United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This federal question case comes before the court on Defendant DIRECTV's motion for judgment on the pleadings,  pursuant to Fed. R. Civ. Pro. 12(c).
The two individual Plaintiffs allege that they worked as satellite installation and repair technicians for the Defendants. They bring the following claims against DIRECTV in their first amended complaint: failure to pay overtime under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § § 201-219; breach of contract to compensate Plaintiffs; unjust enrichment by failing to compensate Plaintiffs; and interference with business expectancy.
Plaintiffs allege the following facts, which the Court construes in the light most favorable to them. DIRECTV markets and installs satellite television systems nationwide. Plaintiffs worked as satellite television installers, installing systems for DIRECTV, from December 1, 2010 to April 13, 2013. Plaintiffs provided their own tools and materials for their work, paid for their own equipment, storage, and insurance, and were liable for payroll taxes as if they were self-employed. The installer agreements between the parties identified Plaintiffs as independent contractors. While working for Defendant, Plaintiffs each worked, on average, approximately 27.6 hours of overtime per week, but received no overtime compensation. Although both plaintiffs worked, Kari Matrai was never paid for any of her work.
After Plaintiffs left Defendant's employment, they sought to carry on a contracting business as satellite television installers, including installing systems for DIRECTV. While responding to an advertisement for certified installers, Plaintiffs spoke on January 25, 2014 with a contractor and arranged to begin contracting work. Based on those discussions and the contractor's initiation of background checks and drug tests on Plaintiffs, Plaintiffs fully expected to begin work soon thereafter. On February 6, 2014, however, the contractor informed Plaintiffs that he could not bring them on. When Plaintiffs asked why, he responded, "David, " which Plaintiffs understood to refer to R. David Miller, DIRECTV's General Manager for the Topeka region. As a result of that event, Plaintiffs lost future income.
Judgment on the Pleadings Standard
The court reviews a Rule 12(c) dismissal "under the standard of review applicable to a Rule 12(b)(6) motion to dismiss." Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117, 1119 (10th Cir. 2005) (internal quotation marks omitted). In analyzing the motion, the court accepts as true all well-pleaded factual allegations in the complaint and views them in the light most favorable to the plaintiff. In re Gold Res. Corp. Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015). 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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." Free Speech v. Federal Election Comm'n., 720 F.3d 788, 792 (10th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). "Such facts must raise a right to relief above the speculative level.'" Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 556. 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. at 557. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id.
Where, as here, multiple defendants are sued, notice and plausibililty are best served where the complaint specifically states "who is alleged to have done what to whom." See Twombly, 127 S.Ct. at 1970-71 n. 10; Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008). Unless the complaint alleges which defendant engaged in what acts, it is impossible for the defendants to ascertain what particular illegal acts they are alleged to have committed.
To carry their burden, plaintiffs under the Twombly standard must do more than generally use the collective term "defendants." Id. This Court, in Robbins, placed great importance on the need for a plaintiff to differentiate between the actions of each individual defendant and the actions of the group as a whole. Id. This is because the purposes of plausibility, notice and gatekeeping, are best served by requiring plaintiffs to directly link an actual individual with the alleged improper conduct.
VanZandt v. Oklahoma Dept. of Human Services, 276 Fed.Appx. 843, 849, 2008 WL 1945344, 5 (10th Cir. 2008). Although this requirement has been developed and is most frequently applied in the context of § 1983 cases which require proof of individual participation, and usually involve state agencies and individual defendants, see e.g., Robbins, 519 F.3d at 1250, its rationale applies in other contexts as well. See Robbins, 519 F.3d at 1250, citing Medina v. Bauer, 2004 WL 136636, *6 (S.D.N.Y., Jan.27, 2004) (non-§ 1983 case), and citing Lane v. Capital Acquisitions and Mgmt. Co., 2006 WL 4590705, *5 (S.D.Fla., April 14, 2006) (non-§ 1983 case). This rationale applies here, where the defendants consist of two LLCs, one corporation, and one individual, and the liability is based on individual participation. Accordingly, the allegations in the complaint that Defendants collectively took certain acts or that "all Defendants" engaged in certain acts shall not be considered.
Request to Amend
Plaintiffs, in their response to the motion to dismiss, request leave to amend their complaint. Generally, a party must file a motion to amend before the court will grant leave to amend. See D. Kan. R. 7.1 (requiring a separate motion and memorandum); Calderon v. Kan. Dep't of Social & Rehab. Servs., 181 F.3d 1180, 1185-87 (10th Cir. 1999) (a response to a motion to dismiss does not constitute a request to amend a complaint); Robinson v. Farmers Services L.L.C., 10-CV-02244-JTM, 2010 WL 4067180, at *5 (D.Kan. Oct. 15, 2010). No motion to amend has been filed.
If a party does not file a formal motion to amend its pleading, the Tenth Circuit provides that a request for leave to amend must give adequate notice to the district court and to the opposing party of the basis for the proposed amendment before the court must recognize that a motion for leave to amend is before it. Calderon, 181 F.3d at 1186-87. Here, that requirement has been met, as Plaintiffs have set forth in their brief the additional acts allegedly taken by DIRECTV which Plaintiffs desire to include in an amended complaint. See Dk. 34, p. 3. Defendant acknowledges its notice of these facts by contending in its reply brief that an amendment based on them would be futile. Accordingly, the Court will, in its discretion, treat Plaintiff's request as a motion to amend.
Motion to Amend Standard
The relevant rule provides that leave to amend shall be given freely "when justice so requires." Fed.R.Civ.P. 15(a)(2). The decision whether to grant a motion to amend is left to the sound discretion of the district court. Drake v. City of Fort Collins, 927 F.2d 1156, 1163 (10th Cir. 1991). Nonetheless, the court may deny leave to amend where amendment would be futile. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004). "A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Id. See also Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013).
DIRECTV argues futility in contending that the complaint, even if amended to include the additional facts, fails to sufficiently plead the existence of an employment relationship between it and the Plaintiffs. Defendant asserts that Plaintiffs were not employees but independent contractors. Plaintiffs counter that they were employees because DIRECTV controlled their day-to-day activities. Plaintiffs allege in their first amended complaint the following acts taken by the Topeka region's General Manager and Assistant Manager:
Assigning jobs to Plaintiffs;
Requiring Plaintiffs to provide estimated times of completion for ...