United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
matter is before the court on two motions to dismiss: one
joint motion by defendants Goettling and Schiltz
(“individual defendants”), and one by defendant
Nationwide Affinity Insurance Company
(“Nationwide”). (Docs. 10; 12.) Individual
defendants move to dismiss plaintiff's claim for improper
service and under Rule 12(b)(6), while defendant Nationwide
moves to dismiss plaintiff's claim only under Rule
12(b)(6). Plaintiff has not responded to defendants'
motions despite the court providing additional time for her
to file a response.
plaintiff Beverly Ann McKinney filed this housing
discrimination action on March 28, 2019. On June 25, 2019,
all defendants moved to dismiss. Plaintiff did not timely
file a memorandum in opposition. The court ordered plaintiff
to show cause or respond on or by October 18, 2019. Plaintiff
has not responded, so the court will now rule on
alleges damages resulting from delay in resolving her
insurance claim for loss due to basement water damage on or
about May 4, 2016. Plaintiff alleges: $100, 000 for medical
bills and $40, 000 for purchase of a vehicle to sleep in, due
to mold; $152, 000 for heating bills, to prevent her
house's pipes from freezing; and $8, 000 to complete her
basement. (Doc. 1, at 5.)
provides the factual basis of her claim in the
“Relief” section of the court's Civil
Complaint form. (Id. at 3-4.) Plaintiff's
recitation of facts shows that defendant Goettling denied
coverage before reassigning her claim to defendant Schiltz.
(Id.) Plaintiff alleges defendant Schiltz refused to
perform a detailed inspection of the damage and offered
plaintiff a check for $5, 000 and additional payment of $150
for plumbing services. (Id. at 4.) Plaintiff states
her claim was assigned to Michael Clay on August 23, 2016,
and “[t]otal claim was covered made paid.”
defendants move for dismissal under Rules 12(b)(4), 12(b)(5),
and 12(b)(6). Because individual defendants allege improper
delivery of service, the court will address their
jurisdictional arguments under Rule 12(b)(5).
evaluating challenges to personal jurisdiction, the court
assumes true all well-pleaded (plausible, non-conclusory, and
non-speculative) facts alleged in plaintiff's complaint.
Dudnikov v. Chalk & Vermillion Fine Arts, Inc.,
514 F.3d 1063, 1070 (10th Cir. 2008) (citation omitted). A
Rule 12(b)(4) motion constitutes “an objection to the
form of process or the content of the summons, ” while
a 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).
motion to dismiss under Rule 12(b)(6), the court assumes true
all well-pleaded facts in the complaint, disregards all legal
conclusions worded as factual allegations, and grants the
plaintiff all reasonable inferences from the pleadings.
Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th
Cir. 2012). To survive a motion to dismiss, the complaint
“must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face, ” not merely possible. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Co. v. Twombly, 550 U.S. 544, 570 (2007)) (quotation
marks omitted); see Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). When a
plaintiff proceeds pro se, the court construes his or her
filings liberally, but does not assume the role of an
advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th