United States District Court, D. Colorado
LEWIS T. BABCOCK, JUDGE
This matter is before me on a Motion To Dismiss filed by Defendant David Goodrich. [Doc #20] Defendant seeks dismissal of the Fourth Claim for Relief asserted in the Complaint filed by Plaintiff Jacqueline Raphael entitled “Sexual Assault - David Goodrich.” [Doc #1] Defendant seeks dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6), or for lack of personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2). Oral arguments would not materially assist me in my determination. After consideration of the parties’ arguments, and for the reason stated, I DENY the motion as follows.
In her Complaint, Plaintiff asserts that during her employment with Defendant Advantage Pawn Inc., she was subjected to Gender Discrimination, Sexual Harassment and Retaliation in violation of under Title VII of the Civil Rights Act of 1964 from her hire on September 30, 2011, until she was constructively discharged on September 5, 2012.
During a portion of that time Plaintiff was assigned to the Advantage Pawn store located on South Parker Road in Denver where Defendant Goodrich was Plaintiff’s immediate supervisor. Plaintiff also asserts, in her Fourth Claim for Relief, a claim for “Sexual Assault” against Defendant Goodrich. In that claim Plaintiff alleges that “Defendant Goodrich sexually assaulted Plaintiff” [¶115]; and “[a]s a direct and proximate result thereof Plaintiff suffered humiliation, embarrassment, and damages in an amount to be determined at trial.” [¶116]
Defendant Goodrich has filed this motion seeking to dismiss Plaintiff’s Fourth Claim for relief against him pursuant to Fed. Rule Fed.R.Civ.P. 12(b)(6) for failure to state a claim and for failure to timely file within the applicable statute of limitations, or pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction.
II. Fed.R.Civ.P. 12(b)(6)
A. Failure to State Claim:
I first address Defendant Goodrich’s assertion that Plaintiff’s claim for sexual assault against him fails to adequately state a claim upon which relief can be granted.
A claim will survive dismissal under Rule 12(b)(6) if it alleges a plausible claim for relief; that is, the “factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The concept of “plausibility” at the dismissal stage refers not to whether the allegations are likely to be true; rather, “[t]he question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law.” Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th Cir. 2009)(citing Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
In her complaint Plaintiff claims that Defendant Goodrich “sexually assaulted” her [¶115] and as a result, she “suffered humiliation, embarrassment, and damages” [¶ 116] In so doing, she “hereby realleges the paragraphs above and incorporates the same herein.” [¶114] In the factual allegations asserted “above, ” Plaintiff avers that she was transferred to the Advantage Pawn store in March 2012, where Defendant Goodrich was the store manager. [¶¶20, 21] After approximately two weeks, Defendant Goodrich “started making sexual comments towards Plaintiff such as telling her how her ‘ass looked fat in those jeans, ’ how ‘if [Plaintiff] wasn’t one of his employees [he] would hook up with [Plaintiff], ’ how he ‘wanted to fuck the shit out of [Plaintiff]’ and so on.” [¶23] Plaintiff further alleges that Defendant Goodrich “made unwanted sexual advancements to Plaintiff and made inappropriate sexually charged remarks to Plaintiff on a daily basis.” [¶24, ¶27 (indicating that she did not report his “daily sexual harassment” because she was afraid she would be fired)] Plaintiff further avers that “[o]n April 4, 2012, Goodrich struck Plaintiff with a dominatrix whip on the butt” in front of another employee at the store. [¶25] Defendant Goodrich then “sent text messages to Plaintiff telling Plaintiff to not tell anyone about the April 4, 2012 incident.” [¶29]
I agree with Plaintiff that her complaint states a claim upon which relief can be granted. First, it is clear from the factual assertions that Defendant Goodrich’s alleged act of striking Plaintiff “with a dominatrix whip on the butt, ” in connection with his daily sexual harassment in the form of “unwanted sexual advancement to Plaintiff and . . . inappropriate sexually charged remarks”[¶24, ¶25], sets forth factual allegations that “raise a right to relief above the speculative level.” Bell Atl. v. Twombly, supra, 550 U.S. at 555. In so finding, I reject Defendant Goodrich’s assertion that Plaintiff’s complaint makes no allegations “regarding the specific context or purpose of the physical contact that allegedly took place” and that she “failed to plead any fact which tends to show that when he allegedly ‘struck’ her with a riding crop he was motivated at that time by purposes of sexual arousal, gratification or abuse” as required by Colo. Rev. Stat. §18-3-401(4). Plaintiff’s complaint is sufficient to state a claim of sexual assault (or battery) in that a reasonable inference of sexual motivation is more than “plausibly suggested” when the allegations are viewed in the whole and as true. Jordan-Arapahoe, LLP v. Bd. of Cnty. Comm’rs of Cnty. of Arapahoe, Colo., 633 F.3d 1022, 1025 (10th Cir. 2011)(noting that a “[a] claim has facial plausibility when the [pleaded] factual content [ ] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009); citing Gee v. Pacheco, 627 F.3d 1178, 1182-83 (10th Cir. 2010)).
B. Statute of Limitations
Defendant Goodrich also asserts that Plaintiff’s claim against him should be dismissed as it is time barred. “Although a statute of limitations bar is an affirmative defense, it may be resolved on a Rule 12(b)(6) motion to dismiss when the dates given in the complaint make clear that the right sued upon has been extinguished.” Walden v. Metro. Life Ins. Co. of Am., Inc., 75 F.Supp.3d 1320, 1324-25 (D. Colo. ...