United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE.
before the Court is Defendant HealthSmart Benefit Solutions
Inc., 's (“HealthSmart”) Motion for Judgment
on the Pleadings to Dismiss the Complaint (Doc. No. 29).
Citing Federal Rule of Civil Procedure 12(c), Defendant moves
for a judgment in its favor on all claims asserted in the
First Amended Complaint for failure to state a plausible
claim. Plaintiff has not responded. For the
reasons stated below, the Court finds Defendant's motion
should be granted.
OF THE PLEADINGS
Zagaruyka & Associates (“Zagaruyka”) is a
sole proprietorship recruiting firm owned and operated by
Ashley Zagaruyka. Compl. ¶ 1 (Doc. No.
1-2). Plaintiff entered into a contract with
HealthSmart to recruit qualified employee candidates for a
nonrefundable retainer fee. Id. ¶¶ 1, 10,
11. The contract provided that the retainer fee would be
nonrefundable if Plaintiff “presented at least two
qualified candidates within 60 days following the date the
search was begun, but [HealthSmart] fill[ed] the positions
‘through its own efforts or through another
source.'” Id. ¶ 11 (quoting
unidentified contract). The full retainer would be “due
within ten (10) working days” if HealthSmart eliminated
the employment position for which Plaintiff had commenced a
search for candidates. Id. ¶ 12 (quoting
unidentified contract). However, the contract provided a
guarantee that if a candidate recruited by Plaintiff and
hired by HealthSmart was “terminated for any reason
within thirty (30) days [of] the date the candidate
commen[ced]” employment, Plaintiff would replace the
candidate at no additional charge. Id. ¶ 13
(quoting unidentified contract).
the course of the contractual relationship, HealthSmart
expanded Zagaruyka's role to include human-resource
consulting, change-management training, and employee-
reference verification, and “ask[ed] that Plaintiff put
its requests for services before the requests” of
Plaintiff's other clients. Id. ¶¶ 17,
18. Plaintiff states HealthSmart exerted “behavioral
and financial control” over its operation in that: (1)
HealthSmart employees had “supervisory responsibility
over Plaintiff and directed her work in furtherance of
[HealthSmart]'s business operations”; (2)
“Plaintiff was required to comply with
[HealthSmart]'s instructions in terms of written and
unwritten policies, procedures, and directives”; and
(3) HealthSmart had a “high degree of control over
Plaintiff's work.” Id. ¶¶ 30.
Plaintiff further asserts that HealthSmart “was
significantly dependent on” its services and
“prevented Plaintiff from providing services to
others.” Id. ¶ 31. Finally, Plaintiff
alleges it “was required to pay a portion of
HealthSmart's operating expenses.” Id.
result of HealthSmart's increased demands and
“control over the terms and conditions of the
employment arrangements, ” Plaintiff alleges Zagaruyka
lost its other clients, “lost [its] status [as] an
independent contractor, ” “and became an employee
of [HealthSmart]” within the meaning of the Fair Labor
Standards Act (“FLSA”) and the State of
Oklahoma's Protection of Labor Act, Okla. Stat. tit. 40,
§§ 165.1 et seq. Compl. ¶¶ 6, 19, 30, 32,
36. Plaintiff also states that during the course of
Zagaruyka's relationship with HealthSmart, HealthSmart
deviated from the payment terms of the contract and failed to
pay for its services. Id. ¶ 20, 22, 27.
HealthSmart terminated its relationship with Plaintiff in an
email dated August 2, 2017. Id. ¶ 21.
asserts claims for: (1) a declaratory judgment that Zagaruyka
was an employee of HealthSmart and is entitled to the rights
and benefits of employment pursuant to the laws of the United
States and the State of Oklahoma; (2) violations of the Fair
Labor Standards Act, 29 U.S.C. §§ 201 et seq., the
Oklahoma Protection of Labor Act, Okla. Stat. tit. 40,
§§ 160 et seq., and the Oklahoma Minimum Wage Act,
id. tit. 40, §§ 197.1 et seq.; and (3) bad
faith breach of contract. Compl. ¶¶ 39, 49, 54-55.
moves for judgment on the pleadings on the following grounds:
(1) Plaintiff relies on vague, generalized, and conclusory
assertions to establish employee status; (2) Plaintiff fails
to state facts indicating alleged overtime calculations; (3)
there is no Oklahoma statute requiring that overtime
compensation be paid to private employees; (4) as a business
owner Zagaruyka is not entitled to the protections of the
Oklahoma Labor Protection Act or Oklahoma Minimum Wage Act;
and (5) there is no claim for bad faith breach of contract
outside the context of insurance. See Def.'s
Mot. ¶¶ 14, 15, 16, 18.
12(c) provides that “[a]fter the pleadings are
closed-but early enough not to delay trial-a party may move
for judgment on the pleadings.” Fed.R.Civ.P. 12(c).
Motions under Rule 12(c) and Rule 12(b)(6) are governed by
the same standard. See Colony Ins. Co., 698 F.3d at
1228; Aspenwood Inv. Co. v. Martinez, 355 F.3d 1256,
1259 (10th Cir. 2004). Therefore, “[a] motion for
judgment on the pleadings under Rule 12(c) is treated as a
motion to dismiss under Rule 12(b)(6).” Atl.
Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d
1138, 1160 (10th Cir. 2000).
failed to respond to HealthSmart's Motion or to seek an
extension of time to respond. Local Civil Rule 7.1(g)
provides that “[a]ny motion that is not opposed within
21 days may, in the discretion of the court, be deemed
confessed.” However, “a district court may not
grant a motion to dismiss for failure to state a claim
‘merely because [a party] failed to file a
response.'” Issa v. Comp USA, 354 F.3d
1174, 1178 (10th Cir. 2003) (alteration in original) (quoting
Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir.
2002)). “[I]t is well established that a
‘complaint should not be dismissed for failure to state
a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.'” Id. at 1177-78
(quoting Hall v. Bellmon, 935 F.2d 1106, 1109 (10th
Cir. 1991)). Thus, the Court “must still examine the
allegations in the plaintiff's complaint and determine
whether the plaintiff has stated a claim upon which relief
can be granted, ” despite Plaintiff's failure to
respond to the Motion. Id. at 1178.
Rule of Civil Procedure 8(a)(2) provides that a pleading
stating a claim for relief must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” 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) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008). Under this standard, “the mere
metaphysical possibility that some plaintiff could
prove some set of facts in support of the pleaded
claims is insufficient; the complaint must give the court
reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for
these claims.” Robbins, 519 F.3d at
1247 (internal quotation marks omitted). “Factual
allegations must be enough to raise a right to relief above
the speculative level . . . .” Twombly, 550
U.S. at 555 (footnote and citation 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.” Iqbal, 556 U.S. at 678.
accept all facts pleaded by the non-moving party as true and
grant all reasonable inferences from the pleadings in favor
of the same.” Colony Ins. Co., 698 F.3d at
1228 (alteration and internal quotation marks omitted);
see also Sprint Nextel Corp. v. Middle Man, Inc.,
822 F.3d 524, 530 (10th Cir. 2016); Sanders v. Mountain
Am. Fed. Credit Union, 689 F.3d 1138, 1141 (10th Cir.
2012). Examining the factual allegations in this manner, a
Rule 12(c) motion should be granted if “the moving
party has clearly established that no material issue of fact
remains to be resolved and the party is entitled to judgment
as a matter of law.” Colony Ins. Co., 698 F.3d
at 1228 (internal quotation marks omitted); Sprint Nextel
Corp., 822 F.3d at 530; Sanders, 689 F.3d at
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679; see
Robbins, 519 F.3d at 1248 (stating that “the
degree of specificity necessary to establish plausibility and
fair notice, and therefore the need to include sufficient
factual allegations, depends on context”). The Tenth
Circuit has held that the Iqbal/Twombly
pleading standard is “a middle ground between
heightened fact pleading, which is expressly rejected, and
allowing complaints that are no more than labels and
conclusions or a formulaic recitation of the elements of a
cause of action, which the Court stated will not do.”
Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012) (internal quotation marks omitted).
“[S]pecific facts are not necessary”; the
pleader's allegations need only provide the defendant
“fair notice of what the claim is and the grounds upon
which it rests.” Id. at 1192 (omission and
internal quotation marks omitted). “Twombly
and Iqbal do not require that the complaint include
all facts necessary to carry the plaintiff's
burden.” Id. (internal quotation marks
Claims Based ...