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Jordan v. Maxim Healthcare Services, Inc.

United States District Court, D. Colorado

March 17, 2016

THERESA JORDAN, individually and on behalf of the Proposed Colorado Rule 23 Class, Plaintiff,


Kathleen M Tafoya United States Magistrate Judge

This matter is before the court on “Defendant’s Motion to Dismiss Plaintiff’s Class Claim or, in the Alternative, to Strike Plaintiff’s Class Claim.” (Doc. No. 15 [“Mot.”], filed July 2, 2015.) Plaintiff filed a response (Doc. No. 22 [“Resp.”], filed July 27, 2015), to which Defendant replied. (Doc. No. 24 [“Reply”], filed August 13, 2015.)


Plaintiff was a certified nursing assistant employed by Defendant from February 2007 to December 2013. (Doc. No. 4 [“Comp.”] at 2). Defendant is a for-profit healthcare services company that provides its customers with in-home personal care and management and/or treatment of a variety of medical and non-medical conditions. (Id.) While employed by Defendant, Plaintiff was paid on an hourly basis and was not paid overtime compensation. (Comp. at 4-5.) Defendant does not pay overtime wages to any of its employees who fall under the broad term of home health workers. (Comp. at 4-5.) Plaintiff alleges that under the Colorado Wage Act (“CWA”), Defendant was required to pay her and similar employees overtime compensation. (See generally Comp.)

Plaintiff brings this matter as a class action on behalf of herself and “all individuals who are or have been employed by Defendant as hourly paid home health care workers, or other job titles performing similar job duties, to provide in-home domestic services in Colorado and were not paid” overtime compensation. (Comp. at 5.) Defendant has moved to dismiss Plaintiff’s class action claim.

As explained in detail below, the case turns on the interpretation of the CWA’s “companion” exemption, 7 Colo. Code Regs. § 1103-1.5, which exempts certain employees providing home health care services from overtime protections. Defendant contends the exemption applies to Plaintiff and the potential class members. Plaintiff counters that, according to the plain language of the exemption, it applies only to companion employees that are employed by households or family members and not those employed by third parties, such as Defendant.


Failure to State a Claim Upon Which Relief Can Be Granted

Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[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]’ devoid of ‘further factual enhancement.’” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (citation omitted).

In evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the complaint itself, but also attached exhibits and documents incorporated into the complaint by reference. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citations omitted). “[T]he district court may consider documents referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do not dispute the documents’ authenticity.” Id. (internal quotations omitted).


The CWA does not contain a specific overtime requirement. Instead, Colorado’s overtime requirements are established by the Colorado Division of Labor (“DOL”) through a regulatory enactment known as a “Minimum Wage Order.” See Colo. Rev. Stat. §§ 8-6-104, - 106, -108.5. The current version, Minimum Wage Order 32, became effective on January 1, 2016. 7 Colo. Code Regs. § 1103-1.[1] 7 Colo. Code Regs. ยง 1103-1:4 requires that all employers provide overtime compensation to employees that work in excess of 40 hours in one work week or in excess of 12 ...

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