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Acevedo v. Southwest Airlines Co.

United States District Court, D. New Mexico

May 25, 2018

ANGELA ACEVEDO, on Behalf of Herself and on Behalf of all Others Similarly Situated, Plaintiff,


          MARTHA VÁZQUEZ, United StaC District Judge

         THIS 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.


         The 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.

         Defendant 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.

         Defendant's 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.

         During their shift, the representatives were allocated two, 15-minute “rest breaks.” Id. at ¶ 58. Defendant did not pay the representatives for those breaks. Id.

         At the 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.

         As a 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.


         I. Rule 12(b)(6)

         Under 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 12(b)(6)].”).

         “The 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).

         “To 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 (2007)).

         The 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).

         In 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.

         II. Rule 12(b)(1)

         Under 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.


         Defendant 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 ...

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