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Gilmore v. L.D. Drilling, Inc.

United States District Court, D. Kansas

November 29, 2017

JEFFREY T. GILMORE, Plaintiff,
v.
L.D. DRILLING, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

         Plaintiff Jeffrey Gilmore alleges both federal and state law claims against Defendants L.D. Drilling, Inc. and Mark Davis, including that he was not paid for overtime compensation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. The Court approved the parties'settlement of Plaintiff's FLSA claim as stated in Plaintiff's Complaint. Counts I and II of the Complaint assert claims that L.D. Drilling violated the Age Discrimination in Employment Act (“ADEA”) and the Americans with Disabilities Act (“ADA”); Count III asserts a claim of defamation against L.D. Drilling and Mark Davis. Over Defendants' objection that such an amendment would be futile, Magistrate Judge Teresa J. James granted Plaintiff leave to file a second amended complaint naming Susan Schnewies and Rashell Patten, employees of L.D. Drilling, as defendants in the defamation claim.[1] This matter is before the Court on Defendants L.D. Drilling, Inc. and Mark Davis's Motion to Review the Magistrate's Order Granting Plaintiff Leave to File Second Amended Complaint (Doc. 57); Defendants L.D. Drilling, Inc. and Mark Davis's Motion to Dismiss Count III of Plaintiff's Second Amended Complaint (Doc. 65); and Defendants Schneweis and Patten's Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 85). For the reasons explained fully below, the Court grants in part Defendants' motions to dismiss, with leave to amend, and denies as moot the motion to review the Magistrate Judge's order granting leave to amend.

         I. Standards

         Rule 72(a)

         Fed. R. Civ. P. 72(a) allows a party to provide specific, written objections to a magistrate judge's non-dispositive order. The court does not conduct a de novo review; rather, the court applies a more deferential standard under which the moving party must show that the magistrate judge's order is “clearly erroneous or contrary to law.”[2] The court must affirm the magistrate judge's order unless the entire evidence leaves it “with the definite and firm conviction that a mistake has been committed.”[3] A magistrate judge's order is contrary to law if it “fails to apply or misapplies relevant statutes, case law or rules of procedure.”[4]

         Rule 12(b)(6)

         Defendants move for dismissal of the defamation claim in Count III of the Second Amended Complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. In order to pass muster under Rule 12(b)(6), “the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”[5] The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than “a sheer possibility.”[6] “[M]ere ‘labels and conclusions, ' and ‘a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim.”[7] Finally, the Court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.[8]

         The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but] we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'”[9] Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.[10] Second, the court must determine whether the factual allegations, when assumed true, “plausibly give rise to an entitlement to relief.”[11] “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.”[12]

         The Court will first address Defendants' motion to dismiss Count III of the Second Amended Complaint, as a favorable ruling will render the motion to review Judge James's order granting leave to amend moot.

         II. Background

         The following facts are drawn from Plaintiff's Second Amended Complaint; the well pleaded facts alleged therein are assumed to be true, as required on a motion to dismiss under Fed.R.Civ.P. 12(b)(6).[13]

         On May 23, 2016, Plaintiff was summoned into L.D. Drilling's offices where he was met by the late L.D. Davis, Marilyn Davis, and Mark Davis. Mark Davis informed Plaintiff that he was being fired because of “health issues.” After he was terminated, Plaintiff filed a claim with the Kansas Department of Labor (“KDOL”) for unemployment benefits. L.D. Drilling opposed Plaintiff's claim. Rashell Patten and Susan Schneweis, employees of L.D. Drilling, had telephone conversations with the KDOL and submitted documents regarding Plaintiff's claim. On a form signed by Schneweis on June 7, 2016, she stated on behalf of L.D. Drilling that Plaintiff was terminated because he was “[c]lose to being a diabetic-couldn't do duty.”[14] Patten made the statement to Schneweis that Plaintiff was close to being diabetic and would likely lose his Commercial Driving License because he refused to take his diabetic medication. Patten also stated to Schneweis that Plaintiff had been drinking on the job.

         After Plaintiff was terminated, Mark Davis called another oil and gas company L.D. Drilling did business with and stated or implied that equipment Plaintiff was responsible for was missing. Plaintiff further alleges Davis, Schneweis, Patten, or other agents of L.D. Drilling published comments to third parties that stated or implied that Plaintiff had consumed alcohol while on duty during his time working for L.D. Drilling.

         After Plaintiff brought a claim for disability and age discrimination, L.D. Drilling changed its position and now alleges the statement about Plaintiff being close to diabetic was not made on its behalf, but instead was the personal statement of Patten and Schneweis. This statement was made not only to the KDOL, but also between Patten and Schneweis and other individuals working at L.D. Drilling. Plaintiff asserts this is evident because the first reason Plaintiff was given for his termination was because of his “health issues.”

         III. Discussion

         In Kansas, defamation has three basic elements: (1) false and defamatory words; (2) communicated to a third person; and (3) which resulted in harm to the reputation of the person defamed.[15] Defendants L.D. Drilling and Davis contend that Plaintiff did not sufficiently plead damages to his reputation and that statements made by Patten and Schneweis to the Department of Labor are absolutely privileged. Defendants Patten and Schneweis additionally argue that the statements were not defamatory, that Plaintiff did not identify the recipient of each defamatory statement, and that Plaintiff did not plead facts demonstrating Patten and Schneweis were at fault in making defamatory statements.

         A. Absolute Immunity

         Plaintiff claims that he was defamed by Schneweis and L.D. Drilling in their response to his application for unemployment benefits to the KDOL. Plaintiff alleges that Schneweis submitted a written statement to the KDOL stating that L.D. Drilling terminated his employment because Plaintiff was “[c]lose to being a diabetic” and he “couldn't do his duty.” Plaintiff alleges that this statement was made by Schneweis, as an agent of ...


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