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Cisneros v. EP Wrap-It Insulation, LLC

United States District Court, D. New Mexico

October 17, 2019

DANIEL CISNEROS and ALBERT ESTRADA, on behalf of themselves and others similarly situated, Plaintiffs,
v.
EP WRAP-IT INSULATION, LLC, CYNTHIA LUCERO, and ABRAM LUCERO, Defendants.

          ORDER DENYING MOTION TO DISMISS

          GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER comes before the Court on Defendants' Motion to Dismiss, Original Answer and Defenses to First Amended Complaint for Damages and Declaratory Relief. Doc. 13. Having considered the motion and briefing (docs. 14, 16), the Court DENIES the motion for the reasons stated below.

         I. Background

         Plaintiffs have been employed by Defendant EP Wrap-It Insulation, LLC (“EP Wrap-It”) to work on public works projects in New Mexico. Doc. 10 at ¶ 8. Plaintiffs allege that they have regularly worked more than forty hours per week, for which they are required to receive overtime compensation under federal and state wage laws. Id. at ¶¶ 32-35. Plaintiffs filed an Amended Complaint for Damages and Declaratory Relief on July 15, 2019, alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201- 219 (“FLSA”), New Mexico's Minimum Wage Act, N.M. Stat. Ann. §§ 50-4-19 to -30 (“MWA”), and Public Works Minimum Wage Act, N.M. Stat. Ann. §§ 13-4-10 to -17 (“PWMWA”). See generally id.

         Defendants filed a combined answer and motion to dismiss on September 9, 2019, seeking dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction, under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and under Rule 12(b)(3) for improper venue. As an alternative to dismissal for improper venue, Defendants seek a transfer of venue under 28 U.S.C. 1404(a) to the Western District of Texas, El Paso Division. See generally doc. 13. Plaintiffs filed a response to Defendants' motion on September 23, 2019 (doc. 14), to which Defendants filed a reply on September 30, 2019 (doc. 16).[1]

         II. Legal Standards

         A. Rule 12(b)(1)

         The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Garman v. Campbell Cty. Sch. Dist. No. 1, 630 F.3d 977, 983 (10th Cir 2010) (citation omitted). Motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). The first is a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction. Id. The second goes beyond the allegations to challenge the facts upon which subject matter jurisdiction depends. Id. at 1003. In the case of a facial attack, the court must accept the allegations in the complaint as true. Id. at 1002. In a factual attack, the court may go beyond the pleadings without thereby converting the motion to a Rule 56 motion for summary judgment. Id. at 1003. However, if resolution of the jurisdictional question is “intertwined” with the merits of the claim, then the motion must be converted to a Rule 12(b)(6) or Rule 56 motion. Id.

         B. Rule 12(b)(6)

         When ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must “assume the truth of all well-pleaded facts in the complaint, and draw all reasonable inferences therefrom in the light most favorable to the plaintiffs.” Leverington v. City of Colorado Springs, 643 F.3d 719, 723 (10th Cir. 2011) (quoting Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)). To survive a 12(b)(6) motion, the complaint “must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). This standard does not require “detailed factual allegations, ” but it does require more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Additionally, the court need not accept the truth of any legal conclusions. Iqbal, 556 U.S. at 678. The plausibility standard “does not impose a probability requirement.” Twombly, 550 U.S. at 556. Rather, “a well-pleaded complaint may proceed even if it appears ‘that a recovery is very remote and unlikely.'” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The complaint must only be “enough to raise a right to relief above the speculative level … on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555.

         C. Venue

         A Rule 12(b)(3) motion will be granted if venue is improper under the rules applicable to the case. On a Rule 12(b)(3) motion, the Court “must draw all reasonable inferences and resolve all factual conflicts in favor of the plaintiff.” Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1261 (10th Cir. 2012) (quoting 5B Wright & Miller, Federal Practice and Procedure § 1352, at 324 (2004)). Unlike a Rule 12(b)(6) motion, the Court is permitted to examine affidavits of the defendant which controvert the plaintiff's factual allegations. Id. at 1260.

         If venue is proper, a party may nonetheless request transfer “[f]or the convenience of parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). The movant “bears the burden of establishing that the existing forum is inconvenient.” Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir. 1991). “Unless the balance is strongly in favor of the movant the plaintiff's choice of forum should rarely be disturbed.” Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992) (quoting William A. Smith Contracting Co. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir. 1972)) (alteration removed). Additional factors for deciding a venue transfer request include:

the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine ...

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