McGinness Energy Company, Inc. v. Independent Tubular Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MCGINNESS ENERGY COMPANY, INC., 	)
)
Plaintiff, 	)
)
v. 	)
)
INDEPENDENT TUBULAR 	)
CORPORATION, d/b/a ITC PIPE, 	) 	CIVIL ACTION
)
Defendant/ 	) 	No. 25-1076-KHV
Third-Party Plaintiff, )
)
v. 	)
)
BOLY PIPE CO., LTD; and 	)
JOL TUBULAR, INC., 	)
)
Third-Party 	)
Defendants. 	)
____________________________________________)
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
On February 25, 2025, in the District Court of Barber County, Kansas, plaintiff McGinness
Energy Company, Inc. filed suit against Independent Tubular Corporation (“ITC”), alleging that
ITC breached its contract and warranty to plaintiff by suppling faulty casing pipe. On April 23,
2025, ITC removed the case to federal court. See Notice of Removal (Doc. #1). ITC later filed a
third-party complaint demanding indemnity from Boly Pipe, Ltd. and JOL Tubular, Inc., which
had manufactured and supplied the pipe to Commercial Steel Products, LLC, which in turn had
supplied it to ITC. This matter is before the Court on Third-Party Defendant JOL Tubular Inc.’s
Motion To Dismiss (Doc. #48) filed September 10, 2025. For reasons stated below, the Court
conditionally sustains JOL’s motion as to personal jurisdiction and overrules it as to subject matter
jurisdiction.
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Legal Standard
JOL asserts that the Court should dismiss plaintiff’s claims under Rules 12(b)(1), 12(b)(2)
and 12(b)(6), Fed. R. Civ. P., because (1) the Court lacks subject matter jurisdiction, (2) the Court
lacks personal jurisdiction over JOL and (3) ITC’s complaint does not state a claim on which relief
can be granted.
When defendant seeks dismissal under Rule 12(b)(1) or 12(b)(2) and 12(b)(6) in the
alternative, the Court must first decide the jurisdictional challenges because the latter challenge
will be moot if the Court lacks jurisdiction. See Creamer v. Gildemeister, No. 15-4871-KHV,
2015 WL 6828186, at *2 (D. Kan. Nov. 6, 2015). Dismissal under Rule 12(b)(1) is appropriate
when the Court lacks subject matter jurisdiction over a claim for relief. The party asserting
jurisdiction has the burden of establishing subject matter jurisdiction. Id. (citing Port City Props.
v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008)).
Plaintiff bears the burden of establishing jurisdiction and at this stage of the litigation, only
needs to make a prima facie showing. See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514
F.3d 1063, 1069–70 (10th Cir. 2008). At this stage, the burden on plaintiff is light. See Wenz v.
Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). To the extent that defendant’s affidavits
do not controvert the well-pleaded allegations of the complaint, the Court must accept plaintiff’s
allegations as true. See id. at 1505. If defendant sufficiently challenges the jurisdictional
allegations, however, plaintiff must support them with competent proof. Pytlik v. Prof’l Res., Ltd.,
887 F.2d 1371, 1376 (10th Cir. 1989). Plaintiff may do so by affidavit or other written materials
which demonstrate facts that—if true—would support jurisdiction. TH Agric. & Nutrition, LLC
v. Ace European Grp. Ltd., 488 F.3d 1282, 1286 (10th Cir. 2007). The Court resolves any factual
disputes in favor of plaintiff. Wenz, 55 F.3d at 1505.
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Because the Court lacks personal jurisdiction for reasons discussed below, the Court does
not reach the Rule 12(b)(6) arguments.
Factual Background
The relevant facts are as follows:
Plaintiff McGinness Energy Company is a Kansas corporation.
Commercial Steel Products, LLC (“CSP”) is a Texas corporation which distributes pipes
nationwide. On December 28, 2023, it purchased casing pipe from JOL, a Texas corporation with
its principal place of business in Texas. The parties agreed that Boly Pipe Co. would manufacture
the pipe in Thailand and deliver it to CSP in Texas. In January of 2024, CSP sold the pipe to ITC,
an Oklahoma corporation with its principal place of business in Oklahoma. ITC sold the pipe to
plaintiff and CSP delivered it to plaintiff in Kansas, where it allegedly failed due to a defect.
JOL imports and distributes tubular goods within the State of Texas. Boly Pipe is a Taiwan
corporation with its principal place of business in Thailand. Boly Pipe’s web site describes JOL
as its “Houston Branch,” but the exact nature of the relationship is unclear.
In this action, plaintiff sues ITC, its direct supplier, for breach of contract and warranty.
CSP, which supplied the faulty pipe to ITC, is not a party to this case. On June 5, 2025, five
months after plaintiff filed this suit, CSP assigned to ITC “(to the fullest extent assignable), all of
[its] rights under the warranties of the vendor [JOL] or manufacturer [Boly Pipe] that supplied the
goods.” Email from Cameron Kirkpatrick (CSP) To Tyler Allred (ITC) (Doc #53-1). In bringing
its third-party indemnity claim against Boly Pipe and JOL, ITC relies on this assignment.
According to the sworn Declaration Of Jianyang Zhou In Support Of JOL Tubular, Inc.’s
Motion To Dismiss (Doc #49-1) filed September 10, 2025, the Purchase Order between CSP and
JOL did not allow assignment without prior written consent from both CSP and JOL, and JOL
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never consented for CSP to assign its Purchase Order to ITC or anyone else. See Memorandum
Of Law In Support Of Third-Party Defendant JOL Tubular Inc.’s Motion to Dismiss (Doc. #49)
filed September 10, 2025. Zhou declares that he is the Marketing Manager of JOL, has personal
knowledge of the facts declared and handled the account relevant to this lawsuit. He also declares
that JOL has not marketed goods to, sold goods in, or shipped goods to Kansas, has not had any
contacts with Kansas or held an office in the State of Kansas.
On October 1, 2025, ITC accessed a LinkedIn account that purports to belong to Zhou.
Screen shots of the account list Zhou’s employment dates in Chinese, which ITC translates to say
that Zhou worked as “Supply and Marketing Director” from October of 2019 to February of 2023,
then “Sales Director” of Boly Pipe from January of 2023 to the present. See Third-Party Plaintiff
ITC’s Response To Third-Party Defendant JOL’s Motion To Dismiss (Doc. #53) at 9–10. The
main title at the top of Zhou’s page reads “Marketing Manager at JOL Group.” Id.
Analysis
JOL argues that it is entitled to dismissal of ITC’s indemnity claims because under
Rule 12(b)(1) the Court lacks subject matter jurisdiction, under Rule 12(b)(2) the Court lacks
personal jurisdiction over JOL and under Rule 12(b)(6) ITC fails to state a claim. A court without
jurisdiction over the parties cannot render a valid judgment. See OMI Holdings, Inc. v. Royal Ins.
Co. of Canada, 149 F.3d 1086, 1090 (10th Cir. 1998). Accordingly, before addressing the merits,
the Court must determine whether it has subject matter jurisdiction over these claims and personal
jurisdiction over JOL. See id.; see also First Magnus Financial Corp. v. Star Equity Funding, LLC,
No. 06-2426-JWL, 2007 WL 635312, at *4 (D. Kan. Feb. 27, 2007) (not addressing merits of
Rule 12(b)(6) motion because court lacked personal jurisdiction).
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I. 	12(b)(1) Subject Matter Jurisdiction
JOL argues that the Court lacks subject matter jurisdiction because (1) ITC does not have
standing to sue and (2) ITC’s claim is not ripe. ITC responds that it does have standing through
privity of contract and that its indemnification claim is ripe.
The concept of constitutional standing is derived from Article III of the U.S. Constitution,
which limits the exercise of the federal judicial power to cases and controversies.
U.S. Const. art. III, § 2. To satisfy Article III’s standing requirements, plaintiff must show that (1)
it has suffered an “injury in fact” that is concrete and particularized and actual or imminent, (2)
the injury is fairly traceable to the challenged action of defendant and (3) it is likely, as opposed
to merely speculative, that a favorable decision will redress the injury. Parks v. Kiewel, No. 15-
1196-JTM, 2015 WL 7295457, at *6 (D. Kan. Nov. 18, 2015). The elements of constitutional
standing are not mere pleading requirements, but an indispensable part of plaintiff’s case. Utah v.
Babbitt, 137 F.3d 1193, 1204 (10th Cir.1998) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992)). Thus, plaintiffs and third-party plaintiffs must support each element in the same
way as any other matter on which they bear the burden of proof, i.e. with the manner and degree
of evidence required at each successive stage of litigation. See Lujan, 504 U.S. at 561. At the
pleading stage, general factual allegations of injury resulting from defendant’s conduct may
suffice.
Rule 12(b)(1) motions generally take the form of facial attacks on the complaint or factual
attacks on the accuracy of its allegations. See Holt v. United States, 46 F.3d 1000, 1002–03 (10th
Cir.1995) (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)).
Regarding factual challenges, a party may go beyond allegations contained in the complaint and
challenge the facts upon which subject matter jurisdiction depends. See Holt, 46 F.3d at 1003.
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JOL makes a factual attack on ITC’s claim that it has a contractual right of indemnity. When
reviewing a factual attack on subject matter jurisdiction, the Court may not presume the
truthfulness of plaintiff’s factual allegations. See id. The Court has wide discretion to allow
affidavits, other documents and/or a limited evidentiary hearing to resolve disputed jurisdictional
facts under Rule 12(b)(1). See id. In such instances, the Court may refer to evidence outside the
pleadings without converting the motion to a Rule 56 motion. See id. Typically, for plaintiff to
have standing to sue on a contract, plaintiff and defendant must be in privity with respect to the
contract or plaintiff must be an intended third-party beneficiary. See e.g., Stewart v. Mitchell
Transp., Inc., 197 F. Supp. 2d 1310, 1314 (D. Kan. 2002), Pro. Lens Plan, Inc. v. Polaris Leasing
Corp., 234 Kan. 742, 745, 675 P.2d 887, 891 (1984).
Kansas recognizes three types of indemnity claims: (1) express contractual indemnity,
(2) implied contractual indemnity where one has been compelled to pay what another party ought
to pay and (3) comparative implied indemnity where one of multiple tortfeasors pays another’s
share of liability. Poindexter v. Morse Chevrolet, Inc., 171 P.3d 285 (Table), 2007 WL 4246860,
at *3 (Kan. Ct. App. 2007); see Schaefer v. Horizon Bldg. Corp., 26 Kan. App. 2d 401, 403, 985
P.2d 723, 725 (1999) (comparative implied indemnity); Haysville U.S.D. No. 261 v. GAF Corp.,
233 Kan. 635, 641–42, 666 P.2d 192, 198–99 (1983) (express and implied contractual indemnity).
Here, ITC’s third-party complaint does not specify which type of indemnity it seeks.
Therefore, the Court analyzes ITC’s indemnity claims under all three theories to determine
whether it alleges an injury in fact that is fairly traceable to JOL.
A. 	Express Indemnification Claim
ITC’s complaint alleges that CSP assigned to ITC its warranty rights against JOL, and that
it is therefore entitled to indemnity under the Purchase Order between CSP and JOL. Third-Party
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Complaint (Doc. #32) at ¶ 28 filed July 15, 2025. JOL makes a factual attack on ITC’s
jurisdictional allegation. JOL claims that the CSP assignment was invalid, that JOL therefore has
no contractual obligation to indemnify ITC and as a result ITC does not allege an injury in fact. It
also alleges that ITC’s demand for indemnification does not allege injury which is concrete or
immediate enough to satisfy Article III standing. At this stage in the litigation, the Court accepts
ITC’s allegations that CSP assigned to it all warranty rights against JOL which were assignable.
However, because JOL raises a factual attack on subject matter jurisdiction, the Court goes beyond
the complaint and considers JOL’s declaration and documents to resolve disputed jurisdictional
facts. Here, the Purchase Order from CSP to JOL was not assignable without the approval of both
parties.1 Therefore, JOL has sufficiently challenged ITC’s allegation that it has suffered an injury
in fact which is traceable to JOL. Thus, ITC must support its allegation with competent proof of
supporting facts. See Pytlik v. Prof’l Res., Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989).
ITC does not directly refute Zhou’s sworn statement that CSP lacked authority to assign
its warranty rights against JOL without the consent of JOL. Defendant/Third-Party Plaintiff ITC’s
Response To Third-Party Defendant JOL’s Motion To Dismiss (Doc. #53) at 9. Instead, ITC asks
the Court to disregard Zhou’s entire declaration because his LinkedIn page lists his employment
as “Sales Director” at Boly Pipe from December of 2023 to the present, while his declaration states
that he is Marketing Manager of JOL. The LinkedIn page is an unsworn screen shot, which is
hearsay, and the dates are in Chinese. Also, the LinkedIn page headline represents Zhou’s title as
Marketing Manager at JOL. While the record is not entirely clear about where Zhou worked and
when, it provides no reason to question his personal knowledge of the Purchase Order from CSP
1 	ITC’s third-party complaint does not claim that CSP had assignable warranty rights
which originate in sources other than the Purchase Order.
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to JOL.2 ITC does not raise a genuine issue of material fact with regard to the Zhou declaration
or otherwise controvert the facts declared therein. The Court therefore finds that the Purchase
Order from CSP to JOL, and any warranty rights contained therein, were not assignable without
the permission of both the parties. Apart from the purported assignment, ITC does not allege other
bases on which to seek express contractual indemnity from JOL. Stated otherwise, ITC has not
alleged facts or provided evidence that it has standing to sue JOL to enforce contractual indemnity
terms to which JOL did not expressly agree. Therefore, the third-party complaint does not raise
an express contractual indemnification claim over which the Court can exercise subject matter
jurisdiction.
B. 	Implied Contractual Indemnity
An implied contractual indemnity claim “usually arises when one personally, without fault,
is made to pay for a tortious act of another.” Haysville, 233 Kan. at 642, 666 P.2d at 199; see Med
James, Inc. v. Barnes, 31 Kan. App. 2d 89, 99, 61 P.3d 86, 94 (2003) (weighing of relative fault
of parties does not apply to implied contractual indemnity because one seeking indemnity must be
without fault). Implied contractual indemnity is generally used in cases involving
employer/employee relationships, but Kansas has not limited implied contractual indemnity to
those relationships. See Unified Sch. Dist. 467 v. Leland A. Gray Architects, LLC, 112 F. Supp.
3d 1223 (D. Kan. 2015). Implied contractual indemnity can be asserted as a tort claim without an
express contract, though plaintiff must allege sufficient facts to support a plausible claim of privity
2 	The Purchase Order is addressed to Zhou, and Boly Pipe and JOL appear to be
related as subsidiary and parent companies: Boly Pipe’s web site describes JOL as its Houston
Branch. Even if Zhou worked at Boly Pipe instead of JOL at the time of the Purchase Order, that
fact does not provide a reason to doubt Zhou’s personal knowledge of the Purchase Order. The
Third-Party Complaint (Doc. #32) filed July 15, 2025, alleges in ¶ 4 that “JOL is an agent,
instrumentality, and authorized representative of Boly and/or is owned and controlled by Boly.”
This allegation is uncontradicted and the Court assumes that it is true.
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between the parties. Id. In Unified Sch. Dist., a general contractor plausibly alleged a claim for
implied contractual indemnification against a manufacturer of HVAC equipment. The general
contractor alleged that (1) the manufacturer was involved in the “design and installation” and the
“inspection and service” of HVAC systems and had made certain promises and affirmations in
connection with the sale of the equipment and (2) the general contractor had purchased the HVAC
units from the manufacturer’s authorized dealer. Id. See also UMB Bank, N.A. v. Monson, No.
21-CV-2504-EFM-KGG, 2023 WL 5956276, at *3 (D. Kan. Sept. 13, 2023), decision clarified on
reconsideration, No. 21-CV-2504-EFM-KGG, 2023 WL 8761604 (D. Kan. Dec. 19, 2023). These
allegations established that the parties had a close enough relationship to plausibly establish
privity, which a claim of implied contractual indemnity requires.
ITC does not allege that it had a direct relationship with JOL. ITC alleges a one-time pipe
sale from JOL to CSP and then from CSP to ITC. ITC alleges that JOL and Boly Pipe “represented
to ITC that before leaving Boly’s mill, the Casing Pipe had been manufactured, inspected, and
tested under the standards of the American Petroleum Institute.” Third-Party Complaint (Doc. #32)
at ¶ 14. This single representation, outside of any express contractual relationship, is not sufficient
to state a plausible claim for an implied contract. Therefore, ITC has not sufficiently stated an
implied contractual indemnity claim.
C. 	Comparative Implied Indemnity
Comparative implied indemnity is an equitable remedy available to a single defendant,
among a number of tortfeasors, who by settling with plaintiff or paying a judgment, pays the other
tortfeasors’ share of liability. Schaefer v. Horizon Bldg. Corp., 26 Kan. App. 2d 401, 403, 985
P.2d 723, 725 (1999).
Here, ITC does not specifically characterize JOL’s acts as tortious, but it alleges facts
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which suggest tortious conduct. See Philadelphia Indemnity Ins. Co. v. Midwest Steel Fab, LLC,
No. 19-1026-EFM, 2021 WL 2711152, at *5 (D. Kan. Jul. 1, 2021). ITC alleges that as
manufacturer and vendor of the pipe, Boly Pipe and JOL would be responsible for any defects.
Third-Party Complaint (Doc. #32) at ¶ 22. Though plaintiff only seeks to recover from ITC, the
complaint suggests comparative fault between ITC, CSP, JOL and/or Boly Pipe as to potential
product liability concerning the pipe. See MWCB Rock Road, LLC v. C&W Facility Services,
Inc., No. 21-1022-SAC-GEB, 2022 WL 168221, at *4 (D. Kan. Jan. 19, 2022). Accordingly, ITC
might be held liable for the fault of other tortfeasors. ITC has alleged injury in fact that is fairly
traceable to JOL and satisfies its standing requirements for subject matter jurisdiction. To the
extent ITC advances a comparative implied indemnity claim, JOL’s motion to dismiss makes no
argument that the Court lacks subject matter jurisdiction over it. The Court therefore overrules
JOL’s motion in regard to standing.
D. 	Ripeness
The Court’s jurisdiction extends only to live cases or controversies that are ripe for judicial
review. Garcia v. Bd. of Educ., 520 F.3d 1116, 1123 (10th Cir. 2008); Kansas Jud. Rev. v. Stout,
519 F.3d 1107, 1116 (10th Cir. 2008). Ripeness is a justiciability doctrine designed to prevent
courts from entangling themselves in abstract disagreements by premature adjudication. See
National Park Hospitality Association v. Dept. of Interior, 538 U.S. 803, 807 (2003). To determine
whether the issues in a case are ripe for review, courts evaluate the fitness of the issues for judicial
decision and the hardship to the parties of withholding court consideration. Abbott Labs. v.
Gardner, 387 U.S. 136, 149 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S.
99 (1977). Whether a case is fit for judicial resolution depends on whether it involves uncertain
or contingent future events that may not occur. Morgan v. McCotter, 365 F.3d 882, 890 (10th Cir.
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2004).
JOL argues that ITC’s claim is not ripe for adjudication because no injury subject to
indemnification has occurred and ITC would suffer no hardship if it had to withhold its
indemnification claim until after plaintiff’s claims are resolved. ITC responds that because it may
be liable to plaintiff and JOL may be required to indemnify it, its claim is ripe.
Under Fed. R. Civ. P. 14(a)(1), which provides the mechanism for ITC’s third-party claim,
“a defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty
who is or may be liable to it for all or part of the claim against it.” (emphasis added). One of the
primary objectives of third-party procedure is to avoid circuity and multiplicity of actions. King
Fisher Marine Serv., Inc. v. 21st Phoenix Corp., 893 F.2d 1155, 1168 (10th Cir. 1990). At the
same time, the Federal Rules of Civil Procedure do not create or withdraw federal jurisdiction.
See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978). Therefore the Court must
determine ripeness using the factors described in Abbott; (1) the fitness of the issues for judicial
decision and (2) the hardship to the parties of withholding court consideration. Abbott Labs, 387
U.S. 136, 149.
The Court finds that ITC’s indemnity claim is sufficiently ripe, since in the event that ITC
is found liable to plaintiff, ITC may recover from Boly Pipe or JOL as manufacturer and vendor
of the pipe. Further, withholding judicial consideration would present an unwarranted hardship
on the parties and lead to judicial inefficiency if ITC had to litigate its claims against JOL in a
second lawsuit. See Cooper v. City of Gallup, NM, No. CV 1:24-504 MIS/GJF, 2025 WL
1664296, at *8 (D.N.M. June 12, 2025).
Third-party indemnity claims which are contingent on the outcome of the underlying action
are not uncommon in Kansas courts. See e.g. MWCB Rock Road, LLC v. C&W Facility Services,
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Inc., No. 21-1022-SAC-GEB, 2022 WL 168221, at *4 (D. Kan. Jan. 19, 2022); United of Omaha
Life Ins. Co. v. Reed, 649 F. Supp. 837, 842 (D. Kan. 1986); Comeau v. Rupp, 762 F. Supp. 1434,
1438 (D. Kan. 1991). The Court therefore determines that ITC’s indemnification claim is ripe.
In summary, JOL has not presented a persuasive factual or legal basis for its argument that
the Court lacks subject matter jurisdiction. On that issue, its motion is overruled.
II. 	12(b)(2) Personal Jurisdiction
JOL argues that the Court lacks personal jurisdiction over it. ITC responds that it has made
a prima facie showing of personal jurisdiction and alternatively seeks leave to conduct
jurisdictional discovery to ascertain if JOL has directed its efforts to Kansas residents.
For the Court to exercise personal jurisdiction in a diversity action, plaintiff must show that
personal jurisdiction is proper under the laws of the forum state and that exercising jurisdiction
comports with the due process requirements of the United States Constitution. See Newsome v.
Gallacher, 722 F.3d 1257, 1264 (10th Cir. 2013). The Kansas long-arm statute permits the exercise
of any jurisdiction that is consistent with the United States Constitution. See Federated Rural Elec.
Ins. Corp. v. Kootenai Elec. Coop., 17 F.3d 1302, 1304–05 (10th Cir. 1994); see also K.S.A. § 60-
308(b)(1)(L). Accordingly, the Court need not conduct a separate personal jurisdiction analysis
under Kansas law and instead may proceed directly to the due process inquiry. See Niemi v.
Lasshofer, 770 F.3d 1331, 1348 (10th Cir. 2014) (where long-arm statute confers maximum
jurisdiction consistent with Due Process Clause, statutory inquiry effectively collapses into
constitutional analysis). The due process analysis requires the Court to determine (1) whether
defendant has “minimum contacts with the forum state such that [they] should reasonably
anticipate being hailed into court there” and (2) if defendant’s actions establish minimum contacts,
whether the exercise of personal jurisdiction over it “offends traditional notions of fair play and
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substantial justice.” AST Sports Sci., 514 F.3d at 1057. To satisfy the “minimum contacts”
standard, plaintiff can establish that the Court has either (1) specific jurisdiction or (2) general
jurisdiction. Rockwood Select, 750 F.3d at 1179. The Court has specific jurisdiction if defendant
“purposely directed” its activities at residents of the forum state, and plaintiff’s alleged injuries
“arise out of” the forum-related activities. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514
F.3d 1063, 1071 (10th Cir. 2008). The aim of the “purposeful direction” doctrine is to ensure that
defendant is not bound to appear to account for merely “random, fortuitous, or attenuated contacts”
with the forum state. Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).
The Court may exercise general personal jurisdiction if defendant otherwise maintains “continuous
and systematic” general business contacts with Kansas. OMI Holdings, Inc. v. Royal Ins. Co. of
Can., 149 F.3d 1086, 1090–91 (10th Cir.1998).
Here, ITC has not alleged prima facie grounds for personal jurisdiction over JOL. In
arguing otherwise, ITC points to paragraphs 7 and 8 of the Third-Party Complaint (Doc. #32).
Those paragraphs allege that JOL “executed or facilitated the transaction” between Boly Pipe and
CSP (the entity which sold ITC the pipe and delivered it to plaintiff in Kansas). ITC argues that
in so doing, JOL “purposefully availed itself of the opportunity to send products into the state of
Kansas, where they could cause damage and injury.” Factually, ITC alleges that JOL sold pipe to
CSP, which sold it to ITC, which sold it to plaintiff for delivery in Kansas. ITC does not otherwise
allege how JOL “executed or facilitated” the transaction in question.
ITC’s conclusory recitation does not make a prima facie showing of personal jurisdiction.
ITC does not allege specific facts that would support a conclusion that JOL purposefully directed
any activities to residents of Kansas. The record suggests that JOL (a Texas corporation) sold pipe
to CSP (another Texas corporation) and delivered it to Texas. CSP sold the pipe to ITC (an
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Oklahoma corporation), which sold it to plaintiff (a Kansas corporation). These facts fall far short
of showing that JOL purposely directed its activities to a Kansas resident. On this record, JOL’s
contact with Kansas must be viewed as “random, fortuitous, or attenuated.” See Dudnikov 514
F.3d 1063, 1071 (10th Cir. 2008). The Court therefore concludes that ITC has not sufficiently
alleged facts that would enable the Court to exercise personal jurisdiction over JOL.
III. Jurisdictional Discovery
If the Court determines that it did not allege a prima facie case of personal jurisdiction, ITC
seeks leave to conduct jurisdictional discovery to ascertain if Boly Pipe or JOL directed activity to
residents of Kansas.
When defendant moves to dismiss for lack of jurisdiction, either party should be allowed
discovery on factual issues raised by the motion. See Sizova v. Nat’l Inst. of Stds. & Tech., 282
F.3d 1320, 1326 (10th Cir. 2002). The Court, however, is vested with broad discretion in deciding
whether to allow discovery. See TH Agric. & Nutrition, LLC v. Ace European Group Ltd., 416 F.
Supp.2d 1054, 1073 (D. Kan. 2006). The Court abuses its discretion if the denial of discovery
results in prejudice to plaintiff. See Sizova, 282 F.3d at 1326. Such prejudice exists where
“pertinent facts bearing on the question of jurisdiction are controverted . . . or where a more
satisfactory showing of the facts is necessary.” Id. (quotation and citation omitted).
Here, the record has limited facts concerning JOL’s efforts to sell products to residents of
Kansas. Out of an abundance of caution, the Court will therefore sustain ITC’s request for limited
jurisdictional discovery.
IV. 12(b)(6) Failure To State A Claim
Since the Court cannot exercise personal jurisdiction over JOL, the Court need not consider
JOL’s argument that ITC’s third-party complaint is deficient under Rule 12(b)(6). See Creamer,
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2015 WL 6828186, at *2 (D. Kan. Nov. 6, 2015).
V. 	Leave To Amend Third-Party Complaint
If the Court finds that dismissal is appropriate, ITC seeks leave to
amend. Defendant/Third-Party Plaintiff ITC’s Response To Third-Party Defendant JOL’s Motion
To Dismiss (Doc #53) at 12. The Court disregards any motion or request to amend which does
not comply with District of Kansas Rule 15.1(a). Under that rule, a party filing a motion to amend
that may not be filed as a matter of right must (1) set forth a concise statement of the amendment
or leave sought; (2) attach the proposed pleading or other document; and (3) attach a redlined
version of the proposed amendment that shows all proposed changes to the pleading.
D. Kan. Rule 15.1(a); see Requena v. Roberts, 893 F.3d 1195, 1204 n.3 (10th Cir. 2018)
(insufficient to merely suggest that party should be allowed to amend if judge finds pleadings
deficient; party must file written motion for leave to amend, giving adequate notice of basis of
proposed amendment). Though ITC explains that it seeks leave to add CSP as a third-party
defendant, it has not satisfied the other two requirements. The Court therefore overrules its request
to amend the third-party complaint.
IT IS THEREFORE ORDERED that Third-Party Defendant JOL Tubular Inc.’s Motion
To Dismiss (Doc. #48) filed September 10, 2025 is OVERRULED as to subject matter
jurisdiction. As to personal jurisdiction, the Court conditionally SUSTAINS the motion. The
Court orders that ITC show good cause in writing, no later than 5:00 PM on January 20,
2026, why its claims against JOL should not be dismissed for lack of personal jurisdiction.
In the interim, ITC may conduct discovery on that issue.
Dated this 18th day of November, 2025 at Kansas City, Kansas.
/s/ Kathryn H. Vratil
KATHRYN H. VRATIL
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United States District Judge
Case 6:25-cv-01076-KHV-RES Document 56 Filed 11/18/25 Page 16 of 16