Springer v. Thomas et al, No. 5:2015cv04862 - Document 16 (D. Kan. 2015)
Court Description: MEMORANDUM AND ORDER denying 6 Motion to Dismiss or Stay Case and 8 Motion to Dismiss or Stay Case. Signed by U.S. District Senior Judge Sam A. Crow on 5/22/15. (msb)
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Springer v. Thomas et al Doc. 16 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS SHARI SPRI NGER, Plaint iff vs. Case No. 15- 4862- SAC BARTON THOMAS and FARM BUREAU LI FE I NSURANCE COMPANY, Defendant s. MEMORANDUM AND ORDER The case com es before t he court on t he m ot ions t o dism iss or st ay ( Dks. 6 and 8) filed by t he defendant s Bart on Thom as and Farm Bureau Life I nsurance Com pany ( “ FBLI C” ) . Bot h m ovant s argue for t he court ’s applicat ion of t he Colorado River doct rine, and FBLI C separat ely argues for discret ionary denial of declarat ory j udgm ent j urisdict ion under t he Brillhart st andard. The plaint iff, Shari Springer, is suing her brot her, Bart on Thom as, alleging she was a j oint beneficiary wit h her brot her on FBLI C annuit ies owned by t heir fat her, Blaine Thom as, unt il her fat her’s signat ure was forged on change of beneficiary form s which did not nam e her as a beneficiary. I nform at ion on t he annuit ies was wit hheld from t he plaint iff, her m ot her and her fat her for som e t im e. Just four days aft er learning about t he annuit ies, Blaine Thom as died before correct ing t he beneficiaries. Dockets.Justia.com Springer seeks relief on four count s. Her first count seeks a declarat ory j udgm ent against Bart on Thom as and FBLI C t hat t he change in beneficiaries in June of 2012 “ was t he product of fraud, forgery and/ or undue influence” rendering t he beneficiary form s void. She also asks t hat t he declarat ory j udgm ent order FBLI C t o t urn over t he annuit ies’ proceeds t o her. Her second count is an act ion for fraud and forgery against Bart on Thom as for having t he false or forged change of beneficiaries execut ed wit h t he int ent t o defraud t he plaint iff of her inherit ance. She asks for dam ages against Bart on in t he am ount of $280,939.66 and for punit ive dam ages. Her t hird count is an act ion against Bart on Thom as for int erference wit h expect ancy in t he annuit ies by his m alicious act ions t o deprive her of t hat int erest t hrough “ fraudulent represent at ions regarding said changes, undue influence over Blaine Thom as, duress of Blaine Thom as and ot hers and m isrepresent at ions and concealm ent regarding t hese act ions.” ( Dk. 1, ¶ 58) . The plaint iff asks for act ual and punit ive dam ages. Her fourt h count is alleged as an alt ernat ive act ion against Bart on Thom as t o her second count for fraud and forgery. She alleges Bart on used “ t hreat s, int im idat ion, coercion and com pulsion in order t o force Blaine Thom as” t o rem ove t he plaint iff as a beneficiary t o t he annuit ies. She seeks act ual and punit ive dam ages here t oo. Springer filed her com plaint in t his court on March 27, 2015. She assert s diversit y j urisdict ion under 28 U.S.C. § 1332. She alleges she is a 2 resident of Nevada, t he defendant Thom as is a resident of Kansas, and t he defendant FBLI C has it s principal place of business in I owa. The am ount in cont roversy exceeds $75,000 considering j ust her alleged share of t he annuit ies. Approxim at ely t wo weeks before t his federal act ion was filed, FBLI C filed a pet it ion for int erpleader and declarat ory and inj unct ive relief in t he Dist rict Court of Riley Count y, Kansas. FBLI C’s first am ended pet it ion filed on March 13, 2015, nam es as defendant s: t he children of Blaine Thom as, Shari Springer and Bart on Thom as; t heir m ot her, Arm eda Thom as; t he ot her beneficiaries nam ed on t he annuit ies; and Cindy Thom as as t he list ed beneficiary ent it led t o t he proceeds of t he paym ent cont ract . ( Dk. 91) . The pet it ion alleges t hat Arm eda Thom as is t he surviving wife of Blaine Thom as and t hat she is assert ing t he annuit y cont ract s and paym ent cont ract are part of t he Blaine Thom as’ augm ent ed est at e t o which she is ent it led t o a spousal share. The pet it ion describes t he nam ed beneficiaries— Bart on Thom as, Jade Cole, Kelsey Thom as, Layt on Thom as, Norm an Thom as, and Jennifer Whalen—as t hose list ed in FBLI C’s records ent it led t o t he proceeds of t he annuit ies upon Blaine Thom as’ deat h. The pet it ion not es t hat Cindy Thom as claim s t he proceeds of t he paym ent cont ract as it s sole beneficiary. Finally, t he pet it ion alleges: 16. Springer claim s she was a list ed beneficiary t o t he Annuit y Cont ract s along wit h Bart on Thom as before June of 2012. She assert s fraudulent and forged beneficiary change form s were provided t o FBLI C t o subst it ut e Norm an Thom as, Kelsey Thom as, Layt on Thom as, 3 Jade Cole and Jennifer Whalen in her place as beneficiaries t o t he Annuit y Cont ract s. 17. Accordingly, Springer claim s she is ent it led t o t he proceeds of t he Annuit y Cont ract s as a “ co- beneficiary” of t hose agreem ent s. ( Dk. 9- 1, p. 4) . FBLI C pleads t hat “ it cannot reasonably det erm ine who are t he appropriat e payees and in what am ount s,” and asks t he court t o exercise it s discret ion and eit her have t hese proceeds deposit ed wit h t he court or ret ained by FBLI C unt il t he court resolves t he com pet ing claim s t o t he funds now held by FBLI C. I d. FBLI C prays t hat t he part ies be rest rained from com m encing any act ion against it regarding t hese annuit ies or cont ract paym ent and t hat a j udgm ent be ent ered requiring t he defendant s t o set t le t heir right s t o t hese proceeds and discharging plaint iff from all liabilit y except t o t he part ies found t o be ent it led t o t he proceeds. I d. at pp. 4- 5. The defendant Bart on Thom as asks for an order t hat eit her dism isses or st ays Springer’s act ion, because t he pending Riley Count y int erpleader suit is parallel t o Springer’s federal act ion for declarat ory j udgm ent and st at e t ort liabilit y and because t he relevant fact ors favor t he federal court declining or st aying it s exercise of j urisdict ion under t he Colorado River doct rine. FBLI C likewise asks t he court t o abst ain based on sim ilar argum ent s but adds an argum ent for not exercising declarat ory j udgm ent j urisdict ion against it based on Brillhart v. Excess I ns. Co., 316 U.S. 491 ( 1942) . The plaint iff denies t hat t he st at e int erpleader act ion is parallel t o her federal act ion and cont ends t he fact ors here do not est ablish except ional circum st ances for Colorado River abst ent ion. 4 The Suprem e Court recent ly reit erat ed “ t he principle t hat ‘a federal court ’s obligat ion t o hear and decide’ cases wit hin it s j urisdict ion ‘is virt ually unflagging.’” Lexm ark I nt ern., I nc. v. St at ic Cont rol Com ponent s, I nc., - - - U.S.- - - , 134 S. Ct . 1377, 1386 ( 2014) ( quot ing Sprint Com m unicat ions, I nc. v. Jacobs, 571 U.S. - - - , 134 S. Ct . 584, 591 ( 2013) ( quot ing Colorado River Wat er Conservat ion Dist . v. Unit ed St at es, 424 U.S. 800, 817 ( 1976) ) ) . The Tent h Circuit has also said t hat , “ t his obligat ion, alt hough great , is not absolut e,” and t hat , “ [ i] t is well- est ablished t hat ‘federal court s have t he power t o refrain from hearing,’ am ong ot her t hings, ‘cases which are duplicat ive of a pending st at e proceeding.’” D.A. Osgut horpe Fam ily Part nership v. ASC Ut ah, I nc., 705 F.3d 1223, 1233 ( 10t h Cir.) ( quot ing Quakenbush v. Allst at e I nsurance Co., 517 U.S. 706, 716- 17 ( 1996) ) , cert . denied, 133 S. Ct . 2831 ( 2013) . The Colorado River doct rine has as it s “ core” principle—“ t he avoidance of duplicat ive lit igat ion” — and t hat t he doct rine “ concerns it self wit h efficiency and econom y” wit h t he goal “ ’t o preserve j udicial resources.’” I d. ( quot ing Rienhardt v. Kelly, 164 F.3d 1296, 1302 ( 10t h Cir. 1999) ) . The Colorado River doct rine is built upon t he not ion t hat , “ j udicial econom y concerns m ay j ust ify deferral of a federal suit when pending st at e lit igat ion will resolve t he issues present ed in t he federal case.” Rienhardt , 164 F.3d at 1302 ( cit ing Colorado River, 424 U.S. at 817- 20) . St ill, “ t he appropriat e circum st ances for deferral under t he Colorado River Doct rine are ‘considerably m ore lim it ed t han t he 5 circum st ances appropriat e for abst ent ion’ and m ust be ‘except ional.’” I d. at 1303 ( quot ing Colorado River, 424 U.S. at 817- 18) . Thus, in approaching t hese cases, t he Tent h Circuit counsels: As a general rule, “ ‘t he pendency of an act ion in t he st at e court is no bar t o proceedings concerning t he sam e m at t er in t he Federal court having j urisdict ion....’” Colorado River, 424 U.S. at 817, 96 S.Ct . 1236 ( quot ing McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct . 501, 54 L.Ed. 762 ( 1910) ) . But , at t im es, “ reasons of wise j udicial adm inist rat ion” m ust weigh in favor of “ perm it t ing t he dism issal of a federal suit due t o t he presence of a concurrent st at e proceeding.” I d. at 818, 96 S.Ct . 1236. Grant ed, t hese occasions are not ordinarily encount ered. Yet such “ circum st ances, t hough except ional, do nevert heless exist .” I d. D.A. Osgut horpe Fam ily Part nership, 705 F.3d at 1233. The Tent h Circuit regards t he “ ’bet t er pract ice is t o st ay t he federal act ion pending t he’” st at e’s out com e, because if “ ’t he st at e proceedings t o do not resolve all t he federal claim s, a st ay preserves an available federal forum in which t o lit igat e t he rem aining claim s, wit hout plaint iff having t o file a new federal act ion.’” Foxfield Villa Associat es, LLC v. Regnier, 918 F. Supp. 2d 1192, 1197 ( D. Kan. 2013) ( quot ing Fox v. Maulding, 16 F.3d 1079, 1083 ( 10t h Cir. 1994) ) . Before balancing t he different fact ors, “ t he dist rict court m ust det erm ine ‘whet her t he st at e and federal proceedings are parallel. Suit s are parallel if subst ant ially t he sam e part ies lit igat e subst ant ially t he sam e issues in different forum s.” Allen v. Board of Educ., Unified School Dist . 436, 68 F.3d 401, 403 ( 10t h Cir. 1995) ( quot ing Fox. v. Maulding, 16 F.3d at 1081) ; see Jones v. Great Sout hern Life I ns. Co., 232 F.3d 901 ( 10t h Cir. 6 2000) ( Table) . “ ’Just as t he parallel nat ure of t he act ions cannot be dest royed by sim ply t acking on a few m ore defendant s, neit her can it be dispelled by repackaging t he sam e issue under different causes of act ion.’” Gerbino v. Sprint Next el Corp., 2013 WL 2405558 at * 3 ( D. Kan. m ay 31, 2013) ( quot ing Clark v. Lacy, 376 F.3d 682, 686- 87 ( 7t h Cir. 2004) ) . Consequent ly, t his init ial st ep does not require ident ical act ions. But in conduct ing t his exam inat ion, t he court looks at t he act ual st at e act ion wit hout considering how it could have been brought . Foxfield Villa, 918 F. Supp. 2d at 1197; see Allen, 68 F.3d at 403. The part ies are subst ant ially t he sam e except t hat t he plaint iff Springer failed t o nam e as part ies t hose current ly list ed as beneficiaries on t he FBLI C- issued annuit ies. 1 As t he defendant s not e, t here is cert ainly a serious quest ion about Springer’s abilit y t o obt ain relief on her declarat ory j udgm ent claim wit hout j oining t hese current beneficiaries. Aft er filing her response opposing t hese m ot ions, Springer has now filed a m ot ion for leave t o file an am ended com plaint t o add t hese nam ed beneficiaries. The court is sat isfied t hat t he part ies are subst ant ially t he sam e. Springer argues t he issues here are not subst ant ially t he sam e as t he issues in t he st at e act ion. She point s t o her t ort claim s here for undue influence and int erference wit h expect ancy of inherit ance as being separat e claim s t hat would not be im pact ed by t he st at e court ’s j udgm ent in t he 1 Arm eda Thom as has disclaim ed any int erest in t he annuit ies and has filed a m ot ion t o be dism issed from t he int erpleader act ion. ( Dk. 7- 5) . 7 int erpleader act ion. I n m aking t his argum ent , Springer inexplicably t akes t he posit ion t hat her only legal challenge t o t he annuit y proceeds in t he st at e act ion would be forgery: “ [ I ] f t he m at t er of forgery of t he annuit ies is fully det erm ined in st at e court t his does not foreclose t he Plaint iff’s t ort claim s, as t hey would st ill exist and could be pursued.” ( Dk. 12, p. 5) . While Springer recast s and repeat s t his argum ent over t he span of several pages in her brief, t he analysis is only conclusory and lacks any support ing legal aut horit ies or support ing fact s and det ails. The court st ruggles wit h Springer’s conclusory analysis for several reasons. First , she does not explain what prevent s her from alleging, or why she would not allege, undue influence as a legal basis ent it ling her t o som e of t he annuit y proceeds in st at e court . See Albers v. Nelson, 248 Kan. 575, 579, 809 P.2d 1194 ( 1991) ( “ [ A] part y who signs a writ t en cont ract is bound by it s provisions regardless of t he failure t o read or underst and t he t erm s, unless t he cont ract was ent ered int o t hrough fraud, undue influence, or m ut ual m ist ake.” ) . Second, Springer’s t ort claim for int erference wit h expect ancy of inherit ance requires her t o prove “ independent [ ] t ort ious conduct ( such as undue influence, fraud, or duress) .” Lindberg v. U.S., 164 F.3d 1312, 1319 ( 10t h Cir. 1999) . Springer has not explained how her proof of t his elem ent would ent ail subst ant ially different allegat ions and proof from t hat offered in t he st at e case. I f Springer does prevail on her forgery or undue influence allegat ions, t hen her t ort claim s in federal court m ay ent it le her t o m ore t han t he 8 annuit y proceeds. Finally, and m ost im port ant ly, if Springer does not prevail on her forgery or undue influence allegat ions in st at e court , and t he det erm inat ion is m ade t hat she was not a valid current beneficiary, it would fall t o Springer t o show how her federal com plaint alleges ot her act ionable inj uries result ing from ot her act ionable t ort ious act s done by t he defendant Thom as. I n sum , t he t wo cases involve subst ant ially t he sam e issues going t o Springer’s claim t o annuit y proceeds based on t he defendant Thom as’ alleged wrongful act ions t aken in changing t he beneficiaries and rem oving her as beneficiary. The int erpleader charact er of t he st at e act ion does not m ake t he sim ilarit y of t he issues any less subst ant ial. The part ies would be expect ed t o lit igat e t hese issues in m uch t he sam e way in bot h court s. There is subst ant ial overlap of part ies and issues as alleged in t he t wo cases m aking t hem parallel under t he Colorado River doct rine. The Suprem e Court has provided t hese fact ors as relevant in det erm ining whet her “ except ional circum st ances” exist : ( 1) assum pt ion by eit her court of j urisdict ion over a res; ( 2) relat ive inconvenience of t he fora; ( 3) avoidance of piecem eal lit igat ion; ( 4) t he order in which j urisdict ion was obt ained by t he concurrent forum s; ( 5) t he ext ent t o which federal law provides t he rules of decision on t he m erit s; and ( 6) t he adequacy of t he st at e proceedings in prot ect ing t he right s of t he part y invoking federal j urisdict ion. Saucier v. Aviva Life and Annuit y Co., 701 F.3d 458, 462 ( 5t h Cir. 2012 ( cit at ion om it t ed) ; see D.A. Osgut horpe Fam ily Part nership, 705 F.3d at 1234; Healt h Care and Ret irem ent Corp. v. Heart land Hom e Care, I nc., 324 F. Supp. 2d 1202, 1205 ( D. Kan. 2004) . These “ fact ors are not a ‘m echanical 9 checklist ,’ ‘careful balancing’ is required, and ‘[ t ] he weight t o be given t o any one fact or m ay vary great ly from case t o case.’” D.A. Osgut horpe Fam ily Part nership, 705 F.3d at 1234 ( quot ed Moses H. Cone Mem ’l Hosp. v. Mercury Const r. Corp., 460 U.S. 1, 16 ( 1983) ) . The first t wo fact ors do not favor applying t he doct rine, as t he annuit y proceeds rem ain wit h FBLI C, and t he federal forum is not less convenient t o t he part ies and wit nesses. The t hird fact or—avoidance of piecem eal lit igat ion—is cent ral t o t he Colorado River doct rine. Gerbino v. Sprint Next el Corp., 2013 WL 2405558 at * 7. By having failed t o j oin all of t he current beneficiaries t o t he annuit ies, t he likelihood of piecem eal lit igat ion arguably exist s as a declarat ory j udgm ent in t his court would not provide FBLI C all of t he relief sought in st at e court . As st at ed before, t he plaint iff Springer has m oved t o am end her com plaint t o add t he current beneficiaries t o her declarat ory j udgm ent count . Even wit h all nam ed t o t he federal suit , “ [ a] com prehensive federal adj udicat ion going on at t he sam e t im e as a com prehensive st at e adj udicat ion m ight not lit erally be “ piecem eal,” but “ [ i] t is, however, duplicat ive.” Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545, 566 ( 1983) . “ [ T] he avoidance of duplicat ive lit igat ion- - - is at t he core of t he Colorado River doct rine.” D.A. Osgut horpe Fam ily Part nership, 705 F.3d at 1233. The sim ult aneous prosecut ion here would wast efully duplicat e t he t im e and effort of counsel, court s, part ies and wit nesses. St at e Farm Mut . Aut o. I ns. Co. v. Scholes, 10 601 F.2d 1151, 1155 ( 10t h Cir. 1979) . I f bot h cases proceeded, t his “ would creat e a risk of inconsist ent result s and a race t o j udgm ent ,” as t he issues and fact ual assert ions are nearly ident ical. Gerbino, 2013 WL at 2405558 at * 8. Beside discovery disput es, disposit ive or part ially disposit ive m ot ions on t he shared elem ent s and proof carry t he serious pot ent ial for conflict ing rulings com ing down alm ost sim ult aneously: I f t he rulings conflict , t he goals of j udicial econom y and wise j udicial adm inist rat ion are defeat ed. See generally Giles [ v. I CG, I nc.] , 789 F.Supp.2d [ 706] at 713 [ ( S.D.W.Va. 2011) ] ( “ [ P] erm it t ing m ult iple court s t o decide t he sam e issues on whet her t he defendant s breached t heir fiduciary dut ies in approving t he ... deal is j udicial overkill, and harm ful t o all part ies in t his act ion. I t would be unj ust and unnecessary t o im pose pot ent ially incom pat ible st andards of conduct on t he defendant s.” ) . Moreover, as ot her court s have not ed, defendant s “ could face duplicat ive discovery request s and m arkedly different general lit igat ion schedules in each court .” I d. Gerbino, 2013 WL 2405558 at * 8. On t hese fact s, t he t hird fact or w eighs in favor of st aying t he case. FBLI C’s st at e int erpleader act ion was filed first by a couple weeks. “ [ P] riorit y should not be m easured exclusively by which com plaint was filed first , but rat her in t erm s of how m uch progress has been m ade in t he t wo act ions.” Moses H. Cone, 461 U.S. at 21. FBLI C point s out t hat all of t he defendant s have been serviced except one who is deceased, and m ost have filed t heir answers. I n t he federal suit , t he defendant s have been serviced and have filed t hese pending m ot ions in lieu of t heir answers, and t he plaint iff has pending a m ot ion t o am end. The difference in progress bet ween t he t wo act ions is nom inal. This fact or is neut ral. 11 The present suit involves no quest ions of federal law. The Tent h Circuit has not ed t hat t he absence of a federal issue m ay “ favor abst ent ion when t he bulk of t he lit igat ion concerned st at e law.” Jones v. Great Sout hern Life I ns. Co., 232 F.3d 901, 2000 WL 1375309 at * 2 ( 10t h Cir. 2000) ( cit ing DeCisneros v. Younger, 871 F.2d 305, 309 ( 2nd Cir. 1989) ) . The lit igat ion here involves st at e law exclusively. But as t he plaint iff not es, none of t he issues require addressing unset t led or cont roversial areas of Kansas law. This fact or is essent ially neut ral on a st ay. Finally, t here are open quest ions on whet her t he st at e court act ion would offer “ an adequat e vehicle for t he com plet e and prom pt resolut ion of t he issues bet ween t he part ies.” Moses H. Cone, 461 U.S. at 28. The m ovant s have not analyzed t he issues as t o show t hat t he st at e court j udgm ent would result in claim or issue preclusion on t he plaint iff’s rem aining t ort claim s or would not require addit ional dam age proceedings in federal court . The m ovant s sim ply have not persuaded t he court , however, t hat a st at e court j udgm ent necessarily would resolve all t he issues t o be decided on t he plaint iff’s claim s here. “ [ T] he Court m ay ent er a st ay under t he Colorado River doct rine only if it has ‘full confidence’ t hat t he parallel st at e lit igat ion will end t he part ies’ disput e.” Healt h Care, 324 F. Supp. 2d at 1207 ( quot ing Gulfst ream Aerospace Corp. v. Mayacam as Corp., 485 U.S. 271, 277 ( 1988) ) . This fact or weighs against a st ay. Most of t he fact ors are neut ral, and one fact or favors a st ay while anot her weighs against it . Aft er considering t he different fact ors, t he 12 court cannot say t hat except ional circum st ances exist here t o j ust ify a st ay of t he inst ant act ion. While conservat ion of som e j udicial resources would be served by a st ay, t he m ovant s have failed t o show t hat t he pending st at e lit igat ion would offer a com plet e resolut ion of t he issues present ed in t his federal case. Thus, t he court is wit hout full confidence t hat t he st at e court lit igat ion will dispose of t he federal disput e in it s ent iret y. The defendant s’ m ot ions fail t o show t he required except ional circum st ances t hat would j ust ify applying t he Colorado River doct rine. Alt ernat ively, t he defendant FBLI C argues t he court should decline t o exercise j urisdict ion under t he Declarat ory Judgm ent Act based on Brillhart v. Excess I nc. Co., 316 U.S. 491 ( 1942) . When t he issue of cont em poraneous st at e and federal parallel proceedings is raised in a federal declarat ory j udgm ent act ion, a court analyzes t he issue under Brillhart even when diversit y of cit izenship exist s as an independent j urisdict ional basis for t he act ion. Wilt on v. Seven Falls Co., 515 U.S. 277 286- 87 ( 1995) ; see U.S. v. Cit y of Las Cruces, 289 F.3d 1170, 1181 ( 10t h Cir. 2002) . I f t he plaint iff, however, seeks coercive relief also, t hen Brillhart is not applied: I f t he plaint iff only request s a declarat ion of it s right s, not coercive relief, t he suit is a declarat ory j udgm ent act ion for purposes of det erm ining whet her t he dist rict court has broad discret ion under Brillhart , t o refuse t o ent ert ain t he suit . See Safet y Nat ’l Cas. Corp. v. Brist ol- Myers Squibb Co., 214 F.3d 562, 564 ( 5t h Cir. 2000) ( holding t hat in a suit seeking coercive relief as well as declarat ory relief, broad Brillhart st andard inappropriat e) . 13 Cit y of Las Cruces, 289 F.3d at 1181. The Fift h Circuit “ precedent st at es t hat ‘[ w] hen an act ion cont ains any claim for coercive relief,’ Colorado River applies.” New England I ns. Co. v. Barnet t , 561 F.3d 392, 397 ( 5t h Cir. 2009) ( cit at ion om it t ed) ( t wo except ions t o t his rule for frivolous coercive claim s or for coercive claim s filed only t o circum vent Brillhart ) . Believing t he Tent h Circuit would follow Fift h Circuit precedent as indicat ed in Las Cruces, t he court finds t hat t he plaint iff Springer’s coercive claim s for dam ages preclude applying here t he broader and m ore discret ionary Brillhart st andard. The defendant FBLI C is unable t o rely on Brillhart . I T I S THEREFORE ORDERED t hat t he m ot ions t o dism iss or st ay ( Dks. 6 and 8) filed by t he defendant s Bart on Thom as and FBLI C are denied. Dat ed t his 22nd day of May, 2015, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 14
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