United States District Court, D. Colorado
MIKE BARNETT, MIKE PETERSON, RICHARD KLATASKA, JOSEPH RAYMOND, and DANIEL ZUKOWSKER, Plaintiffs,
PIKES PEAK COMMUNITY COLLEGE POLICE DEPARTMENT, DEPARTMENT OF PERSONNEL AND ADMINISTRATION, KATHY NESBITT, in her Official Capacity, Defendants.
MEMORANDUM OPINION AND ORDER
LEWIS T. BABCOCK, District Judge.
This matter is before me on a Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6) filed by Defendants Pikes Peak Community College Police Department, the Colorado Department of Personnel and Administration, and Kathy Nesbitt, in her Official Capacity as Executive Director of the Department. [Doc #10] Plaintiffs, Mike Barnett, Mike Peterson, Richard Klataska, Joseph Raymond, and Daniel Zukowsker, oppose this motion. Oral arguments would not materially assist me in my determination. After consideration of the parties' briefs and applicable legal authority, and for the reason stated, I GRANT the motion and I DISMISS Plaintiffs' complaint.
Plaintiffs are current or former law enforcement officers with the Pikes Peak Community College Police Department. Plaintiffs filed this lawsuit in the District Court for the City and County of Denver in September of 2014. Their complaint alleges that they were not fully compensated for all the hours that they were required to work. As such, Plaintiffs brought the following claims: (1) failure-to-pay violations of the Fair Labor Standards Act 29 U.S.C. §201, et seq. (the "FLSA") against all Defendants; (2) retaliation against Plaintiff Michael Peterson, in violation of 29 U.S.C. §215 of the FLSA, by Defendant Pikes Peak Community College Police Department; (3) violation of the Fourteenth Amendment's due process clause against all Defendants pursuant to 42 U.S.C. §1983; and (4) breach of contract, under Colorado state law, against all Defendants. [Doc #1-5] Thereafter, on October 16, 2014, Defendants filed a Notice of Removal based on original federal question jurisdiction pursuant to 28 U.S.C. §1331 and supplemental jurisdiction pursuant to 28 U.S.C. §1367(a). Defendants now file this motion seeking dismissal of Plaintiffs' claims pursuant to Fed.R.Civ.P. 12(b)(6).
II. STANDARD OF REVIEW
As an initial matter, I note that the applicability of sovereign immunity to bar a lawsuit, as asserted here by Defendants, is usually analyzed for dismissal under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990); Neiberger v. Hawkins, 70 F.Supp.2d 1177, 1181 (D. Colo. 1999)(treating the defendant's motion to dismiss based on sovereign immunity, after removal to federal court, as a motion for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)). Defendants here are challenging the legal cognizability of the claims raised in Plaintiffs' complaint, under sovereign immunity and, as such, are essentially making a facial attack on the complaint. See Holt v. U.S., 46 F.3d 1000, 1002 (10th Cir. 1995)(noting that a facial attack questions the sufficiency of the complaint's allegations and when reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true).
Defendants maintain, however, that because they have invoked this Court's jurisdiction upon removal, and thus have waived their immunity from suit in federal court as discussed below, they assert their sovereign immunity to liability under Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) which provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the allegations within the four corners of the complaint after assuming all well-pled facts, as opposed to conclusory allegations, are true. Moya v. Schollenbarger, 465 F.3d 444, 455 (10th Cir. 2006).
To survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ( quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "[P]lausibility 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 [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) ( quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). "[I]n examining a complaint under Rule 12(b)(6), we... disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable." Id. A pleading that offers "labels and conclusions" or a formulaic recitation of the elements of a cause of action will not do; nor does the complaint suffice if it tenders "naked assertion[s]" that are devoid of "further factual enhancement." Bell Atl. Corp. v. Twombly, supra, 550 U.S. at 555, 557.
II. FLSA CLAIMS
In their motion, Defendants seek dismissal of the claims raised against them on the basis that they are entitled to sovereign immunity, which bars suits against a state brought by its own citizens. Hans v. Louisiana, 134 U.S. 1, 21, 10 S.Ct. 504, 33 L.Ed. 842 (1890); see also U.S. Const. Amend. XI. Defendants assert, and Plaintiffs do not dispute, that they are state actors or arms of the state of Colorado generally entitled to sovereign immunity. Plaintiffs argue, however, that Defendants have waived their immunity to FLSA claims by removing this case to federal court, together with their consent to be subjected to the FLSA in their regulations and the policies adopted by Defendant Pikes Peak Community College Police Department. See College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999)(recognizing that an individual may sue a state where the state has waived its sovereign immunity).
There are two types of sovereign immunity which may be available to a State. Trant v. Oklahoma, 754 F.3d 1158, 1172 (10th Cir. 2014). The doctrines are generally described as: 1) immunity from suit in federal court (often called Eleventh Amendment immunity); and 2) immunity from liability (sometimes referred to as "common-law sovereign immunity"). See Bruehl v. Oklahoma, ex rel. Oklahoma Indigent Defense System, 2014 WL 2879744 (W.D. Okla. 2014)(slip copy)( citing Trant v. Oklahoma, supra ).
Immunity from suit in federal court is not at issue here because Defendants' removal of the case to this court effects a waiver of its Eleventh Amendment immunity. Lapides v. Bd. of Regents of Univ. Sys. of Geo, 535 U.S. 613, 624, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). Rather, the question at issue here is whether "immunity from liability" or "common law sovereign immunity" bars Plaintiffs' claims. See Bruehl v. Oklahoma, supra (ruling that a state enjoys immunity from liability "that it may invoke even after agreeing to removal")( citing Trant v. Oklahoma, supra , and Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999)).
States may choose to waive their immunity. Sossamon v. Texas, ___ U.S. ___, 131 S.Ct. 1651, 1654, 179 L.Ed.2d 700 (2011)(citations omitted); see also College Savings Bank v. Florida Prepaid Postsecondary Education, supra, 527 U.S. at 670. However, the State's consent to suit must be "unequivocally expressed" in the relevant statute's text and a waiver will be strictly construed, in terms of its scope, in favor of the sovereign. Id. ( quoting Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Lane v. Peña, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996)). A waiver will be found only where stated by the most express language or by the overwhelming implications of such language where there is no room for any other reasonable construction. Edelman v. Jordan, 415 U.S. 651, 693, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
Plaintiffs assert that Defendants have waived their immunity from liability under the FLSA. In support of this argument, Plaintiffs refer me to the State Personal Board Rules which provides that with regard to overtime compensation, "[a]ll employees are covered by the Fair Labor Standards Act (FLSA)" and "[e]mployees cannot waive their rights under FLSA." See 4 CO ADC 801-1:3 (4 CCR 801-1:3). Plaintiffs also rely on policies promulgated by the Colorado State Department of Personnel and Administration, as well as the Final Agency Action ...