Brown v. Balfour Beatty Communities LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

TINA M. BROWN, )

)

)

Plaintiff, )

)

v. ) Case No. CIV-19-913-R

)

BALFOUR BEATTY )

COMMUNITITES, LLC, )

)

Defendant. )

ORDER

Before the Court is the Motion to Dismiss, Doc. No. 7, filed by Defendant Balfour

Beatty Communities pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff

responded, Doc. No. 11, and Defendant replied, Doc. No. 12. For the reasons set forth

below, the Court grants Defendant’s motion.

On August 13, 2019, Plaintiff commenced this wrongful termination action in tort

against Defendant in the District Court of Oklahoma County, Oklahoma. Doc. No. 1, Ex.

4. On October 1, 2019, Defendant removed the action pursuant to 28 U.S.C. § § 1332,

1441, and 1446 on grounds of diversity jurisdiction. Id. Defendant now seeks dismissal

arguing that Plaintiff’s Complaint is vague, ambiguous and therefore not in compliance

with federal pleading standards. Doc. No. 7. Plaintiff objects, arguing that her Complaint

is sufficient under both Oklahoma and Federal pleading standards.1 Doc. No. 11.

1 In her response to Defendant’s Motion to Dismiss, Plaintiff attached a number of exhibits for the Court to consider.

The Court cannot, however, examine these exhibits. See Jackson v. Integra, Inc., 952 F.2d 1260, 1261 (10th Cir. 1991)

(“When ruling on a Rule 12(b)(6) motion, the district court must examine only the plaintiff’s complaint . . . the district

court cannot review matters outside the complaint.”).

As an initial matter, that Plaintiff’s Complaint may be sufficient under Oklahoma’s

notice pleading standard is irrelevant. “Upon removal of this action to federal court, the

sufficiency of the allegations of the Complaint are governed by federal pleading standards,

not, as Plaintiff contends, the Oklahoma Pleading Code.” Weist v. Davol, Inc., No. CIV-

14-668-D, 2014 WL 3928559, at *1 (W.D. Okla. Aug. 4, 2014).

In reviewing Defendant’s motion under the appropriate standard in Rule 12(b)(6),

the Court must determine whether Plaintiff has stated a claim upon which relief may be

granted. The motion is properly granted when the Complaint provides no “more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Complaint must contain enough “facts

to state a claim to relief that is plausible on its face” and the factual allegations “must be

enough to raise a right to relief above the speculative level.” Id. at 570. The Court must

accept all the well-pleaded allegations of the Complaint as true and must construe the

allegations in the light most favorable to Plaintiff. Alvarado v. KOB–TV, L.L.C., 493 F.3d

1210, 1215 (10th Cir. 2007). But the Court need not accept as true those allegations that

are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Comm'rs, 263 F.3d 1151,

1154–55 (10th Cir. 2001). “[C]onclusory allegations without supporting factual averments

are insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d

1106, 1109–10 (10th Cir. 1991).

Plaintiff has not satisfied the pleading standard set by Rule 12(b)(6). Under

Oklahoma law, a wrongful termination claim is viable under a tort theory only “where an

employee is discharged for refusing to act in violation of an established and well-defined

public policy or for performing an act consistent with a clear and compelling public

policy.” Burk v. K-Mart Corp., 770 P.2d 24, 29 (Okla. 1989). “[T]o prevail in an action

brought for a wrongful discharge in violation of Oklahoma’s public policy, a plaintiff must

first identify an Oklahoma public policy goal that is clear and compelling and articulated

in existing constitutional, statutory or jurisprudential law.” McCrady v. Okla. Dep’t of Pub.

Safety, 122 P.3d 473, 475 (Okla. 2005). Here, Plaintiff has failed to allege that the

termination of her employment violated Oklahoma public policy or even refer to any

purported “clear and compelling” Oklahoma public policy goal. Therefore, Plaintiff has

failed to properly plead her claim and her action for wrongful termination is dismissed for

failure to state a claim upon which relief may be granted. See Blough v. Rural Elec. Coop,

Inc., 689 F. App'x 583, 587 (10th Cir. 2017) (affirming dismissal of wrongful termination

claim because Plaintiff failed to allege that the termination of his employment violated

Oklahoma public policy).

Plaintiff also argues that if her Complaint is deemed insufficient, leave to amend is

the appropriate remedy—not dismissal. Defendant objects to Plaintiff’s request to amend

her Complaint. The Court will consider a properly supported motion for leave to amend

Plaintiff’s Complaint that complies with both the Western District’s Local Civil Rules and

the Federal Rules of Civil Procedure but will not grant authorization premised on the

request in Plaintiff’s response brief. Plaintiff is hereby granted 10 days to file for leave to

amend her Complaint.

IT IS SO ORDERED this 6" day of January 2020.

DAVID L. RUSSELL

UNITED STATES DISTRICT JUDGE