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Coffman v. Hutchinson Community College

United States District Court, D. Kansas

September 22, 2017

DUSTIN D. COFFMAN, Plaintiff
v.
HUTCHINSON COMMUNITY COLLEGE, et al., Defendants.

          MEMORANDUM AND ORDER

          Sam A. Crow, U.S. District Senior Judge.

         The docket sheet reflects that plaintiff Dustin D. Coffman sent to the clerk's office for filing and docketing his pro se form complaint that referenced an “attached Petition.” ECF# 1. A review of the docket sheet shows that what Mr. Coffman apparently intended to be his “attached Petition” was docketed separately at ECF# 7 as his “Supplement to 1 Complaint by Plaintiff.” In this 50-page supplement, Mr. Coffman lays out the parameters of his action as arising from his acceptance into a registered nurse (“RN”) program at Hutchinson Community College (“HCC”), his treatment by the educators and supervisors while in that program, and his eventual termination from the program. In the section entitled, “Introduction, ” Mr. Coffman summarizes his different claims:

1. Violation of the plaintiff's First amendment (retaliation); 2) violation of the Fourteenth Amendment's due process clause; 3) Violation of the Fourteenth Amendment's equal protection clause; 4) Violation of the Kansas constitutional right to free speech; 5) Violation of Kansas' constitutional right to due process; 6) Violation of Kansas' constitutional right of equal protection under the law; 7) Breach of contract; 8) Defamation (as to defendants Jay Ballard and Kathy Sanchez); 9) Libel and slander as to defendants Jay Ballard and Kathy Sanchez; 10) Tortious interference with a contract as to defendants Debra Heckler, Cindy Hoss, Janet Hamilton, Kathy Sanchez and Jay Ballard; 11) Intentional infliction of emotional distress; 12) Violation of the Kansas Civil Rights Act; and 13) Violation of the Kansas victim protection act.

ECF# 7, p. 1. This filing also inexplicably refers to summary judgment procedures, but the plaintiff did not file his motion for summary judgment until over a week later. The defendant HCC's confusion over what constitutes the plaintiff's complaint and attached petition is understandable, but the court will construe this pro se pleading liberally consistent with the Tenth Circuit's teachings. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

         In her recent order, the magistrate judge pointed out that Mr. Coffman had filed eight motions all within the first month after filing his action. ECF# 23, p. 2. The district court denied the summary judgment motion without prejudice. ECF # 19. Besides denying the balance of the motions, the magistrate judge summarized the plaintiff's suit as one brought by a former student against the college, instructors and administrators on allegations that his federal and state constitutional rights were violated and state tortious acts were committed. ECF# 23. The magistrate judge also noted that the plaintiff had “attempted service on all named defendants.” Id. at p. 2. The magistrate judge denied the plaintiff's request for appointment of counsel based on his current allegations and claims, but recognized that her ruling “could change as the case progresses.” Id. at p. 6. Moreover, the magistrate judge observed various procedural deficiencies with the content and timing for some of the plaintiff's motions and appropriately encouraged the plaintiff to review the information for self-represented litigants available on the court's webpage. ECF# 23 at p. 8.

         The defendant HCC has since filed two motions. In its motion to dismiss, it argues that the plaintiff's form complaint does not attach a petition and does not otherwise state a claim for relief, that the court lacks personal jurisdiction over the individual defendants due to lack of proper service, and that the court lacks subject matter jurisdiction over any state law tort claims due to the failure to allege compliance with the statutorily required notice of K.S.A. 12-105(d). ECF## 21 and 22. Four days later, the plaintiff filed a 97-page response that addresses more than the matters raised in this motion to dismiss. ECF# 24. Three days later, HCC filed a motion to strike the plaintiff's response as exceeding the page limitation in D. Kan. Rule 7.1(e) without leave of the court and as lacking the organization required by D. Kan. Rule 7.6(a). ECF# 26.

         Motion to Strike ECF# 26

         The court's authority to strike a party's brief or memorandum for violating court's local rules is without question. What was docketed as the plaintiff's response (ECF# 24) to the defendant's motion to dismiss certainly exceeds the 30-page limitation in D. Kan. Rule 7.1(e) without a court order authorizing the same. Nor can it be disputed that the plaintiff's filing (ECF# 24) fails to follow and contain the elements set forth in D. Kan. Rule 7.6(a) as required for briefs and memoranda. In the exercise of its discretion, the court will not strike the plaintiff's filing in this instance for several reasons. First, the plaintiff is pro se and is hereby admonished to follow all of the court's local rules including Rule 7.1 that governs the filing of motions and responses and replies thereto and Rule 7.6 that governs briefs and memoranda. Second, the plaintiff apparently intended his filing (ECF# 24) to be more than a response to the defendant's motion. In that regard, the court warns the plaintiff to file separate memoranda in support of or in opposition to separate motions. This should be done in almost all instances unless to do so would mean repetitive, redundant and wasteful filings. Third, despite its excessive length and its disjointed presentation, the plaintiff's response did not keep the court from locating and considering the relevant responsive arguments. The court observes that there is much in the plaintiff's response which is not relevant to any matter raised in the motion to dismiss. These extraneous matters lack any proper procedural format for the court's consideration of them. Thus, the court will look only at what is responsive in the plaintiff's memorandum, and this constitutes less than one-third of the plaintiff's memorandum.

         Motion to Dismiss ECF# 21

         The defendant's motion addresses only the contents of the plaintiff's form complaint (ECF# 1) without acknowledging the plaintiff's supplement (ECF# 7). Because these matters were filed and docketed by the clerk of the court, the plaintiff will not be prejudiced by the defendant's argument that there was no attached petition. ECF# 22, p. 1. The defendant's motion to dismiss for failure to state a claim is summarily denied, for it fails to address the plaintiff's allegations in his supplement to the complaint.

         On the issue of personal jurisdiction, the court record shows the summons returns for “Jay Ballard, Instructor” (ECF# 12), “Kathy Sanchez, Nursing Instructor” (ECF# 13), “Debra Heckler, Administrator of Nursing” (ECF# 14), “Cindy Hoss, Vice President” (ECF# 15), and “Janet Hamilton, Instructor” (ECF# 16). There is also a summons return for “Dr. Carter File, President and trustee of Hutchinson Community College” (ECF# 17). The filed returns show each of these named defendants was served by certified mail addressed to Hutchinson Community College, 1300 North Plum, Hutchinson, Kansas. The defendant argues that the attempted service on the individual defendants was ineffective, because the certified mail was not first attempted at the “dwelling or usual place of abode” for each of these individuals. Id. at p. 6 (quoting K.S.A. § 60-304(a)). The defendant also contends that the person who signed for certified receipts was not a person authorized to accept service on behalf of the individual defendants. Finally, the defendant summarily argues that if the defendants are being sued in their official capacity, then such claims are duplicative of the claims against the defendant HCC which has admitted service. Id. at p. 6.

         A party must be served with a summons and a copy of the complaint by someone who “is at least 18 years old and not a party.” Fed.R.Civ.P. 4(c)(1) and (2). “Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant (A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located . . . .” Fed.R.Civ.P. 4(k)(1)(A). To serve an individual within a judicial district, the federal rules specify personal service or service “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e). As relevant here, Kansas law provides for service “by return receipt delivery, which is effected by certified mail.” K.S.A. § 60-303(c). Kansas law also requires the following for service upon on an individual:

Service by return receipt delivery must be addressed to an individual at the individual's dwelling or usual place of abode and to an authorized agent at the agent's usual or designated address. If the sheriff, party or party's attorney files a return of service stating that the return receipt delivery to the individual at the individual's dwelling or usual place of abode was refused or unclaimed and that a business address is known for the individual, the sheriff, party or party's attorney may complete service by return receipt delivery, addressed to the individual at the individual's business address.

K.S.A. § 60-304(a). Thus, § 60-304(a) requires the return receipt delivery to be “addressed to an individual at the individual's dwelling” and if this delivery is refused or unclaimed as shown by the filed return then delivery may be made to the “individual's business address.” Cessna Finance Corp. v. VYWB, LLC, 982 F.Supp.2d 1226, 1231 (D. Kan. 2013). The Kansas Supreme Court addressed this issue ...


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