail, service, and distribution sites in Kansas." Doc. No. 3, ¶ 5. In response to AAPI's motion to dismiss, plaintiff alleges that AAPI's website states:
Headquartered in Roanoke, Va., Advance Auto Parts, Inc., the largest automotive aftermarket parts provider in North America, serves both professional installer and do-it-yourself customers. Advance operates over 5, 200 stores, over 100 Worldpac branches, and serves approximately 1, 325 independent-owned Carquest branded stores in 49 states, Puerto Rico, the Virgin Islands and Canada. Advance employs approximately 73, 000 Team Members.
Doc. No. 14, p. 1. Plaintiff further notes that the website reveals several stores in Kansas. It should be noted that the website is www.advanceautoparts.com and that one may access it by using a search engine to look for either defendant on the internet.
In reply to plaintiff's response to the motion to dismiss, AAPI asserts that it is a holding company which conducts all of its operations through ASCI, a wholly owned subsidiary, and its subsidiaries which operate 5, 261 stores in the United States, Canada, Puerto Rico and the U.S. Virgin Islands. AAPI substantiates this claim with reference to the 2014 Annual Report of AAPI to the Securities and Exchange Commission. Doc. No. 15-1. The report may be accessed through the same Advance Auto Parts website referenced by plaintiff.
C. The Kansas long-arm statute governs this dispute.
Ordinarily, federal courts follow the state law of the state where the district court is located when determining the limits of their jurisdiction over persons. Daimler AG v. Bauman, 134 S.Ct. 746, 753 (2014). This course appears appropriate here where there apparently is no federal statute authorizing service of process and reference to the Kansas long-arm statute appears consistent with FED.R.CIV.P. 4(e), (h) and (k)(1)(A). So, the court makes reference to ...