Cota Martinez et al v. Xclusive Management LLC et al

Filing 53

ORDER denying 45 Motion to Dismiss for Noncompliance with Practice Standards by Magistrate Judge Michael E. Hegarty on 6/2/2015.(mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00047-MSK-MEH
MARIA DEL ROSARIO COTA MARTINEZ,
MARIO RINCON ROSALES, and
ARACELI ZAVALA RAMIREZ, on their own behalf and on behalf of all others similarly
situated,
Plaintiffs,
v.
XCLUSIVE MANAGEMENT, LLC,
XCLUSIVE STAFFING, INC.,
XCLUSIVE STAFFING OF COLORADO, LLC,
OMNI INTERLOCKEN COMPANY, LLC,
OMNI HOTELS MANAGEMENT CORPORATION, and
DIANE ASTLEY,
Defendants.

ORDER

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Plaintiffs’ Motion to Strike Defendants’ Motion to Dismiss for
Noncompliance with Practice Standards [filed May 22, 2015; docket #45]. For the reasons that
follow, the Court denies the motion.
Defendants filed a motion to dismiss on May 20, 2015. (Docket #41.) Plaintiffs filed the
present motion to strike the motion to dismiss on May 22, 2015. (Docket #45.) Briefing concluded
on May 27, 2015. (Dockets ##46, 47.)
A.

Conferral
Plaintiffs first argue that “the motion to dismiss is discouraged and no conferral occurred

prior to filing.” (Motion to Strike, docket #45 at 1.) Citing to the practice standards of Chief Judge

Marcia Krieger, the District Court Judge on this case, Plaintiffs note the following:
Motions brought pursuant to Fed. R. Civ. P. 12(b) are discouraged if the defect is
correctable by the filing of an amended pleading. Counsel should confer prior to the
filing of the motion to determine whether the deficiency can be corrected by
amendment (e.g. failure to plead fraud with specificity) and should exercise their best
efforts to stipulate to appropriate amendments.”
(Motion to Strike, docket #45 at 1-2, citing MSK Civ. Practice Standard 7.6.1(a).)
Defendants counter that the District Court’s Local Rule does not require conferral on a
motion to dismiss. D.C. Colo. LCivR 7.1(b). That rule explicitly indicates that “a motion brought
under Fed. R. Civ. P. 12” is an exception to the duty to confer. Id. Defendants note, however, that
Chief Judge Krieger “wisely encourages parties to confer in cases in which there is a curable defect.”
(Response, docket #46 at 3, quoting MSK Civ. Practice Standard 7.6.1(a).) Defendants explain in
great detail the efforts undertaken to communicate with Plaintiffs’ counsel, including requesting
more details regarding what Defendants perceive to be deficiencies in the complaint. (Response,
docket #46 at 3-8.) Further, Defendants append multiple exhibits to demonstrate communication
efforts. (Response, docket #46, exhibits A-G.)
Because of the local rule and upon review of the materials provided by Defendants, the Court
finds Plaintiffs’ motion to strike unavailing based on lack of conferral.
B.

Format
Secondly, Plaintiffs argue that Defendants’ motion to dismiss failed to comply with the

formatting requirements of Chief Judge Krieger’s practice standards. (Motion to Strike, docket #45
at 3.)
Chief Judge Krieger’s practice standards state as follows regarding motions brought pursuant
to Fed. R. Civ. P. 12(b)(6): “[F]or each claim for relief that the movant seeks to have dismissed, the
movant shall clearly enumerate each element that the movant contends must be alleged but was

not.” MSK Civ. Practice Standard 7.6.1(d)(1) (emphasis in original).1
Here, Defendants argue that FLSA claims “do not have a list of elements that must be
proved,” and contend generally that Plaintiffs failed to plead facts to assert an FLSA claim.
(Response, docket #46 at 9.) This may be erroneous as Chief Judge Krieger’s own opinions have
indicated a more explicit list of elements for such claims. See Perez v. Pinon Mgmt., Inc., No.
12 CV 00653 MSK MEH, 2013 WL 1149567, at *7 (D. Colo. Mar. 19, 2013). Nevertheless,
the Court reads the practice standards to mean that if a movant chooses to assert that an element is
missing, the movant must clearly enumerate that. Defendants here indicated clearly what they
believe to be lacking from Plaintiffs’ claims, which this Court finds is enough to meet the practice
standards.
Further, even Chief Judge Krieger calls her practice standards “permissive, not mandatory,”
and she has opted not to strike a response to a motion that did not meet those standards. See
Randazzo v. CH2M Hill, Inc., No. 13 CV 03276 MSK KLM, 2014 WL 4697131, at *10 (D.
Colo. Sept. 22, 2014). There, Chief Judge Krieger wrote:
The language used in this portion of the Chief Judge's Practice Standards is
permissive, not mandatory. The Chief Judge further states in the introduction to this
section: “Using these procedures will help to expedite determination. Failure to use
these formats may result in a delay in their determination. The following formats for
motions and responses should be used....” This language is again permissive, and not
mandatory, regarding the format of a response to a motion to dismiss under
Fed.R.Civ.P. 12(b)6. Accordingly, the Court will not strike the Response.
Id., (internal cites omitted).

1

The Court notes that Plaintiffs’ quotation of this practice standard is erroneous. See
Motion to Strike, docket #45 at 3. Plaintiffs quote the standard as follows: “for each claim for
relief that the movant seeks to have dismissed, the movant shall clearly enumerate all elements of
the claim, then specify the element(s) that movant contends must be alleged but was/were not.”
Id., (emphasis inserted by the Court to indicate words that do not appear in the practice
standards).

Therefore, the Court finds there no basis on which to strike the Defendants’ Motion to
Dismiss.
CONCLUSION
Accordingly, Plaintiffs’ Motion to Dismiss for Noncompliance with Practice Standards [filed
May 22, 2015; docket #45] is hereby DENIED as set forth herein.2
Entered and dated at Denver, Colorado, this 2nd day of June, 2015.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

2

The Court further notes that Defendants’ response requests fees incurred in responding
to the motion to strike. See Response, docket #46 at 9-10. However, it is improper under the
local rules to include a motion within a response to the original motion. See D.C. Colo. LCivR
7.1(d).