Basler v. Rps Financial Group et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

D. Kan.November 9, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS DEANNA BASLER, Plaintiff, vs. RPS FINANCIAL GROUP, and NORTHWESTERN MUTUAL FINANCIAL SERVICES Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-02558 DEFENDANT NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY’S MOTION TO DISMISS PART OF PLAINTIFF’S ADA CLAIMS (COUNTS I AND II) AND ALL OF PLAINITFF’S WAGE PAYMENT CLAIMS (COUNTS III AND VII) On November 7, 2016, Defendant RPS Financial Group (“RPS”) filed a motion to dismiss, with a supporting memorandum, directed at parts of Count I and all of Counts II, III and VII of the Complaint. (Docs. 9, 10). Defendant The Northwestern Mutual Life Insurance Company (“Northwestern Mutual”)1 hereby joins in that motion. Plaintiff has failed to exhaust administrative remedies with respect to any claims under the Americans With Disabilities Act (“ADA”) for hostile work environment, failure to accommodate, or any other alleged discriminatory acts occurring prior to August 12, 2014. Accordingly, Northwestern Mutual respectfully moves this Court, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), to dismiss Counts I and II as they relate to claims arising prior to August 12, 2014, including claims regarding compensation, failure to accommodate, and other terms and 1 Northwestern Mutual has no affiliates named “Northwestern Mutual Financial Services,” and Northwestern Mutual has no knowledge of the existence of any such entity. However, it appears that Plaintiff may have intended to bring this action against Northwestern Mutual or one of its affiliates. Accordingly, until such time as the identity of the intended defendant is confirmed, Northwestern Mutual participates in this matter for itself and its affiliates. Case 2:16-cv-02558-CM-TJJ Document 14 Filed 11/09/16 Page 1 of 3 2 conditions of employment (as alleged in Count I, ¶¶47, 49-51, and 53); and hostile work environment (as alleged in Count II). In addition, Plaintiff’s Complaint fails to state a claim on which relief may be granted under either 40 U.S.C. § 3702 (Count III) or the Kansas Wage Payment Act, K.S.A. 44-313 et seq. (Count VII), and any such claims should also be dismissed.2 The reasons for dismissal are more fully set forth in the memorandum in support of RPS’s motion (Doc. 10), which Northwestern Mutual adopts for purposes of this motion. Respectfully submitted, /s/ Daniel B. Boatright Daniel B. Boatright, KS#15298 Alyssa Gonnerman, KS#26743 LITTLER MENDELSON, P.C. 1201 Walnut Street Suite 1450 Kansas City, MO 64106 Telephone: (816) 627-4400 Facsimile: (816) 627-4444 dboatright@littler.com agonnerman@littler.com ATTORNEYS FOR DEFENDANT NORTHWESTERN MUTUAL 2 Basler alleges RPS and Northwestern Mutual were each her employer. Although not addressed in this motion, Northwestern Mutual denies Basler’s allegation that Northwestern Mutual was ever Basler’s “employer,” as well as any suggestion that it was ever a joint employer with RPS. Basler was an independent contractor. Northwestern Mutual maintains its right to assert these arguments when appropriate. Case 2:16-cv-02558-CM-TJJ Document 14 Filed 11/09/16 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was filed via the Court’s CM/ECF system this 9th day of November, 2016, which sent electronic notice to the following: Rebecca Randles Luis Mata RANDLES MATA, LLC 406 West 34th Street, Suite 623 Kansas City, MO 64111 ATTORNEYS FOR PLAINTIFF Justin M. Dean AnnRene Braun OGLETREE, DEAKINS, NASH SMOAK & STEWART, P.C. 4520 Main Street, Suite 400 Kansas City, MO 64111 ATTORNEYS FOR DEFENDANT RPS FINANCIAL GROUP /s/ Daniel B. Boatright Attorney for Defendant Northwestern Mutual Case 2:16-cv-02558-CM-TJJ Document 14 Filed 11/09/16 Page 3 of 3