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HomeMy WebLinkAbout2024CV202 - Reyes v. McDonalds Corp, et al - 1 - Documents (15)DISTRICT OURT ARIMER OUNTY OLORADO Court Address: Larimer County Justice Center 201 LaPorte Ave, Suite 100 ▲ COURT USE ONLY ▲ Case Number: 2024cv31147 PLAINTIFF: TERESITA REYES v. DEFENDANTS: MCDONALDS CORP. IL – MCDONALD’S STORE NO. 11148 LOCAL FRANCHISE OWNER ORGANIZATION, FRANCHISE MOD (09-25- Morgan S. Nance, #59294 White and Steele, P.C. Dominion Towers, North Tower 600 17th Street, Suite 600N Denver, CO 80202-5406 Telephone: 303-296-2828 Facsimile: 303-296-3131 Email: rryckman@wsteele.com mnance@wsteele.com Attorneys for McDonald’s Corp. IL, McDonald’s Store No. 11148, and Franchise MOD (09-25-2023) MCDONALD’S DEFENDANTS’ MOTION TO DISMISS Defendants, improperly identified as McDonalds Corp. – IL, McDonalds Store No. 11148, and Franchise MOD (09-25-2023), (the “McDonald’s Defendants”) by and through their counsel of record, White and Steele, P.C., hereby submit the following Motion to Dismiss pursuant to C.R.C.P. 12(b)(5) and respectfully request the Court dismiss the McDonald’s Defendants from this action on the grounds that the Third Amended Complaint fails to state a DATE FILED December 24, 2024 4:31 PM FILING ID: 9EECCA8C64F8F CASE NUMBER: 2024CV202 2 claim upon which relief can be granted. In support of their Motion, the McDonald’s Defendants state as follows. CERTIFICATE OF CONFERRAL Undersigned counsel certifies, under C.R.C.P. 121 § 1-15(8), that he has conferred with Plaintiff regarding the relief sought in this motion. This motion is opposed. INTRODUCTION AND BACKGROUND This is a case arising out of an alleged interaction between a customer and an employee at a McDonald’s store in Fort Collins, Colorado. Third Amended Complaint, pg. 9, ¶ 1. Plaintiff alleges she went through the McDonald’s drive-thru on September 25, 2023, and ordered a milkshake with no whipped cream. Id. After allegedly receiving a milkshake with whipped cream, Ms. Reyes pulled out of the McDonald’s drive-thru into the parking lot and requested a refund. Id. at pg. 10, ¶ 7. After she did not receive a refund, she called 911. Id. at ¶ 17. Plaintiff alleges that after she called 911, the manager of the McDonald’s store came to her car and refunded the money, but without a refund ticket. Id. at pg. 12, ¶ 20. Once officers from the Fort Collins Police Department arrived, they informed Plaintiff she was trespassing on the property, and that she was no longer welcome on the premises. Id. at ¶ 25. Ms. Reyes originally filed her complaint in the United States District Court of Colorado on October 23, 2023. Complaint Case No. 1:23-cv-02671-LTB-SBP October 12, 2023. The USDC for the District of Colorado dismissed Ms. Reyes’s claims without prejudice on May 08, 2024, concluding that Ms. Reyes failed to state a federal claim for relief, declining supplemental jurisdiction over the state-law claims, and dismissing the final amended complaint without prejudice. Order [ECF 39] and Judgment [ECF 40] No. 1:23-cv-02671-LTB-SBP, attached as 3 Exhibit A. Ms. Reyes appealed to the Tenth Circuit Court of Appeals on May 20, 2024. The United States Court of Appeals for the Tenth Circuit affirmed the district court and denied Ms. Reyes’ motion to amend and her request to proceed in forma pauperis (Order and Judgment, Appellate Case: 24-1211, attached as Exhibit B). Plaintiff’s claims against the McDonald’s Defendants fail as a matter of law because the Complaint does support her claims with any underlying facts or plausibly claim any damages. Further, many of her claims are precluded from being sought at the state level because the state court is without jurisdiction over federal claims that that have been previously dismissed. Accordingly, this Court should dismiss Plaintiff’s Complaint, as amended, for failing to comply with the pleading requirements of Rule 8 and 12(b)(5) of the Colorado Rules of Civil Procedure. C.R.C.P. 12(b)(5) STANDARD To withstand a motion to dismiss under C.R.C.P. 12(b)(5), “a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. . . .” Warne v. Hall, 2016 CO 50, ¶ 1 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted)) (adopting federal pleading standards for C.R.C.P. 8). “The concept of ‘plausibility’ at the dismissal stage refers not to whether the allegations are likely to be true; the court must assume them to be true. The question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law.” Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1191-92 (10th Cir. 2009) (citing Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). Accordingly, “[a] plaintiff must ‘nudge [his] claims across the line from conceivable to plausible in order to survive a motion to dismiss.’” Khalik v. United Airlines, 671 F.3d 1188, 1190 (10th 4 Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining 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 678. In considering a motion to dismiss, “[t]he court must accept all averments of material fact as true, and all the allegations in the complaint must be viewed in the light most favorable to the plaintiff.” Sweeney v. United Artists Theater Circuit, Inc., 119 P.3d 538, 539 (Colo. App. 2005). Even so, “the court is not required to accept as true legal conclusions couched as factual allegations.” W. Innovations, Inc. v. Sonitrol Corp., 187 P.3d 1155, 1158 (Colo. App. 2008); accord Warne, ¶ 11 (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. . . .” (quoting Iqbal, 556 U.S. at 678)). The issue of whether a duty exists is a question of law, not a question of fact. Hall v. McBryde by & Through McBryde, 919 P.2d 910, 913 (Colo. App. 1996). ARGUMENT A. Plaintiff’s Third Amended Complaint does not comply with the general rules of pleading. Plaintiff’s Third Amended Complaint does not comply with the general rules of pleading. Pleadings are governed by Rule 8(a) of the Colorado Rules of Civil Procedure, which requires that a pleading must contain: (1) a short and plaint statement of the grounds for the court’s jurisdiction...; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and, (3) a demand for judgment for the relief to which the pleader claims to be entitled. C.R.C.P. 8(a). 5 First, as the Court is fully aware, the initial Complaint failed to allege facts sufficient to support the subject matter jurisdiction of the Court. Plaintiff’s Amended Complaint alleges new causes of action not stated in the original Complaint. (Amended Complaint). Nine days later, Plaintiff filed her Second Amended Complaint, which from what undersigned counsel can tell, is identical to her Amended Complaint. Plaintiff then filed her Third Amended Complaint, without leave of Court, on November 27, 2024. Even if the Court considered Plaintiff’s claims in the Third Amended Complaint, Plaintiff’s Third Amended Complaint still fails to provide a short and plain statement of any claims that demonstrate she is entitled to relief as required under Rule 8. In addition, many of Plaintiff’s claims are nonsensical and incomprehensible. For example, Plaintiff alleges complaints of “Menacing” and “Obstruction of Justice,” both of which are criminal offenses. Third Amended Complaint. The 63 pages that comprise Plaintiff’s Third Amended Complaint are not a plain or in any way short statement of the facts of the case. Second, the Third Amended Complaint failed to set forth a short and plain statement of each of the claims showing that Plaintiff is entitled to relief. C.R.C.P. 8(a)(2). While C.R.C.P. 8(a)(2) requires only short and plain statement of the claims showing that Plaintiff is entitled to relief, it demands more than unadorned, the-defendant-unlawfully-harmed-me accusation. Leimkuehler v. Am. United Life Ins. Co., 752 F.Supp.2d 974, 975 (S.D. Ind. 2010). It is Plaintiff’s obligation to provide grounds of her entitlement to relief, which requires more than labels or conclusions and does not suffice if it tenders naked assertions devoid of further factual enhancement. Id. Plaintiff must allege facts concrete enough to warrant further proceedings, since such may be costly and burdensome to Defendants. 6 As alleged in the pleadings, Plaintiff’s claims do not satisfy the pleading requirements of C.R.C.P. 8. Each of Plaintiff’s allegations are too vague, insubstantial and attenuated to support the claims for relief. Bristol Co., LP, 190 P.3d 752, 758 (Colo. App. 2007). Plaintiff’s pleadings do not comply with C.R.C.P. 8. B. Plaintiff’s federal claims have already been dismissed by the Tenth Circuit Court of Appeals. Plaintiff identifies fifteen claims against the McDonald’s Store, five claims against the unidentified manager on duty, and four claims against McDonald’s Corporation. Of those claims, the Federal District Court and Tenth Circuit Court of Appeals affirmed the dismissal of the following: (1) Segregation in violation of Title II of the Civil Rights Act of 1964; (2) Discrimination based on race and disability; (3) Segregation and discrimination on the basis of race and national origin in violation of the civil rights act; (4) discrimination on the basis of disability on violation of Title 3 of the ADA; (5) Fourteenth Amendment Claim – Unlawful Waiver; and (6) Seventh Amendment Claim – Forcing Customers to Give up Right to Jury Trial. See Exhibit B, Order and Judgment, Appellate Case: 24-1211. Further, even if the Tenth Circuit Court of Appeals had not affirmed the dismissal of her claims, federal courts have original jurisdiction over all civil actions arising from a federal question. 28 U.S.C. § 1331. Because The Civil Rights Act, Americans with Disabilities Act, and the US Constitution are all federally enacted laws, the state court cannot hear those claims. Id. Therefore, each claim listed above should summarily be dismissed. C. Causes of action asserted in Plaintiff’s Amended Complaint must be dismissed because Plaintiff exceeded the scope of the Court’s permission to amend and Plaintiff did not seek leave to file additional claims. 7 Plaintiff filed her original Complaint in this state court action on September 24, 2024, asserting, liberally, seven claims against the McDonald’s Defendants. The Court specifically directed Plaintiff to file an Amended Complaint for the sole purpose of asserting facts to support her claims—not to grant Plaintiff leave to liberally assert additional claims against Defendants and allow Plaintiff to file four additional versions of her Complaint. See Order: Complaint w/ Jury Demand September 25, 2024. Plaintiff filed her Amended Complaint and added approximately eight additional claims.1 C.R.C.P. 15(a) provides that, “a party may amend his pleading once as a matter of course at time before a response pleading is filed…Otherwise, a party many amend his pleading only by leave of court or by written consent of the adverse party.” Defendants have not consented to Plaintiff filing her Second Amended Complaint or Third Amended Complaint for any purpose beyond the scope of the Court’s orders, and Plaintiff has not sought or obtained leave of court to file an amended complaint for the purpose of adding additional claims. While the Court is charged with applying a “liberal standard” to pro se pleadings and the amendment of pleadings, Plaintiff should not be exempt from the procedural requirements of the Colorado Rules of Civil Procedure. Loomis v. Seely, 677 P.2d 400 (Colo. App. 1983) (holding that pro se litigants must adhere to rules of procedure applicable to attorneys). The procedural requirements are in place so that the Court can evaluate the proffered claims for, among other things, their timeliness and, to some degree, their substantive merit. Had Plaintiff filed a motion for leave to amend as required by C.R.C.P. 15, the Court would have recognized the issues in regard to the claims, 1 Without waiving objections to the validity of the claims as asserted in the Complaint, the claims that were identified for the first time by Plaintiff in the Amended Complaint against the McDonalds Defendants include failure to supervise, discrimination, obstruction of justice, spoliation, and failure to comply with Article 90 of the Colorado Corporations and Associations Act (See Amended Complaint, ¶1–4). 8 specifically the failure to comply with the pleading requirements. See Trigg v. State Farm Mut. Auto. Ins. Co., 129 P.3d 1099 (Colo. App. 2005). D. Plaintiff’s remaining claims against the McDonald’s Defendants fail to state a claim for relief upon which relief can be granted. Even if Plaintiff somehow overcomes the pleading and procedural requirements of Rule 8 and 15, Plaintiff’s remaining claims against the McDonald’s Defendants fail to state a claim for relief upon which relief can be granted and must be dismissed. C.R.C.P. 12(b)(5). “[W]here the plaintiff's factual allegations cannot, as a matter of law, support a claim for relief,” the trial court properly grants a C.R.C.P. 12(b)(5) motion. Bly v. Story, 241 P.3d 533 (Colo. 2010). Factual allegations in a complaint ‘must be enough to raise a right to relief ‘above the speculative level,’ and provide ‘plausible grounds to infer’” a situation giving rise to a cause of action. Warne v. Hall, 2016 CO 50, ¶ 9, 373 P.3d 588, 591 (citation omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). To withstand a motion to dismiss, there must be “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 550 U.S. 544, 570, (2007). Plaintiff’s Third Amended Complaint makes reference to additional claims: (1) negligence; (2) menacing; (3) libel and slander; and, (4) obstruction of justice. Plaintiff’s final amended complaint fails to identify plausible claims for relief. C.R.C.P. 12(b)(5). Regarding the negligence claim, Colo. Rev. Stat. § 13-21-115 2, the premises liability statute is the exclusive classification of any duty owed by a property owner in Colorado. Vigil v. Franklin, 103 P.3d 322, 323 (Colo. 2004). On its face, the Third Amended Complaint fails to cite to the statute or to set forth the elements of the claim. Further, the Third Amended 2 Notably, the Third Amended Complaint does not cite the Colorado Premises Liability Act. 9 Complaint acknowledges that law enforcement identified Ms. Reyes as a trespasser. See Third Amended Complaint, ¶32(a). The only situation under which a trespasser may recover is only for for damages willfully or deliberately caused by a landowner. Plaintiff makes no allegation of willful or deliberate harm. Plaintiff also pled a claim for Menacing pursuant to C.R.S. § 18-3-206. However, this is a criminal statute, for which only the State of Colorado has jurisdiction to bring against any defendant. The libel and slander claims should be dismissed outright because there are no allegations of any allegedly defamatory statement being published about Ms. Reyes, a non-public figure. Absent from the pleadings are elements required to support a libel and slander claim. See, e.g. Colorado Civil Pattern Jury Instruction 22; Cinquanta v. Burdett, 154 Colo. 37, 388 P.2d 779 (1963) (“crook” or “deadbeat” in context of dispute over a single transaction is not libelous per se); Knowlton v. Cervi, 142 Colo. 394, 350 P.2d 1066 (1960) (citizen’s charge that police officer used abusive language not defamatory). Finally, obstruction of justice, as referenced in the Third Amended Complaint, is a criminal – not a civil – action. Thus, the McDonald’s Defendants ask the Court to dismiss Plaintiff’s claims for failure to state a claim upon which relief can be granted pursuant to C.R.C.P. 12(b)(5) E. In the alternative, Plaintiff should be ordered to plead her allegations with particularity pursuant to C.R.C.P. 12(e). If the Court is disinclined to dismiss Plaintiff’s claims, the Court should require Plaintiff to plead her allegations against the McDonald’s Defendants with the particularity required by C.R.C.P. 8. CONCLUSION 10 WHEREFORE, for the foregoing reasons, Defendants respectfully request that Plaintiff’s Third Amended Complaint be dismissed with prejudice in its entirety, the Court enter an Order GRANTING this Motion, and for other relief as the Court deems proper. Respectfully submitted this 24th day of December, 2024. WHITE AND STEELE, P.C. /s/ Rachel E. Ryckman Rachel E. Ryckman, #42054 Morgan S. Nance, #59294 Dominion Towers, North Tower 600 17th Street, Suite 600N Denver, CO 80202-5406 (303) 296-2828 ATTORNEYS FOR THE MCDONALD’S DEFENDANTS 11 CERTIFICATE OF SERVICE I hereby certify that on December 24, 2024, a true and correct copy of the foregoing MCDONALD’S DEFENDANTS MOTION TO DISMISS, was electronically filed and served via CCEF upon all parties as follows. 2805 Fairview Drive Fort Collins, Colorado 80524 (970) 488-9916 Reyest144@gmail.com /s/Morgan S. Nance For White and Steele, P.C.