United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
Rosemary Hall was on her bicycle in Wylie, Texas when she was
hit by a vehicle driven by Erich Steinheimer (who is named as
a defendant as “John Doe”). Mr. Steinheimer was
insured by defendant State Farm Mutual Automobile Insurance
Company. Plaintiff brought this suit because she is unhappy
with how State Farm has handled her claim against its
insured. She seeks payment for her medical bills and for
violation of her privacy rights.
filed two similar motions: Motion of State Farm Mutual
Automobile Insurance Company to Quash Service and Dismiss
(Doc. 10) and Motion of John Doe - W.H. Knight to Quash
Service and Dismiss (Doc. 13). Both motions argue that
plaintiff (1) failed to properly serve defendants; (2)
possibly named defendants when she only intended for them to
be listed as agents for service; (3) failed to establish that
the court has personal jurisdiction over defendants; (4)
failed to state a claim; and (5) is barred from bringing her
claims by the statute of limitations. For the following
reasons, the court grants defendants' motions.
motions, defendants first ask the court to quash service. But
ordinarily, even if the court quashes service, the court
allows plaintiffs another opportunity to properly effect
service unless doing so would be futile. Pell v. Azar Nut
Co., 711 F.2d 949, 950 n.2 (10th Cir. 1983) (“We
note that when a court finds that service is insufficient but
curable, it generally should quash the service and give the
plaintiff an opportunity to re-serve the defendant.”)
The court will therefore proceed under the assumption that
service was not proper, and look first to whether
plaintiff's complaint must be dismissed on other grounds
that would made a second attempt at service futile (and would
independently require dismissal of a properly-served
complaint). The court moves directly to whether it has
personal jurisdiction over defendants.
plaintiff opposing a motion to dismiss for lack of personal
jurisdiction bears the burden of establishing that exercise
of personal jurisdiction over the defendant is proper.
Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d
453, 456 (10th Cir. 1996). If the motion to dismiss is
submitted before trial on the basis of affidavits and other
written materials, the plaintiff need only make a prima facie
showing. Id. Ultimately, the plaintiff must prove
the factual basis for jurisdiction by a preponderance of the
evidence at trial. Id. But on a pre-trial motion to
dismiss, the court resolves all factual disputes in the
plaintiff's favor. Id. If the plaintiff makes
the required prima facie showing, “a defendant must
present a compelling case demonstrating ‘that the
presence of some other considerations would render
jurisdiction unreasonable.'” OMI Holdings, Inc.
v. Royal Ins. Co. of Can., 149 F.3d 1086, 1091 (10th
Cir. 1998) (quoting Burger King Corp. v. Rudzewicz,
471 U.S. 462, 477 (1985)).
court evaluates whether it has personal jurisdiction under
the forum state's long-arm statute and constitutional due
process requirements. Capitol Fed. Sav. Bank v. E. Bank
Corp., 493 F.Supp.2d 1150, 1158 (D. Kan. 2007). At
times, Kansas courts have employed a two-step analysis to
determine personal jurisdiction-looking first to the Kansas
long-arm statute, Kan. Stat. Ann. § 60-308(b), and then
to the United States Constitution. Travel Mktg. Assocs.
v. Theatre Direct Int'l, No. 01-2579-CM, 2002 WL
31527737, at *2 (D. Kan. Oct. 8, 2002) (citations omitted).
But “[t]he Kansas long arm statute is liberally
construed to assert personal jurisdiction over nonresident
defendants to the full extent permitted by the due process
clause of the Fourteenth Amendment to the U.S.
Constitution.” Volt Delta Res., Inc. v.
Devine, 740 P.2d 1089, 1092 (Kan. 1987) (citations
omitted). The court therefore proceeds directly to the
constitutional inquiry. See OMI Holdings, 149 F.3d
at 1090; Federated Rural Elec. Ins. Corp. v. Kootenai
Elec. Coop., 17 F.3d 1302, 1305 (10th Cir. 1994);
Volt Delta Res., Inc., 740 P.2d at 1092.
first question in determining whether a defendant is subject
to the court's personal jurisdiction is whether the
defendant has sufficient “minimum contacts” with
the state of Kansas to satisfy the constitutional guarantee
of due process. Equifax Servs., Inc. v. Hitz, 905
F.2d 1355, 1357 (10th Cir. 1990). Sufficient “minimum
contacts” can be established in one of two ways.
Topliff v. Atlas Air, Inc., 60 F.Supp.2d 1175, 1178
(D. Kan. 1999). First, “[g]eneral jurisdiction lies
when the defendant's contacts with the forum state are so
continuous and systematic that the state may exercise
personal jurisdiction over the defendant, even if the suit is
unrelated to the defendant's contacts with the
state.” Trierweiler v. Croxton & Trench Holding
Corp., 90 F.3d 1523, 1533 (10th Cir. 1996). Second,
“[s]pecific jurisdiction exists when a defendant
purposely avails himself of the privilege of conducting
activities within the forum state, thus invoking the benefits
and protections of its laws, and the claims against him arise
out of those contacts.” Topliff, 60 F.Supp.2d
at 1178 (citing Kuenzle, 102 F.3d at 455). Plaintiff
fails to establish either general or specific jurisdiction
is no indication or allegation here that defendants had any
contacts at all with Kansas- let alone contacts of any
quality or quantity. The incident happened in Texas. There
are no facts to support an inference that any defendant had
continuous and systematic contacts with Kansas or
purposefully directed activities toward Kansas. Mr.
Steinheimer was insured under a policy issued in Texas. There
is no suggestion that he has any connection to Kansas at all.
During all times State Farm communicated with plaintiff about
her claims, State Farm communicated with plaintiff at 301
Binney Lane, Wylie, Texas 75098. State Farm is a citizen of
Illinois. It is not a domiciliary of Kansas. And it is not
clear that W.H. Knight, Jr. or Michael L. Tipsord are
intended defendants in this action. Mr. Knight is a member of
the Board of Directors of State Farm and Mr. Tipsord is the
CEO and Chairman of State Farm. They appear to only be named
by plaintiff as agents for service of process on State Farm
and John Doe/Mr. Steinheimer. But even if the court were to
consider these men named defendants who could be properly
served, plaintiff has not shown that the court has personal
jurisdiction over them. W.H. Knight, Jr. resides in
Metropolitan Seattle, Washington, had no contact with
plaintiff, and was not involved in her claim. Michael L.
Tipsord resides in Illinois. He is not involved in the
day-to-day operations of State Farm. He has no knowledge of
plaintiff's claim and has not been involved in any way.
The only connection this case appears to have with Kansas is
the fact that plaintiff now lives in Kansas. This is not
sufficient to confer personal jurisdiction over any
defendants in the case. See Rambo v. Am. S. Ins. Co,
839 F.2d 1415, 1420 (10th Cir. 1968) (finding no purposeful
available because the only contacts with the forum state were
“fortuitous, ” resulting from the plaintiff's
change of address after the relevant events occurred).
court finds minimum contacts, the court must “consider
whether the exercise of jurisdiction offends
‘traditional notions of fair play and substantial
justice.'” OMI Holdings, 149 F.3d at 1091
(citation omitted). There is no need in this case to proceed
to this inquiry, however, as plaintiff has not shown any
contacts by defendants with the state of Kansas. The court
therefore grants defendants' motions to dismiss for lack
of personal jurisdiction. Even if the court were to quash
service, allowing plaintiff the opportunity to re-serve
defendants would be futile. The court dismisses the case in
final note, there are a number of other issues with
plaintiff's complaint that would be dispositive of this
case, if the court had not decided the case on the matter of
personal jurisdiction. Even if plaintiff were to bring this
action in Texas or the court were to sua sponte consider
transferring it to Texas under 28 U.S.C. § 1631,
plaintiff's action is barred by the statute of
limitations. Plaintiff alleges the incident occurred on
August 18, 2015, and plaintiff did not file her complaint
until August 25, 2017. Texas has a two-year statute of
limitations on tort claims, as does Kansas. See Tex.
Civ. Practice & Remedies Code Ann. § 16.003(a); Kan.
Stat. Ann. § 60-513. Further, there is no indication
that plaintiff has already pursued a cause of action against
Mr. Steinheimer. Texas is not a “direct action”
state, meaning that plaintiff cannot bring a tort or bad
faith action against an insurer before obtaining a judgment
against the alleged tortfeasor. Jones v. CGU Ins.
Co., 78 S.W.3d 626, 628-29 (Tex. Ct. App. 2002).
Finally, although plaintiff attempts to bring a right of
action under the Health Insurance Privacy Act,
(“HIPPA”), she has not alleged that State Farm
improperly disclosed or used any of her medical records.
Moreover, State Farm is an insurer, which is not listed as
one of the entities to which the HIPPA requirements apply.
See 45 C.F.R. § 164.104.
court is sympathetic to plaintiff's situation. It is
unfortunate that she has suffered injuries and is dealing
with medical bills. But even construing plaintiff's pro
se complaint liberally, the court cannot allow this case to
proceed. It is not in the interest of justice to sua sponte
consider transferring the case to Texas under these
circumstances. See Trujillo v. Williams, 465 F.3d
1210, 1222 (10th Cir. 2006); see also Arocho v.
Lappin, 461 Fed.Appx. 714, 719 (10th Cir. 2012) (noting
that the court may take a “peek at the merits” to
determine whether to transfer to another court with
IS THEREFORE ORDERED that the Motion of State Farm
Mutual Automobile Insurance Company to Quash Service and
Dismiss (Doc. 10) is granted.
IS FURTHER ORDERED that the Motion of John Doe -
W.H. Knight to Quash Service and Dismiss (Doc. 13) is
IS FURTHER ORDERED that plaintiff's Motion to
Unmask John Doe (Doc. 34) and Motion to Appoint ...