Gray v. Venable's Welding and Roustabout Inc

Filing 8

ORDER granting 4 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 3/3/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

BRANDON E. GRAY,
Plaintiff,
vs
VENABLE’S WELDING AND
ROUSTABOUT, INC.,
Defendant.

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NO. CIV-13-1364-D

ORDER
Before the Court is Defendant’s partial motion to dismiss [Doc. No. 4]. The motion
is directed only to Plaintiff’s third cause of action. Plaintiff has filed a response to
Defendant’s motion [Doc. No. 7], and the time for filing a reply brief has expired.
Plaintiff’s third cause of action is predicated on an alleged violation of Okla. Stat.
tit. 40, § 167, made actionable by Okla. Stat. tit. 40, § 170. Section 167 provides as follows:
It shall be unlawful for any employer of labor doing
business in the state, to induce, influence, persuade or engage
workmen to change from one place to another in the state, or to
bring workmen of any class or calling into this state to work in
any of the departments of labor, through or by means of false or
deceptive representations, false advertising or false pretenses
concerning the kind and character of the work to be done, or
amount and character of the compensation to be paid for such
work or the sanitary or other conditions of employment or as to
the existence or nonexistence of a strike or other trouble pending
between employer and employees, at the time of or prior to such
engagement. Failure to state in an advertisement, proposal or

contract for the employment of workmen that there is a strike,
lockout or other labor trouble at the place of the proposed
employment, when in fact such strike, lockout or other labor
troubles then actually exists at such place, shall be deemed a
false advertisement and misrepresentation for the purpose of this
section.
See Okla. Stat. tit. 40, § 167 (emphasis added).
Defendant asserts that Plaintiff has failed to state a claim for a violation of that statute,
arguing that the kinds of “misrepresentations prohibited by the statute are limited to those
regarding conditions typically associated with labor disputes: the character of the work to
be done, pay, sanitary conditions, and the existence of labor disputes.” See Motion at p.5
(quoting Matthews v. LaBarge, Inc., 407 F. App’x 277, 281 (10th Cir. 2011)). Plaintiff in
response asserts that “Defendant’s argument narrows the scope of the statute beyond what
the legislature intended,” Response at p.3, and that by its terms the statute does not apply
only to misrepresentations concerning labor disputes. Plaintiff refers the Court to a similar
California statute which has been broadly interpreted.
The Court agrees with Plaintiff that the statute by its terms prohibits
misrepresentations that do not necessarily relate to labor disputes. However, the Oklahoma
statute, unlike the California statute cited by Plaintiff, does not prohibit misrepresentations
concerning the existence of work, which is what Plaintiff complains of in his third cause of
action.1 The Oklahoma statute does prohibit misrepresentations concerning the kind and
1

See Cal. Lab. Code § 970(a) (prohibiting inducement of workers to relocate based
on false representations concerning “[t]he kind, character, or existence of such work”).
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character of the work to be done or the compensation to be paid, but that is not what Plaintiff
alleges. Rather, he claims that he was induced to leave Mississippi and come to Oklahoma
by a statement of Defendant’s representative that Plaintiff and his cousin would have jobs
with Defendant as welder helpers if they came here. See Petition [Doc. No. 1-2] at ¶¶ 12,
32-34. Plaintiff alleges that when they arrived at Defendant’s offices, they were told by
another representative that Defendant was no longer hiring welder helpers. Id. at ¶ 35.
Plaintiff specifically identifies the false or deceptive representations forming his third cause
of action as “Defendant’s statements regarding its availability of work for Plaintiff.” Id. at
¶ 37.
In short, Plaintiff does not allege Defendant made a false representation “concerning
the kind and character of the work to be done, or amount and character of the compensation
to be paid for such work or the sanitary or other conditions of employment or as to the
existence or nonexistence of a strike or other trouble pending between employer and
employees,” prohibited by Okla. Stat. tit. 40, § 167. Thus, Plaintiff has failed to state a claim
for a violation of the statute.
Therefore, Defendant’s partial motion to dismiss [Doc. No. 4] is GRANTED, and
Plaintiff’s third cause of action is DISMISSED pursuant to Fed. R. Civ. P. 12(b)(6). Because
Plaintiff does not request leave to amend his pleading, and because it appears from the

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specificity of Plaintiff’s pleading that leave to amend would be futile, the Court finds that the
dismissal should be with prejudice to further amendment.2
IT IS SO ORDERED this 3rd day of March, 2014.

2

See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A
dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule
12(b)(6) and granting leave to amend would be futile.”); Burnett v. Mortgage Electronic
Registration Sys., Inc., 706 F.3d 1231, 1238 n.4 (10th Cir. 2013) (“Where a plaintiff does not
move for permission to amend the complaint, the district court commits no error by not
granting such leave.”); see also Calderon v. Kansas Dep’t of Soc. & Rehab. Svcs., 181 F.3d
1180, 1185-87 (10th Cir. 1999); Glenn v. First Nat’l Bank, 868 F.2d 368, 371 (10th Cir. 1989).
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