Otudeko v. Topeka Public Schools, USD-501 et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
OLUWOLE A. OTUDEKO,
Plaintiff,
v.
TOPEKA PUBLIC SCHOOLS, et al.,
Defendants.
Case No. 24-4082-DDC-RES
MEMORANDUM AND ORDER
Pro se1 plaintiff Oluwole A. Otudeko has sued seven defendants for employment
discrimination, and he’s spent months trying to serve them. Plaintiff asserts that he’s properly
served the five individual defendants, yet they haven’t responded. So, he’s moved for a default
against them. Doc. 28.2 Defendants respond that plaintiff’s efforts to serve don’t comply with
the governing legal standards. Defendants thus oppose plaintiff’s motion for default, move to
1 	Plaintiff proceeds pro se. The court construes his filings liberally and “hold[s] [them] to less
stringent standards than formal pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the court doesn’t “assume the role of
advocate for the pro se litigant.” Hall, 935 F.2d at 1110. And our Circuit “‘has repeatedly insisted that
pro se parties follow the same rules of procedure that govern other litigants.’” Kay v. Bemis, 500 F.3d
1214, 1218 (10th Cir. 2007) (quoting Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th
Cir. 2005)).
2 	In the motion, plaintiff moves “for Default and Default Judgment[.]” Doc. 28 at 1. Federal Rule
of Civil Procedure 55 adopts a two-step process for securing a default judgment. First, Rule 55(a)
authorizes the Clerk to enter a default against a party who “has failed to plead or otherwise defend” a
lawsuit. Second, after the Clerk enters default, a plaintiff “may apply to the court for a default judgment.”
Fed. R. Civ. P. 55(b)(2). Here, plaintiff asks for both. But he’s not entitled to either, as this Order
explains.
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strike plaintiff’s purported returns of service, and ask the court to dismiss plaintiff’s claims.
Doc. 37.
The court agrees with defendants. Plaintiff hasn’t served any of them properly. The
court thus quashes plaintiff’s purported service of defendants. Without proper service, the court
lacks personal jurisdiction over the defendants. And so, it denies plaintiff’s Motion for Default
(Doc. 28). The court also declines to give plaintiff more time to serve defendants. He’s had
plenty. And, even if the court gave plaintiff more time to effect proper service, it would prove
futile. The court thus dismisses plaintiff’s claims without prejudice for failure to serve.
The court explains these conclusions, below.
I. 	Background
Plaintiff filed this lawsuit in August 2024, alleging defendants discriminated against him,
violating Title VII and the Age Discrimination in Employment Act (ADEA). Doc. 1 at 1. The
court liberally construes plaintiff’s Complaint to assert claims for discrimination, retaliation, and
defamation. Id. at 3, 8. And plaintiff has sued the following seven defendants: (1) Topeka
Public Schools; (2) Topeka High School; (3) Paula Riley, (4) Chloey Hixson, (5) Shane Miles,
(6) “Mrs. Hixson,”3 and (7) Rebecca Morrissey. Id. at 1, 7.
For months, Magistrate Judge Rachel E. Schwartz has urged plaintiff to serve defendants
properly. She’s also warned plaintiff—many times—that a failure to effect service in a timely
fashion could result in dismissal of his claims without prejudice. The first warning came in
Decmember 2024 after plaintiff’s November 2024 attempts at service failed. See, e.g., Doc. 20;
3 	Though plaintiff’s Complaint doesn’t give this defendant a first name, a subsequent filing
suggests that her name is Jennifer Hixson. Doc. 27 at 2. Defendants’ filing confirms as much. Doc. 37
at 1. The court thus refers to this defendant as Jennifer Hixson in the remainder of this Order.
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Doc. 24 at 4; Doc. 31. Judge Schwartz has given plaintiff many extensions of time to serve
defendants properly. Doc. 24 at 4; Doc. 26; Doc. 29; Doc. 31.
After these many months, in March 2025, plaintiff filed a “Summons Returned Executed”
for the five individual defendants: Rebecca Morrissey, Jennifer Hixson, Chloey Hixson, Paula
Riley, and Shane Miles. Doc. 27. It’s a strange filing. The document looks like the Postal
Service Tracking website, with odd-looking signatures and each defendant’s name written above
that odd signature. And it alleges that service was completed on February 3, 2025. Here’s a
sample:
Doc. 27 at 1. This same signature appears for Jennifer Hixson, id. at 2, and Chloe Hixson, id. at
3. The business-records custodian for the school district submitted an affidavit, explaining that
the signature for these three defendants “may be the signature of a receptionist at Topeka High
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School.” Doc. 37-3 at 1 (Williams Aff. ¶ 5). Plaintiff also filed this signature and labeled it
Paula Kelly:
Doc. 27 at 4. The business-record custodian testified that this signature appears to belong to
Candelavia Gonzalez, a paraprofessional. Doc. 37-3 at 1 (Williams. Aff. ¶ 6). And plaintiff filed
the below allegedly demonstrating service of Shane Miles:
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Doc. 27 at 5. This filing admits that the summons for Shane Miles was returned to plaintiff
unopened. Id.
In sum, none of the signatures on plaintiff’s purported service match the name of the
individual defendants, so he hasn’t served them personally. Plaintiff nonetheless moved for
default, asserting that the “deliveries have been signed for but the defendants have failed to
respond[.]” Doc. 28.
The service filing’s fog begins to lift when one considers the evidence defendants have
submitted. None of the individual defendants actually signed for the service envelope. Doc. 37-
1 at 1 (Reilly Aff. ¶ 2); Doc. 37-2 at 1 (J. Hixson Aff. ¶¶ 2, 3); id. at 9 (Morrisey Aff. ¶ 2); Doc.
37-4 at 1 (Miles Aff. ¶ 2). Plaintiff mailed the summons to various school buildings, and some
of the defendants received envelopes. But none of these defendants live at the school building.
Doc. 37-1 at 1 (Reilly Aff. ¶¶ 2,4); Doc. 37-2 at 1 (J. Hixson Aff. ¶¶ 2, 5); id. at 9 (Morrisey Aff.
¶¶ 2, 4). What’s more, none of these five individual defendants ever received a copy of
plaintiff’s Complaint. Doc. 37-1 at 1 (Reilly Aff. ¶ 2); Doc. 37-2 at 1 (J. Hixson Aff. ¶¶ 2, 4); id.
at 9 (Morrisey Aff. ¶ 2); Doc. 37-4 at 1 (Miles Aff. ¶ 2).
After still more time and warnings from Judge Schwartz, in March 2025, plaintiff filed
proof that he’d served Topeka Public Schools and Topeka High School. Doc. 32; Doc. 33.
According to the school’s business-record custodian, a package appeared at the Topeka Unified
School District’s administrative building, and whoever signed for the package isn’t authorized to
receive service for the school district. Doc. 37-3 at 1–2 (Williams Aff. ¶ 7–9). The business-
records custodian also testified that the package delivered did not contain a copy of the
Complaint. Id. (Williams Aff. ¶¶ 7, 8).
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Defendants now have moved to strike plaintiff’s returns of service.4 Doc. 37 at 1.
Defendants ask that the court not give plaintiff additional time to serve. Id. They also ask the
court to deny plaintiff’s request for default. Id. And they argue for dismissal of plaintiff’s
claims. Id. The court evaluates these requests, below, starting with the governing legal standard.
II. 	Legal Standard
A court can’t exercise personal jurisdiction over a defendant unless the plaintiff has
served process validly under Fed. R. Civ. P. 4. See Riddle v. Wichita Pub. Schs., Unified, Sch.
Dist. No. 259, No. 04-1400-MLB, 5 2005 WL 1563444, at *1 (D. Kan. June 30, 2005); Oltremari
v. Kan. Soc. & Rehab. Serv., 871 F. Supp. 1331, 1348 (D. Kan. 1994). Plaintiff bears the burden
of proving valid service. See, e.g., Oltremari, 871 F. Supp. at 1349. The court begins with the
legal standards governing service of individuals, then recites the standards governing service of
government entities.
Rule 4(e) provides the appropriate methods for serving process on individuals located in
the United States. Under this Rule, the plaintiff must serve an individual by:
(1) following state law for serving a summons . . . in the state where the district
court is located or where service is made; or (2) doing any of the following: (A)
delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with
4 	Defendants have moved to strike without citing a particular Federal Rule of Civil Procedure
granting the court authority to strike a return of service. Rule 12(f) allows the court to strike things from
pleadings, but a return of service isn’t a pleading. See Fed. R. Civ. P. 7(a). Instead of striking improper
service-of-process filings, courts typically quash service of process. See 5B Wright & Miller’s Federal
Practice & Procedure § 1354 (4th ed. 2025). The court concludes that this difference is a semantic one
that doesn’t affect the court’s capacity to resolve the motion.
Defendants also ask the court to dismiss plaintiff’s claims. Doc. 37 at 1. But it’s not clear which
Rule of Civil Procedure defendants have invoked. See generally Doc. 37. Rule 12(b)(5) allows a party to
move to dismiss for insufficient service of process. And, if plaintiff hasn’t served a defendant properly,
then the court lacks personal jurisdiction over that defendant. Rule 12(b)(2) allows defendants to move to
dismiss for lack of personal jurisdiction. The court thus interprets defendants’ motion as one under Rule
12(b)(5) and Rule 12(b)(2).
5 	Westlaw incorrectly lists this case number as No. 04-1400-MBL.
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someone of suitable age and discretion who resides there; or (C) delivering a copy
of each to an agent authorized by appointment or by law to receive service of
process.
Fed. R. Civ. P. 4(e). Thus, under Rule 4, a plaintiff may serve individuals who are defendants
using any one of three distinct processes specified in Rule 4, or by processes recognized under
Kansas state law. See Davenport v. Wal-Mart Stores, Inc., No. 14-CV-2124-JAR-JPO, 2014 WL
3361729, at *2 (D. Kan. July 9, 2014). So, the court must examine Kansas law governing
service on individuals.
Under Kansas state law, service via return receipt mail is secured “upon the delivery of
the sealed envelope.” Kan. Stat. Ann. § 60-303(c)(3). And Kansas requires plaintiffs to serve
individuals directly or through service on an agent authorized to receive service on the
individual’s behalf. Id. § 60-304(a). “Service by return receipt delivery must be addressed to an
individual at the individual’s dwelling or usual place of abode and to an authorized agent at the
agent’s usual or designated address.” Id. If (and only if) this approach fails because the service
via return receipt was refused or goes unclaimed, a plaintiff then may serve an individual via a
known business address. Id.
Plaintiff also has sued two government bodies, the “Topeka Public Schools” and Topeka
High School. Under the federal rules, a plaintiff can serve a state-created governmental
organization by: “(A) delivering a copy of the summons and of the complaint to its chief
executive officer; or (B) serving a copy of each in the manner prescribed by that state’s law for
serving a summons or like process on such a defendant.” Fed. R. Civ. P. 4(j)(2). Under Kansas
law, plaintiff can serve process on a governmental body “by serving the clerk or secretary or, if
the clerk or secretary is not found, any officer, director or manager thereof[.]” Kan. Stat. Ann.
§ 60-304(d)(4).
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Kansas law recognizes that parties may struggle to follow its service rules to the letter.
So, Kansas law permits a party to discharge its service of process obligation by showing
“substantial compliance” with its service laws. Kan. Stat. Ann. § 60-204 provides:
Substantial compliance with any method of serving process effects valid service of
process if the court finds that, notwithstanding some irregularity or omission, the
party served was made aware that an action or proceeding was pending in a
specified court that might affect the party or the party’s status or property.
The Kansas Supreme Court has defined “substantial compliance” as “compliance in respect to
the essential matters necessary to assure every reasonable objective of the statute.” Fisher v.
DeCarvalho, 314 P.3d 214, 219 (Kan. 2013) (quotation cleaned up).
Whether the federal rules permit service by substantial compliance with Rule 4 is a
slightly different question. “Unlike Kansas law, the federal rules do not provide that substantial
compliance with the requirements for service of process is sufficient.” Miller v. Kan. Dep’t of
Children & Families, No. CV 25-2145-KHV, 2025 WL 3033479, at *3 n.4 (D. Kan. Oct. 30,
2025). Our Circuit nonetheless has opined that “the federal courts generally take a permissive
attitude towards the mechanism employed for service of process when defendant actually
receives notice.” Kitchens v. Bryan Cnty. Nat’l Bank, 825 F.2d 248, 256 (10th Cir. 1987)
(quotation cleaned up). And our court has opined that this “relaxed standard appears to excuse
only technical deficiencies such as service of incomplete documents or the failure to include a
due date for a responsive pleading.” Miller, 2025 WL 3033479, at *3 n.4 (collecting cases).
One last legal standard matters to the analysis here: If a plaintiff manages to serve a
defendant, the Federal Rules of Civil Procedure also provide that a “summons must be served
with a copy of the complaint.” Fed. R. Civ. P. 4(c)(1).
Next, the court applies these standards.
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III. 	Analysis
Defendants challenge plaintiff’s attempted service on several fronts. The court begins
with the individual defendants, evaluating plaintiff’s attempt to comply with federal and state
service provisions. It then does the same for the government defendants. The court then
downshifts to address substantial compliance. After concluding that plaintiff hasn’t complied
substantially with the standards governing service, the court then decides what to do about it.
A. 	Service
Start with the individual defendants. Defendants first argue that plaintiff didn’t comply
with the options under Rule 4(e)(2). The court agrees. Plaintiff didn’t “deliver[] a copy of the
summons and of the complaint to the individual personally[.]” Fed. R. Civ. P. 4(e)(2)(A). He
didn’t “leav[e] a copy of each at the individual’s dwelling or usual place of abode[.]” Fed. R.
Civ. P. 4(e)(2)(B). And he didn’t “deliver[] a copy of each to an agent authorized by
appointment or by law to receive service of process[.]” Fed. R. Civ. P. 4(e)(2)(C).
Nor has plaintiff complied with the other service option—Kansas law—for these
individual defendants. Plaintiff tried to use return receipt delivery. This option requires plaintiff
to address the delivery to “the individual’s dwelling or usual place of abode[.]” Kan. Stat. Ann.
§ 60-304(a). Plaintiff attempted to serve the individual defendants at their place of work—i.e.,
Topeka school buildings. But plaintiff can serve a defendant at a business address only after
service at the individual’s dwelling or usual place of abode fails. Here, nothing in the record
suggests that plaintiff tried—and failed—to serve the individual defendants at their dwellings.
Plaintiff also has failed to serve the government defendants properly. The federal rules
require delivery of the summons and complaint to a government entity’s chief executive officer.
Fed. R. Civ. P. 4(j)(2). That hasn’t happened. Kansas law requires service to a governmental
body’s clerk or secretary. Kan. Stat. Ann. § 60-304(d)(4). “As interpreted by Kansas courts,
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‘the clerk or secretary refers to someone with executive authority for the governmental entity,
rather than a clerical employee.’” Bell v. Bd. of Educ., Basehor-Linwood Unified Sch. Dist. No.
458, 645 F. Supp. 3d 1177, 1180 (D. Kan. 2022) (quoting Young v. Turner Unified Sch. Dist. No.
202, 293 P.3d 816, 2013 WL 518315, at *1 (Kan. Ct. App. 2013)). Instead, plaintiff merely
mailed an envelope to the school’s administrative office. Indeed, the school’s business-records
custodian has testified that the signatures shown in plaintiff’s service of process don’t belong to
the clerk authorized by the school district to accept service. Doc. 37-3 at 2 (Williams Aff. ¶ 9).
What’s more, as all defendants point out, plaintiff hasn’t served any defendants with a
copy of the Complaint. Doc. 37 at 4. This violates Rule 4(c)(1), which requires a plaintiff to
serve a summons with a copy of the complaint.
In sum, plaintiff hasn’t complied with the federal rules or state law governing service of
process. But has he substantially complied with the process they require?
B. 	Substantial Compliance
Beginning with the federal rules, our court has phrased the substantial-compliance
standard this way: federal courts “excuse only technical deficiencies such as service of
incomplete documents or the failure to include a due date for a responsive pleading.” Miller,
2025 WL 3033479, at *3 n.4. Here, plaintiff didn’t deliver any summons to the right place or on
the right person. And he didn’t include a copy of the Complaint. The court thus concludes that
plaintiff hasn’t complied substantially with Rule 4. See id. (concluding plaintiff didn’t comply
substantially with Rule 4 where she attempted to serve individual defendant by mail at his
business address).
Nor has plaintiff substantially complied with the options provided by Kansas state law for
service of process. For the individual defendants, “a plaintiff does not substantially comply with
K.S.A. § 60-304(a) where he serves an individual at his or her business address without first (1)
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demonstrating that service was refused or unclaimed at the defendant’s dwelling place, and (2)
filing a return of service stating such.” Moore v. Univ. of Kansas, No. 17-CV-02359-JAR-GLR,
2017 WL 4422649, at *3 (D. Kan. Oct. 5, 2017). Plaintiff hasn’t fulfilled either requirement.
For the government defendants, plaintiff attempted to serve by mailing envelopes to the school’s
office. But Kan. Stat. Ann. § 60-304(d) requires plaintiff to serve the clerk, secretary, or—in
their absence—any officer, director, or manager. Allowing a “plaintiff to serve someone other
than those individuals listed in § 60-304(d) would violate the clear language of the statute and
would not substantially comply with the statutory requirements.” Zesiger v. Leavenworth Cnty.,
Kan., No. 25-CV-02295-JAR-RES, 2025 WL 2966132, at *9 (D. Kan. Oct. 21, 2025) (quotation
cleaned up).
In sum, plaintiff hasn’t complied with the rules of service, nor has he substantially
complied. The court considers the consequences of plaintiff’s failure to serve properly, next.
C. 	Next Steps
The court grants defendants’ Motion to Strike (Doc. 37) and quashes the improper service
on defendants. The court thus lacks personal jurisdiction over defendants. This has
consequences for plaintiff’s Motion for Default (Doc. 28), which seeks default and default
judgment, because both require personal jurisdiction. 10A Wright & Miller’s Federal Practice
& Procedure § 2682 (4th ed. 2025) (“Before a default can be entered, the court must have . . .
jurisdiction over the party against whom the judgment is sought, which also means that the party
must have been effectively served with process.”); Bixler v. Foster, 596 F.3d 751, 761 (10th Cir.
2010) (“Personal jurisdiction over the defendant is required before a default judgment in a civil
case may be entered.”). And so, the court must deny plaintiff’s Motion for Default (Doc. 28).
With service found improper, the court next must decide the course this case should chart.
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Rule 4(m) provides that if “a defendant is not served within 90 days after the complaint is
filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that service be made within a specified time.”
Rule 4(m) also rewards a plaintiff who shows good cause for failing to serve: “if the plaintiff
shows good cause for the failure, the court must extend the time for service for an appropriate
period.” “The general rule is that ‘when a court finds that service is insufficient but curable, it
generally should quash the service and give the plaintiff an opportunity to re-serve the
defendant.’” Gregory v. United States/U.S. Bankr. Ct. for Dist. of Colo., 942 F.2d 1498, 1500
(10th Cir. 1991) (quoting Pell v. Azar Nut Co., 711 F.2d 949, 950 n.2 (10th Cir. 1983)).
Defendants urge the court not to follow this general rule. They assert that the court
shouldn’t give plaintiff any more time to perfect service. Doc. 37 at 5. Defendants point out that
the court already has extended plaintiff’s time to serve. They’re right. Plaintiff knew he had
service problems in November 2024, when all summons directed to defendants came back
unexecuted. Doc. 10; Doc. 11; Doc. 12; Doc. 13; Doc. 14; Doc. 15; Doc. 16. To prompt
plaintiff’s compliance, Judge Schwartz gave plaintiff months of additional time to correct his
service issues. She also warned him multiple times about the risk of dismissal, should he fail to
fix those shortcomings. Doc. 20; Doc. 24 at 4; Doc. 26; Doc. 29; Doc. 31. Plaintiff hasn’t fixed
anything, and he hasn’t asked for more time to do so. See generally Doc. 38. Plaintiff, the court
finds, hasn’t shown good cause for his failure to serve defendants in a timely fashion.
In sum, plaintiff has had ample opportunity to resolve this issue. The court doesn’t see
what additional time or another opportunity would accomplish. The court thus grants
defendants’ Motion to Dismiss (Doc. 37) and dismisses plaintiff’s Complaint without prejudice
for failure to serve.
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Below, the court provides one more—and alternative—reason for dismissing plaintiff’s
Complaint without giving him additional time to serve: it would be futile.
D. 	Futility
The court need not give a plaintiff an opportunity to re-serve a defendant if “proper
service of process would be futile[.]” Gregory, 942 F.2d at 1500. Defendants insist that’s the
case here. Recall that plaintiff asserts claims for (1) race, national origin, and age discrimination,
(2) retaliation, and (3) defamation. Doc. 1 at 1, 3, 5. The first two claims arise under Title VII
and the ADEA. Id. at 1. Defendants argue that these two claims can’t possibly succeed because
plaintiff didn’t bring this lawsuit in time.6 Doc. 37 at 5–6.
In an employment-discrimination case, a plaintiff “must timely pursue legal action upon
conclusion of the administrative proceedings.” Brown v. Unified Sch. Dist. 501, Topeka Pub.
Schs., 465 F.3d 1184, 1186 (10th Cir. 2006). Title VII requires that, when the EEOC “completes
its investigation of a charge and finds that there is not reasonable cause to believe that an
unlawful employment practice has occurred,” the EEOC must issue a “determination.” 29
C.F.R. § 1601.19(a). That determination—also called a right-to-sue letter—must inform the
aggrieved party “of the right to sue in Federal district court within 90 days of receipt of the
determination.” Id.; see also 42 U.S.C. § 2000e-5(f)(1) (requiring EEOC to notify the aggrieved
person if EEOC hasn’t filed a civil action or entered into conciliation agreement and “within
6 	Defendants don’t provide the legal standard the court should use to determine whether an
extension of time would prove futile. Doc. 37 at 5. To overcome this important omission, the court
follows Gregory and applies a Rule 12(b)(6) standard. 942 F.2d at 1500–01. For a complaint to survive a
Rule 12(b)(6) motion, the pleading “must contain sufficient factual matter, accepted as true, to ‘state a
claim to 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)). Under this standard, the court must assume that the
factual allegations in the complaint are true, but it is “‘not bound to accept as true a legal conclusion
couched as a factual allegation[.]’” Id. (quoting Twombly, 550 U.S. at 555). And, while this pleading
standard doesn’t require “‘detailed factual allegations,’” it demands more than a “pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” which, the
Supreme Court has explained, “‘will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
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ninety days after the giving of such notice a civil action may be brought against the respondent
named in the charge”). The ADEA contains the same 90-day rule. 29 U.S.C. § 626(e).
This 90-day filing requirement “functions like a statute of limitations.[.]” Million v.
Frank, 47 F.3d 385, 389 (10th Cir. 1995). And the statute of limitations is an affirmative
defense. Herrera v. City of Espanola, 32 F.4th 980, 991 (10th Cir. 2022). It’s difficult to
resolve an affirmative defense at the motion-to-dismiss stage because, “[t]ypically, facts must be
developed to support dismissing a case based on the statute of limitations.” Id. “But a statute of
limitations defense may be appropriately resolved on a Rule 12(b) motion when the dates given
in the complaint make clear that the right sued upon has been extinguished.” Id. (quotation
cleaned up).
Here, plaintiff’s Complaint provides that the EEOC didn’t decide in his favor in January
2024. Doc. 1 at 10. But he didn’t file this lawsuit until August 20, 2024—well beyond the 90-
day window. Doc. 1. In a filing attached to his Complaint, plaintiff claims that he got his right-
to-sue letter on May 29, 2024. Doc. 1-1 at 1. But that’s not correct. In the attached May 29
letter, the EEOC declined to re-issue the January 4 right-to-sue letter, despite plaintiff’s
insistence that he never received the January 4 letter.7 Doc. 1-1 at 3. So, the January 4 letter
remains the controlling date. Indeed, plaintiff references the January letter in his Complaint.
Doc. 1 at 10. So, the date in the Complaint—confirmed by the date on the letter attached to the
7 	Usually, a court only may consider the complaint to decide a motion to dismiss. But “courts may
also consider documents that a plaintiff (1) attaches to [his] complaint; (2) incorporates by reference in
[his] complaint; or (3) refers to in [his] complaint and that are central to [his] complaint and indisputably
authentic.” Cuervo v. Sorenson, 112 F.4th 1307, 1312 (10th Cir. 2024). The court may consider this May
29 letter at the motion-to-dismiss stage because plaintiff attached it to his Complaint, and no one disputes
its authenticity.
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Complaint8 —makes it clear. Plaintiff’s right to sue “has been extinguished.” Herrera, 32 F.4th
at 991 (quotation cleaned up).
The burden to overcome this statute-of-limitations problem thus shifts to plaintiff.
“While the statute of limitations is an affirmative defense, when the dates given in the complaint
make clear that the right sued upon has been extinguished, the plaintiff has the burden of
establishing a factual basis for tolling the statute.” Aldrich v. McCulloch Props., Inc., 627 F.2d
1036, 1041 n.4 (10th Cir. 1980). Plaintiff hasn’t responded to defendant’s untimeliness
argument. See Doc. 38. He hasn’t invoked any equitable tolling or estoppel arguments. See
generally id. As a result, plaintiff has failed to shoulder his burden, and the court concludes that
his Title VII and ADEA claims are untimely.
This conclusion just leaves plaintiff’s defamation claim. This is a state law claim, and it
can’t save plaintiff’s case here in federal court. Our Circuit prefers that when a district court
dismisses all federal claims, it typically should decline to exercise supplemental jurisdiction over
state law claims. See I Dig Texas, LLC v. Creager, 98 F.4th 998, 1012 (10th Cir. 2024) (“The
‘district court should normally dismiss supplemental state law claims after all federal claims
have been dismissed, particularly when the federal claims are dismissed before trial.’” (quoting
Foxfield Villa. Assocs., LLC v. Robben, 967 F.3d 1082, 1103 (10th Cir. 2020))). This decision is
committed to the district court’s sound discretion. Exum v. U.S. Olympic Comm., 389 F.3d 1130,
1138–39 (10th Cir. 2004). The court, recognizing its discretion, sees no reason to depart from
our Circuit’s general directive. So, even if it gave plaintiff more time to serve the defendants
8 	The court may consider this January 4 letter at the motion-to-dismiss stage because plaintiff
attached the right-to-sue letter to his Complaint, Doc. 1-1 at 2 and referenced the letter in his Complaint,
Doc. 1 at 10. And no one has disputed the authenticity of this letter. So, the court may consider it. See
above n.7.
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with his defamation claim, the court would dismiss plaintiff’s federal law claims as untimely and
decline to exercise supplemental jurisdiction over plaintiff’s state law claim.
In sum it would prove futile to give plaintiff more time to serve. The court thus declines
to do so.
IV. 	Conclusion
The court grants defendants’ Motion to Strike (Doc. 37) and quashes plaintiff’s service
on defendants. So, the court lacks personal jurisdiction over defendants and must deny
plaintiff’s Motion for Default (Doc. 28). It declines to give plaintiff additional time to serve
defendants, so it grants defendants’ Motion to Dismiss (Doc. 37) and dismisses plaintiff’s claims
without prejudice for failure to serve.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s Motion for
Default (Doc. 28) is denied.
IT IS FURTHER ORDERED THAT defendant’s Motion to Strike and Dismiss
plaintiff’s claims (Doc. 37) is granted.
IT IS SO ORDERED.
Dated this 4th day of December, 2025, at Kansas City, Kansas.
s/ Daniel D. Crabtree______
Daniel D. Crabtree
United States District Judge
Case 5:24-cv-04082-DDC-RES Document 40 Filed 12/04/25 Page 16 of 16