Gearheart v. Clickspeed Mktg., Inc., Case No. 13-2160-SAC

• Decision Date: 20 August 2013
• Docket Number: Case No. 13-2160-SAC
• Parties: ROBIN L. GEARHEART, Plaintiff, v. CLICKSPEED MARKETING, INC., and CLICKSPEED MARKETING 401(K) PROFIT SHARING PLAN AND TRUST 353481, Defendants.
• Court: U.S. District Court — District of Kansas

ROBIN L. GEARHEART, Plaintiff, v. CLICKSPEED MARKETING, INC., and CLICKSPEED MARKETING 401(K) PROFIT SHARING PLAN AND TRUST 353481, Defendants.

Case No. 13-2160-SAC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: August 20, 2013

MEMORANDUM AND ORDER

This case comes before the Court on Defendants' motion to dismiss the complaint pursuant to Fed.R.Civ. Pro 12(b)(6) and 12(b)(1). Defendants ClickSpeed Marketing, Inc., (ClickSpeed) and ClickSpeed Marketing 401(K) Profit Sharing Plan and Trust 353481 contend that the Complaint's ERISA claim fails to state a claim for relief, and that the court lacks subject matter jurisdiction over all other counts.

Undisputed Facts

The relevant facts are undisputed. Plaintiff, a Kansas resident, was employed by ClickSpeed as Vice President of Business Development at ClickSpeed's office in Overland Park, Kansas from approximately December of 2008 through November of 2012.

After Plaintiff's separation from employment, she filed her original Complaint against Clickspeed in the U.S. District Court, asserting onlydiversity jurisdiction and state law causes of action. On April 24, 2013, defense counsel called Plaintiff's counsel to request the case be dismissed from federal court and refiled in state court due to lack of federal subject matter jurisdiction. Defense counsel repeated that request to Plaintiff's counsel the next day by email. Plaintiff maintained that the parties are diverse.

The day after the email was sent, Plaintiff filed an Amended Complaint, which adds the ERISA Plan as a defendant and adds an ERISA claim for benefits due. Plaintiff contends that she had planned to add the ERISA claim even before defense counsel contacted her. Defendants then filed this motion to dismiss. In response to the motion, Plaintiff contends that both diversity and federal question jurisdiction are proper.

Documents Attached to the Motion

Defendants have attached two documents to their memorandum in support of their motion to dismiss: a prototype ERISA plan document and the Adoption Agreement. See Dk. 10, Exhs. 1, 2. Together these documents constitute ClickSpeed's entire ERISA plan and trust document. Plaintiff contends that these documents are improperly attached because neither is central to her ERISA claim or is referenced in her Complaint. Plaintiff argues that any references to "the Plan" in her Complaint refer to the party to this case and not to a document, that the Complaint's singular reference to the "plan terms" is insufficient to incorporate by reference all 165 pages of thePlan, and that the exhibits have not been authenticated, implying they are not "indisputably authentic," as required. Plaintiff asks the Court to disregard the exhibits, or to convert the motion into a summary judgment motion and permit discovery before ruling.

In response, Defendants note that Plaintiff did not specify any reason to doubt the authenticity of the plan. Nonetheless, Defendants attach a declaration under penalty of perjury from the President of ClickSPeed, properly attesting to the authenticity of the two exhibits. Dk. 17, Exh. A.

The law regarding this issue is well established.

Generally, a court considers only the contents of the complaint when ruling on a 12(b)(6) motion. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Exceptions to this general rule include the following: documents incorporated by reference in the complaint; documents referred to in and central to the complaint, when no party disputes its authenticity; and " 'matters of which a court may take judicial notice.' " Id. (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)). This court has explained that

if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.

Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir. 2013), (quoting GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)). The declaration by ClickSpeed's President dispels any doubt that the documents are "indisputably authentic."

Further, the Court finds that the Amended Complaint repeatedly refers to the documents, as follows:

7. Plaintiff participated in the Clickspeed Marketing 401(k) Profit Sharing Plan and Trust 353481 (the "Plan"). As Plan Sponsor, Defendant Clickspeed makes contributions to the Plan in an amount based upon a percentage of the Plan participant's compensation. The Plan does not exclude bonus/commission payments from the definition of compensation. Clickspeed's failure to pay plaintiff for all compensation due and owing led to reduced Plan contributions in direct violation of the Plan and ERISA. 29 U.S.C. § 1104(a)(1)(D). Plaintiff seeks payment of all amounts due under the Plan, interest, attorneys' fees, costs, and expenses incurred in this action.

20. Clickspeed Marketing 401(k) Profit Sharing Plan and Trust 353481 is an employee benefit plan as defined in 29 U.S.C. § 1002(3) that is sponsored and administrated by Clickspeed.

72. Plaintiff participated in the Plan.

73. ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), authorizes a participant or beneficiary of a plan to bring a civil action to recover benefits due under the terms of the plan, to enforce his rights under the terms of the plan, and to clarify his rights to further benefits under the plan.

74. ERISA § 404(a)(1)(D) requires that the Plan be administered in accordance with its terms. 29 U.S.C. § 1104(a)(1)(D).

75. The Plan bases contribution amounts upon a percentage of a participant's compensation. Per the Plan terms, all additional compensation sought in this action should have been included in the contribution calculation. Thus, Plaintiff is due additional Plan benefits.

76. Clickspeed's failure to properly calculate Plan contributions is a violation of ERISA and the Plan terms.

Dk. 4.

Given Plaintiff's definition of "the Plan" in paragraph 7, the Court finds these references to "the Plan" refer to the documents attached toDefendants' memorandum. The Court further gives plain meaning to the words in her Complaint and finds that these documents are central to her ERISA claim. Accordingly, the challenged documents shall be considered in resolving the motion to dismiss, and the motion will not be converted to a summary judgment motion.

Diversity Jurisdiction

In response to the motion to dismiss, Plaintiff's counsel asserts that "the Court maintains both diversity and supplemental jurisdiction over Plaintiff's [non-ERISA] claims." Dk. 14, p. 3. But Plaintiff makes no argument in support of this bare legal conclusion, and shows no facts to support it. Accordingly, the Court finds Plaintiff has abandoned her claim to diversity jurisdiction. See Maestas v. Segura, 416 F.3d 1182, 1190 n. 9 (10th Cir. 2005) (finding plaintiffs abandoned claims by failing to "seriously address them in their briefs").

Alternatively, even assuming Plaintiff has preserved the issue, the Court finds no basis for diversity jurisdiction has been shown. The Amended Complaint alleges that Plaintiff resides in Kansas, and that ClickSPeed is a Nevada corporation whose officers are located in Nevada. Dk.4, p. 3. Defendants admits that ClickSpeed is a Nevada corporation that has a registered agent and "official contact information" in Nevada. Dk. 10, p. 3 n. 2. But Defendants also allege that ClickSpeed's sole place of business is in Kansas and that Plaintiff knows it. Plaintiff does not deny that allegation.

To establish diversity jurisdiction under 28 U.S.C. § 1332, the Plaintiff must establish that the amount in controversy exceeds $75,000 and that complete diversity exists between the parties, i.e., no plaintiff is a citizen of the same state as any defendant. See Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 388, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998). For purposes of the diversity statute, a corporation is a citizen of both the state of its incorporation and the state of its principal place of business. See 28 U.S.C. § 1332(c)(1). And an individual is a citizen of the state of his or her domicile. "Residence alone is not the equivalent of citizenship, although the place of residence is prima facie the domicile." Walden v. Broce Constr. Co., 357 F.2d 242, 245 (10th Cir. 1966) (quoting Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954)).

When considering a Rule 12(b)(1) motion to dismiss, the court may weigh the evidence and make factual findings. See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). But here, no party has offered affidavits or other evidence to establish any facts relevant to diversity. Based upon the facts alleged in the Amended Complaint and the facts not disputed in the parties' briefs, the Court finds that ClickSpeed is a citizen of Nevada and of Kansas, and that the Plaintiff is a citizen of Kansas. Accordingly, no diversity jurisdiction exists.

Failure to State a Claim

The Amended Complaint also alleges federal question jurisdiction based on Count VII, an ERISA claim for benefits. Defendants contend this claim fails under Rule 12(b)(6).

To withstand a motion to dismiss under Rule 12(b)(6), "a complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face." Al-Owhali v. Holder, 687 F.3d 1236, 1239 (10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Thus, "a plaintiff must offer sufficient factual allegations to 'raise a right to relief above the speculative level.' " Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer...