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Hernandez v. United Builder Services, Inc.

United States District Court, D. Colorado

September 30, 2019

CARMEN HERNANDEZ, on her own behalf and on behalf of all others similarly situated, Plaintiff,



         This matter is before the Court on the “Recommendation re: Defendant’s Motion to Dismiss [ECF. #42]” (the “Recommendation”) (ECF No. 80) to grant in part and deny in part Defendant Edgar Samuel Montoya Martinez’s d/b/a Masters Drywall Installers (“MDI”) Motion to Dismiss Plaintiff’s Amended Complaint (the “Motion”) (ECF No. 42). Plaintiff’s objection (ECF No. 81) followed, to which MDI filed a response (ECF No. 84). The matters are ripe for resolution.


         A. Review of a Magistrate Judge’s Recommendations

         When a magistrate judge issues a recommendation on a dispositive matter, Fed.R.Civ.P. 72(b)(3) requires that the district court judge “determine de novo any part of the magistrate judge’s [recommendation] that has been properly objected to.” Upon review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. In the absence of a timely and specific objection, “the district court may review a magistrate’s report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed. R. Civ. P. 72 Advisory Committee’s Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”).

         B. Motions to Dismiss

          Rule 12(b)(1) motions.

         A motion to dismiss under Rule 12(b)(1) tests whether the court has subject matter jurisdiction to properly hear the case before it. The party invoking the court’s jurisdiction bears the burden to establish that federal jurisdiction exists, and “since the courts of the United States are courts of limited jurisdiction, there is a presumption against its existence.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

         Rule 12(b)(1) motions generally take two forms. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). The first form is a facial attack that challenges the sufficiency of the complaint’s allegations as to subject matter jurisdiction. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). The court accepts the allegations in the complaint as true when reviewing a facial attack. Id.

         The second form is a factual attack that goes beyond the allegations in the complaint and challenges the facts on which subject matter jurisdiction is based. Id. at 1003. Unlike a facial attack, the court does not presume the truthfulness of the complaint’s factual allegations when reviewing a factual attack. Id. “A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. (citation omitted). And “a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion[, ]” unless the jurisdictional issue is intertwined with the merits of a plaintiff’s case. Id. “The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case.” Id.

         Rule 12(b)(6).

         In evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court accepts as true all well-pled factual allegations in the complaint, views those allegations in the light most favorable to the plaintiff, and draws all reasonable inferences in the plaintiff’s favor. Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). The complaint must allege a “plausible” right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level, ” id. at 555, and conclusory allegations are insufficient, Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009). The Court is “not bound to accept as true a legal conclusion couched as a factual allegation, ” Twombly, 550 U.S. at 555 (quotation omitted).


         No party objects to the Magistrate Judge’s recitation of the “Background” and, after finding no clear error, the Court accepts the same and incorporates it by reference. In order to provide necessary context to this Order, the Court nonetheless provides some additional background.

         Generally, Plaintiff alleges that she was employed on a project at the Colorado Mills Mall for approximately two months (August 15, 2017-October 13, 2017); was subjected to harassment and retaliated for complaining of harassment; and, because Defendants failed to report employees’ chargeable wages and employment to the Colorado Department of Labor and Employment (“CDLE”) and failed to pay required unemployment insurance premiums, Plaintiff was not credited for base period wages necessary for unemployment insurance benefits and therefore did not satisfy eligibility requirements for unemployment insurance benefits. Based on such alleged conduct, Plaintiff raises the following seven claims for relief: unlawful discrimination/hostile work environment under Title VII (first claim); retaliation under Title VII (second claim); unlawful discrimination/hostile work environment under the Colorado AntiDiscrimination Act (third claim); retaliation under the Colorado Anti-Discrimination Act (fourth claim); Racketeer Influenced and Corrupt Organizations Act (RICO) (fifth claim); Colorado Organized Crime Control Act (COCCA) (sixth claim); and violation of the Colorado Wage Claim Act (CWCA) (seventh claim) based on unpaid unemployment insurance premiums. The last three claims are also brought as Fed.R.Civ.P. 23 class action claims.

         Defendant MDI’s motion argued that dismissal of all claims is proper under Rule 12(b)(1) because Plaintiff cannot demonstrate she has standing to assert any of the claims. Alternatively, MDI asserted dismissal of the fifth, sixth, and seventh claims with prejudice should be had under Rule 12(b)(6). In its Reply, MDI argued that dismissal under Rule 12(b)(6) was also proper as to the first through fourth claims.

         The Recommendation stated it analyzed the motion under Rule 12(b)(1). In doing so, the Magistrate Judge recommended denying the motion to dismiss based on the alleged failure to exhaust administrative remedies as to the first four claims and granting the motion to dismiss based on lack of RICO and COCCA standing and of statutory standing as to the last three claims. Plaintiff objects to the recommended granting of the motion to dismiss as to the last three ...

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