Abdulina v. Eberl's Temporary Services, Inc.
Filing
59
ORDER: DENIES as MOOT Defendant's motion to dismiss Plaintiffs complaint 15 . GRANTS Defendant's motion to dismiss Plaintiff's Colorado Wage Claim Act and Breach of Contract claims in the First Amended Class Action Complaint 19 . GRANTS Defendant's motion for leave to provide supplemental authority in support of its motion to dismiss Plaintiff's Colorado Wage Claim Act and Breach of Contract claims in the First Amended Class Action Complaint 55 . ORDERS that the matter will proceed only as to Claim Two in Plaintiff's First Amended Class Action Complaint (ECF No. 18 24-29) which is an alleged FLSA violation. By Judge Raymond P. Moore on 2/3/2015.(tscha, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14–cv–00314–RM–BNB
DINA ABDULINA, on behalf of herself and all similarly situated persons,
Plaintiff,
v.
EBERL’S TEMPORARY SERVICES, INC., a Colorado corporation,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on Defendant Eberl’s Temporary Services, Inc.’s (“ETS”)
(1)
motion to dismiss Plaintiff Dina Abdulina’s complaint, or, in the alternative for a
more definite statement (ECF No. 15);
(2)
motion to dismiss Plaintiff’s Colorado Wage Claim Act and Breach of Contract
claims in the First Amended Class Action Complaint (ECF No. 19); and
(3)
unopposed motion for leave to provide supplemental authority in support of its
motion to dismiss Plaintiff’s Colorado Wage Claim Act and Breach of Contract claims in the
First Amended Class Action Complaint (ECF No. 55).
For the reasons stated below, the Court:
(1)
15);
DENIES as MOOT Defendant’s motion to dismiss Plaintiff’s complaint (ECF No.
(2)
GRANTS Defendant’s motion to dismiss Plaintiff’s Colorado Wage Claim Act
and Breach of Contract claims in the First Amended Class Action Complaint (ECF No. 19); and
(3)
GRANTS Defendant’s motion for leave to provide supplemental authority in
support of its motion to dismiss Plaintiff’s Colorado Wage Claim Act and Breach of Contract
claims in the First Amended Class Action Complaint (ECF No. 55).
I.
BACKGROUND
A.
Procedural Background
On February 4, 2014, Plaintiff filed her original complaint (“Complaint”) on behalf of
herself and other allegedly similarly situated individuals seeking back pay and other damages
allegedly owed under the (1) Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., (2)
Colorado Wage Claim Act (“Wage Claim Act”), Colo. Rev. Stat. § 8-4-101, et seq., and (3)
Colorado Minimum Wage Act (“Minimum Wage Act”), Colo. Rev. Stat. § 8-6-101 et seq. (ECF
No. 1.)
On May 5, 2014, Defendant moved to dismiss Plaintiff’s Complaint, or, in the alternative,
for a more definite statement. (ECF No. 15.)
On May 20, 2014, Plaintiff filed her First Amended Complaint (“Amended Complaint”)
on behalf of herself and other allegedly similarly situated individuals. (ECF No. 18 at 1.)
Plaintiff’s Amended Complaint asserts three claims for relief based upon Defendant’s allegedly
(1) violating the Wage Claim Act, (2) violating the FLSA, and (3) breaching a contract. (ECF
No. 18 ¶¶ 19-32.) Plaintiff alleges that ETS violated the Colorado Minimum Wage Act, Colo.
Rev. Stat. § 8-6-101, et seq., as implemented by the Colorado Minimum Wage Order. (ECF No.
18 ¶ 1.)
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On June 3, 2014, Defendant moved to dismiss, from the Amended Complaint, Plaintiff’s
Wage Claim Act claim and breach of contract claim. (ECF No. 19.) Plaintiff responded to
Defendant’s June 3 motion to dismiss. (ECF No. 26.) Plaintiff opposes the relief Defendant
seeks with regard to the Wage Claim Act claim. (ECF No. 26 at 1-4.) Plaintiff does not oppose
the relief Defendant seeks with regard to the breach of contract claim. (ECF No. 26 at 4.)
On January 20, 2015, Defendant, unopposed, moved for leave to file supplemental
authority in support of its motion to dismiss Plaintiff’s Colorado Wage Claim Act and Breach of
Contract Claims in the Amended Complaint. (ECF No. 55.)
B.
Factual Background
The following facts are taken as true from Plaintiff’s Amended Complaint.
ETS contracts with insurance companies to provide supplemental insurance-adjustment
services after catastrophic events. (ECF No. 18 ¶ 10.) Subsequent to a catastrophic event, there
would be a need for ETS to provide supplemental insurance-adjustment services to insurance
companies. (ECF No. 18 ¶¶ 10, 12.)
Plaintiff is a former ETS employee and a resident of the State of Indiana. (ECF No. 18 ¶
2.) Plaintiff worked for ETS, during 2011 and 2012, in Maryland and Missouri as a rope and
harness assistant. (ECF No. 18 ¶¶ 5, 21, 26.) In this position, Plaintiff assisted insurance claims
adjusters. (ECF No. 18 ¶ 5.) ETS did not pay Plaintiff properly for all of her hours worked.
(ECF No. 18 ¶ 5.) Further, ETS did not pay similarly situated ETS employees to Plaintiff. (ECF
No. 18 ¶ 5.) ETS failed to pay overtime pay for hours worked by Plaintiff and other employees
in excess of twelve per day and/or forty per week. (ECF No. 18 ¶ 7.)
Plaintiff frequently worked twelve or more hours per day, seven days per week. (ECF
No. 18 ¶ 12.) ETS had a standard pay policy for its rope and harness assistants. (ECF No. 18 ¶
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12.) ETS paid Plaintiff “$175 per day of which $162 was a non-wage per diem reimbursement
of expenses.” (ECF No. 18 ¶ 12 (italics in original).) Plaintiff “received approximately $13 per
day in wages,” regardless of how many hours she worked. (ECF No. 18 ¶ 12.) Plaintiff had an
employment contract with ETS. (ECF No. 18 ¶ 31.) The contract memorialized this “pay
scheme” between ETS and all of its rope and harness assistants. (ECF No. 18 ¶ 12.)
II.
LEGAL STANDARDS
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must
be dismissed if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do. . . .” Id. at 555 (citations omitted). “Factual allegations must be
enough to raise a right to relief above the speculative level.” Id. A “plaintiff must ‘nudge []
[his] claims across the line from conceivable to plausible’ in order to survive a motion to
dismiss. . . . Thus, the mere metaphysical possibility that some plaintiff could prove some set of
facts in support of the pleaded claims is insufficient; the complaint must give the court reason to
believe that this plaintiff has a reasonable likelihood of mustering factual support for these
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claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
(emphasis in original, internal citation and quotation omitted).
The Tenth Circuit Court of Appeals has held “that plausibility refers to the scope
of the allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims
across the line from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d
1188, 1191 (10th Cir. 2012) (internal quotation and citation omitted). The Tenth Circuit has
further noted “that the nature and specificity of the allegations required to state a plausible claim
will vary based on context.” Id. (Internal quotation and citation omitted.) Thus, the Tenth
Circuit “concluded the Twombly/Iqbal standard is ‘a middle ground between heightened fact
pleading, which is expressly rejected, and allowing complaints that are no more than labels and
conclusions or a formulaic recitation of the elements of a cause of action, which the [Supreme
C]ourt stated will not do.’” Id. (Citation omitted.)
For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the Court must
accept all well-pled factual allegations in the complaint as true and resolve all
reasonable inferences in a plaintiff’s favor. Morse v. Regents of the Univ. of Colo.,
154 F.3d 1124, 1126-27 (10th Cir. 1998) (citation omitted); Seamons v. Snow, 84 F.3d 1226,
1231-32 (10th Cir. 1996) (citations omitted). However, “when legal conclusions are involved in
the complaint ‘the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to [those] conclusions. . . .’” Khalik, 671 F.3d at 1190 (quoting Iqbal,
556 U.S. at 678). “Accordingly, in examining a complaint under Rule 12(b)(6), [the court] will
disregard conclusory statements and look only to whether the remaining, factual allegations
plausibly suggest the defendant is liable.” Id.
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III.
ANALYSIS
A.
Defendant’s Motion to Dismiss the Complaint, or, in the Alternative, for a
More Definite Statement (ECF No. 15)
On May 5, 2014, Defendant filed its motion to dismiss, or, in the alternative, for a more
definite statement. (ECF No. 15.) On May 20, 2014, Plaintiff filed her Amended Complaint.
(ECF No. 18.)
Pursuant to Rule 15(a)(1)(B) of the Federal Rules of Civil Procedure, a party may amend
its pleading once as a matter of course “if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(B). Plaintiff
properly amended her pleading within the time constraints. See Fed. R. Civ. P. 15(a)(1)(B).
Thus, the Court DENIES as MOOT Defendant’s motion to dismiss the Complaint, or, in the
alternative, for a more definite statement (ECF No. 15).
B.
Defendant’s Motion for Leave to File Supplemental Authority in Support of
its Motion to Dismiss Plaintiff’s Colorado Wage Claim Act and Breach of
Contract Claims in Plaintiff’s Amended Complaint (ECF No. 55)
The Court GRANTS Defendant’s unopposed motion for leave to file supplemental
authority in support of its motion to dismiss Plaintiff’s Colorado Wage Claim Act and Breach of
Contract Claims in Plaintiff’s Amended Complaint (ECF No. 55).
C.
Defendant’s Motion to Dismiss Plaintiff’s Colorado Wage Claim Act and
Breach of Contract Claims in her Amended Complaint (ECF No. 19)
1.
Motion to Dismiss the Breach of Contract Claim
Plaintiff alleges Defendant breached her employment contract when it failed to “pay
Plaintiff in accordance with state and federal wage and hour laws.” (ECF No. 18 ¶ 31.)
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Defendant moves to dismiss Plaintiff’s breach of contract claim on the basis that it is
duplicative of and preempted by the FLSA. (ECF No. 19 at 8-13.) Plaintiff, in response to
Defendant’s motion to dismiss her breach of contract claim, withdrew her claim. (ECF No. 26 at
4.)
Plaintiff has essentially abandoned her breach of contract claim by failing to address that
claim in response to Defendant’s motion to dismiss. See Stransky v. Cummins Engine Co. Inc.,
51 F.3d 1329, 1335 (7th Cir. 1995) (holding that “when presented with a motion to dismiss, the
non-moving party must proffer some legal basis to support his cause of action”); see also
Jackson v. City and Cty. of Den., Case No. 11-CV-02293-PAB-KLM, 2012 WL 4355556 at *2
(D. Colo. Sept. 24, 2012) (citation omitted). The Court “will not invent legal arguments for
litigants,” Stransky, 51 F.3d at 1335, and is “not obliged to accept as true legal conclusions or
unsupported conclusions of fact,” Iqbal, 556 U.S. at 678.
The Court is mindful, however, that the FLSA and the Wage Claim Act do not preempt a
state law claim compensable pursuant to a contract but not the FLSA or Wage Claim Act. See
Hammond v. Lowe’s Home Ctrs., Inc., 316 F. Supp. 2d 975, 979 (D. Kan. 2004). Plaintiff,
however, fails to allege facts which establish a right to such payment in a contract independent of
the FLSA or the Wage Claim Act. (See generally ECF No. 18.) And Plaintiff fails to plead
facts, as opposed to a naked legal conclusion, that Defendant breached a specific contract term.
Thus, Plaintiff’s breach of contract claim fails to adhere to Iqbal’s central holding.
For these reasons, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s breach
of contract claim in the Amended Complaint.
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2.
Motion to Dismiss the Claim for Violating the Colorado Wage Claim Act1
Plaintiff alleges that she worked for ETS in Maryland and Missouri. (ECF No. 18 ¶ 5.)
Plaintiff alleges that she is a resident of Indiana. (ECF No. 18 ¶ 2.) Plaintiff does not allege that
she worked for ETS in Colorado. (See generally ECF No. 18.)
Defendant moves to dismiss Plaintiff’s Wage Claim Act on the basis that she lacks
standing to pursue the claim. (ECF No. 19 at 5-7.) The Wage Claim Act defines an employer as
“every person, firm, partnership, association, corporation, . . . in Colorado, . . . employing any
person in Colorado. . . .” Colo. Rev. Stat. Ann. § 8-4-101(5) (2014) (emphasis added). Further,
the Colorado Minimum Wage Act states that “issues related to the wages of workers in Colorado
have important statewide ramifications for the labor force in this state. The general assembly,
therefore, declares that the minimum wages of workers in this state are a matter of statewide
concern.” Colo. Rev. Stat. Ann. § 8-6-101(2) (1999) (emphasis added). Thus, the Wage Claim
Act applies only to workers in Colorado. Because Plaintiff did not work in and is not a resident
of Colorado, Plaintiff has no standing to assert a claim under the Wage Claim Act. See
Gravquick A/S v. Trimble Navigation Int’l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003) (holding
that California’s Equipment Dealers Act did not have extraterritorial application because the
statute contains a limit on its geographical scope even if the parties stipulate that the law should
apply); see also Glass v. Kemper Corp., 133 F.3d 999, 1000 (7th Cir. 1998) (holding that the
lower court’s dismissal of the statutory claim was correct because the plaintiff was not protected
by Illinois’ Wage Payment and Collection Act because Plaintiff never resided or worked in
1
Defendant does not argue, it merely “notes,” that Plaintiff’s Wage Claim Act claim asserts a violation of that
statute but that that statute does not provide for the payment of minimum wages or overtime. (ECF No. 19 at 5 n.2.)
Because Defendant does not make the argument that Plaintiff fails to state a claim under the Wage Claim Act based
upon the statute’s not providing for the payment of minimum wages or overtime, the Court does not make the
argument for it. Further, as Defendant astutely notes, Plaintiff does cite to the Colorado Minimum Wage Act and its
implementing regulation which provide for the payment of minimum wages. Thus, this case is distinguishable from
Young v. Dollar Tree Stores, Inc., Case No. 11-CV-1840-REB-MJW, 2012 WL 3704994, at *3 (D. Colo. Aug 24,
2012).
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Illinois); see also Smith v. Pizza Hut, Inc., Case No. 09-CV-01632-CMA-BNB, 2011 WL
2791331, at *8-10 (D. Colo. July 14, 2011) (holding that the plaintiff lacked standing to bring
claims under state laws to which the plaintiff had never been subjected); see also Mitchell v.
Abercrombie & Fitch, Case No. C2-04-306, 2005 WL 1159412, at *2-4 (S.D. Ohio May 17,
2005) (noting the constitutional reasons for why Ohio’s wage and hour law does not apply to
employees who work outside of the state).
The cases upon which Plaintiff relies are distinguishable.
First, Plaintiff’s reliance on Harlow v. Sprint Nextel Corp., 574 F. Supp. 2d 1224 (D.Kan.
2008) is misplaced because the Kansas Wage Payment Act, unlike Colorado’s Wage Claim Act,
does not have an express geographic restriction. See, e.g., Kan. Stat. Ann. § 44-313 (2004)
(defining “employer” and “employee”). Similarly, Plaintiff’s reliance upon Taylor v. E.
Connection Operating, Inc., 988 N.E.2d 408, 411-14 (Mass. 2013) is misplaced because the
Massachusetts’s wage law at issue did not have a geographic limitation. See, e.g., Mass. Gen.
Laws. ch. 149, § 148B (2004).
Second, Plaintiff’s reliance on Synesiou v. Designtomarket, Inc., Case No. 01-5358, 2002
WL 501494, at *2-3 (E.D.Pa. April 3, 2002) (citation omitted) is misplaced because the
Pennsylvania Supreme Court had previously found Pennsylvania’s Wage Payment and
Collection Law provided for a claim when an employment agreement required the use of
Pennsylvania law and made Pennsylvania the exclusive forum for employer-employee disputes.
In this matter, Plaintiff’s Amended Complaint contains no allegations regarding a choice-of-law
provision or a forum selection clause in the contract. (See generally ECF No. 18.) Plaintiff, in
response to Defendant’s motion to dismiss, states that the contract between she and ETS
contained a choice of law provision in which it would be “interpreted and enforced under
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Colorado law.” (ECF No. 26 at 1-2.) Plaintiff, however, cannot amend her complaint by adding
factual allegations in response to Defendant’s motion to dismiss. See Jojola v. Chavez, 55 F.3d
488, 494 (10th Cir. 1995) (holding that a court is limited to assessing the legal sufficiency of the
allegations contained within the four corners of the complaint) (citation omitted); Car Carriers,
Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (holding that “it is axiomatic that
the complaint may not be amended by the briefs in opposition to a motion to dismiss”) (citations
omitted); Wilson v. Jenks, Case No. 12-CV-02495-RM-KMT, 2014 WL 6515336, at *4 (D.
Colo. Nov. 20, 2014).
Third, Plaintiff’s reliance upon Levinson v. Primedia, Inc., Case No. 02 Civ. 2222(DAB),
2007 WL 2298406 (S.D.N.Y. Aug. 9, 2007) is misplaced because the court found that precedent
held that an agreement to apply a choice-of-law provision to a contract is tantamount to an
agreement to apply that state’s statutory law to all disputes. Id. at *12. Plaintiff provides the
Court with no authority that Colorado employs a similar approach to a choice-of-law provision
and statutory disputes. And the Court finds no support for such a position under Tenth Circuit or
Colorado precedent. Similarly, Plaintiff’s reliance upon Schunkewitz v. Prudential Secs., Inc.,
Case No. 03-1181, 99 F. App’x 353 (3d Cir. 2004) (unpublished) is misplaced for the same
reason as her reliance upon Levinson. See id. at 354.
Fourth, Plaintiff’s reliance upon Jesse v. Sphinx Systemhosue, Inc., Case No. 10 C 8037,
2011 5865491 (N.D. Ill. Nov. 17, 2011) is misplaced because the court found that the plaintiff
may have been employed in the state in which he sought to enforce its minimum wage provision.
Id. at *2. Here, Plaintiff concedes that she did not work in Colorado although she seeks to
enforce its wage laws and regulations.
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For these reasons, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s Wage
Claim Act claim in the Amended Complaint.
IV.
CONCLUSION
Based on the foregoing, the Court:
(1)
DENIES as MOOT Defendant’s motion to dismiss Plaintiff’s complaint (ECF No.
(2)
GRANTS Defendant’s motion to dismiss Plaintiff’s Colorado Wage Claim Act
15);
and Breach of Contract claims in the First Amended Class Action Complaint (ECF No. 19);
(3)
GRANTS Defendant’s motion for leave to provide supplemental authority in
support of its motion to dismiss Plaintiff’s Colorado Wage Claim Act and Breach of Contract
claims in the First Amended Class Action Complaint (ECF No. 55); and
(4)
ORDERS that the matter will proceed only as to Claim Two in Plaintiff’s First
Amended Class Action Complaint (ECF No. 18 ¶¶ 24-29) which is an alleged FLSA violation.
DATED this 3rd day of February, 2015.
BY THE COURT:
____________________________________
RAYMOND P. MOORE
United States District Judge
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