United States District Court, D. New Mexico
ANGELA ACEVEDO, on Behalf of Herself and on Behalf of all Others Similarly Situated, Plaintiff,
SOUTHWEST AIRLINES CO., Defendant.
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, United StaC District Judge
MATTER comes before the Court on Defendant Southwest's
Motion to Dismiss Plaintiff's Second Amended Complaint
[Doc. 31]. The Court, having considered the motion, briefs,
and relevant law, and being otherwise fully informed, finds
that the motion is well-taken in part and will be granted in
part and denied in part.
facts as alleged in Plaintiff's Second Amended Complaint
[Doc. 30] are as follows. Plaintiff Angela Acevedo is a
former employee of Defendant Southwest Airlines Company. Doc.
30 at ¶ 28. Specifically, Plaintiff worked as a Customer
Representative in Defendant's customer service call
center in Albuquerque, New Mexico, where her primary duty was
to communicate with Southwest's customers, answering
questions on topics including mileage reward status,
directions to the airport, and drink coupons. Id. at
¶¶ 28-29. Plaintiff was paid on an hourly basis.
Id. at ¶ 41.
required its customer representatives to attend a six-week
training session. Id. at ¶ 42. Although
Defendant paid the representatives for the time they spent in
class during the session, it did not pay them for the time
they spent on mandatory homework assignments, which
assignments typically took one to one and one-half hours each
night during the session. Id. at ¶¶ 44-48.
customer representatives worked at “call centers,
” which consisted of an open room filled with hundreds
of work stations. Id. at ¶ 49. The work
stations were not assigned to a particular representative,
but rather, when reporting for duty, the representative would
find an open work station. Id. at ¶ 50. The
representative then would log in to Defendant's computer
system and open a series of programs, the last of which was
the phone program. Id. at ¶ 52. It was only by
opening the phone program that the representative was
considered to be “clocked in.” Id.
Representatives were required to be “clocked in”
at the time their scheduled shift began. Id. at
¶ 53. Repeated failure to timely “clock in”
could result in termination. Id. at ¶ 54. In
order to ensure that they were “clocked in” on
time, supervisors advised the representatives to arrive
before the start of their shift in order to locate a work
station and log in to the computer system. Id.
Defendant, however, did not pay the representatives for
“pre-shift work” done between their arrival at
the call centers and the time at which they “clocked
in, ” which typically took 15 to 40 minutes.
Id. at ¶ 51.
their shift, the representatives were allocated two,
15-minute “rest breaks.” Id. at ¶
58. Defendant did not pay the representatives for those
end of their shift, the representatives were required first
to close the phone program, thereby “clocking out,
” and thereafter to close the remainder of the open
computer programs, a process which took between 10 and 20
minutes. Id. at ¶ 55. Defendant, however, did
not pay the representatives for this “post-shift”
work. Id. Further, if a representative was on a call
that did not come to a close by the time his or her shift
ended, Defendant paid the representative for 15 minutes
beyond his or her normal shift hours, regardless of whether
the call lasted longer than 15 minutes past the end of that
shift. Id. at ¶ 56.
result of these allegations, Plaintiff commenced the instant
action on January 12, 2016. After Defendant filed a motion to
dismiss on March 18, 2016, Plaintiff filed her Second Amended
Complaint on April 13, 2016. In her Second Amended Complaint,
Plaintiff brings a “collective action to recover unpaid
overtime and minimum wage compensation owed to her
individually and on behalf of all current and former Customer
Service Representatives of Defendant at any time during the
three-year period prior to the filing of [her]
Complaint.” Id. at ¶ 4. Specifically,
Plaintiff alleges that Defendant violated the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§
206-207, by: (1) failing to pay her and the class members one
and one-half times their regular rate of pay for all hours
worked over 40 hours in a work week (Count I); and (2)
failing to pay her and the class members for all hours
worked, thereby effectively reducing their regular rates of
pay below the minimum wage (Count II). Plaintiff further
alleges that Defendant violated the New Mexico Minimum Wage
Act (“NMMWA”), NMSA § 50-4-22 (1978), by
failing to pay her and the class members wages due under that
statute (Count III). Finally, Plaintiff alleges New Mexico
common law claims of quantum meruit (Count IV) and unjust
enrichment (Count V), arguing that Defendant failed to pay
her and the class members for work they performed. On May 3,
2016, Defendant filed the instant motion to dismiss
Plaintiff's claims in their entirety under Rules 12(b)(6)
and 12(b)(1) of the Federal Rules of Civil Procedure.
Rule 12(b)(6), a Court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A claim may be
dismissed on the pleadings based on an affirmative defense
“when the complaint itself admits all the elements of
the affirmative defense by alleging the factual basis for
those elements.” Fernandez v. Clean House,
LLC, 883 F.3d 1296, 1299 (10th Cir. 2018); see also
Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir.
1965) (“If the defense appears plainly on the face of
the complaint itself, the motion [to dismiss for failure to
state a claim] may be disposed of under [Rule
nature of a Rule 12(b)(6) motion tests the sufficiency of the
allegations within the four corners of the complaint.”
Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.
1994). When considering a Rule 12(b)(6) motion, the Court
must accept as true all well-pleaded factual allegations in
the complaint, view those allegations in the light most
favorable to the non-moving party, and draw all reasonable
inferences in the plaintiff's favor. Smith v. United
States, 561 F.3d 1090, 1097 (10th Cir. 2009), cert.
denied, 130 S.Ct. 1142 (2010).
survive a motion to dismiss, a complaint 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) (citations omitted).
“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. “Where a
complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
entitlement to relief.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
Court in Iqbal identified “two working
principles” in the context of a motion to dismiss.
Id. First, “the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. Accordingly,
Rule 8 “does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”
Id. at 678-79. “Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Id. at 679; see Twombly,
550 U.S. at 570 (holding that a plaintiff must
“nudge” her claims “across the line from
conceivable to plausible”). Accordingly, “where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not shown - that the pleader is entitled
to relief.” Id. (citation omitted).
keeping with these two principles, the Court explained:
A court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Id. at 679.
Rule 12(b)(1), a party may assert by motion the defense of
the Court's “lack of subject-matter
jurisdiction.” Fed.R.Civ.P. 12(b)(1). Motions to
dismiss for lack of subject matter jurisdiction “take
one of two forms: (1) a facial attack on the sufficiency of
the complaint's allegations as to subject matter
jurisdiction; or (2) a challenge to the actual facts upon
which the subject matter jurisdiction is based.”
Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.
2002). On a facial attack, the Court considers the
complaint's allegations to be true. Id. On the
other hand, when the motion challenges the factual basis for
an action, the Court “may not presume the truthfulness
of the complaint's factual allegations.” Holt
v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
Rather, the “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. Under these circumstances,
reference to evidence outside the pleadings does not convert
the motion to a summary judgment motion. Id.
moves to dismiss the instant action in its entirety. First,
Defendant argues that Plaintiff's FLSA claims, alleged in
Counts I and II, should be dismissed, because, as employees
of a carrier by air subject to the provisions of Title II of
the Railway Labor Act (“RLA”), Plaintiffs and the
class members are exempt from the FLSA's overtime
requirements. Second, Defendant argues that Plaintiff's
NMMWA, unjust enrichment, and quantum meruit claims, alleged
in Counts III through V, should be dismissed because they are
preempted by the RLA. Defendant further argues that
Plaintiff's unjust enrichment and quantum meruit claims
should be dismissed on the additional, independent basis that
they are barred because of the existence of express contracts
between the parties, namely collective bargaining agreements