United States District Court, D. Colorado
JOHN SANCHEZ, ABBY KINDELL, MITYAH THORNTON, and TERRENCE THORNTON, Individuals, on behalf of themselves and all others similarly situated, Plaintiffs,
RONT RANGE TRANSPORTATION d/b/a Front Range Shuttle and Tours, a Colorado limited liability company, and COREY WATSON, an individual, Defendants.
ORDER ON PARTIAL MOTION TO DISMISS
Brooke Jackson United States District Judge
former employees of Front Range Transportation, LLC claim
that they were victims of unlawful compensation practices and
retaliation by the company and its principal. Defendants have
moved to dismiss three of the eight asserted claims. Having
reviewed the motion and briefs, the Court grants the motion
in part, finds that it is moot in part, and denies it in
part, as explained in this order.
case has evolved since its inception, and it will be useful
briefly to describe where it began and where it now stands.
Front Range provides shuttle and “executive car”
service primarily between Colorado Springs or Pueblo and the
Denver International Airport. The original complaint was
brought by two former employees: Brandon Smith, a dispatcher
and driver; and Donald Hickman, a driver. Purporting to
represent themselves and a class of similarly situated
individuals, these gentlemen asserted that they had not been
paid for all the hours they worked, and that they had not
been properly paid for overtime work, in violation of the
Fair Labor Standards Act (FLSA) and the Colorado Minimum Wage
Order (CMWO). They also alleged that they had been improperly
classified as independent contractors during portions of
their employment, allegedly supporting claims of tax fraud
contrary to the Internal Revenue Code; violation of the
Colorado Wage Protection Act (CWPA); and unjust enrichment.
ECF No. 1.
(First) Amended Complaint, still naming Mr. Smith and Mr.
Hickman as the plaintiffs, whittled the claims down a bit.
The tax fraud, CWPA and unjust enrichment claims remained.
The CWPA claim was expanded into two new claims. The FLSA
claims were dropped. ECF No. 6.
Second Amended Complaint named two additional plaintiffs:
John Sanchez, a former administrative assistant; and Abby
Kindell, a former dispatcher. Again, the tax fraud and unjust
enrichment claims of Mr. Smith and Mr. Hickman remained.
However, several FLSA claims were asserted on behalf of Mr.
Smith and Ms. Kindell, including that they were not
compensated for all hours worked (required to work
“off-clock” hours). In addition, plaintiffs
asserted claims of retaliation in violation of the FLSA on
behalf of Mr. Hickman and Mr. Sanchez. ECF No. 16.
Third Amended Complaint, which now is the operable complaint,
added two more plaintiffs: Mityah Thornton, a former
dispatcher/administrative assistant, and her husband Terrence
Thornton, also a former dispatcher. ECF No. 23. Plaintiffs
assert the following claims: (1) tax fraud in violation of
the Internal Revenue Code (Smith, Hickman, and M.Thornton -
purportedly class claims); (2) unjust enrichment (same); (3)
FLSA based on unpaid “off-clock” hours (Sanchez,
Kindell, M.Thornton - purportedly collective action claims);
(4) FLSA based on unpaid overtime (M.Thornton); (5) CMWO
based on failure to provide breaks (Kindell - purportedly a
class action); (6) FLSA based on retaliation (Sanchez); (7)
FLSA based on retaliation (M.Thornton); and (8) FLSA based on
then filed the pending motion for partial dismissal, i.e., to
dismiss the first, second and fifth claims under either or
both of Rules 12(b)(6) and 9(b). ECF No. 25. In response,
among other things, plaintiffs voluntarily dismissed the
claims of the original plaintiffs Smith and Hickman, ECF No.
29, hence the change of the caption that I now order.
Plaintiffs also withdrew their second claim (unjust
enrichment) entirely. ECF No. 30 at 5-6. Accordingly, what
remains for decision by the Court at this time are (1)
whether the First Claim sufficiently states a claim for tax
fraud on behalf of Mityah Thornton (and the purported class),
and (2) whether the Fifth Claim sufficiently states a claim
regarding the lack of breaks on behalf of Abby Kindell (and
the purported class).
survive a 12(b)(6) motion to dismiss, the complaint must
contain “enough facts to state a claim to relief that
is plausible on its face.” Ridge at Red Hawk,
L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A plausible claim is a claim that
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While
the Court must accept the well-pleaded allegations of the
complaint as true and construe them in the light most
favorable to the plaintiff, Robbins v. Wilkie, 300
F.3d 1208, 1210 (10th Cir. 2002), conclusory allegations are
not entitled to be presumed true, Iqbal, 556 U.S. at
681. However, so long as the plaintiff offers sufficient
factual allegations such that the right to relief is raised
above the speculative level, he has met the threshold
pleading standard. See, e.g., Twombly, 550
U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286
(10th Cir. 2008).
Rule of Civil Procedure 9(b) imposes a higher pleading
standard as to fraud claims: “In alleging fraud or
mistake, a party must state with particularity the
circumstances constituting fraud or
mistake.” This means that a complaint alleging fraud
must “set forth the  time,  place and 
contents of the false representation,  the identity of the
party making the false statements and  the consequences
thereof. Rule 9(b)'s purpose is to afford defendant fair
notice of plaintiff's claims and the factual ground upon
which they are based.” Koch v. Koch Indus.,
Inc., 203 F.3d 1202, 1236 (10th Cir. 2000) (bracketed
numbers added, internal citations and quotations omitted).