United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN J. THOMAS MARTEN, JUDGE.
Jane Doe 7 (“Doe”) filed this action in state
court against defendant University of Kansas
(“KU”) for violating Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681 (“Title
IX”), the Rehabilitation Act of 1973, 29 U.S.C. §
701, et seq., and the Kansas Consumer Protection Act, Kan.
Stat. Ann. § 50-623, et seq. (“KCPA”). Doe
alleges a hostile and discriminatory educational environment
and retaliation. KU removed Doe's lawsuit to this court,
and filed the instant Motion to Dismiss (Dkt. 36). KU argues
that the doctrine of res judicata bars Doe's claims and
that she failed to state a KCPA claim under Federal Rule of
Civil Procedure 12(b)(6). For the reasons provided below, the
court denies KU's motion.
March 11, 2016, a group of plaintiffs filed a class action
lawsuit against KU pursuant to the KCPA, James Tackett,
et al. v. University of Kansas, Case No. 2016-CV-103
(the “KCPA lawsuit”). The plaintiffs claimed that
Daisy Tackett and Sarah McClure (publicly acknowledged to be
Jane Doe 7) were sexually assaulted in Jayhawker Towers while
students at KU. The plaintiffs alleged that KU repeatedly
represented to them and other students and their family
members that KU's residence halls were safe, but these
representations were false.
joining the KCPA lawsuit, Doe filed this lawsuit in Douglas
County, Kansas on April 18, 2016. KU removed Doe's case
to federal court on June 24, 2016. Four days later, Doe
joined the KCPA lawsuit as a plaintiff.
March 17, 2017, the Douglas County District Court, Judge Kay
Huff, granted KU's motion to dismiss the KCPA lawsuit.
Judge Huff held that the parent-plaintiffs did not have
statutory standing because they had not signed the contracts
with KU, thereby failing to meet the statutory definition of
consumers under the KCPA. On the other hand, the state court
found that the student-plaintiffs were parties to the
consumer transaction, but lacked standing to seek declaratory
or injunctive relief because-as former students-they did not
allege that they were in danger of suffering a present or
16, 2017, KU moved to dismiss Doe's instant claims based
on res judicata, or alternatively, Doe's KCPA claim under
court makes a judgment, the preclusive effect of that
judgment is defined by both claim preclusion and issue
preclusion, collectively known as “res judicata.”
Taylor v. Sturgell, 553 U.S. 880, 892 (2008). Claim
preclusion precludes parties to a lawsuit from relitigating
issues that were or could have been raised in prior actions.
Haynes v. Kansas, 261 F. App'x 87, 89 (10th Cir.
2008). The purpose of res judicata is to protect
parties and the court from multiple lawsuits, minimize
inconsistent decisions, and conserve judicial resources.
Id. Claim preclusion is an affirmative defense,
which KU bears the burden to plead and prove. Pelt v.
Utah, 539 F.3d 1271, 1283 (10th Cir. 2008).
determining whether res judicata applies, a federal court
gives the state court judgment the same effect that it would
be given by the state where the judgment was handed
down.” Cubie v. Bryan Career Coll., Inc., 244
F.Supp.2d 1191, 1199-200 (D. Kan. 2003). Both the Tenth
Circuit and Kansas require satisfaction of three elements for
dismissal to be proper: “(1) a final judgment on the
merits in an earlier action; (2) identity of parties or
privies in the two suits; and (3) identity of the cause of
action in both suits.” Pelt, 539 F.3d at 1281
(quoting MACTEC Inc. v. Gorelick, 427 F.3d 821, 831
(10th Cir. 2005); Cubie, 244 F.Supp.2d at 1199.
Within these elements, “Kansas considers whether the
parties were fully heard, whether the decision was supported
by a reasoned opinion and whether the decision was subject to
or reviewed on appeal.” Cubie, 244 F.Supp.2d
undisputed that Doe's lawsuit contains the same parties
as the KCPA lawsuit. It is also undisputed that Judge
Huff's decision was a final judgment. However, the
parties disagree whether Judge Huff's dismissal of the
KCPA lawsuit for lack of standing was a decision on the
in a judicial action must have standing as part of the Kansas
case-or-controversy requirement imposed by the judicial power
clause of Article 3, § 1 of the Kansas
Constitution.” Sierra Club v. Moser, 298 Kan.
22, 29, 310 P.3d 360, 367 (2013) (citing State ex rel.
Morrison v. Sebelius, 285 Kan. 875, 895-96, 179 P.3d
366, 382-83 (2008)). Consequently, “standing is a
component of subject matter jurisdiction . . . .”
Id. (citing Cochran v. Kan. Dep't of
Agric., 291 Kan. 898, 903, 249 P.3d 434, 440 (2011)). A
plaintiff must also have statutory standing under the
applicable statute governing the cause of action. See,
e.g., Sierra Club, 298 Kan. at 29, 310 P.3d at
367 (“The parties agree that a multilevel analysis-(1)
statutory standing and (2) common-law or traditional
standing-applies . . . [t]o establish statutory standing
under the first prong, Sierra Club must satisfy the standing
requirements of both the KAQA and the Kansas Judicial Review
recognized by Judge Huff, to have statutory standing to sue
under the KCPA, Doe must be a consumer. See also Hayes v.
Find Track Locate, Inc., 60 F.Supp.3d 1144, 1151 (D.
Kan. 2014) (a consumer is a party to the contract). Doe
cleared this hurdle, but Judge Huff's analysis did not
end there. Judge Huff went on to find that Doe could not show
a continuing injury or imminent threat of future harm and
therefore, she lacked standing for prospective relief. She
further held that Doe lacked standing because ...