United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
defendant Sammy Wall filed this lawsuit against
defendant/counterclaimant Canon Solutions America, Inc.
(“CSA”) in the District Court of Shawnee County,
Kansas. Doc. 1-1. Mr. Wall's Petition asserts various
claims, including violation of the Kansas Wage Payment Act
and breach of oral and written agreements. Id. CSA
removed the case to federal court, asserting diversity
jurisdiction under 28 U.S.C. § 1332. Doc. 1. CSA's
Answer asserts two counterclaims: Count I, unlawful recording
of communication in violation of Connecticut General Statutes
§ 52-570d; and Count II, invasion of privacy. Doc. 11.
This matter comes before the court on Mr. Wall's Motion
to Dismiss CSA's Counterclaim. Doc. 14. CSA filed a Brief
in Opposition to Mr. Wall's Motion to Dismiss. Doc. 19.
In its Opposition, CSA voluntarily dismissed Count II of its
Counterclaim without prejudice. Id. Mr. Wall filed a
Reply. Doc. 23. After considering the arguments made by both
parties, the court denies Mr. Wall's Motion to Dismiss.
following facts are taken from CSA's Counterclaim (Doc.
11) and viewed in the light most favorable to it. S.E.C.
v. Shields, 744 F.3d 633, 640 (10th Cir. 2014)
(“We accept as true all well-pleaded factual
allegations in the complaint and view them in the light most
favorable to the [plaintiff].”) (quotation omitted).
CSA is a New York corporation with its principal place of
business in Melville, New York. On January 1, 2013, Mr. Wall
became an employee of CSA in its Topeka, Kansas office. Mr.
Wall alleges that CSA failed to pay him compensation he is
owed. CSA denies Mr. Wall's claim.
asserts a counterclaim against Mr. Wall. CSA contends that
Mr. Wall unlawfully recorded communications and invaded its
privacy when Mr. Wall and his counsel recorded one or more
telephone conversations with CSA's agent and
representative, Anthony Marino. CSA and Mr. Marino were
unaware that Mr. Wall was recording the conversations. Mr.
Marino was located in Connecticut when the communications
occurred. CSA seeks to recover damages, including
attorneys' fees and costs. CSA also asks the court to
order Mr. Wall and his agents to surrender the original and
all copies of the recordings they made of CSA employees
without their consent.
Rule of Civil Procedure 8(a)(2) provides that a complaint
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Although this Rule “does not require ‘detailed
factual allegations, '” it demands more than
“[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Id. (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). “Under this
standard, ‘the complaint must give the court reason to
believe that this plaintiff has a reasonable
likelihood of mustering factual support for these
claims.'” Carter v. United States, 667
F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
the court must assume that the factual allegations in the
complaint are true, it is “‘not bound to accept
as true a legal conclusion couched as a factual
allegation.'” Id. at 1263 (quoting
Iqbal, 556 U.S. at 678). “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements” are not enough to state a claim
for relief. Bixler v. Foster, 596 F.3d 751, 756
(10th Cir. 2010) (quoting Iqbal, 556 U.S. at 678).
Wall moves to dismiss CSA's counterclaim asserting a
violation of Connecticut General Statutes § 52-570d
because the Counterclaim purportedly fails “to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). CSA has invoked the court's diversity
jurisdiction. In diversity cases, the court applies the law
that would apply if the plaintiff had brought the suit in
Kansas state court. Snyder v. Am. Kennel Club, 661
F.Supp.2d 1219, 1229- 30 (D. Kan. 2009) (first citing
Klaxon Co. v. Stentor Elec. Mfg., Co., 313 U.S. 487,
496 (1941); then citing Butt v. Bank of Am., N.A.,
477 F.3d 1171, 1179 (10th Cir. 2007)). Here, Kansas is the
forum state, and Kansas applies the law of the place of the
harm to claims arising under a state statute. See Marten
Transp., Ltd. v. Plattform Advert., Inc., No.
14-2464-JWL, 2016 WL 715765, at *9 (D. Kan. Feb. 22, 2016)
(recognizing that Wisconsin law ordinarily would govern the
statutory claims in this diversity action because Wisconsin
was the place where the financial harm was sustained);
see also Johnson v. Simonton Bldg. Prod., Inc., No.
08-2198-CM-DJW, 2011 WL 251435, at *8 (D. Kan. Jan. 26, 2011)
(concluding that claims brought under the Trade Secrets Acts
of Minnesota, Kansas, and West Virginia were governed by
Minnesota law because “plaintiff's financial injury
was necessarily felt in Minnesota.”).
CSA asserts Mr. Wall unlawfully recorded conversations with
Mr. Marino. Mr. Marino was located in Connecticut when the
conversations occurred. Thus, Connecticut is the place of
harm, and this conclusion means that Connecticut law
Wall contends that applying Connecticut law in this case
violates Kansas public policy. Doc. 23 at 2. Indeed, Kansas
courts “will not apply the law of another state to a
claim if that other state's law is contrary to Kansas
public policy.” See Raskin v. Allison, 57 P.3d
30, 33 (Kan.Ct.App. 2002). This exception to the choice of
law doctrine requires the public policy to be one “so
thoroughly established as a state of public mind so united
and so definite and fixed that its existence is not subject
to any substantial doubt.” Riddle v. Wal-Mart
Stores, Inc., 998 P.2d 114, 119 (Kan.Ct.App. 2000)
(citing Palmer v. Brown, 752 P.2d 685 (Kan. 1988)).
Kansas courts follow “the prevailing view that the
public policy exception in conflict of law theory should be
narrowly limited.” Raskin, 57 P.3d at
34 (emphasis added).
Wall identifies no public policy interests contravened by
Connecticut General Statutes § 52-570d. The Kansas
statutes differ from Connecticut law because they require
one-party consent to telephone recordings. But, other than
pointing out this mere difference, he provides no reason why
Connecticut's two-party consent law under ...