Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 1 of 14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 1 of 14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 14-cv LTB PARKER EXCAVATING, INC., a Colorado Corporation, v. Plaintiff, LAFARGE WEST, INC., a Delaware Corporation, MARTIN MARIETTA MATERIALS, INC., a North Carolina Corporation, NICK GUERRA, ALF RANDALL, in his individual capacity, and ROBERT SCHMIDT, in his individual capacity, Defendants. MOTION TO DISMISS Defendants, ALF RANDALL and ROBERT SCHMIDT, in their individual capacities, by and through their counsel, Jonathan A. Cross and Sean J. Lane, of CROSS LIECHTY LANE PC, hereby move to dismiss Plaintiffs First Amended Complaint and Jury Demand ( Complaint ), pursuant to FED.R.CIV.P. 12(b)(6), as follows: I. INTRODUCTION Plaintiff, Parker Excavating, Inc. ( PEI or Plaintiff ), brings suit against Defendants Alf Randall ( Randall ) and Robert Schmidt ( Schmidt ) in their individual capacities. Randall and Schmidt were employed by Pueblo County Public Works at the time of PEI s alleged involvement. Defendant Lafarge West, Inc. ( Lafarge ) was retained by the County of Pueblo as the general contractor on a road construction project known as the South McCulloch Boulevard

2 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 2 of 14 Roadway/Drainage Improvement Project (the Project ). PEI was hired by Lafarge to perform traffic control and rotomilling work on the Project through an oral agreement on June 8, 2011, and soon after, a written contract was formed between Lafarge (as general contractor) and PEI (as a subcontractor). Defendant Martin Marietta Materials, Inc. ( Martin Marietta ) later became the general contractor, replacing Lafarge. Plaintiff alleges that Randall and Schmidt engaged in racial discrimination against Plaintiff, as Plaintiff was a Native American owned corporation, through their behavior. Martin Marietta and/or Lafarge terminated Plaintiff s contract for work on the Project on December 17, Plaintiff brings suit against Randall and Schmidt pursuant to 42 U.S.C and 42 U.S.C II. JURISDICTION With respect to the 42 U.S.C and 1983 claims against Randall and Schmidt, Plaintiff contends that this matter is properly before this Court based upon federal question jurisdiction, pursuant to 28 U.S.C Defendants address the issue of jurisdiction in this Motion and reserve the right to raise the issue of jurisdiction again at a later time. III. STANDARD OF REVIEW When analyzing a Motion to Dismiss brought pursuant to FED.R.CIV.P. 12(b), the court should accept all well-plead factual allegations in the complaint as true. See Ash Creek Mining Co. v. Lujan, 969 F2d 868, 870 (10 th Cir. 1992). However, the court should not assume that a plaintiff can prove facts that it has not alleged or that the defendants have violated the laws in ways that have not been alleged. Associated General Contractors v. California State Counsel of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897 (1983). M:\Open Cases\Pueblo-Parker Excavating\_Pleadings USDC\Motion to Dismiss.DOC 2

3 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 3 of 14 IV. UNCONTESTED MATERIAL ALLEGATIONS OF PLAINTIFF S COMPLAINT For the limited purpose of this Motion to Dismiss, Defendants Randall and Schmidt accept the following material facts as true: 1. PEI is a Native American owned business and was a subcontractor for Lafarge and later Martin Marietta on the Project for Pueblo County. See First Amended Complaint and Jury Demand ( Exhibit A ), Document 8, June 30, 2014, at 1, Randall is an employee of Pueblo County and was both the Interim Director of Public Works and Senior Engineer for Public Works in Pueblo County during the course of the Project. PEI brings claims against him in his individual capacity. See Exhibit A, at Schmidt was a member of the Public Works Department of Pueblo County, Colorado and became the Acting Director of Public Works for the County during the Project, after Randall was assigned as the Senior Engineer for Public Works. PEI brings claims against him in his individual capacity. See Exhibit A, at Lafarge is a Delaware corporation that was the initial general contractor on the Project. See Exhibit A, at Lafarge submitted a bid request for subcontracting work to PEI on June 5, PEI submitted an initial bid for subcontract work on the Project to Lafarge on or about June 7, 2011, in response to Lafarge s request. Lafarge rejected PEI s initial bid. See Exhibit A, at On June 8, 2011, Greg Parker (an officer of Plaintiff company) met with a representative of Lafarge (Defendant Nick Guerra, or Guerra ) to bid for excavation, traffic control and rotomilling work on the Project. PEI and Lafarge reached an oral agreement on that 3

4 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 4 of 14 day through their representatives for PEI to perform subcontracting work for Lafarge. See Exhibit A, at On or about July 22, , PEI and Lafarge executed a written contract to memorialize their prior oral agreement to have PEI serve as a subcontractor for the Project. See Exhibit A, at Article 3 of the Subcontract and Attachment B to the same specifically exempted PEI from a requirement to provide a subcontract payment and performance bond covering its work on the Project. See Exhibit A, at Starting in or around June of 2011, PEI informed the County that it disagreed with Senior Engineer Randall s planned method of traffic control for the Project, and informed Pueblo County Commissioner John Cordova (not a party to this case) of its concerns. See Exhibit A, at 25, On July 12, 2011, Greg Parker contacted County Commissioner John Cordova and informed him of PEI s status as a Native American Company and Greg Parker s belief that Senior Engineer Randall s alleged actions relating to PEI up to that point could have been motivated by Randall s alleged dislike of affirmative action. See Exhibit A, at On or about July 13, 2011, Guerra ordered Greg Parker to sign two apology letters. One letter to Randall and one to Schmidt. Guerra informed Parker that failure to sign these letters would result in PEI being removed from the project immediately. See Exhibit A, at Though the First Amended Complaint and Jury Demand states that the subcontract was executed on July 22, 2014, based upon information and belief that is a typographical error, and the correct date was July 22, M:\Open Cases\Pueblo-Parker Excavating\_Pleadings USDC\Motion to Dismiss.DOC 4

5 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 5 of As a result of their complaint to the County regarding Randall s traffic control plan, PEI alleges that Lafarge and the County treated them unprofessionally thereafter, and allegedly excluded PEI from weekly construction meetings put on by the County and/or Lafarge. See Exhibit A, at From June 28, 2011, through December 7, 2011, PEI alleges that Randall and Schmidt caused the unprofessional treatment, without specifying how that was accomplished. See Exhibit A, at On November 3, 2011, PEI wrote a letter to Lafarge raising the issue of potential race-based discrimination against it as a Native American Company. See Exhibit A, at On December 7, 2011, a representative of PEI wrote Randall a letter complaining of discrimination. The letter states that it was clear that Randall and Schmidt did not want PEI working on site from the beginning of the Project. See Exhibit A, at At some point between December 9, 2011, and December 12, 2011, Martin Marietta may have assumed the role of general contractor on the Project. See Exhibit A, at On or about December 12, 2011, Randall complained in writing to Guerra that Greg Parker had accused Randall s staff of discrimination against him and that, that conduct was not acceptable and directed Guerra to assure that the conduct did not continue. See Exhibit A, at On or about December 12, 2011, Guerra wrote a letter to PEI on Martin Marietta letterhead, but with a Lafarge signature block, informing Greg Parker that all subcontractors with contracts in excess of $20,000 would be required to have a performance bond to continue 5

6 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 6 of 14 working on the Project. Guerra wrote that because PEI was purportedly unable to obtain a bond, their subcontract would be terminated. See Exhibit A, at On December 17, 2011, Martin Marietta and/or Lafarge terminated, or caused to be terminated, PEI s subcontract for work on the Project. Martin Marietta and/or Lafarge employees removed PEI s equipment from the job site. After this date, PEI had no further connection to the Project. See Exhibit A, at PEI filed its original Complaint and Jury Demand on May 30, See Complaint and Jury Demand, May 30, V. MOTION TO DISMISS Plaintiff brings three claims against Defendant Randall and two claims against Defendant Schmidt. Each of these claims is brought pursuant to federal statute. The first claim is brought against Randall and Schmidt for retaliation, pursuant to 42 U.S.C The second claim is brought solely against Randall for discrimination under 42 U.S.C and 42 U.S.C through Finally, the last claim against these Defendants is brought for retaliation under 42 U.S.C through VI. Plaintiff s first claim, brought against Randall and Schmidt, is specifically brought pursuant to 42 U.S.C However, because 42 U.S.C is the exclusive remedy for damages against a state actor for claims arising under 42 U.S.C. 1981, this Court does not have jurisdiction over this claim of Title 42 of the United States Code provides that everyone, regardless of race, will have the same right, inter alia, to make and enforce contracts. See 42 U.S.C To establish a 1981 claim, a plaintiff must show that: (1) he or she is a member of a racial minority; (2) the defendant had an intent to discriminate on the basis of race; (3) the M:\Open Cases\Pueblo-Parker Excavating\_Pleadings USDC\Motion to Dismiss.DOC 6

7 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 7 of 14 discrimination interfered with a protected activity as defined in Section 1981, i.e. the making or enforcing of a contract. Kelley v. New York Life Ins. and Annuity Corp., 2008 WL , at *4 (D.Colo. April 17, 2008) (citing Hampton v. Dillard Dep t. Stores, Inc., 247 F.3d 1091, (10 th Cir. 2001)). However, in the instant case, Defendants Randall and Schmidt were employees of Pueblo County and were acting in their roles as state actors when the alleged violations of 1981 occurred. The exclusive remedy for alleged violations of the declaration of rights enacted within 1981 by state actors is through the remedial provisions of See Jett v. Dallas Independent School District, 491 U.S. 701, , 109 S.Ct (1989). 2 The U.S. Supreme Court held that Congress intended that the explicit remedial provisions of 1983 be controlling in the context of damages action brought against state actors alleging violation of the rights declared in Id., at 731. Although the Tenth Circuit has not addressed this issue, those circuit courts which have done so uniformly hold that the 1991 amendment had no effect on the court s opinion in Jett, thus the exclusive remedy for violation by state governmental units of rights guaranteed by 1981 is provided by Burns v. Board of County Comm rs. of the County of Jackson, 197 F.Supp.2d 1278, 1296 (D.Kansas 2002). The rationale for this position is that the legislative history indicates that subsection (c), added by the Civil Rights Act of 1991, was intended to reaffirm the finding that 1981 applied specifically to nongovernmental entities. See id. 2 It is noteworthy that the 9 th Circuit has commented that the Civil Rights Act of 1991, which amended 42 U.S.C. 1981, may have created a direct cause of action against state governmental actors. However, the 10 th Circuit has not accepted this reasoning, nor have many other circuits. See Oden v. Oktibbeha County, Mississippi, 246 F.3d 458 (5 th Cir. 2001); see Butts v. County of Volusia, 222 F.3d 891, 894 (11 th Cir. 2000); see Dennis v. County of Fairfax, 55 7

8 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 8 of U.S.C does not directly confer jurisdiction over state actors for claims alleging violations of the substantive rights created therein. See id. Plaintiff s first claim is specifically brought against Randall and Schmidt pursuant to See Exhibit A, at No direct claim of action exists under Therefore, this Court does not have jurisdiction with respect to Plaintiff s first claim as it has been brought against Randall and Schmidt. b. Plaintiff brings its second claim against Randall and its third claim against both Randall and Schmidt pursuant to 42 U.S.C through 42 U.S.C Each of those claims are subject to dismissal for a failure to state a claim upon which relief can be granted, as they have been filed outside the applicable statute of limitations. It is well-established that 42 U.S.C creates no substantive rights, but rather creates only a remedy against those who, acting under color of law, violate rights secured by federal statutory or constitutional law. Ramirez v. Dep t. of Corrections, 222 F.3d 1238, 1243 (10 th Cir. 2000). In this matter, Plaintiff seeks to establish liability of Defendants Randall and Schmidt, who are both state actors, for alleged violations of the rights enacted within 1981 through a 1983 claim. Plaintiff s second claim is brought against Randall for alleged violations of its rights under 1981, through See Exhibit A, at Plaintiff s third claim is brought against both Randall and Schmidt pursuant to 1983, for alleged violations of Plaintiff s rights established in See Exhibit A, at The determination of when a 1983 action accrues is controlled by federal, rather than state law. See Smith v. Gonzales, 222 F.3d 1220, 1222 (10 th Cir. 2000); see Baker v. Board of Regents of State of Kansas, 991 F.2d 628, (10 th Cir. 1993); see Smith v. City of Enid ex. Rel. Enid City Com n., 149 F.3d 1151, 1154 (10 th Cir. 1998). Section 1983 claims accrue, for F.3d 151, 156 n. 1 (4 th Cir. 1995); Cerrato v. San Francisco Community College Dist., 26 F.3d 969 (9 th Cir. 1994); Williams v. Little Rock Mun. Water Works, 21 F.3d 218 (8 th Cir. 1994). M:\Open Cases\Pueblo-Parker Excavating\_Pleadings USDC\Motion to Dismiss.DOC 8

9 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 9 of 14 the purpose of the statute of limitations, when the plaintiff knows or has reason to know of the injury which is the basis of his action. Johnson v. Johnson County Comm n. Bd., 925 F.2d 1299, 1301 (10 th Cir. 1991) (citing Singleton v. City of New York, 632 F.2d 185, 191 (2 nd Cir. 1980)); Baker, 991 F.2d at 632. Plaintiff s Amended Complaint and Jury Demand states that the alleged abuses and violations committed by the Defendants occurred in Plaintiff made an oral agreement with Lafarge on June 8, 2011, and executed a contract with Lafarge as general contractor on the Project on July 22, According to Plaintiff s Complaint, its subcontract was terminated by either Lafarge or Martin Marietta on December 17, After Plaintiff s subcontract was terminated, it had no further association with the Project. This included any association with Randall and/or Schmidt in their roles with the Project as Senior Engineer and Acting Director of Public Works, respectively. Federal courts must look to the applicable state statute of limitations to determine the timeliness of a claim under 42 U.S.C See Owens v. Okure, 488 U.S. 235, , 109 S.Ct. 573 (1989); see Blake v. Dickason, 997 F.2d 749, 750 (10 th Cir. 1993). Colorado law provides a two-year statute of limitations for actions brought pursuant to Whitington v. Sokol, 491 F.Supp.2d 1012, (D.Colo. 2007); C.R.S (g). Though Plaintiff s second and third claims allege violations of rights established under 1981, claims against state actors, such as Randall and Schmidt, must be brought pursuant to See Jett, supra. Therefore, these claims must be brought within two-years of the date that Plaintiff knew, or should have known, of an alleged violation of its rights pursuant to 42 U.S.C See Whitington, supra; see Delatorre v. Minner, 238 F.Supp.2d 1280 (D.Kansas 2002). 9

10 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 10 of 14 In the instant case, Plaintiff s Complaint alleges that PEI believed it was suffering discrimination as early as July 12, 2011, when Greg Parker contacted County Commissioner Cordova and alleged that PEI was suffering from unprofessional treatment due to PEI s status as a Native American Company. PEI alleges that the next day (July 13, 2011), Greg Parker was forced to write a letter of apology to Randall and Schmidt, and PEI employees were, thereafter, excluded from weekly construction meetings. Defendants assert that PEI was on notice of the alleged violation of its 1981 rights, as of this date. PEI then wrote a letter raising the issue of potential race-based discrimination on November 3, However, PEI was certainly put on notice of an alleged violation of its 1981 rights no later than December 17, 2011, when its subcontract was actually terminated by Lafarge and/or Martin Marietta. Plaintiff s two-year statute of limitations began to run at that time. Plaintiff s original Complaint in this matter was filed on May 30, Defendants assert that the statute of limitations for Plaintiff s second and third claims expired on July 13, 2013, roughly 10 months before Plaintiff filed its original Complaint. At the latest, Defendants assert that the statute of limitations for Plaintiff s second and third claims ran on December 17, Again, this was roughly 5 months before Plaintiff s filed their original Complaint in this matter, alleging violations of 1981 and Because Plaintiff s claims were filed after the limitations period had expired, Plaintiff s second and third claims should be dismissed. VI. Plaintiff has not pled sufficiently specific factual allegations to survive a prediscovery motion for dismissal. The U.S. Supreme Court and the 10 th Circuit have recognized that a plaintiff may be required to plead specific, non-conclusory factual allegations to survive a pre-discovery M:\Open Cases\Pueblo-Parker Excavating\_Pleadings USDC\Motion to Dismiss.DOC 10

11 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 11 of 14 motion for dismissal. Currier v. Doran, 242 F.3d 905, 916 (10 th Cir. 2000) (quoting Crawford- El v. Britton, 523 U.S. 574, 598, 118 S.Ct (1998)). In fact, conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based. Dunn v. White, 880 F.2d 1188, 1197 (10 th Cir.1989), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10 th Cir.1983); Clulow v. Oklahoma, 700 F.2d 1291, 1303 (10 th Cir.1983), overruled on other grounds sub nom, Garcia v. Wilson, 731 F.2d 640 (10 th Cir.1984), aff d, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Wise v. Bravo, 666 F.2d 1328, 1333 (10 th Cir.1981); Lorraine v. United States, 444 F.2d 1, 2 (10 th Cir.1971). Moreover, in analyzing the sufficiency of a plaintiff s complaint, a court need accept as true only the plaintiff s well-pleaded factual contentions and not their conclusory allegations. Dunn, 880 F.2d at 1190 (quoting Swanson v. Bixler, 750 F.2d 810, 813 (10 th Cir.1984)). The pleading requirement that plaintiffs face is to provide defendants with sufficient notice to begin preparing its defense and the court sufficient clarity to adjudicate the merits. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10 th Cir. 2007). While Plaintiff s Complaint is clearly written, it is unclear what actions Randall and/or Schmidt actually took that allegedly violated Plaintiff s rights under Plaintiff s Complaint establishes that Plaintiff was a subcontractor working for Lafarge and, later, Martin Marietta on the Project. There was no contract between PEI and either Randall or Schmidt (or even Pueblo County, though it is not a party to this case). According to Plaintiff s Complaint, either Lafarge or Martin Marietta chose to break Plaintiff s subcontract. Plaintiff alleges that Greg Parker had issues with Randall s traffic control plan. When Greg Parker approached a County Commissioner about his problem with the traffic control plan, Guerra (on behalf of 11

12 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 12 of 14 Lafarge) directs Parker to write letters of apology. There is no allegation that this was inappropriate, or that Randall or Schmidt directed Lafarge to write those letters. Plaintiff does allege that later Randall directed Lafarge to handle allegations of racebased discrimination made against him and his staff by PEI employees. However, there is no allegation that Randall directed Lafarge to take punitive action against PEI. Rather, Randall contacts the general contractor on the Project and directs it to handle a subcontractor who had issues with him and his staff. There is no allegation that Randall (or Schmidt) directed any of the actions taken, or not taken, by Lafarge or Martin Marietta in this matter. Plaintiff s Complaint does not set forth with any specificity how Randall or Schmidt affected any of the actions which Plaintiff alleges are a violation of its 1981 rights. This includes Plaintiff s conclusory allegations that Defendants somehow interfered with their ability to contract, without saying how that interference was accomplished. Because of this, Plaintiff s Complaint should be dismissed with respect to these Defendants. VI. CONCLUSION For the above-stated reasons, Plaintiff has failed to state claims for which relief can be granted with respect to its three claims against Defendant Randall and its two claims against Defendant Schmidt. WHEREFORE, Plaintiff s First Amended Complaint and Jury Demand should be dismissed in its entirety as it applies to Defendants Randall and Schmidt. M:\Open Cases\Pueblo-Parker Excavating\_Pleadings USDC\Motion to Dismiss.DOC 12

13 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 13 of 14 Respectfully submitted this August 26, CROSS LIECHTY LANE PC By: s/ Sean J. Lane Jonathan A. Cross Sean J. Lane 7100 E. Belleview Ave., Suite G-11 Greenwood Village, Colorado Tel: (303) s: ATTORNEYS FOR DEFENDANTS RANDALL & SCHMIDT 13

14 Case 1:14-cv LTB-MJW Document 22 Filed 08/26/14 USDC Colorado Page 14 of 14 CERTIFICATE OF SERVICE I hereby certify that on this August 26, 2014, a true and correct copy of the above and foregoing MOTION TO DISMISS was, unless otherwise indicated, filed electronically with the Court who provides notice to the following: Elliot D. Fladen, Esq. SCHLUETER, MAHONEY & ROSS, P.C th Street, Suite 2200 Denver, Colorado Attorneys for Plaintiff Larry S. McClung, Esq. Kristin Anderson George, Esq. William T. O Connell, III, Esq. Adam P. O Brien, Esq. WELLS, ANDERSON & RACE, LLC 1700 Broadway, Suite 1020 Denver, CO Attorneys for Lafarge West, Inc. Richard B. Benenson, Esq. Jonathan G. Pray, Esq. Kathryn A. Barrett, Esq. BROWNSTEIN HYATT FARBER SCHRECK, LLP 410 Seventeenth St., Suite 2200 Denver, Colorado Attorneys for Martin Marietta & Guerra A Duly Signed Original is on File at the Offices of Cross Liechty Lane PC s/ Linda L. DeVico M:\Open Cases\Pueblo-Parker Excavating\_Pleadings USDC\Motion to Dismiss.DOC 14