Lezama v. Tall Pines Painting, Inc. et al

Filing 27

ORDER denying 11 Motion to Dismiss First Amended Complaint. The stay of briefing on collective action certification (ECF No. 13 ) is LIFTED. Defendants shall file their response to to Lezama's Motion for Conditional Collective Action Certification (ECF No. 4 ) no later than 5/4/2015. Lezama shall file his reply, if any, no later than 5/18/2015. By Judge William J. Martinez on 4/13/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-2953-WJM-KMT
RICARDO LEZAMA, on his own behalf and on behalf of all others similarly situated
Plaintiff,
v.
TALL PINES PAINTING, INC., and
BRYAN KELLY,
Defendants.

ORDER DENYING MOTION TO DISMISS AND LIFTING STAY OF BRIEFING ON
COLLECTIVE ACTION CERTIFICATION

Plaintiff Ricardo Lezama (“Lezama”) has sued his former employer, Tall Pines
Painting, Inc. (“Tall Pines”) and its manager, Bryan Kelly (together, “Defendants”), for
alleged violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq.
(ECF No. 8.) Defendants have moved to dismiss for failure to state a claim. (ECF
No. 11.) For the reasons stated below, Defendants’ motion will be denied and briefing
will resume on the question of collective action certification.
I. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
claim in a complaint for “failure to state a claim upon which relief can be granted.” The
Rule 12(b)(6) standard requires the Court to “assume the truth of the plaintiff’s
well-pleaded factual allegations and view them in the light most favorable to the
plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

In ruling on such a motion, the dispositive inquiry is “whether the complaint contains
‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh
remedy which must be cautiously studied, not only to effectuate the spirit of the liberal
rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of
Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted).
“Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual
proof of those facts is improbable, and that a recovery is very remote and unlikely.’” Id.
(quoting Twombly, 550 U.S. at 556).
II. FACTS
Tall Pines is in the house-painting business. (ECF No. 8 ¶ 1.) Lezama was one
of Tall Pines’s employees. (Id. ¶¶ 1, 12.) Lezama alleges, among other things, that
Tall Pines regularly required its employees to work more than forty hours per week
without overtime, and refused to pay its employees for time spent traveling from Tall
Pines’s facilities to a worksite and back. (Id. ¶¶ 19–21.) Lezama alleges that these
actions violate the FLSA. (Id. ¶¶ 37–56.)
III. ANALYSIS
The FLSA regulates “enterprise[s] engaged in commerce or in the production of
goods for commerce.” 29 U.S.C. § 207(a)(1). An “‘[e]nterprise engaged in commerce
or in the production of goods for commerce’ means,” among other things, “an enterprise
that * * * has employees handling, selling, or otherwise working on goods or materials
that have been moved in or produced for commerce by any person.” Id.

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§ 203(s)(1)(A)(I). Lezama alleges that Tall Pines meets this definition because Tall
Pines employees “handled goods, such as paint and paintbrushes, which moved in
interstate commerce.” (ECF No. 8 ¶ 25.)
Tall Pines contends that this allegation is conclusory and that “the Court cannot
reasonably infer interstate commerce activities from the mere reference to the terms
paint or paintbrushes.” (ECF No. 11 at 4 (emphasis in original).) The Court disagrees.
At the pleading stage, it is far more than “plausible on its face,” Ridge at Red Hawk, 493
F.3d at 1177, that paint and paintbrushes m oved in interstate commerce before
reaching Tall Pines’s employees.
In defense of its position, Tall Pines cites two recent district court decisions, but
the Court does not find either one applicable here. The first decision is Topp v. Lone
Tree Athletic Club, Inc., 2014 WL 3509201(D. Colo. July 15, 2014), where this Court
refused to grant default judgment in a FLSA case because the plaintiff had alleged no
more than that the defendant was “an enterprise engaged in interstate commerce or in
the production of goods for consumers. . . . [N]owhere in the complaint does Plaintiff
allege the kind of services Defendant provides to customers or whether such services
are tied to interstate commerce.” Id. at *6–7 (internal quotation marks omitted). That is
not Lezama’s situation. Lezama has specifically and plausibly alleged that Tall Pines’s
paint and paintbrushes moved in interstate commerce. (ECF No. 8 ¶ 25.)
The second decision is Kalinich v. Grindlay, 2014 WL 3740439 (D. Kan. July 30,
2014). Like Topp, Kalinich is a default judgment ruling, and it cites Topp in support of
its refusal to grant default judgment. Like Topp, the plaintiff in Kalinich had repeated

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the statutory words without providing any details:
The plaintiff’s complaint offers such conclusory and
formulaic recitations as the defendants are “engaged in
interstate commerce and/or in the production of goods for
commerce” and “Plaintiff and other similarly situated
employees were engaged in commerce and/or worked for
Defendants, which were enterprises engaged in commerce.”
Id. at *1. As already noted, that is not Lezama’s situation. Lezama has pleaded more
than just the statutory words. He has instead given specific examples of Tall Pines’s
connection to interstate commerce. Accordingly, Lezama has adequately pleaded the
jurisdictional applicability of the FLSA.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Tall Pines’s Motion to Dismiss First Amended Complaint (ECF No. 11) is
DENIED; and

2.

The stay of briefing on collective action certification (ECF No. 13) is LIFTED.
Defendants shall file their response to Lezama’s Motion for Conditional
Collective Action Certification (ECF No. 4) no later than May 4, 2015. Lezama
shall file his reply, if any, no later than May 18, 2015.
Dated this 13th day of April, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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