United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
J.C. Penney Corporation, Inc. (“J. C. Penney”)
and Manpower U.S. Inc. (“Manpower”) each move to
dismiss pro se plaintiff Tawana Marshawn Beecham's
complaint.(Docs. 10, 13.) Defendant J.C. Penney moves
for dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6), for failure to exhaust administrative remedies or
to show that defendant was plaintiff's employer under
Title VII and the ADEA. (Doc. 10.) Defendant Manpower moves
first for dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(1), for failure to exhaust administrative
remedies under Title VII and the ADEA, and second for
dismissal or in the alternative to quash insufficient service
pursuant to Federal Rule of Civil Procedure 12(b)(5). (Doc.
is an African-American female and former employee of
Manpower. Defendants are J.C. Penney Corporation, Inc. and
temporary staffing agency Manpower. Defendant Manpower
assigned plaintiff to work at J.C. Penney's Logistics
Center in Lenexa, Kansas, in September 2017. Plaintiff worked
at the Lenexa facility through December 2017. Plaintiff
alleges she was discriminated against on the basis of race,
gender, and age. Plaintiff further alleges that she was
terminated in retaliation for reporting a hostile work
Title VII claims, plaintiff alleges she filed a charge of
discrimination against defendants and received a right-to-sue
letter. Plaintiff has not alleged that either (1) 60 or more
days have passed, or (2) fewer than 60 days have passed since
filing a charge of age discrimination with the EEOC.
Plaintiff has not provided the dates corresponding to either
the filing of her ADEA charge or the receipt of her Title VII
commenced this suit by filing a form employment
discrimination claim with the court and attempted service on
defendant Manpower by certified letter to “MANPOWER
GROUP, 10500 LACKMAN RD, LENEXA, KS 66219, ” the
address for the J.C. Penney Logistics Center where plaintiff
court liberally construes pro se pleadings, but pro se
plaintiffs must “follow the same rules of procedure
that govern other litigants.” Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994); see
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
12(b)(1) and the Effect of Lincoln
recently in the Tenth Circuit, motions to dismiss under Title
VII based on a plaintiff's failure to exhaust
administrative remedies were treated as jurisdictional and
considered under Rule 12(b)(1). Lincoln v. BNSF Ry.
Co., 900 F.3d 1166, 1182-85 (10th Cir. 2018) (concluding
administrative exhaustion no longer jurisdictional
requirement and overruling prior law by vote of all active
judges). After Lincoln, the failure to exhaust
administrative remedies is a non-jurisdictional condition
precedent to suit, and an affirmative defense to be raised by
a defendant pursuant to Rule 12(b)(6). See id.
motion made under Rule 12(b)(5) “challenges the mode or
lack of delivery of a summons and complaint.”
Oltremari by McDaniel v. Kan. Soc. & Rehab.
Serv., 871 F.Supp. 1331, 1349 (D. Kan. 1994) (citations
omitted). A plaintiff must validly serve the defendant with
process before the court can exercise personal jurisdiction
over that defendant. See Jenkins v. City of Topeka,
136 F.3d 1274, 1275 (10th Cir. 1998) (“Effectuation of
service is a precondition to suit . . . .”). When a
defendant challenges service of process, the plaintiff has
the burden of proving the sufficiency of service. Ammon
v. Kaplow, 468 F.Supp. 1304, 1309 (D. Kan. 1979). The
court may consider documentary evidence and weigh affidavits
when evaluating the sufficiency of the plaintiff's
service on a defendant. Id. “Generally, when
the Court finds that service is insufficient but curable, it
should quash service and give plaintiff an opportunity to
re-serve defendant.” Fisher v. Lynch, 531
F.Supp.2d 1253, 1269 (D. Kan. 2008); see Pell v. Azar Nut
Co., 711 F.2d 949, 950 n.2 (10th Cir. 1983).
Federal Rule of Civil Procedure 4(h)(1), a domestic or
foreign corporation must be served “in a judicial
district of the United States” either (1) pursuant to
state law in the jurisdiction where the action is brought or
service is made; or (2) by delivering a copy of the summons
and complaint to an agent authorized to accept service of
process. Fed.R.Civ.P. 4. Kansas allows service by return
receipt delivery through certified mail. Kan. Stat. Ann.
12(b)(6), Exhaustion of Administrative ...