Smith v. Mini Mart Inc. et al

BRIEF in Opposition to 28 MOTION to Dismiss Counts I, III, and IV of Plaintiff's Amended Complaint

D. Colo.July 11, 2017

Page 1 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:17-cv-00671 CRAIG SMITH and ALEXANDRA BOUCHARD THACKER, individually, and on behalf of all others similarly situated, Plaintiffs, v. MINI MART, INC., a Wyoming Corporation, Defendant. PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS COUNTS I, III AND IV OF PLAINTIFFS’ AMENDED COMPLAINT Plaintiffs, Craig Smith (“Smith”) and Alexandra Bouchard Thacker (“Bouchard”) (collectively, “Plaintiffs”), individually and on behalf of all others similarly situated, through the undersigned counsel, hereby oppose Defendant Mini Mart, Inc.’s Motion to Dismiss Counts I, III and IV of Plaintiffs’ Amended Complaint (ECF No. 28), and state as follows: I. INTRODUCTION Plaintiffs allege that their former employer, Defendant Mini Mart, Inc. (“Mini Mart”), violated their rights, and the rights of other, similarly-situated employees under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and the wage and hour laws of Colorado and Wyoming, C.R.S. § 8-4-101, 7 C.C.R. § 1103-1, Wyo. Stat. Ann. § 27-4-101 et seq., and Wyo. Admin. Code WSD LBRS Ch. 1 § 6 (“State Laws”) by: (1) failing to pay the federal minimum wage to Bouchard and potential FLSA Class members; (2) failing to pay overtime compensation Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 1 of 15 Page 2 of 15 to Bouchard and the FLSA Class members; (3) making illegal wage deductions in violation of State Laws; (4) and engaging in unjust enrichment in violation of the common laws of Colorado and Wyoming. ECF No. 25 ¶¶ 91-129.1 Defendant asks the Court to dismiss Plaintiffs’ FLSA minimum wage claim based on the “Klinghoffer Rule” - an approach that has not been adopted by the Tenth Circuit Court of Appels, and which is contrary to the requirements and purposes of the FLSA. See Klinghoffer Bros. Realty Corp., 285 F.2d 487 (2d Cir.1960). Defendant also asks the Court to Dismiss Plaintiffs’ claims for unlawful deductions and unjust enrichment. Because Plaintiffs and their class were deprived of earned wages due to Defendants’ policies requiring them to pay Mini Mart’s business expenses, however, they clearly state plausible claims under the State Laws of Colorado and Wyoming. As such, Mini Mart’s Motion should be denied. II. RELEVANT FACTS Defendant Mini Mart owns and operates hundreds of convenience stores throughout the United States. ECF No. 25 ¶¶ 21-23. Smith was employed by Mini Mart from January 21, 2015 to December 26, 2016. Id.¶¶ 24, 37. Bouchard was employed by Mini Mart from 2010 to 2016. Id. ¶¶ 38, 44.2 At all times relevant to this action, Mini Mart was engaged in interstate commerce and had a gross income of more than $500,000.00. Id. ¶¶ 19-20, 91-92. Mini Mart had a policy or practice requiring Plaintiffs and all other similarly-situated employees to drive to the stores of Mini Mart’s competitors to observe and record the gas prices 1 Smith also alleges individual claims for violations of the FLSA and Colorado Wage and Hour Law, which claims are not at issue in Defendant’s Motion to Dismiss. 2 Plaintiffs’ Amended Complaint contains a typographical error reflecting that Bouchard began her employment in 2009. Paragraph 38 should state that “Individual and Representative Plaintiff Bouchard was hired by Mini Mart as an hourly employee in 2010.” Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 2 of 15 Page 3 of 15 being charged at those stores. Id. ¶¶ 45-46. Mini Mart also required these employees to deliver money to the bank. Id. ¶¶ 60-61. Mini Mart failed to compensate Bouchard and other, similarly- situated employees (“FLSA Class”) for the time they spent driving to competitors’ stores. ECF No. 25 ¶ 59. Mini Mart also failed to compensate Plaintiffs and other, similarly-situated employees (“Rule 23 Class”) for the gas, vehicle wear-and-tear, vehicle maintenance, and other Mini Mart expenses they incurred in driving to competitors’ stores and to the bank. Id. ¶¶ 68-72. Bouchard and the FLSA Class members were hourly employees. ECF 25 ¶¶ 39-40. Mini Mart required them to drive to competitors’ stores prior to clocking in each day. Id. ¶¶ 50-52, 54. The FLSA Class members spent up to 30 minutes per day performing these duties. Id. ¶¶ 55-56. They were not paid for the hours they spent driving to competitors’ stores. Id. ¶¶ 58-59.3 Smith, Bouchard, and the members of the Rule 23 Class drove thousands of miles each for Mini Mart. ECF No 25 ¶¶ 65-66. Mini Mart required the employees to use their own vehicles and gas, and to pay for the maintenance necessary to perform these duties. Id. ¶¶ 67-70. The Rule 23 Class did not execute valid agreements or authorizations that would have allowed Mini Mart to charge them with its business expenses. Id. ¶ 73. III. ARGUMENT A. STANDARD OF REVIEW Under the Federal Rules of Civil Procedure, a complaint “must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Fed. R. Civ. P. 8). To meet this standard, and survive a 12(b)(6) motion 3 Because many of these hours were in excess of 40 per week, Bouchard claims that Mini Mart also failed to pay her overtime compensation, as required by the FLSA. Defendant concedes that these allegations state a claim upon which relief may be granted. ECF No. 28 at 6 n. 2. Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 3 of 15 Page 4 of 15 to dismiss, a complaint must contain sufficient factual matter which, accepted as true, “state[s] a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. B. PLAINTIFFS’ AMENDED COMPLAINT STATES A PLAUSIBLE MINIMUM WAGE CLAIM UNDER THE FLSA. The Fair Labor Standards Act (“FLSA”) provides that “[e]very employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at… $7.25 an hour, beginning [July 24, 2009].” 29 U.S.C. § 206(a)(1)(C) (emphasis added). Thus, “[t]he FLSA requires an employer to pay a minimum wage for each hour it employs an employee.” Pabst v. Oklahoma Gas & Elec. Co., 228 F.3d 1128, 1132 (10th Cir. 2000) (emphasis added); cf. Salazar v. Butterball, LLC, No. 08-CV-02071-MSK-CBS, 2009 WL 6048979, at *4 (D. Colo. Dec. 3, 2009). “The requirements to state a claim of a FLSA violation are quite straightforward, requiring plaintiff to show a failure to pay overtime compensation and/or minimum wages to covered employees - no more.” Rayfield v. Sandbox Logistics, LLC, No. 16- CV-2231-JLK, 2016 WL 6806239, at *1 (D. Colo. Nov. 9, 2016). 1. PLAINTIFFS STATE PLAUSIBLE FLSA MINIMUM WAGE CLAIMS. Plaintiffs allege that they were employed by Mini Mart, a Wyoming corporation that owns and operates hundreds of convenience stores throughout the United States. ECF No. 25 ¶¶ 19-21. Plaintiffs further allege that Mini Mart was engaged in commerce and had a gross income of more than $500,000.00 at all times during their employment. Id. ¶¶ 19-20, 91-92. Mini Mart is therefore an employer covered by the FLSA. 29 U.S.C. § 203(d), (s). Bouchard alleges that she and the members of the FLSA Class were hourly employees. ECF No. 25 ¶¶ 39-40. She alleges that Mini Mart required her and the FLSA Class members to Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 4 of 15 Page 5 of 15 drive to competitors’ stores prior to clocking in each day. Id. ¶¶ 50-56. She further alleges that Mini Mart failed to pay her and the FLSA Class anything for the hours they spent driving to competitors’ stores and to the bank. Id. ¶¶ 58-59. Plaintiffs have thus established that Mini Mart failed to pay Bouchard and the FLSA Class the federal minimum wage for each hour they worked. See Pabst, 228 F.3d at 1132. 2. DEFENDANT’S MINIMUM WAGE METRIC SHOULD BE REJECTED. Defendant encourages this Court to adopt a weekly measuring rod - as opposed to an hourly measuring rod - for minimum wages, retroactively reducing Bouchard’s hourly wage rate to account for the hours for which it did not pay her. ECF No. 28 at 7. This measuring rod, which has come to be known as the “Klinghoffer rule,” has never been adopted by the Tenth Circuit Court of Appeals. Romero v. Top-Tier Colorado LLC, No. 15-CV-02101-MEH, 2016 WL 497095, at *4 (D. Colo. Feb. 9, 2016). Moreover, because the Klinghoffer Rule is contrary to the purposes and requirements of the FLSA, it should be rejected by this Court. See Norceide v. Cambridge Health All., 814 F. Supp. 2d 17, 22-26 (D. Mass. 2011). Plaintiffs recognize that this Court applied the Klinghoffer rule in Romero v. Top-Tier Colorado LLC, in a case involving tipped employees. No. 15-CV-02101-MEH, 2016 WL 497095, at *5 (D. Colo. Feb. 9, 2016), rev’d, 849 F.3d 1281 (10th Cir. 2017). However, in reversing that decision, the Tenth Circuit Court of Appeals stated that the employer could not use the amount that Plaintiffs received to excuse the fact that they were not paid the minimum wage. Romero v. Top-Tier Colorado LLC, 849 F.3d 1281, 1284-85 (10th Cir. 2017). The Court of Appeals reasoned that under the defendant’s approach, an employer could pay the tipped employees “nothing at all” - which would clearly violate the FLSA. Id. at 1285. Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 5 of 15 Page 6 of 15 Defendant argues, as did the defendant in Top-Tier, that because Blanchard and the FLSA Class members eventually received more than the minimum wage (if their wages are retroactively averaged and their rates reduced), it does not matter whether or not Defendant actually paid them $7.25 per hour. Defendant’s argument “ignores the plain language of the minimum wage provision and undermines the FLSA’s primary purpose of ensuring a fair wage for workers.” Norceide, 814 F. Supp. 2d at 23 (citing to Dolan v. Postal Service, 546 U.S. 481, 486 (2006)). The FLSA “speaks only of an hourly wage.” Id. “Thus, while it does not explicitly state how to calculate what an employee has been paid for an hour’s worth of work, the statute’s text is explicit that, with respect to the minimum wage, the only metric Congress envisioned was the hour, with each hour having its own discrete importance.” Id. at 24 (emphasis added). Moreover, “[t]he principal congressional purpose in enacting the [FLSA] was to protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers.’” Id. (citations omitted); see Shapiro v. United States, 335 U.S. 1, 31-32 (1948) (statutes capable of two interpretations must be read “in the manner which effectuates rather than frustrates the major purpose of the legislative draftsmen”). Where an employer knows that its employees are working unrecorded hours before their shifts, and fails to pay them for those hours, the FLSA has been violated. See Norceide, 814 F. Supp. 2d at 25-26. Mini Mart hired Bouchard and each of the FLSA Class members as hourly employees. It represented to Bouchard that she would be paid $12.00 (and later $13.75) for each hour that she worked, and made similar promises to the other Class members. See ECF No. 25 ¶ 40. Instead, Mini Mart paid these employees nothing for the hours they were required to work each day before Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 6 of 15 Page 7 of 15 their shifts began: a rate of “0.00 an hour.” See 29 U.S.C. § 206 (requiring payment of “7.25 an hour”). Bouchard and the FLSA Class members were not free to choose their activities during this unpaid time - they were forced to work for a wage that was lower than the $12.00/hour they were promised or risk losing their employment. It was precisely this kind of unfair, oppressive behavior that the FLSA was meant to remedy. Norceide, 814 F. Supp. 2d at 24. Because Defendant’s motion to dismiss Plaintiffs’ minimum wage claim is entirely based on the Klinghoffer Rule, and because the Klinghoffer Rule is contrary to the language and purpose of the FLSA, Defendant’s Motion should be denied. C. THE COMPLAINT STATES PLAUSIBLE WAGE DEDUCTION CLAIMS. 1. COLORADO WAGE AND HOUR LAW: The Colorado Wage Act, C.R.S. § 8-4-101 et seq. (“CWA”) is “a comprehensive wage code designed to require employers to make timely payment of wages earned by an employee and to provide adequate judicial relief when employers fail to pay wages when due.” Cusimano v. Metro Auto, Inc., 860 P.2d 532, 533 (Colo. App. 1992). The Colorado courts have held that the CWA “should be liberally interpreted to serve its purpose.” Fang v. Showa Entetsu Co., 91 P.3d 419, 421 (Colo. App. 2003). Section 8-4-105 of the CWA provides, inter alia: No employer shall make a deduction from the wages or compensation of an employee except as follows: … (b) Deductions for loans, advances, goods or services, and equipment or property provided by an employer to an employee pursuant to a written agreement between such employer and employee, so long as it is enforceable and not in violation of law; Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 7 of 15 Page 8 of 15 … (d) Any deduction, not listed in paragraph (a), (a.5), (b), or (c) of this subsection (1), that is authorized by an employee if the authorization is revocable, including deductions for hospitalization and medical insurance, other insurance, savings plans, stock purchases, supplemental retirement plans, charities, and deposits to financial institutions; C.R.S. § 8-4-105(1) (emphasis added). Neither the CWA nor the CMWO defines “deduction.” The Colorado courts and the Tenth Circuit Court of Appeals have held that where a term is not defined by the CWA, a court must “look to the plain meaning of the language used, considered within the context of the statute as a whole.” Deherrera v. Decker Truck Line, Inc., 820 F.3d 1147, 1160 (10th Cir. 2016); Salazar v. Butterball, LLC, 644 F.3d 1130, 1143 (10th Cir. 2011) (quoting Bly v. Story, 241 P.3d 529, 533 (Colo. 2010)). To determine the plain meaning of words in a Colorado statute, the court may “resort to dictionary definitions.” Metro Wastewater Reclamation Dist. v. Cont’l Cas. Co., 834 F. Supp. 1254, 1258 (D. Colo. 1993) (citing Hecla Min. Co. v. New Hampshire Ins. Co., 811 P.2d 1083, 1090 (Colo. 1991). Merriam-Webster’s Dictionary defines deduction as “an act of taking away” or “something that is or may be subtracted.” Deduction, Merriam-Webster’s Dictionary, available online at https: //www.merriam-webster.com/dictionary/deduction. Black’s Law Dictionary defines deduction as “the act or process of subtracting or taking away.” Deduction, Black’s Law Dictionary (10th ed. 2014). Under either definition, a “deduction” is something that is taken away or subtracted. 2. WYOMING WAGE AND HOUR LAW: Wyoming’s Wage and Hour Law, Wyo. Stat. Ann. § 27-4-101 et seq., requires that “[e]very person, firm or corporation… shall, on or before the first day of each month, pay their employees Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 8 of 15 Page 9 of 15 the wages earned by them during the first half of the preceding month….” Wyo. Stat. Ann. § 27- 4-101(a). The Wyoming Administrative Code provides, inter alia: The following sums shall constitute proper offsets from wages due an employee. … (iv) Any sums deducted from wages as payments, repayments, contributions, deposits, to any credit union, banking, savings, loan, trust or other financial institution, provided: (A) That such employee has granted written authorization for such deductions; … (viii) Any sums deducted from wages as repayment to the employer by the employee of any cash advances, loans or payments of expenses for optional benefits such as tuition assistance, relocation and training, made to the employee by such employer, provided: (A) That the cash advance, loan or payment of expenses to the employee occurred while said employee was in the employ of such employer; and (B) That the employee’s receipt of such cash advance, loan or payment of expenses is evidenced by the employee’s written acknowledgement. (ix) Any sums deducted from wages resulting from cash shortages, … (x) Any sums deducted from wages as payment for any purchase of tools, equipment, uniforms, or other items required for the employment of the employee, provided: … (B) That the employee’s purchase and receipt of the item is evidenced by written acknowledgement. Wyo. Admin. Code WSD LBRS Ch. 1, § 6(b) (emphasis added). Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 9 of 15 Page 10 of 15 Wyoming’s Wage and Hour Law further declares that “[n]o employer shall be permitted to deduct wages due an employee any sums not enumerated in this chapter.” Wyo. Admin. Code WSD LBRS Ch. 1, § 6(f). Wyoming law does not define “offset.” See Wyo. Admin. Code WSD LBRS Ch. 1, § 6. The dictionaries define “offset” as “something that serves to counterbalance or to compensate for something else.” Offset, Merriam-Webster’s Dictionary, available at https://www.merriam- webster.com/dictionary/offset; cf. Offset, Black’s Law Dictionary (10th ed. 2014). 3. THE PLAINTIFFS STATE PLAUSIBLE WAGE DEDUCTION CLAIMS UNDER THE WAGE AND HOUR LAWS OF COLORADO AND WYOMING. Plaintiffs allege that Mini Mart took away/ subtracted from their wages, and the wages of similarly-situated Rule 23 Class members, by forcing them to pay Mini Mart’s business expenses. ECF No. 25 ¶¶ 45-74. At all times relevant to the Complaint, Mini Mart had policies and/or practices of requiring Plaintiffs and the Rule 23 Class to travel to competitors’ stores and to the bank without compensating them for the costs of performing such duties. Id. ¶¶ 45-46, 51, 72. These policies/practices took “wages earned by an employee” away from Plaintiffs and the Rule 23 Class members. See Brownlee, 49 F. Supp. 3d at 878. Under C.R.S. § 8-4-105 and Wyo. Admin Code WSD LBRS Ch. 1 § 6, an employer who takes money from its employee(s) must comply with the strict requirements each States’ Wage and Hour Law, obtaining a written agreement and/or specific authorization prior to doing so. There are no facts before the Court indicating that Mini Mart complied with any such requirements, and Plaintiffs explicitly alleges that they, and the Rule 23 Class members, “did not execute valid agreements or authorizations that would allow Mini Mart to charge them with its business expenses in the manner described” in Count I of the Amended Complaint. ECF No. 25 ¶ 73. Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 10 of 15 Page 11 of 15 Mini Mart argues that one case from the U.S. District Court for the District of Kansas, Wass v. NPC, 688 F. Supp. 2d 1282, 1288 (2010), reflects a “rejection” of Smith’s theory in this case. ECF No. 28 at 9-10. In that case, the plaintiff pizza delivery workers alleged, inter alia, that their employer provided them with a partial reimbursement for automobile expenses that was so insufficient that it forced their wages below the state and federal minimum wages. Id. at 1288. The District Court in Kansas stated that the “defendant would not be in violation of the minimum wage laws merely by failing to reimburse plaintiffs for expenses” and that “such failure must be in an amount great enough to bring plaintiffs’ wages for a particular time period below the legal minimums.” Id. (emphasis added). The Court concluded that the plaintiffs had not pled any facts to support their allegations regarding the insufficiency of the defendant’s reimbursement, dismissed the plaintiff’s claims and granted them leave to amend their complaint. Id. Unlike the plaintiffs’ claims in Wass, Plaintiffs’ deduction claims do not arise under state or federal minimum wage laws. Smith and Bouchard allege that Mini Mart violated C.R.S. § 8-4- 105 and Wyo. Admin Code WSD LBRS Ch. 1 § 6, which explicitly prohibit wage deductions that do not comport with the requirements set forth in those laws. Also, unlike the plaintiffs in Wass, Smith has alleged ample facts to support his deduction claims. See ECF No. 25 ¶¶ 35-38, 40-45, 49-51. Contrary to Mini Mart’s assertions, this Court has recognized that under-reimbursed business expenses can constitute “kickbacks” where an employer requires its employees to use their personal vehicles to perform job duties and fails to pay for the wear-and-tear incurred in the performance of such duties. Smith v. Pizza Hut, Inc., No. 09-CV-01632-CMA-BNB, 2011 WL 2791331, at *4 (D. Colo. July 14, 2011) (denying motion to dismiss based on minimum wage Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 11 of 15 Page 12 of 15 provisions of the FLSA); cf. Koral v. Inflated Dough, Inc., No. 13-CV-02216-WYD-KMT, 2014 WL 4904400, at *4 (D. Colo. Sept. 29, 2014) (holding that plaintiffs had stated viable claim under Colorado Minimum Wage Act by alleging under-reimbursement of business expenses); Lozoya v. AllPhase Landscape Constr., Inc., No. 12-CV-1048-JLK, 2015 WL 1757080, at *3 (D. Colo. Apr. 15, 2015) (denying summary judgment where fact issues existed as to “deductions made for broken or damaged equipment, allegedly personal cell phone use, uniforms, small tools, and safety equipment”); See also Lozoya v. AllPhase Landscape Constr., Inc., No. 12-CV-1048-JLK, 2015 WL 1524639, at *2 (D. Colo. Mar. 31, 2015) (granting class certification for plaintiffs’ deduction claims). Mini Mart’s argument that Plaintiff’s claims are precluded by Wass is therefore completely without merit. Because Plaintiffs have alleged ample facts that allow the Court to draw the reasonable inference that Mini Mart is liable for making unlawful wage deductions in violation of the wage and hour laws of Colorado and Wyoming, Mini Mart’s motion to dismiss Count III should be denied. See Iqbal, 556 U.S. at 678. D. THE COMPLAINT STATES PLAUSIBLE UNJUST ENRICHMENT CLAIMS. In Colorado, the elements of an unjust enrichment claim are: “(1) that at plaintiff’s expense (2) defendant received a benefit (3) under circumstances that would make it unjust for defendant to retain the benefit without paying.” DCB Const. Co. v. Cent. City Dev. Co., 965 P.2d 115, 119- 20 (Colo. 1998). “Whether retention of the benefit is unjust is a fact-intensive inquiry in which courts look to, among other things, the intentions, expectations, and behavior of the parties.” Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 287 P.3d 842, 847 (Colo. 2012). Similarly, a Wyoming plaintiff alleging unjust enrichment must prove the following elements: “(1) Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 12 of 15 Page 13 of 15 Valuable services were rendered, or materials furnished, (2) to the party to be charged, (3) which services or materials were accepted, used and enjoyed by the party, and, (4) under such circumstances which reasonably notified the party to be charged that the plaintiff, in rendering such services or furnishing such materials, expected to be paid by the party to be charged.” Boyce v. Freeman, 39 P.3d 1062, 1065 (Wyo. 2002). Defendant falsely asserts that Wyoming State Law requires Bouchard to show that “she provided notice to [Mini Mart] that she expected to be reimbursed for her mileage.” ECF No. 28 at 3. As Defendant later tacitly admits, however, Wyoming law only requires a plaintiff to establish that the enrichment occurred “under such circumstances which reasonably notified the party to be charged that the plaintiff… expected to be paid.” Id. at 11-12 (citing Boyce, 39 P.3d at 1065). Defendant also claims that Plaintiffs have not sufficiently alleged that Mini Mart’s retaining of the benefits it received from the Rule 23 Class would be “unjust.” ECF No. 28 at 12-13. Notably, Defendant does not deny that Plaintiffs and the Rule 23 class provided Mini Mart with benefits, or that Defendant received those benefits. See ECF No. 28 at 12-13. Instead, Defendants merely ask the Court to ignore the bulk of Plaintiffs’ allegations, which include the following facts: (a) Mini Mart had a policy or practice requiring Plaintiffs and the Class to incur expenses against their pay; (b) Plaintiffs and the Class were forced to use their own vehicles to comply with Mini Mart’s policy or practice; (c) Plaintiffs and the Class were forced to pay for the gas and wear-and-tear they used to travel to competitors’ stores and the bank for Mini Mart - costs that are properly Mini Mart business expenses; and (d) Mini Mart obtained and retained the value of the money that was taken from Smith’s and the Class members’ income without any valid justification for doing so. ECF No. 45-51, 60-74. Clearly, these allegations demonstrate circumstances “which reasonably Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 13 of 15 Page 14 of 15 notified the party to be charged that the plaintiff… expected to be paid” and circumstances under which it would be unjust for Defendant to retain the benefits they received without paying. 4 See Boyce, 39 P.3d at 1065. Because Plaintiffs’ allegations state plausible claims for unjust enrichment under Colorado and Wyoming law, Defendant’s motion to dismiss Count IV should be denied. IV. CONCLUSION WHEREFORE, Plaintiffs respectfully ask the Court to deny Defendant’s Motion to Dismiss Counts I, III, and IV of Plaintiffs’ Amended Complaint. Respectfully submitted, CRAIG SMITH and ALEXANDRA BOUCHARD THACKER, individually, and on behalf of all others similarly situated By: /s/ Adam M. Harrison _______________________ David H. Miller Adam M. Harrison THE SAWAYA & MILLER LAW FIRM 1600 Ogden Street Denver, Colorado 80218 Telephone: 303-839-1650 4 In its Motion, Mini Mart improperly urges the Court to find that Plaintiffs’ unjust enrichment claims “could never be certified for class treatment.” ECF No. 28 at 13 (citing Friedman v. Dollar Thrifty Auto. Grp., Inc., 304 F.R.D. 601 (D. Colo. 2015)). All of the cases Mini Mart cites in support of this proposition, however, involved case-specific findings in response to motions to certify filed under Fed. R. Civ. P 23. See id. at 608-612. Mini Mart has not and cannot cite any legal authority demonstrating that a trial court can (or should) dismiss class claims under Rule 12 based on a belief that the plaintiffs are unlikely to succeed in their certification motion. Plaintiffs object to Defendant’s untimely and improper motion in this regard. Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 14 of 15 Page 15 of 15 E-mail: DMiller@sawayalaw.com AHarrison@sawayalaw.com Counsel for Plaintiffs Craig Smith and Alexandra Bouchard Thacker, individually and on behalf of all others similarly situated CERTIFICATE OF SERVICE I certify that on the 11th day of July, 2017, I filed the foregoing document through the Court’s CM/ECF system, which generated a copy to all counsel of record. /s/ Adam M. Harrison _______________________ Adam M. Harrison Case 1:17-cv-00671-PAB-MEH Document 33 Filed 07/11/17 USDC Colorado Page 15 of 15