United States District Court, D. Colorado
RICARDO LOPEZ, on behalf of himself and all similarly situated persons, Plaintiff,
NEXT GENERATION CONSTRUCTION & ENVIRONMENTAL, LLC, a Colorado limited liability company, Defendant.
ORDER REJECTING THE RECOMMENDATIONS OF UNITED STATES
MAGISTRATE JUDGE KRISTEN L. MIX
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
the Court are two Recommendations of United States Magistrate
Judge Kristin L. Mix (Doc. ## 145, 155), wherein she
recommends that this Court deny Plaintiff Ricardo Lopez's
Motion to Amend Class and Collective Action Complaint (Doc. #
132) and grant Defendant Next Generation Construction and
Environmental, LLC's Motion to Dismiss (Doc. # 111).
Plaintiff timely objected to each Recommendation, essentially
challenging each in its entirety. The Court must therefore
review the issues de novo and, in so doing, “may
accept, reject, or modify the recommended
disposition[s.]” Fed.R.Civ.P. 72(b)(3). Having
conducted the required de novo review, the Court rejects both
Recommendations, grants in part Plaintiff's Motion to
Amend, and denies Defendant's Motion to Dismiss.
is a former employee of Defendant who claims that he, and
others similarly situated, were not properly compensated for
overtime hours or for meal and rest breaks. (Doc. # 18,
¶¶ 10-11; Doc. # 44 at 2.) Plaintiff therefore
initiated this lawsuit against Defendant on January 1, 2016,
alleging violations of the Fair Labor Standards Act (FLSA),
29 U.S.C. § 201, et seq., the Colorado Minimum Wage Act,
Colo. Rev. Stat. § 8-6-101, et seq., and the Colorado
Wage Claim Act, Colo. Rev. Stat. § 8-4-101, et seq.
(Doc. # 1.)
March 30, 2016, Defendant filed a Motion for More Definite
Statement pursuant to Federal Rule of Civil Procedure 12(e).
(Doc. # 15.) Plaintiff then timely filed a First Amended
Complaint on April 19, 2016, attempting to address
Defendant's claimed deficiencies. (Doc. # 18.) Several
weeks later, Defendant filed a Reply to the Motion for a More
Definite Statement, arguing that Plaintiff's amendments
failed to address the alleged deficiencies. (Doc. # 21.)
Magistrate Judge Mix nonetheless denied Defendant's
Motion for More Definite Statement as moot because it was
based on an inoperative complaint. (Doc. # 22.)
February 2017, this Court granted Plaintiff's request for
class certification under Federal Rule of Civil Procedure 23
and approved the parties request to send notice to all class
members. (Doc. # 71.)
August 29, 2017, based on information provided by various
class members during the notice process, Plaintiff sought
leave to amend the First Amended Complaint to add a
time-shaving claim. (Doc. ## 87; 92.) The Court granted
Plaintiff's request (Doc. # 104), and he filed a Second
Amended Complaint. (Doc. # 105).
Defendant filed the instant Motion to Dismiss Plaintiff's
Second Amended Complaint. (Doc. # 111.) Defendant's
Motion alleges that Plaintiff's Second Amended Complaint
fails to state a claim under the FLSA because it alleges
insufficient facts to (1) show that he or Defendant is
engaged in commerce, (2) support his claim that he was not
paid for overtime or missed breaks, and (3) support his claim
that Defendant did not comply with the FLSA record-keeping
requirements. (Id.) For the same reasons, the Motion
also asserts that the Second Amended Complaint is deficient
with respect to Plaintiff's state law claims under the
Colorado Wage Claim Act or the Colorado Minimum Wage Act.
response to the Motion to Dismiss, Plaintiff filed a Third
Amended Complaint, attempting to address the alleged
inadequacies. (Doc. # 121.) The deadline to amend, however,
had passed. The Court struck that filing for failure to
comply with Federal Rule of Civil Procedure 15(a)(2), which
states that, once the deadline has passed, “a party may
amend its pleading only with the opposing party's written
consent or with the court's leave.” (Doc. # 131.)
Plaintiff now seeks leave to amend his Complaint for a third
time, primarily arguing that a Third Amended Complaint would
provide more detail in response to Defendant's pending
Motion to Dismiss. (Doc. # 132.) Plaintiff specifically
wishes to add facts supporting that (1) Defendant is an
enterprise engaged in commerce and/or in the production of
goods for commerce within the meaning of the FLSA; (2)
Defendant failed to pay overtime as required under the FLSA;
and (3) Defendant failed to keep proper payroll records.
(Doc. # 121-1.)
consideration of Plaintiff's Motion to Amend (Doc. # 132)
and Defendant's Motion to Dismiss (Doc. # 111),
Magistrate Judge Mix recommended that the Court (1) deny
Plaintiff's entire request to amend and (2) subsequently
grant Defendant's Motion to Dismiss on grounds that
Plaintiff failed to adequately plead the enterprise element
of his FLSA claim. (Doc. ## 145, 155.) The Court disagrees
with those recommendations for the following reasons.
purpose of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) is to test “the sufficiency of the
allegations within the four corners of the complaint.”
Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.
1994). A complaint will survive such a motion only if it
contains “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “The 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
reviewing a Rule 12(b)(6) motion, a court must accept all the
well-pleaded allegations of the complaint as true and must
construe them in the light most favorable to the plaintiff.
Williams v. Meese,926 F.2d 994, 997 (10th Cir.
1991). Nevertheless, a complaint does not “suffice if
it tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 557). “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 ...