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Case 5:17-cv-04019-SAC-KGG Document 20 Filed 04/24/17 Page 1 of 4





vs. Case No. 17-4019-SAC-KGG





This is a civil action alleging defamation. This case is

now before the court upon defendant Angelica Hales motion to

dismiss, pursuant to FED.R.CIV.P. 12(b)(6). Doc. No. 16.

The relevant background to the motion to dismiss was

recounted in an earlier order (Doc. No. 11) addressing defendant

Melvin Hales motion to dismiss. This case was filed in state

court on October 31, 2016 and later removed to this court. The

action alleges that defendants publicly accused plaintiff of

writing a racial slur in a students notebook at Emporia State

University and of unlawful entry and vandalism. Plaintiff

previously brought the same claim as a counterclaim in an action

filed by Melvin Hale as a plaintiff in this court in Case No.

15-4947. Angelica Hale was never a party in that case and was

not named as a party in the counterclaim. The court dismissed

the counterclaim without prejudice on June 15, 2016.

Case 5:17-cv-04019-SAC-KGG Document 20 Filed 04/24/17 Page 2 of 4

The courts job in assessing a motion to dismiss pursuant

to Rule 12(b)(6) is to determine whether plaintiffs complaint

fails to state a claim upon which relief may be granted. This

requires the court to determine whether the complaint contains

sufficient factual matter, accepted as true, to state a claim

for relief that is plausible on its face. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). The court accepts the plaintiffs well-

pled factual allegations as true and views them in the light

most favorable to the plaintiff. United States v. Smith, 561

F.3d 1090, 1098 (10th Cir.2009), cert. denied, 558 U.S. 1148

(2010). The court may dismiss a claim upon a Rule 12(b)(6)

motion for statute of limitations reasons when the defense is

obvious from the face of the complaint and no further factual

record is required to be developed. See Sierra Club v. Oklahoma

Gas and Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016).

This order shall focus upon Ms. Hales argument in her

motion to dismiss that plaintiffs defamation claim is untimely

filed. A one-year statute of limitations, K.S.A. 60-514(a),

applies to defamation actions in Kansas. Therefore, to be

timely, plaintiffs action must allege that Ms. Hale made a

defamatory statement within the year prior to October 31, 2016.

Ms. Hale asserts that plaintiffs cause of action for defamation

Case 5:17-cv-04019-SAC-KGG Document 20 Filed 04/24/17 Page 3 of 4

arose on July 29, 2015.1 In response, plaintiff states that

without discovery she cannot stipulate to that fact, but that

she will assume it is true for the purposes of the motion. Doc.

No. 18, p. 7. Plaintiffs petition, however, does not allege

that Angelica Hale made a defamatory statement during the year

prior to October 31, 2016.

Plaintiff argues that the Kansas savings statute (K.S.A.

60-518) sustains the timeliness of this action because she

commenced this case within 6 months of the dismissal of the

counterclaim in Case No. 15-4947. Plaintiffs counterclaim,

however, was not brought against Ms. Hale. Therefore, the

Kansas savings statute does not apply. See Byrne v. Nezhat, 261

F.3d 1075, 1104 (11th Cir. 2001)(refusing to apply the Georgia

savings statute to a claim against a new defendant); Corliss v.

City of Fall River, 397 F.Supp.2d 260, 266-67 (D.Mass.

2005)(refusing to apply the Massachusetts savings statute to a

claim against a new defendant).

The dates given in the petition make clear that time

expired upon plaintiffs right to sue Ms. Hale for defamation

prior to when plaintiff filed her petition. The Kansas savings

statute does not operate to cure the untimeliness. Therefore,

the court shall grant Angelica Hales motion to dismiss Doc.

No. 16.
This assumes that plaintiff has stated a claim for defamation which Ms. Hale

Case 5:17-cv-04019-SAC-KGG Document 20 Filed 04/24/17 Page 4 of 4


Dated this 24th day of April, 2017, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge