United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
filed this action under Title VII of the Civil Rights Act
claiming gender discrimination and retaliation against three
related corporate entities. The matter is now before the
court on a motion to dismiss by two of the defendants (Dkt.
24), on plaintiff's motion for leave to conduct discovery
(Dkt. 28), and on plaintiff's motion for leave to amend
the complaint (Dkt. 31).
complaint alleges that the three named defendants were each
her “employer” within the meaning of Title VII,
42 U.S.C. § 2000e(b). Plaintiff alleges she was
subjected to a hostile work environment on account of gender
while she was employed with the defendants and was
constructively discharged when she complained of the
harassment. (Dkt. 1).
Parnell, Inc. and Parnell U.S. 1, Inc. move for dismissal
pursuant to Fed.R.Civ.P. 12(b)(6). They admit plaintiff was
an employee of defendant Parnell Corporate Services, U.S.,
Inc., but argue she has failed to plausibly allege she was
employed by either Parnell, Inc. or Parnell U.S. 1. (Dkt. 25
at 1). They argue plaintiff has failed to allege any facts to
support a claim against these two defendants under either the
“single employer” or “joint employer”
test of Title VII case law. (Id. at 3-5). In
response, plaintiff seeks leave to conduct discovery into the
relationship between these entities. (Dkt. 29 at 1).
Alternatively, plaintiff asks that she be allowed additional
time to either respond to the motion or to file an amended
complaint. Plaintiff also separately moves to amend the
complaint to add claims for breach of contract, quantum
meruit, and unjust enrichment. For their part, defendants
argue plaintiff is not entitled to discovery prior to
responding to the Rule 12(b)(6) motion, and that
plaintiff's proposed amendment to the complaint should be
denied as futile.
purpose of a Rule 12(b)(6) motion is to test the legal
sufficiency of the pleadings. See Issa v. Comp USA,
354 F.3d 1174, 1177 (10th Cir. 2003) (“the purpose of
such motions is to test ‘the sufficiency of the
allegations within the four corners of the complaint after
taking those allegations as true'”). Because of
that, the court agrees with defendants that delaying the
motion so plaintiff can first pursue discovery is not
warranted. Discovery may be appropriate in response to a
motion to dismiss where jurisdiction is at issue. See
Hemphill v. Pershing, LLC, 2017 WL 3149290, *4 (D. Kan.
July 25, 2017) (refusal to grant discovery on a Rule 12(b)(1)
motion challenging jurisdiction may be abuse of discretion).
But defendants' motion does not challenge jurisdiction,
and the legal sufficiency of the allegations does not depend
upon whether plaintiff can garner evidence to support them.
complaint alleges that the defendants share the same
principal address, but does not otherwise allege anything to
show that Parnell, Inc. or Parnell U.S. 1, Inc. could be
regarded as plaintiff's employer for purposes of Title
VII. See Knitter v. Corvias Military Living, LLC,
758 F.3d 1214, 1225-26 (10th Cir. 2014) (outlining factors
such as jointly co-determining the terms and conditions of
employment or common ownership or management that can make
multiple entities an employer under Title VII).
survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). A claim is plausible when it contains factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.
Id. at 556. The rules of pleading do not demand
detailed factual allegations, but they do require more than
labels or conclusions.
context of multiple corporate entities, merely labeling the
entities as “employers” is not sufficient to
plausibly show they bear liability. See Miller v. Dillon
Companies, Inc., No. 15-4946-DDC, 2016 WL 2894696, at
*10 (D. Kan. May 18, 2016) (“Plaintiff's conclusory
allegations that Kroger employed her are insufficient to
state a claim”). Cf. Crumpley v. Associated
Wholesale Grocers, Inc., No. 16-2298-DDC, 2017 1364839
(D. Kan. Apr. 13, 2017) (complaint sufficiently alleged joint
employer liability where it alleged that defendant had the
power to terminate his employment, supervise him, give him
work assignments, and dictate work rules).
complaint does not contain facts showing that Parnell, Inc.
or Parnell U.S. 1, Inc. could be liable for the alleged
misconduct. Plaintiff conceivably could overcome these
deficiencies by amending the complaint. Under the
circumstances, the court will hold off on granting the motion
to dismiss as to Parnell Inc. and Parnell U.S. 1, Inc., and
will grant plaintiff's request for a short extension to
file an amended complaint, should she wish to do so. If no
complaint curing these deficiencies is filed within the
allotted time (two weeks), the court will grant the motion to
dismiss these two parties.
court will treat plaintiff's separate motion for leave to
amend the complaint (Dkt. 31) in similar fashion. This
proposed amendment seeks to add claims of breach of contract,
unjust enrichment, and quantum meruit. Defendants object for
the same reasons indicated above - because the allegations do
not show that Parnell, Inc. and Parnell U.S. 1, Inc. were
plaintiff's employer or that they contracted with her.
The court agrees that plaintiff's proposed amended
complaint (Dkt. 31-1) fails to allege facts showing that
Parnell, Inc. or Parnell U.S. 1, Inc. could be liable on
these additional claims, although defendants do not argue the
amendment would be futile as to Parnell Corporate Services
U.S., Inc. The court will grant plaintiff two weeks to file
an amended complaint asserting these additional claims as to
Parnell Corporate Services, Inc., and, if she corrects the
deficiencies concerning Parnell, Inc. or Parnell U.S. 1,
Inc., as to those defendants as well.
photographs contained within plaintiff's current
complaint should be deleted from any amended complaint that
is filed, as these are evidentiary materials rather than a
written statement within the contemplation of the rules.
See Rowan v. Sunflower Elec. Power Corp., No.
15-CV-9227-JWL-TJJ, 2015 WL 8024320, at *2 (D. Kan. Dec. 4,
2015); Nkemakolam v. St. John's Military Sch.,
876 F.Supp.2d 1240, 1246-47 (D. Kan. 2012) (“The courts
that have considered this issue have concluded that the Rules
thus do not contemplate the attachment of exhibits, such as
photographs, that are not written instruments.”).
IS THEREFORE ORDERED this 20th day of
November, 2017, that defendants' Motion to Dismiss (Dkt.
24) is taken under advisement. Plaintiff is granted until
December 4, 2017, to file an amended complaint curing the
deficiencies identified by defendants; if no such complaint
is filed by that date, the court ...