Albers v. Bd. of Cnty. Comm'rs of Jefferson Cnty.
| Decision Date | 13 November 2014 |
| Docket Number | No. 14–1050.,14–1050. |
| Parties | Brandon ALBERS; William Alden ; Vitoria Aversa II; Paul Baca; Philip Baca; David Baldwin; Kerri Barrick; Wesley Beale; Joshua Beales; Ryan Blankenheim; Karen Bliss; Todd Bliss; Kevin Bost; Carl Bower; David Boyd; Mark Brott; Noah Bryant; William Burcher; Carolyn Burdic; John Butler; Mark Bybee ; Heather Carmosino; Jerry Chrachol; Ted Clifton; Michael Daly; Jesse Daniel; Garrett Davis; Mandy Davis; Adam Donahue; Carlos Encinias; Kelly England ; Jon Everhart; Andrew Fehringer; Wendy Fehringer; Hope Ferris; Joshua Finkler; Charles Gaines; Dieter Gallegos; Elizabeth Gard ; Ryan Geerts; Greg Gompert; Barbara Grover; John Hady II; Frederick Haggett; Joshua Hammack; Bradley Herman; Robert Hoglund; James Holley ; Scott Holley; Jonathan Holloway; Joseph Holloway; Wayne Holverson; Jennifer Jones; Eric Kebling; Kevin Kehl ; Daniel Kim; Mark Kluth; Tammi Krebs; Robert Krelle; Traci Kroupa; Markus Liebe; Jeremy Mayns; Joel Mayns; Kevin Meyer; Meagan Milliman; Christopher Milne ; Craig Nelson; Christopher Parente; Brandon Payne; Samuel Polizzotto; Michael Prange; Daniel Reiners; Gregory Roebuck; Lance Schul; Anthony Scott ; Kimberly Scott ; Thomas Seal ; James E. Shettler, Jr.; Julianne Shoun; Andrew Sivetts; Matthew Smith; Stephen Spoutz; Scott Stephens; Sylvia Sternwald–Doulik; Brad Stiles; Michael Struckhoff; Jennifer Swartz ; Michael Taplin; Ian Thompson ; Valerie Valdez; Christian Vanbinsbergen; Ryan Veirs; Curtis Walder; Chase Walker; Rosemarie Watson; Stephen Willder; Timothy Williams; John and Jane Doe, 1–800, individually, and on behalf of others similarly situated, Plaintiffs–Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY, COLORADO; Ted Mink, in his official capacity as Sheriff of Jefferson County, Colorado, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Donald C. Sisson, Elkus Sisson & Rosenstein, P.C. (Reid J. Elkus and Scott D. McLeod, Elkus Sisson & Rosenstein, P.C.; and Todd J. McNamara and Mathew S. Shechter, McNamara Roseman & Kazmierski, LLP, with him on the briefs), Denver, CO, for Appellants.
Patricia W. Gilbert, Assistant County Attorney (Ellen G. Wakeman, Jefferson County Attorney, with her on the brief), Golden, CO, for Appellees.
Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
Current and former employees (Employees) of the Jefferson County Sheriff's Office (County) brought a collective action under the Fair Labor Standards Act (FLSA), alleging they were paid overtime at a lower rate than required by the statute during 2010, 2011, and 2012. The district court granted the County's motion to dismiss the Employees' Third Amended Complaint and the Employees filed a timely appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
This wage dispute between the Employees and the County stems from their disagreement about the proper calculation of overtime pay rates.1 The FLSA provides that overtime work must be compensated at “one and one-half times” the employee's “regular rate” of pay. See 29 U.S.C. § 207. According to the Employees, the hourly wage rate (Actual Rate) from which the County calculated their overtime rate did not correspond to the higher hourly wage rates promised by the County in posted salary schedules (Promised Rate).2 As a result, the Employees claim they were paid overtime compensation at a lower rate than statutorily required during 2010, 2011, and 2012. They therefore sued the County under § 216(b) of the FLSA for the difference between the overtime payments they actually received and the overtime they would have received if it had been calculated based on the Promised Rates. See 29 U.S.C. § 216(b) ().3
The County moved to dismiss the Second Amended Complaint, arguing the Employees had failed to allege it had approved a budget incorporating the Promised Rates or facts demonstrating the existence of an enforceable promise to pay those rates. Rather than responding to the County's First Motion to Dismiss, the Employees conducted limited discovery and then filed a Third Amended Complaint. Except for the addition of factual allegations designed to address concerns raised in the First Motion to Dismiss, the Third Amended Complaint is essentially identical to the Second Amended Complaint. Upon the filing of the Third Amended Complaint, the district court dismissed the County's First Motion to Dismiss as moot. The County subsequently filed a Second Motion to Dismiss, arguing the Employees had failed to allege their “regular rates” of pay for the purposes of the FLSA were the Promised Rates (the regular rates argument), and reasserting the arguments raised in the First Motion to Dismiss.
The district court dismissed the Employees' Third Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court held the Employees had failed to allege their “regular rates” of pay were the Promised Rates and therefore, they had not stated a claim for unpaid overtime. The district court also concluded the Employees' argument—that “regular rates” for the purposes of the FLSA can be established by mutual agreement—failed because by continuing to work for years at the lower Actual Rates, the Employees had modified any alleged agreement concerning the Promised Rates. The Employees timely appealed.
On appeal, the Employees allege four grounds of error. First, they contend Rule 12(g)(2) of the Federal Rules of Civil Procedure barred the district court's consideration of the County's regular rates argument because the argument was not raised in the County's First Motion to Dismiss.4 Second, the Employees assert the district court erred when it determined the Promised Rates were not the Employees' regular rates for purposes of the FLSA. Third, they claim disputed issues of fact precluded the district court's conclusion that the parties' conduct modified any alleged promise to pay the Employees at the Promised Rates. Finally, the Employees argue the district court abused its discretion when it denied them leave to amend their Third Amended Complaint.
For the reasons discussed below, we decline to decide whether the district court's consideration of the County's regular rates argument was in technical violation of Rule 12(g)(2), because any presumed procedural error was harmless. We therefore proceed to the merits and hold the Employees failed to state a claim upon which relief can be granted for unpaid overtime because, as a matter of law, their regular wage rate under the FLSA is the Actual Rate they received in their paychecks and not the Promised Rate. Because we affirm the district court's dismissal of the complaint on the ground the regular rate under the FLSA is the Actual Rate, we do not consider whether the Employees' actions in continuing to work for the Actual Rates would have modified any alleged agreement to pay the Promised Rates. Finally, we hold the district court did not abuse its discretion when it denied the Employees leave to amend their Third Amended Complaint. Accordingly, we affirm.
“We review de novo the district court's granting of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).” Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190, 1196 (10th Cir.2013). To survive a motion to dismiss, a plaintiff “must plead facts sufficient ‘to state a claim to relief that is plausible on its face.’ ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). “At the motion-to-dismiss stage, we must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir.2013) (internal quotation marks omitted). We review a district court's denial of a motion to amend for abuse of discretion. The Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084, 1086–87 (10th Cir.2005).
According to the Employees, Rule 12(g)(2) precluded the district court from considering the County's regular rates argument.5 Rule 12(b)(6) provides that a defense of failure to state a claim upon which relief can be granted may be raised by motion before a responsive pleading is filed. Fed.R.Civ.P. 12(b).6 The County did just that by filing its First Motion to Dismiss instead of an Answer. In relevant part, Rule 12(g)(2) states, “Except as provided in Rule 12(h)(2)... a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.”7 Accordingly, the Employees argue the County was precluded from raising a new theory supporting the defense of failure to state a claim in its Second Motion to Dismiss. But although Rule 12(g)(2) precludes successive motions under Rule 12, it is expressly subject to Rule 12(h)(2), which allows parties to raise certain defenses, including the failure to state a claim upon which relief may be granted, in any pleading allowed under Rule 7(a), by a motion for judgment on the pleadings under Rule 12(c), or at trial. The special status provided to a defense based on failure to state a claim by Rule 12(h)(2) is significant because under Rule 12(h)(1), a party waives any of the defenses listed in Rule 12(b)(2)-(5) if they are omitted from a prior Rule 12 motion. Fed.R.Civ.P. 12(h)(1).8 Noticeably absent from the list of defenses that are waived if not brought in an earlier Rule 12 motion, is the defense of failure to state a claim upon which relief can be granted set forth in Rule 12(b)(6). As a result, we have little trouble rejecting the Employees' argument that the County's failure to raise its regular rates argument in the First Motion to Dismiss constitutes a complete waiver.
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