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Carter v. Walmart, Inc.

United States District Court, D. Kansas

October 23, 2019

KATHLEEN CARTER, Plaintiff,
v.
WALMART, INC, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE.

         Plaintiff Kathleen Carter initiated this action in Kansas state court against Defendant Walmart, Inc. Defendant has filed a Renewed Motion to Dismiss for Failure to State a Claim (Doc. 24). Because the Court finds that Plaintiff fails to sufficiently assert a claim, the Court grants Defendant's Motion to Dismiss.

         I. Factual and Procedural Background

         On November 5, 2018, Plaintiff filed a petition for relief in Reno County District Court of the State of Kansas seeking relief from damages incurred on November 9, 2016. Plaintiff claims that, on November 9, 2016, Defendant's employee attacked her at Defendant's place of business in Hutchinson, Kansas. Plaintiff asserts Defendant had a duty to protect her from the incident and that Defendant's negligent supervision of its employee resulted in her injuries.[1]

         In December 2018, Defendant removed the case to the United States District Court for the District of Kansas. Defendant subsequently filed a Motion to Dismiss for Failure to State a Claim pursuant to Rule 12(b)(6). Defendant asserted that Plaintiff's complaint failed to state a claim for which relief could be granted because Plaintiff did not sufficiently plead claims for respondeat superior or negligent supervision.[2]

         By February 4, 2019, no counsel had entered an appearance on behalf of Plaintiff. Plaintiff's original counsel of record was not admitted to practice in Federal court, and after Defendant removed the case, he declined to continue representation. The Court ordered Plaintiff to hire counsel, represent herself, or dismiss the action. Additionally, the Court ordered Plaintiff to respond to Defendant's Motion to Dismiss by March 21, 2019, or the case would be subject to dismissal.

         By March 26, 2019, Plaintiff had done nothing. The Court issued Plaintiff a Show Cause Order as to why her claim should not be involuntarily dismissed pursuant to Fed.R.Civ.P. 41(b) for failure to comply with the Court's Order and for lack of prosecution. The Court directed Plaintiff to respond by April 8, 2019. On April 10, 2019, the Court dismissed the present action. The same day, the Clerk's Office received Plaintiff's Motion for Extension of Time to retain counsel. Due to the timing of the Motion and the Order, the Court set aside the dismissal and granted Plaintiff's Motion for Extension.

         In May 2019, Plaintiff entered her appearance pro se. Defendant renewed its Motion to Dismiss. The Court again ordered Plaintiff to respond. On June 10, 2019, Plaintiff submitted a two-sentence response to Defendant's motion. Plaintiff's response maintained that the original pleadings clearly stated that Defendant's “employee and agent” battered Plaintiff. Defendant now asserts that dismissal is appropriate because neither Plaintiff's complaint nor response states a claim upon which relief can be granted.

         II. Legal Standard

         Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the plaintiff has failed to state a claim upon which relief can be granted.[3] Upon such motion, the court must decide “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'”[4] A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct.[5] The plausibility standard reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature of claims as well the grounds on which each claim rests.[6]

         Under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint, but need not afford such a presumption to legal conclusions.[7] Viewing the complaint in this manner, the court must decide whether the plaintiff's allegations give rise to more than speculative possibilities.[8] If the allegations in the complaint are “so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'”[9] The court construes the complaints of pro se plaintiffs liberally in the interest of justice.[10] The court will not, however, advocate for the plaintiff or construct legal theories on the plaintiffs behalf.[11]

         III. Analysis

         Defendant proceeds as if Plaintiff asserts two negligence theories, vicarious liability under respondeat superior and negligent supervision. As will be explained below, Plaintiff's complaint does not properly set forth either claim.

         A. ...


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