United States District Court, D. New Mexico
JAIME LOREE ARMIJO, on behalf of herself and all others similarly situated, Plaintiff,
FEDEX GROUND PACKAGE SYSTEM, INC., a foreign company Defendant.
MEMORANDUM OPINION AND ORDER
C. BRACK UNITED STATES DISTRICT JUDGE
matter is before the Court on FedEx Ground Package System,
Inc.'s Motion to Dismiss in Part, filed on June 15, 2017.
(Doc. 20.) Jurisdiction arises under 28 U.S.C. §
1332.Having considered the submissions of
counsel and the relevant law, the Court will GRANT IN
PART the Motion as outlined below.
Jaime Loree Armijo drove a delivery truck for FedEx Ground
Package System, Inc. (FedEx) for three years. During her
tenure as a driver, she routinely worked substantial overtime
hours, but because she was hired as an “independent
contractor, ” FedEx was not obligated to pay her a
penny of overtime. She was also responsible for a wide
variety of business charges. Plaintiff, on behalf of herself
and others similarly situated, now brings suit to dispute the
legality of her relationship with FedEx and recover monetary
damages to which she feels entitled.
July 27, 2013, Plaintiff executed a contract with FedEx
Ground to work as a ‘pickup and delivery
contractor'” (a “driver”).
(See Doc. 1 (Compl.) ¶ 10; see also
Doc. 1-1.) Plaintiff alleges that despite this contract, the
terms and conditions of her employment were such that she and
other drivers were employees of FedEx, not independent
contractors. (Id. ¶¶ 17-41.) The question
of whether Plaintiff was an independent contractor or an
employee is not directly at issue in FedEx's Motion;
consequently, the Court will assume for purposes of its
analysis that Plaintiff can successfully demonstrate she was
an employee of FedEx.
Plaintiff was hired as a driver for FedEx, she signed a
“Pick-up and Delivery Contractor Operating
Agreement” (Operating Agreement). (See Id.
¶¶ 1, 10; see also Doc. 1-1.) The
Operating Agreement provides for certain deductions to be
made from the driver's paycheck (referred to as a
“settlement check” or a “settlement
statement” (see Doc. 1-1 at 14-16)),
including, but not limited to, fuel
products, a “Time-Off Program, ” and a
“Business Support Package, ” which includes
“uniforms, communications and data processing
equipment, D.O.T. inspections, equipment washing, drug tests
meeting D.O.T. requirements, and other items and services
found in . . . Addendum 7” to the Operating Agreement.
(See Id. at 18-19, 37, 62, 70- 75.) Plaintiff
elected, at a minimum, to participate in the “Business
Support Package.” (Id. at 71- 72.) The
Operating Agreement also provides that FedEx “shall
have no responsibility to make deductions for, or to pay
wages, benefits, health, welfare and pension costs,
withholding for income taxes, unemployment insurance
premiums, payroll taxes, disability insurance premiums,
social security taxes, or any other similar charges
___” (Id. at 15.)
alleges that “[f]or most of her tenure at FedEx Ground,
[she] routinely worked 60 hours a week, or more.”
(Compl. ¶ 13.) Plaintiff did not receive overtime pay
for any hours she worked over 40 in a week. (Id.
brings three claims against FedEx. First, she alleges that
FedEx violated N.M. Stat. Ann. § 50-4-22(D) by not
paying drivers overtime pay for hours worked over 40 in one
week. (Id. ¶¶ 53-59.) Second, Plaintiff
claims FedEx violated N.M. Stat. Ann. § 14-13-11,
because it withheld certain amounts from each driver's
paycheck in contravention of the statute. (Id.
¶¶ 60-67.) Third, Plaintiff asserts a common law
claim for unjust enrichment. (Id. ¶¶
68-74.) FedEx now moves to dismiss Plaintiff's second and
third claims, as well as the claim for liquidated damages in
Plaintiff's first claim for relief. (See Doc. 20
reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the 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.” In re Gold Res.
Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015)
(citation omitted). “To survive a motion to dismiss,
” the complaint does not need to contain
“detailed factual allegations, ” but it
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
Plausibility does not equate to probability, but there must
be “more than a sheer possibility that a defendant has
acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 556.)
ordinarily, a motion to dismiss must be converted to a motion
for summary judgment when the court considers matters outside
the complaint, see Fed. R. Civ. P. 12(d), matters
that are judicially noticeable do not have that effect,
see Duprey v. Twelfth Judicial Dist. Court, 760
F.Supp.2d 1180, 1192-93 (D.N.M. 2009) ___” Genesee
Cty. Emps.' Ret. Sys. v. Thornburg Mortg. Sec. Tr.
2006-3, 825 F.Supp.2d 1082, 1122 (D.N.M. 2011) (internal
Exhibits attached to a complaint are properly treated as part
of the pleadings for purposes of ruling on a motion to
dismiss. Ordinarily, consideration of material attached to a
defendant's answer or motion to dismiss requires the
court to convert the motion into one for summary judgment and
afford the parties notice and an opportunity to present
relevant evidence. However, facts subject to judicial notice
may be considered in a Rule 12(b)(6) motion without
converting the motion to dismiss into a motion for summary
judgment. This allows the court to take judicial notice of
its own files and records, as well as facts which are a
matter of public record. However, the documents may only be
considered to show their contents, not to prove the truth of
matters asserted therein.
Id. at 1122-23 (quoting Tal v. Hogan, 453
F.3d 1244, 1264 n.24 (10th Cir. 2006) (internal quotation
marks, alterations, and citations omitted)).
Count II: Plaintiff fails to state a claim for a violation of
N.M. Stat. Ann. § 14-13-11.
second claim revolves around certain deductions FedEx took
from Plaintiff's paycheck. (See Compl.
¶¶ 60-67.) Plaintiff alleges that FedEx violated
N.M. Stat. Ann. § 14-13-11 by taking deductions without
following the process required by Section 14-13-11(A).
(Compl. ¶¶ 60-67.) Section 14-13-11(A) provides:
All assignments of wages or salaries due or to become due to
any person, in order to be valid, shall be acknowledged by
the party making the assignment before a notary public or
other officer authorized to take acknowledgments. The
assignment shall be recorded in the office of the county
clerk of the county in which the money is to be paid and a
copy served upon the employer or person who is to make
N.M. Stat. Ann. § 14-13-11(A).
II is devoid of details regarding these deductions, but a
generous reading of the Complaint and Operating Agreement
shows that Plaintiff enrolled in FedEx's Business Support
Package program and authorized FedEx to take daily deductions
from her paycheck for certain business expenses. (See
Id. ¶¶ 32-33, 60-67; see also Doc.
1-1 at 70-72.) Plaintiff argues that she and all “class
members are entitled to be reimbursed by FedEx Ground for
all” such deductions held in violation of this statute.
(Id. ¶ 67.) FedEx contends that any deductions
taken from Plaintiff's paycheck are not properly defined
as “assignments”; therefore, Section 14-13-11 is
inapplicable to the facts of this case. (Doc. 20-1 at 5-7.)
The Court agrees that Plaintiff fails to state a claim
pursuant to Section 14-13-11.
Rules of Statutory Construction
can point to no case or regulation applying Section 14-13-11
in a similar situation. (See Doc. 30 at 8-10.)
Because “no controlling state decision exists” on
this issue, the Court “must attempt to predict what the
state's highest court would do ___” Coffey v.
United States, 870 F.Supp.2d 1202, 1246 (D.N.M. 2012)
(quoting Wade v. EMCASCO Ins. Co., 483 F.3d 657,
665-66 (10th Cir. 2007) (internal quotation omitted)).
interpreting statutes, [a court's] responsibility is to
search for and give effect to the intent of the
legislature.” Cummings v. X-Ray Assocs. of N.M.,
P.C., 918 P.2d 1321, 1334 (N.M. 1996). A court's
“understanding of legislative intent is based primarily
on the language of the statute, and [the court must] first
consider and apply the plain meaning of such language.”
Id. (citing Roberts v. Sw. Cmty. Health
Servs., 837 P.2d 442, 445 (N.M. 1992) (internal citation
omitted)). “This standard is sometimes called the
‘plain meaning rule.'” Id. The
“rule does not require a mechanical, literal
interpretation of the statutory language.” Id.
(citing D'Avignon v. Graham, 823 P.2d 929, 931
(N.M. Ct. App. 1991) (internal citations omitted)). Courts
must not rest “conclusions upon the plain meaning of
the language if the intention of the legislature suggests a
meaning different from that suggested by the literal language
of the law.” Id. (citing Draper v.
Mountain States Mut. Cas. Co., 867 P.2d 1157, 1159 (N.M.
1994) (internal citations omitted)). “If the strict
wording of the law suggests an absurd result, [courts] may
interpret the statute to avoid such a result.”
Id. (citing New Mexico v. Gutierrez, 854
P.2d 878, 879 (N.M. Ct. App.), cert. denied, 854
P.2d 872 (N.M. 1993) (internal citations omitted)).
“When analyzing a statute from a particular statutory
act, ” courts “must read the act in its entirety
and construe all the provisions together and attempt to view
them as a harmonious whole.” Id. (citing
Roberts, 837 P.2d at 445 (internal citation
omitted)). “The plain meaning of particular statutory
language will sometimes be modified when considered in the
context of other statutes from the same act.”
Interpretation of Section 14-13-11
asserts that a wage deduction is the same as a wage
assignment; thus Section 14-13-11's requirement that
“[a]ll assignments of wages or salaries due” be
notarized and recorded applies to deductions taken by an
employer. (Doc. 30 at 9.) An assignment is “[t]he act
by which one person transfers to another, or causes to vest
in that other, the whole of the right[, ] interest, or
property which he has in any realty or personalty, in
possession or in action, or any share, interest, or
subsidiary estate therein.” (Id. (quoting
Assignment, The Law Dictionary, available at
Plaintiff believes this “definition easily covers the
transaction at issue, which is FedEx's retention of
certain sums otherwise payable to Armijo and the
class.” (Id.) While the Court agrees that the
plain meaning of “assignment” could possibly be