United States District Court, D. Colorado
CARMEN HERNANDEZ, on her own behalf and on behalf of all others similarly situated, Plaintiff,
UNITED BUILDERS SERVICE, INC., and EDGAR SAMUEL MONTOYA MARTINEZ d/b/a MASTERS DRYWALL INSTALLERS, Defendants.
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE
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
Review of a Magistrate Judge’s Recommendations
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.”).
Motions to Dismiss
Rule 12(b)(1) motions.
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).
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
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.
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).
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
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
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
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 ...