Moya v. Schollenbarger

Decision Date26 September 2006
Docket NumberNo. 04-2319.,04-2319.
Citation465 F.3d 444
CourtU.S. Court of Appeals — Tenth Circuit
PartiesGeorge MOYA, Plaintiff-Appellant, v. Kay SCHOLLENBARGER, General Manager, Robert Tafoya, Director of Operations, and Raul Montoya, Electrician, "Supervisor of All Trades," New Mexico State Fair, in their individual capacities, Defendants-Appellees.

Dennis W. Montoya, Montoya Law, Inc., Rio Rancho, NM, for Plaintiff-Appellant.

Daniel Joseph Macke, (Elizabeth L. German with him on the brief), Brown & German, Albuquerque, NM, for Defendants-Appellees.

Before MURPHY, EBEL, and McCONNELL, Circuit Judges.

EBEL, Circuit Judge.

The district court ordered dismissal of George Moya's civil rights claim "without prejudice." We conclude that the order was nonetheless a final decision such that our jurisdiction is proper. And although the district court mistakenly applied a heightened pleading standard in evaluating the propriety of dismissal, we affirm because we conclude that the dismissal would also be proper under the correct standard.

I. BACKGROUND
A. Complaint and Amended Complaint

On February 17, 2004, Mr. Moya filed the present civil rights claim pursuant to 42 U.S.C. § 1983 against three officials of the New Mexico State Fair ("Fair"), in their individual capacities.1 The complaint alleged that in April 2003 Mr. Moya was "involuntarily separated" from his job as a plumber for the Fair due to an on-the-job injury. That injury, in turn, allegedly occurred "as a direct and proximate result of hostile work conditions" to which Defendants "deliberately and systematically exposed [Mr. Moya] . . . in retribution and retaliation for [Mr. Moya's] having spoken out on issues of public concern." The public issues on which Mr. Moya allegedly spoke out included: the Fair's illegal use of Mr. Moya's plumber's license to "cover" work done by unlicensed personnel; the illegal exploitation of Fair employees; violation of the Fair Labor Standards Act by Fair employees; violation of the Families and Medical Leave Act by the Fair; and supervision by unqualified personnel at the Fair. Mr. Moya's complaint sought both compensatory and punitive damages.

In response to the complaint, Defendants filed a motion for a more definite statement,2 arguing that it was unclear (1) what Mr. Moya claimed as an adverse employment action, (2) how the timing of Mr. Moya's speech related to the timing of the alleged adverse action, and (3) what actions were taken by each of the three Defendants. The district court granted Defendants' motion on all three grounds and allowed Mr. Moya two weeks to file an amended complaint correcting the deficiencies.

Mr. Moya timely filed an amended complaint attempting to address the district court's concerns. First, the amended complaint explained that the adverse employment action taken against Mr. Moya was the creation of a hostile work environment.3 As for the district court's timing concern, the amended complaint stated simply that "[t]he hostile work environment created by the Defendants for the Plaintiff followed in close temporal proximity his exercise of First Amendment protected activity." Finally, the amended complaint included three long paragraphs — one for each Defendant — describing in very general terms each Defendant's challenged actions. These alleged actions consisted mainly of (1) ignoring reports and complaints made by Mr. Moya and (2) creating and facilitating the violations against which he allegedly spoke out.

B. Dismissal

In response to the amended complaint, Defendants filed a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. The motion asserted that Defendants could not be liable to Mr. Moya for the alleged conduct because they were protected by qualified immunity. After receiving briefing from both sides, the district court issued a Memorandum Opinion and Order "GRANT[ING] Defendants' Rule 12(b)(6) motion to dismiss WITHOUT PREJUDICE." Dist. Ct. Op. at 1. An initial portion of the court's analysis stated that

where a qualified immunity defense is asserted in a Rule 12(b)(6) motion to dismiss, the Court applies a heightened pleading standard, requiring the complaint to contain "specific, non-conclusory allegations of fact that . . . if proved, demonstrate that the actions taken were not objectively reasonable in light of clearly established law."

Id. at 4 (quoting Dill v. City of Edmond, 155 F.3d 1193, 1204 (10th Cir.1998) (internal quotation omitted)). Applying that standard, the court noted that "Mr. Moya's allegations contain conclusory statements, with few specific facts to support them." Id. Specifically, the court noted that Mr. Moya (1) offered no incidents to support his claim of a hostile work environment, (2) provided no dates or time frames as to when he spoke and when he was retaliated against, and (3) provided "no specific examples of corruption or details of how Defendants benefitted from ignoring his complaints." Id. Because Mr. Moya failed to allege specific facts, the district court concluded that his allegations were conclusory statements and that Defendants' motion to dismiss should be granted. Id. at 5.

The district court then stated that "[d]espite Mr. Moya's failure to allege any specific facts that would state a claim for violation of his First Amendment rights, an analysis of the qualified immunity issue follows." Id. As to the first prong of qualified immunity — whether Defendants violated a "clearly established statutory or constitutional right[]," Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)the court noted that "a plaintiff must do more than identify a clearly established right in the abstract and allege that the defendant violated that right." Dist. Ct. Op. at 6. Specifically,

[a]lthough Mr. Moya has a clearly established constitutional right to free speech under the First Amendment, he can not [sic] simply allege that Defendants violated that right. He must also allege sufficient facts that, if true, would show that Defendants violated his First Amendment rights. Mr. Moya has failed to do so.

Id. at 6-7. The court recognized that "Mr. Moya's interest in speaking out about what occurs at the State Fair . . . may outweigh Defendants' interests in promoting an efficient work environment" but concluded that "he has not alleged sufficient facts to show that the speech was a substantial factor in the adverse employment action, if any." Id. at 11 (emphasis in original). Specifically,

[n]either of Mr. Moya's complaints . . . indicate to the Court what the hostile work environment was, nor what Mr. Moya's injuries were, nor how, if at all, they were related to each other and to Mr. Moya's separation from his State Fair job. In other words, Mr. Moya has not alleged sufficient facts that show any adverse employment action taken against him by Defendants. He has also failed to show that his complaining to his supervisors was a substantial factor in any adverse employment action.

Dist. Ct. Op. at 11.

The final paragraph of the district court's decision concluded: "IT IS HEREBY ORDERED: Defendants' Rule 12(b)(6) motion to dismiss Mr. Moya's suit for failure to state a claim is Granted. The case will be dismissed Without Prejudice, each side to bear their own costs and fees." Id. at 12.

C. Appeal and Motion to Dismiss the Appeal

Mr. Moya filed a notice of appeal from the district court's Memorandum Opinion and Order. Defendants responded with a motion to dismiss the appeal for lack of appellate jurisdiction, claiming that "since Plaintiff's Complaint was dismissed without prejudice, this Court lacks appellate jurisdiction" and that "Plaintiff may still pursue a second amended complaint, raising the same claim, provided sufficient facts are alleged." In his reply to Defendants' motion, Mr. Moya asserted that this court's jurisdiction is proper because his injury and some of the conduct of which he complained occurred so long ago that he would be barred by the statute of limitations if he were forced to "`start over' with his complaint." We deferred decision on Defendants' motion to dismiss the appeal until after argument on the merits.

II. DISCUSSION
A. Appellate Jurisdiction

The courts of appeals are granted jurisdiction by statute over "appeals from . . . final decisions of the district courts of the United States." 28 U.S.C. § 1291. The initial question we face in this case is whether the dismissal of Mr. Moya's claims without prejudice was a "final decision"; if not, then we lack jurisdiction to hear the appeal. See Rekstad v. First Bank Sys., Inc., 238 F.3d 1259, 1261 (10th Cir.2001) ("Aside from a few well-settled exceptions, federal appellate courts have jurisdiction solely over appeals from `final decisions . . . .`") (emphasis omitted) (quoting 28 U.S.C. § 1291). We conclude that the district court in this case intended to dismiss Mr. Moya's entire cause of action; thus, that decision was final and our appellate jurisdiction is proper.

1. Legal framework

a. Practical approach to § 1291 finality

Although Defendants assert that we lack jurisdiction over this appeal because the district court's dismissal was without prejudice, that a dismissal was without prejudice does not necessarily make it non-final under section 1291. See United States v. Wallace & Tiernan Co., 336 U.S. 793, 794, 69 S.Ct. 824, 93 L.Ed. 1042 (1949) ("That the dismissal was without prejudice to filing another suit does not make the cause unappealable . . . ."); Coffey v. Whirlpool Corp., 591 F.2d 618, 620 (10th Cir.1979) ("A case dismissed without prejudice may or may not be a final appealable order, depending upon the circumstances."). Rather, in this circuit "whether an order of dismissal is appealable" generally depends on "whether the district court dismissed the complaint or the action. A dismissal of the complaint is ordinarily a non-final, nonappealable order (since...

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