McClure v. Town of Center et al
Filing
31
ORDER Denying 28 Motion to Dismiss, by Judge Richard P. Matsch on 8/3/2011.(rpmcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 11-cv-00853-RPM
CHARLES W. MCCLURE,
Plaintiff,
v.
TOWN OF CENTER; and
JULIO PAEZ, individually and in his official capacity as Trustee for the Town of Center;
MARK GARCIA, individually, and in his official capacity as Town Clerk for the Town of
Center; and
SUSAN BANNING; and
PEGGY MARTINEZ,
Defendants.
_____________________________________________________________________
ORDER DENYING MOTION TO DISMISS
_____________________________________________________________________
On June 27, 2011, the defendants filed a motion to dismiss the federal claims for failure
to state a claim for relief, pursuant to Fed.R.Civ.P. 12(b)(6). The plaintiff filed his response on
July 18, 2011, and the defendants filed their reply on August 1, 2011. Accepting the factual
allegations of the complaint as true and considering the plausible allegations concerning the
multiple roles in which the plaintiff served the Town of Center, it is not apparent that his position
as Town Clerk would permit the termination of his employment without any procedural
protections and without cause. Additionally, it is not clear that his benefit plan was a
government plan and that he is exempt from FLSA protection. Accordingly, it is
ORDERED that the defendants’ motion to dismiss is denied.
DATED: August 3rd, 2011
BY THE COURT:
s/Richard P. Matsch
__________________________
Richard P. Matsch, Senior Judge
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