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Hicks v. Dallas County Community Colleges

United States District Court, N.D. Texas, Dallas Division

April 25, 2018

AMY M. HICKS, Plaintiff,



         By the Order of Reference, filed February 7, 2018, before the Court for recommendation is Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint under Rules 12(b)(5) and 12(b)(6), and Brief in Support, filed February 6, 2018 (doc. 46). Based upon the relevant filings and applicable law, the motion to dismiss should be DENIED in part and GRANTED in part.

         I. BACKGROUND

         Amy M. Hicks (Plaintiff), a former adjunct faculty member at Cedar Valley Community College (Cedar Valley), sues Dallas County Community Colleges (Defendant) for breach of contract, an overtime wage violation under the Fair Labor Standards Act (FLSA), and a “violation of [her] constitutional right.” (doc. 45 at 2.)[1]

         On August 19, 2016, Plaintiff and Defendant entered into an employment contract for Plaintiff to teach a dental assisting “train[ing]” class identified as “DNTA 1015.31232” for the fall 2016 semester.[2] (Id. at 2-3, 33.) This class was scheduled to meet from 6:00 p.m. to 9:00 p.m. every Tuesday, Wednesday, and Thursday from August 16, 2016, to November 9, 2016, and Plaintiff would be paid $2, 994.00 for her instruction. (Id. at 2, 33.) This contract was identified as a “co-op contract, ” where the “[p]ayment is based on the number of students enrolled in the class, ” and it was “subject to schedule changes, sufficient enrollment, and/or personnel changes based upon administrative decisions.” ( Id. at 33.) Plaintiff received two payments from Defendant of $748.50 on August 31, 2016, and September 30, 2016, for this particular class.[3] (Id. at 24-27.) After only six students enrolled, the Cedar Valley administration elected to cancel this class on September 21, 2016. (Id. at 3.)

         Less than a week later, on September 27, 2016, Cedar Valley and Plaintiff entered into a second employment contract for her to alternatively teach a “lecture” dental assisting class, identified as “DNTA 1015.31235, ” to those same six students under the same terms and schedule as the original contract. (Id. at 2-3, 35.) She alleges that the Cedar Valley administration informed her that if she did not agree to this second contract, that she “would not get paid” under it. (Id. at 2.) The second employment contract included the same start/end dates, the same payment amount of $2, 994.00, and the same ledger number as the first contract. (Id. at 33, 35.) Plaintiff's second amended complaint does not allege that she actually taught this “lecture” class to completion, but it does allege that “two of the students out of the six students total were given their tuition back for the dental assisting class from the second contract.” (Id. at 3.) Plaintiff received two additional payments from Defendant of $748.50 on October 31, 2016, and November 30, 2016, for class number “DNTA 1015.31235, ” and she received a total gross amount of $2, 994.00 from Defendant during the fall 2016 semester. (Id. at 28-31.) She alleges that the amount of $2, 994.00 identified in the contracts is a “drastic pay rate reduction” because “[f]or the last 3 or 4 years, Plaintiff's contracts have always been in the amount of $5, 550.00 for each term when teaching a dental assisting class.” (Id. at 4.)

         On February 15, 2017, Plaintiff filed a wage claim against Defendant with the Texas Workforce Commission Labor Law Section (Workforce Commission) complaining about the “pay rate reduction” in her teaching contracts and seeking reimbursement for her personal expenses. (Id. at 5-6, 13-17.) Her claim was dismissed after the Workforce Commission notified her that it did not have jurisdiction over state government entities such as Defendant. (Id. at 6, 13.)

         On March 22, 2017, Plaintiff filed this suit against Defendant asserting claims for breach of the employment contracts and for overtime wage violations under the FLSA for the unpaid overtime that she worked as an adjunct instructor at Cedar Valley. (docs. 3, 8.)[4] On May 30, 2017, Defendant moved to dismiss the complaint under Rule 12(b)(5) for insufficient service and under Rule 12(b)(6) for failure to state a claim. (doc. 13.) On December 28, 2017, Defendant's 12(b)(5) motion was denied in order to grant Plaintiff an additional opportunity to properly serve Defendant, and its Rule 12(b)(6) motion was granted because she failed to state a claim. (docs. 38, 44.) Plaintiff was provided an additional 28 days “to file a second amended complaint and to effect proper service of the summons and second amended complaint on defendant.” (doc. 44 at 1.)

         On January 25, 2018, Plaintiff filed her second amended complaint asserting the same claims for breach of the two employments contracts and for an overtime violation under the FLSA, and she also included a new claim for “violation of [her] constitutional right as a citizen of the United States of America.” (doc. 45 at 2.) Her new “constitutional right” claim appears to be based upon the Workforce Commission's denial of her wage claim; she claims the “main element or event that had taken place without Plaintiff's knowledge is the [Workforce Commission] had asked for requested documents from Plaintiff.” (Id. at 5.) She, however, failed to file any return of service showing that the summons and second amended complaint were properly served upon Defendant within the additional 28 days.

         Plaintiff alleges that Defendant's actions have caused her pain, suffering, emotional distress, economic hardship, and harm to her reputation, career, and health. (Id. at 9.) She asks for compensatory damages, punitive damages, “economical damages” [sic], liquidated damages, and treble damages. (Id.) She specifically asks that Defendant provide her with health b e n e f i t s f o r t h e n e x t seven years, all of the expenses that she “endure[d] for the last seven years, ” and all other personal expenses that she incurred in “creating the dental assisting curriculum and the externship dental assisting curriculum.” (Id. at 8.)

         On February 6, 2018, Defendant filed a motion to dismiss under Rules 12(b)(5) and 12(b)(6). (doc. 46.) After a timely filed response and reply, this motion is ripe for recommendation.[5] (docs. 49, 50, 51.)

         II. RULE 12(b)(5)

         Defendant first moves to dismiss Plaintiff's second amended complaint under Rule 12(b)(5) because she failed to properly serve her second amended complaint in compliance with the Federal Rules of Civil Procedure. (doc. 46 at 2-3.)

         Rule 12(b)(5) permits a challenge to the method of service attempted by the plaintiff, or the lack of delivery of the summons and complaint. See Fed. R. Civ. P. 12(b)(5); Coleman v. Bank of New York Mellon, 969 F.Supp.2d 736, 745 (N.D. Tex. 2013). A federal court is without personal jurisdiction over a defendant unless that defendant has been served with process in accordance with Rule 4 of the Federal Rules of Civil Procedure. See Id. (citing Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987) and Pavlov v. Parsons, 574 F.Supp. 393, 399 (S.D. Tex. 1983)). Rule 4(c) places the burden on plaintiff to ensure that defendants are properly served with summons and a copy of the complaint. Fed.R.Civ.P. 4(c)(1).

         Here, Plaintiff initially filed proof of service upon Defendant on May 16, 2017 (doc. 12), but this service attempt has already been found to be insufficient because it was not served upon a proper individual who could accept process on behalf of a community college or junior college. (doc. 38 at 5) (explaining that the individual served in this suit was “not the Defendant's Chancellor, Chair of the Board of Trustees, or the President of Cedar Valley.”) Because she made a “good faith effort” to serve Defendant, Plaintiff was granted an additional 28 days on December 28, 2017, “to file a second amended complaint and to effect proper service of the summons and second amended complaint” on Defendant. (doc. 44 at 1.) She fails to show that she attempted to properly serve Defendant within the additional 28 days, and the case docket reflects that she has not even requested a summons for Defendant's proper agent of service. She has again failed to meet her burden to ensure that Defendant is properly served with summons and a copy of the complaint .

         Dismissal for insufficient service under Rule 12(b)(5) is typically not appropriate “unless there is no reasonably conceivable means of acquiring jurisdiction over the person of a defendant” and is “usually without prejudice to allow plaintiff an opportunity to effect proper service.” Florance v. Buchmeyer, 500 F.Supp.2d 618, 633 (N.D. Tex. 2007) (citations omitted). Defendant, however, additionally moves for dismissal of Plaintiff's claims with prejudice under Rule 12(b)(6) for failure to state claim. (doc. 46 at 4-7.) Based upon the recommended resolution of the 12(b)(6) motion as discussed below, dismissal without prejudice under Rule 12(b)(5) is unnecessary, and Defendant's motion to dismiss for insufficient service should be denied. See Florance, 500 F.Supp.2d at 633 (denying defendants' motion to dismiss under Rules 12(b)(5) and ...

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