United States District Court, D. Kansas
PHILLIP A. PEAVY, Plaintiff,
LABOR SOURCE d/b/a/ONE SOURCE ABM INDUSTRIAL INCORPORATED, Defendants.
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Before the Court are the following motions: Plaintiff's Motion to Reconsider (Doc. 15), Defendant's Motion to Dismiss for Failure to State a Claim (Doc. 12), and Defendant's Motion for Non-Monetary Sanctions (Doc. 14). The motions are fully briefed and the Court is prepared to rule. As described more fully below, the Court denies Plaintiff's motion to reconsider and grants Defendant's motions to dismiss and for sanctions. The Court agrees that any future Complaint filed in this district by Mr. Peavy against Labor Source or ABM Industrial, Inc, if he is granted leave to file in forma pauperis, shall be screened under 28 U.S.C. § 1915 prior to authorizing service of summons by the United States Marshals Service ("USMS").
I. Motion to Reconsider
On March 2, 2015, Plaintiff Phillip A. Peavy filed a pro se Complaint against "Labor Source d/b/a/One Source ABM Industrial Incorporated, " alleging various claims of employment discrimination and wage violations under federal and state law. He has filed three previous lawsuits seeking relief in other jurisdictions against Defendants Labor Source d/b/a Once Source Staffing, ABM Industrial Incorporated, and American Building Maintenance Co, based on a prior alleged employment relationship. On March 6, 2015, Magistrate Judge Teresa J. James issued an Order Granting Plaintiff's Motion for Leave to Proceed In Forma Pauperis. Summons was then executed by the USMS upon "ABM Industrial Incorporated/Labor Source D/B/A One Source, " on March 24, 2015. On April 20, 2015, Plaintiff sought default judgment, arguing that Defendant had failed to answer or otherwise respond within twenty-one days of service of the Complaint and Summons.
On May 12, 2015, Defendant Labor Source, LLC d/b/a/One Staffing filed a Motion for Leave to File a Responsive Pleading out of Time. In that motion, Defendant argued that it was not properly served because Plaintiff did not name the correct defendant, and that he did not direct service of the Summons and Complaint to a corporate officer, as required by K.S.A. § 60-304(e). Defendant explained that the defendant identified in the Summons, "ABM Industrial Incorporated/Labor Source D/B/A One Source" was incorrect because Labor Source and ABM are two separate and distinct entities. Defendant submitted an affidavit stating that they are not affiliated, and that they do not share joint counsel. Furthermore, the Complaint and Summons fail to identify the corporate officer to whom process is to be served. For these reasons, the Court denied Plaintiff's motion for default judgment, stating that it was not apparent that Defendant had failed to plead or otherwise defend, as required by Fed.R.Civ.P. 55(a) to enter default.
Plaintiff now asks the Court to reconsider its Order denying the motion for default judgment, citing Fed.R.Civ.P. 59 and 60(b)(3). A motion to alter or amend judgment pursuant to Rule 59(e) may be granted only if the moving party can establish: (1) an intervening change in the controlling law; (2) the availability of new evidence that could not have been obtained previously through the exercise of due diligence; or (3) the need to correct clear error or prevent manifest injustice. Rule 60(b)(3) provides that the Court may relieve a party from a final judgment for "fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party." A motion to reconsider does not permit a losing party to rehash arguments previously addressed or to present new legal theories or facts that could have been raised earlier.
Plaintiff suggests that he has new evidence that Defendant fraudulently misrepresented certain facts in obtaining leave to file answer out of time. Specifically, Plaintiff alleges the following misrepresentations: (1) that Labor Source and ABM are two separate and distinct entities that are unaffiliated and do not share joint counsel; (2) that in 2006, Plaintiff was assigned to a temporary position with ABM to perform janitorial services at the Sprint Center in Kansas City; and (3) that Robin L. Goosman, who submitted an affidavit on behalf of Defendant in response to the motion for default judgment, was a Risk Manager at Labor Source, LLC d/b/a One Source Staffing & Labor when she was actually an accountant. Plaintiff claims that Judge James and the undersigned relied on these misrepresentations in granting Defendant leave to answer out of time and in denying the motion for default judgment.
Plaintiff claims Labor Source failed to disclose that it was represented by ABM's attorney in a 2010 case that Plaintiff initiated in the Western District of Missouri. He cites page five of ABM's Answer in Peavy v. Slipsager, et al.  But this document does not support Plaintiff's contention. In fact, the docket sheet for the 2010 case explicitly states that each defendant (who were named separately) was represented by different counsel. Plaintiff also points to the 2011 case in the Western District of Missouri, Peavy v. American Building Maintenance Company Missouri North Central, in support of his argument that ABM and Labor Source shared joint counsel. Labor Source, however, was not named as a defendant in that case; American Building Maintenance Company Missouri North Central and Michele Bigler were the only named defendants. Plaintiff's claims that the two business entities are one in the same, and that they share joint counsel are not supported by the record and the Court declines to reconsider its denial of default on this basis.
Next, Plaintiff's status as a temporary employee in 2006 had no bearing on the Court's decision to deny entry of default in this case. Therefore, even if this was a misrepresentation, it had no impact on the Court's determination that Defendant did not fail to plead or otherwise defend in this matter.
Finally, Plaintiff contends that Robin Goosman misrepresented her position at Labor Source in her affidavit when she said she was a Risk Manager. Plaintiff avers she was an accountant. But Plaintiff offers no evidence to support his assertion that Ms. Goosman's affidavit misrepresented her position. Defendant has submitted a letter referenced by Plaintiff that indicates while Ms. Goosman did work in the accounting department in 2013, when Labor Source was served with the Summons and Complaint for the instant matter, Ms. Goosman held the position of Risk Manager. Moreover, it does not matter what Ms. Goosman's title or duties were in 2013, as Labor Source was served with the Summons and Complaint for the instant matter in 2015.
The Court finds no basis under either Rule 59(e) or Rule 60 for relief in this matter. Plaintiff has failed to point the Court to new evidence, or evidence of fraud, that would justify this Court reconsidering its decision to deny entering default against Defendant. Plaintiff's motion to reconsider is therefore denied.
II. Motion to Dismiss
Defendant moves to dismiss this matter on the following grounds: (1) lack of personal jurisdiction due to insufficient service of process; (2) res judicata; and (3) failure to state a claim upon which relief may be granted. Plaintiff has not responded to the motion to dismiss and the time to do so has expired. The Court can therefore grant this motion to dismiss as uncontested. Nonetheless, the Court has reviewed Defendant's motion and finds that dismissal is appropriate for lack of personal jurisdiction as to ABM and Labor Source. And even if Plaintiff was in ...