Topliff v. Atlas Air, Inc., No. 98-4196-DES.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtSaffels
Citation60 F.Supp.2d 1175
Decision Date08 July 1999
Docket NumberNo. 98-4196-DES.
PartiesJohn G. TOPLIFF, Plaintiff, v. ATLAS AIR, INC., Defendant.
60 F.Supp.2d 1175
John G. TOPLIFF, Plaintiff,
v.
ATLAS AIR, INC., Defendant.
No. 98-4196-DES.
United States District Court, D. Kansas.
July 8, 1999.

Page 1176

David O. Alegria, McCullough, Wareheim & LaBunker, P.A., Topeka, KS, for John G Topliff, plaintiff.

Diane P. Duvall, Polsinelli, White, Vardeman & Shalton, Overland Park, KS, Mary Hurley Stuart, Holme, Roberts & Owen LLP, Denver, CO, for Atlas Air Inc, defendant.

MEMORANDUM AND ORDER

SAFFELS, District Judge.


This matter is before the court on defendant's Motion to Dismiss, or alternatively, Motion to Transfer (Doc. 5). Both parties have submitted briefs on this matter and the court is ready to rule.

I. FACTUAL BACKGROUND

This case involves allegations by the plaintiff ("Topliff") that the defendant ("Atlas") terminated his employment in retaliation for filing a workers' compensation claim. Atlas filed the current motion seeking dismissal of the case on the grounds that this court lacks personal jurisdiction over it, and that the District of Kansas is not a proper venue for this case. In the alternative, Atlas argues that Colorado is a more convenient forum and asks the court to transfer this case to the District of Colorado pursuant to 18 U.S.C. § 1404(a).

Topliff, who is a resident of Kansas, filed suit against his former employer, Atlas, a Delaware corporation with its corporate headquarters and principal place of business in Colorado, claiming he had been wrongfully terminated. The basis for Topliff's allegation is that he was terminated in retaliation for filing a workers' compensation claim against Atlas in Kansas.

Atlas, an air freight shipping company, offered Topliff a job over the telephone while Topliff was at his home in Goodland, Kansas. Topliff accepted this job during that same telephone conversation. Topliff continued to live in Kansas during his employment with Atlas and traveled to Denver, or other locations, to report to work. Topliff was at his home in Kansas when Atlas called to terminate his employment.

Prior to his termination, Topliff had been injured while on a job in Brazil. Topliff filed a workers' compensation claim in New York which was later transferred to Kansas. Topliff contends that Atlas terminated him in retaliation for filing a workers' compensation claim, in violation of Kansas law.

Additional facts will be discussed below, when necessary.

II. STANDARD OF REVIEW

The plaintiff has contended that because Atlas has submitted information outside the pleadings in support of this motion to dismiss, it should be treated as a motion for summary judgment under Fed. R.Civ.P. 56. The court finds that this argument is totally without merit. Rule 12(b) clearly states:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleadings to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion should be treated as one for summary judgment and disposed of as provided in Rule 56....

Fed.R.Civ.P. 12(b) (emphasis added). Atlas has not filed a motion to dismiss based upon a failure to state a claim upon which relief can be granted under Rule 12(b)(6) Atlas's motion to dismiss is based upon Rule 12(b)(2) and (3). The court has found nothing in the Federal Rules of Civil Procedure that makes Rule 56 applicable to motions filed under Rule 12(b)(2) and (3) when matters outside of the pleadings are presented. Several courts have held that other sections of Rule 12(b) are not treated the same as Rule 12(b)(6) when matters outside the pleadings are considered. See, e.g., SK Finance SA v. La Plata County Bd. of County Com'rs, 126 F.3d 1272, 1275 (10th Cir.1997) (holding that motions to dismiss filed under Rule 12(b)(1) are not converted to motions for summary judgment when matters presented outside of the pleadings are considered by the court);

Page 1177

Sunwest Silver, Inc. v. International Connection, Inc., 4 F.Supp.2d 1284, 1285 (D.N.M.1998) (holding that submitting affidavits with motions to dismiss under Rule 12(b)(2) does not convert the motion into one for summary judgment); and Kemper v. Rohrich, 508 F.Supp. 444, 445 (D.Kan. 1980) (holding that the court could consider matters outside the pleadings on a motion to dismiss under Rule 12(b)(2) without converting it to a motion for summary judgment). Therefore, the defendant's request that the court analyze these motions as motions for summary judgment is without merit and will be denied.

The applicable standard for each motion will be discussed below.

III. MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

Atlas has moved to dismiss this case pursuant to Fed.R.Civ.P. 12(b)(2) based upon a lack of personal jurisdiction. Topliff contends that Atlas's contacts with Kansas are sufficient for this court to exert personal jurisdiction over Atlas in this case. The standard that governs a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction is well established:

Plaintiff bears the burden of establishing personal jurisdiction over defendant. Prior to trial, however, when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, plaintiff need only make a prima facie showing. The allegations in the complaint must be taken as true to the extent they are uncontroverted by defendant's affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in plaintiff's favor, and plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party.

Snyder Industries, Inc. v. Clawson Container Co., 991 F.Supp. 1279, 1280 (D.Kan. 1998) (citing Behagen v. Amateur Basketball Ass'n, 744 F.2d 731, 733 (10th Cir. 1984)).

Analyzing motions to dismiss for lack of personal jurisdiction involves a two-step process. The first step is to determine whether Atlas's conduct falls within any of the provisions of Kansas' long arm statute, Kan.Stat.Ann. § 60-308(b). "The 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 Resources, Inc. v. Devine, 241 Kan. 775, 740 P.2d 1089 (1987). Under the Kansas long arm statute:

Any person, whether or not a citizen or resident of [Kansas], who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual's personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:

(1) Transaction of any business within this state;

(2) commission of a tortious act within this state;

(5) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part...

To continue reading

Request your trial
21 practice notes
  • Easterling v. American Optical Corp., No. 26566.
    • United States
    • Supreme Court of West Virginia
    • March 24, 2000
    ...F.2d 1157, 1161 (5th Cir.1979); Hanson Eng'rs Inc. v. UNECO, Inc., 64 F.Supp.2d 797, 799 (C.D.Ill.1999); Topliff v. Atlas Air, Inc., 60 F.Supp.2d 1175, 1177 (D.Kan.1999); Sunwest Silver, Inc. v. International Connection, Inc., 4 F.Supp.2d 1284, 1285 (D.N.M.1998); Bensusan Restaurant Corp. v......
  • Callahan v. Harvest Bd. Intern., Inc., No. CIV. A. 00-11578-PBS.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • March 28, 2001
    ...complaint is appropriate in ruling Page 153 on a motion to dismiss for lack of personal jurisdiction. See Topliff v. Atlas Air, Inc., 60 F.Supp.2d 1175, 1176 (D.Kan. 1999); Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir.1994). This court has declined to strike any of the c......
  • Divicino v. Polaris Industries, No. CIV.A.3:99CV1253(CFD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 25, 2001
    ...Co., Inc. v. Reagerharris, Inc., No. Civ.A. 99-3052, 2000 WL 39063, at * 9 (E.D.Pa. Page 436 Jan.19, 2000); Topliff v. Atlas Air, Inc., 60 F.Supp.2d 1175, 1179 (D.Kan.1999); Regent Lighting Corp. v. Galaxy Electrical Manufacturing, 933 F.Supp. 507, 512-513 (M.D.N.C.1996); Laumann Manufactur......
  • Talamante v. Pino, Civ. No. 12-01218 MV/GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 24, 2014
    ...motion to dismiss for improper venue, without converting the motion to a motion for summary judgment. See Topliff v. Atlas Air, Inc., 60 F. Supp. 2d 1175, 1176-77 (D. Kan. 1999); Fed. R. Civ. P. 12(b). In assessing whether a plaintiff has met his or her burden of establishing venue, a court......
  • Request a trial to view additional results
21 cases
  • Easterling v. American Optical Corp., No. 26566.
    • United States
    • Supreme Court of West Virginia
    • March 24, 2000
    ...F.2d 1157, 1161 (5th Cir.1979); Hanson Eng'rs Inc. v. UNECO, Inc., 64 F.Supp.2d 797, 799 (C.D.Ill.1999); Topliff v. Atlas Air, Inc., 60 F.Supp.2d 1175, 1177 (D.Kan.1999); Sunwest Silver, Inc. v. International Connection, Inc., 4 F.Supp.2d 1284, 1285 (D.N.M.1998); Bensusan Restaurant Corp. v......
  • Callahan v. Harvest Bd. Intern., Inc., No. CIV. A. 00-11578-PBS.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • March 28, 2001
    ...complaint is appropriate in ruling Page 153 on a motion to dismiss for lack of personal jurisdiction. See Topliff v. Atlas Air, Inc., 60 F.Supp.2d 1175, 1176 (D.Kan. 1999); Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir.1994). This court has declined to strike any of the c......
  • Divicino v. Polaris Industries, No. CIV.A.3:99CV1253(CFD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 25, 2001
    ...Co., Inc. v. Reagerharris, Inc., No. Civ.A. 99-3052, 2000 WL 39063, at * 9 (E.D.Pa. Page 436 Jan.19, 2000); Topliff v. Atlas Air, Inc., 60 F.Supp.2d 1175, 1179 (D.Kan.1999); Regent Lighting Corp. v. Galaxy Electrical Manufacturing, 933 F.Supp. 507, 512-513 (M.D.N.C.1996); Laumann Manufactur......
  • Talamante v. Pino, Civ. No. 12-01218 MV/GBW
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 24, 2014
    ...motion to dismiss for improper venue, without converting the motion to a motion for summary judgment. See Topliff v. Atlas Air, Inc., 60 F. Supp. 2d 1175, 1176-77 (D. Kan. 1999); Fed. R. Civ. P. 12(b). In assessing whether a plaintiff has met his or her burden of establishing venue, a court......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT