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Gust v. Wireless Vision, LLC

United States District Court, D. Kansas

May 18, 2015

BRADLEY GUST, Plaintiff,


RICHARD D. ROGERS, District Judge.

Plaintiff has filed a complaint with three counts against defendants Wireless Vision, David Naas and Anthony Sawara.[1] Count I alleges that defendant failed to pay plaintiff overtime compensation in violation of the Fair Labor Standards Act of 1938 ("FLSA"). Count II alleges that plaintiff suffered retaliation from defendant in violation of FLSA. Count III alleges that plaintiff was terminated from employment by defendant in violation of his Kansas common law rights against wrongful termination. This case is now before the court upon defendants' motion to dismiss for failure to state a claim, pursuant to FED.R.CIV.P. 12(b)(6).


In Khalik v. United Air Lines, 671 F.3d 1188, 1190-92 (10th Cir. 2012), the Tenth Circuit reviewed the standards for determining whether a complaint fails to state a claim:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Recently the Supreme Court clarified this pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009): to withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as true, "to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A plaintiff must "nudge [his] claims across the line from conceivable to plausible" in order to survive a motion to dismiss. Id.
The Court explained two principles underlying the new standard: (1) when legal conclusions are involved in the complaint "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to [those] conclusions, " Iqbal, 129 S.Ct. at 1949, and (2) "only a complaint that states a plausible claim for relief survives a motion to dismiss, " id. at 1950. Thus, mere "labels and conclusions" and "a formulaic recitation of the elements of a cause of action" will not suffice. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Accordingly, in examining a complaint under Rule 12(b)(6), we will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.

For the purposes of this order, it is important to remember that when assessing a Rule 12(b)(6) motion, the court should not weigh potential evidence that might be admitted at trial. Scott v. Topeka Performing Arts Center, Inc., 69 F.Supp.2d 1325, 1327 (D.Kan. 1999).


A. The complaint states a claim for violation of FLSA.

Plaintiff alleges in Count I that defendants did not pay him the overtime wages he was owed pursuant to FLSA. As part of his allegations, plaintiff states that "his time records did not accurately reflect the full number of hours he worked each week and that he was not being paid all overtime compensation owed." Doc. No. 1, ¶ 25. Defendants assert in their motion to dismiss that plaintiff was paid overtime for all hours worked in excess of 40 hours per week. Defendants support this argument with payroll records they have attached as an exhibit.

Because defendants rely upon materials outside of the pleadings (the payroll records), their argument that plaintiff was paid his duly owed overtime compensation is improper. See Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1146 (10th Cir. 2013)("[g]enerally, a court considers only the contents of the complaint when ruling on a 12(b)(6) motion"). Defendants maintain that the payroll records should be considered by the court because the records are referred to in ¶ 25 of the complaint. We disagree.

The Tenth Circuit has stated: "if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss." GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). The decision to consider records referred to in a motion to dismiss is discretionary with the court. See Prager v. LaFaver, 180 F.3d 1185, 1189 (10th Cir. 1999). Here, paragraph 25 of the complaint makes reference to "time records." The "time records" referred to in paragraph 25 may be different than the payroll records used by defendants as an exhibit to the motion to dismiss. Plaintiff contends that the time records are not accurate. So, a fact issue is presented as to whether the records used by defendants are reliable, even if they are the same records. For these reasons, the court chooses not to consider the payroll records in determining whether plaintiff has stated a claim for unpaid overtime compensation.

Since those records supply the foundation for defendants' first argument to dismiss Count I and the court declines to open the record and consider the motion to dismiss as a motion for summary judgment, the court ...

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