United States District Court, D. New Mexico
DANIEL CISNEROS and ALBERT ESTRADA, on behalf of themselves and others similarly situated, Plaintiffs,
EP WRAP-IT INSULATION, LLC, CYNTHIA LUCERO, and ABRAM LUCERO, Defendants.
ORDER DENYING MOTION TO DISMISS
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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
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.
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.
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 ...