RAPTIS v. DPS LAND SERVICES, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH

PETER RAPTIS, INDIVIDUALLY AND )

ON BEHALF OF ALL OTHERS )

) 2:19-CV-01262-CRE

SIMILARLY SITUATED; )

)

Plaintiff, )

)

vs. )

)

)

DPS LAND SERVICES, LLC,

)

)

Defendant, )

)

MEMORANDUM OPINION

Cynthia Reed Eddy, Chief United States Magistrate Judge.

This civil action was initiated in this court on October 2, 2019, by Plaintiff Peter Raptis,

on behalf of himself and others similarly situated, as a putative class and/or collective of current

or former employees of Defendant DPS Land Services, LLC (“DPS”). Plaintiff’s complaint sets

forth claims to recover unpaid overtime compensation from DPS under the Fair Labor Standards

Act of 1938, 29 U.S.C. §§ 201, et seq. (“FLSA”), and the Pennsylvania Minimum Wage Act of

1968, 43 P.S. §§ 333.101, et seq. (“PMWA”). This court has subject matter jurisdiction over the

controversy pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the state law claim

pursuant to 28 U.S.C. § 1367.

Presently before the court is motion by DPS to dismiss the claims against it pursuant to

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim (ECF No. 12). For the reasons

that follow, DPS’s motion is denied in its entirety.

I. BACKGROUND

Named Plaintiff Peter Raptis brings this action on behalf of himself and all similarly

situated current and former Land Men employed by DPS to recover unpaid overtime wages.

Plaintiff claims that DPS failed to pay Land Men overtime compensation for the hours they worked

over forty (40) in one or more work weeks because DPS improperly classified them as exempt

from overtime.

DPS operates a corporate office in Canonsburg, Pennsylvania, and “describes itself as a

full-service land company that is dedicated to the Appalachian Basin.” Compl. (ECF No. 1) at

¶ 19. Its work includes “a diverse range of assignments [such as] obtaining ROW [Rights of Way]

for a gathering system in a complex urban environment and managing multifaceted large scale title

and land projects.” Id. at ¶ 20. To do this work, DPS employs Land Men to assist in “acquiring

property to expand DPS[’s] network of services and to identify easements, rights-of-way to permit

them to operate, and oil and gas leases.” Id. at ¶ 22.

Plaintiff was employed by DPS as a Land Man from March 2017 to August 20, 2019,

“performing duties as a ‘Leasing Agent.’” Id. at ¶ 24. “Throughout his employment with DPS, he

was classified both as an independent contractor and as a W2 employee but [was] always paid on

a day-rate basis.” Id. Plaintiff “was never paid on a salary basis. He never received any guaranteed

weekly compensation from DPS irrespective of days worked (i.e., the only compensation he

received was the day-rate for each day that he actually worked).” Id. According to Plaintiff, he

and other putative class members were not provided “overtime pay for hours they worked in excess

of forty (40) hours in a workweek.” Id. at ¶ 27.

It is Plaintiff’s position that DPS’s “policy of failing to pay its workers … overtime violates

the FLSA because these workers are, for all purposes, employees performing non-exempt job

duties.” Id. at ¶ 56. According to Plaintiff, DPS’s “day-rate system violates state and federal law

because [Plaintiff] and other land men did not receive any pay for hours worked in excess of 40

hours each week.” Id. at ¶ 58. Thus, on October 2, 2019, Plaintiff filed in the instant complaint,

asserting causes of action for violations of the FLSA and the PMWA.

On December 6, 2019, DPS filed a motion to dismiss Plaintiff’s complaint and brief in

support thereof. (ECF Nos. 15, 16). Plaintiff filed a response in opposition (ECF No. 18), and

DPS filed a reply (ECF No. 20). The matter is now ripe for disposition.

II. STANDARD OF REVIEW

The applicable inquiry under Federal Rule of Civil Procedure 12(b)(6) is well-settled.

Under Federal Rule of Civil Procedure 8, a complaint must contain a “short and plain statement of

the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6)

provides that a complaint may be dismissed for “failure to state a claim upon which relief can be

granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). A complaint that merely alleges entitlement to relief, without alleging facts that show

entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

This “‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls

for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the

necessary elements.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting

Twombly, 550 U.S. at 556). Nevertheless, the court need not accept as true “unsupported

conclusions and unwarranted inferences,” Doug Grant, Inc. v. Great Bay Casino Corp., 232 F.3d

173, 183-84 (3d Cir. 2000), or the plaintiff’s “bald assertions” or “legal conclusions.” Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

Although a complaint does not need detailed factual allegations to survive a Rule 12(b)(6)

motion, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A

“formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain,

478 U.S. 265, 286 (1986)). “Factual allegations must be enough to raise a right to relief above the

speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Id. Facial

plausibility exists “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556).

The plausibility standard is not akin to a “probability requirement,” but it asks for more

than a sheer possibility that a defendant has acted unlawfully. . . . Where a complaint pleads facts

that are “merely consistent with” a defendant’s liability, it “stops short of the line between

possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 556)

(internal citations omitted).

When considering a Rule 12(b)(6) motion, the court’s role is limited to determining

whether a plaintiff is entitled to offer evidence in support of his claims. See Scheuer v. Rhodes,

416 U.S. 232, 236 (1974). The court does not consider whether a plaintiff will ultimately prevail.

Id. A defendant bears the burden of establishing that a plaintiff’s complaint fails to state a claim.

Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

Courts generally consider the allegations of the complaint, attached exhibits, and matters

of public record in deciding motions to dismiss. Pension Benefit Guar. Corp. v. White Consol.

Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described

or identified in the complaint also may be considered if the plaintiff’s claims are based upon those

documents. Id. (citations omitted). In addition, a district court may consider indisputably authentic

documents without converting a motion to dismiss into a motion for summary judgment. Spruill

v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Lum v. Bank of America, 361 F.3d 217, 222 (3d Cir.

2004) (in resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally can consider

“the allegations in the complaint, exhibits attached to the complaint, matters of public record, and

documents that form the basis of a claim.”).

III. DISCUSSION

By way of background, both the FLSA and the PMWA generally require employers to pay

employees one and one-half times the regular wage for hours worked in excess of forty hours per

week. 29 U.S.C.A. § 207(a); Davis v. Abington Memorial Hospital, 765 F.3d 236, 241 (3d Cir.

2014); 43 P.S. § 333.104(c). However, not all employees are entitled to overtime pay; both the

PMWA and “the FLSA exempt[] many categories of employees from this requirement.” Encino

Motorcars, LLC v. Navarro, --- U.S. ---, ---, 138 S. Ct. 1134, 1138 (2018) (“Encino II”); see also

43 P.S. § 333.105. In its motion to dismiss and accompanying brief, DPS sets forth arguments as

to why it believes that Plaintiff has failed to plead both FLSA and PMWA claims.

A. Failure to Plead DPS was Engaged in Commerce under the FLSA

DPS first seeks dismissal of Plaintiff’s FLSA claim on the basis that he has not pleaded

facts to show that Plaintiff was an employee “engaged in commerce or in the production of goods

for commerce, or [wa]s employed in an enterprise engaged in commerce or in the production of

goods for commerce.” DPS’s Br. (ECF No. 16) at 10 (citing 29 U.S.C. § 207(a)). It is Plaintiff’s

position that he has adequately alleged enterprise coverage under the FLSA. Pl.’s Br. (ECF No.

18) at 3-5.

To state a prima facie case under the FLSA, a plaintiff must allege that: “(1) the defendant

was ‘engaged in commerce’ as that phrase is defined by the FLSA; (2) the plaintiff was an

‘employee’ as defined by the FLSA; and (3) the plaintiff worked more than forty hours in a week

but was not paid overtime compensation for the hours worked in excess of forty.” Rummel v.

Highmark, Inc., 2013 WL 6055082, at *3 (W.D. Pa. Nov. 15, 2013) (citing 29 U.S.C. § 216(b));

see also Davis, 765 F.3d at 241; Bedolla v. Brandolini, 2018 WL 2291117, at *3 (E.D. Pa. May

18, 2018); Mell v. GNC Corp., 2010 WL 4668966, at *5 (W.D. Pa. Nov. 9, 2010) (collecting

cases).

The FLSA extends coverage to employees by two means: (1) the employee

himself may be engaged in commerce or in the production of goods for commerce

(so-called “individual” coverage); or (2) the employee may be employed in an

enterprise engaged in commerce or the production of goods for commerce (so-

called “enterprise coverage.”). Commerce is defined as “trade, commerce,

transportation, transmission, or communication among the several States or

between any State and any place outside thereof.” 29 U.S.C. § 203(b).

Kehler v. Albert Anderson, Inc., 2017 WL 1399628, at *4 (D.N.J. 2017) (some citations omitted).

With respect to “enterprise coverage,” DPS contends that Plaintiff’s complaint sets forth

only “conclusory allegations and threadbare recitals,” which “are insufficient to make a plausible

showing that DPS had employees engaged in commerce, producing goods for commerce, or

otherwise working on goods and materials that had been moved in or produced for interstate

commerce.” DPS’s Br. (ECF No. 16) at 12-13. It is Plaintiff’s position that he has adequately

alleged enterprise coverage, as the complaint sets forth that DPS “‘operates throughout the United

States, including Pennsylvania and Ohio.’” Pl.’s Br. (ECF No. 18) at 4 (citing Compl. (ECF No.

1) at ¶ 21).

“[T]he Third Circuit has held that businesses whose employees use materials manufactured

out-of-state and moved in interstate commerce are ‘enterprises engaged in commerce’ for the

purposes of the Act.” Griffin v. Alysia Home Health Agency, 2018 WL 2566235, at *3 (W.D. Pa.

2018). “Courts in this Circuit frequently hold that alleging that the defendant was an enterprise

engaged in commerce under the FLSA “[i]s sufficient for purposes of a motion to dismiss.”

Bedolla, 2018 WL 2291117, at *6 (citing Dong v. Ren’s Garden, 2010 WL 1133482, at *4 (D.N.J.

2010) (internal citations omitted)). “If the plaintiff demonstrates that the employer is an enterprise

engaged in commerce, all of that enterprise’s employees will be covered by the FLSA.” Dong,

2010 WL 1133482, at *2.

According to Plaintiff, “DPS operates throughout the United States, including

Pennsylvania and Ohio.” Compl. (ECF No. 1) at ¶ 21. Plaintiff avers he “and the Putative Class

Members worked for DPS in the Commonwealth of Pennsylvania, Ohio, and throughout the

United States over the past three years.” Id. at ¶ 25. Plaintiff further asserts that “DPS made the

large capital investments in buildings, tools, and supplies in the business in which [Plaintiff]

worked.” Id. at ¶ 39.

These allegations, when read together and accepted as true at this stage of proceedings,

demonstrate a plausible claim that DPS is an enterprise engaged in interstate commerce. See

Zebroski v. Gouak, 2009 WL 2950813, at *1 (E.D. Pa. 2009) (holding that a mere allegation that

the defendant is “an enterprise engaged in commerce” satisfies the pleadings requirements of the

FLSA and that discovery should be used to develop the allegation). Because Plaintiff has

sufficiently pleaded that DPS is qualified for enterprise coverage, DPS’s motion to dismiss the

FLSA claim on this basis is denied.1

B. Failure to Plead Entitlement to Overtime Pay

1 DPS also contends that Plaintiff has failed to plead adequately individual coverage. Specifically,

DPS argues that from the allegations set forth in Plaintiff’s complaint, “it is impossible to tell

whether Plaintiff’s activities were performed entirely within Pennsylvania or entirely within some

other state, as opposed to ‘among the several States or between any State and any place outside

thereof.’” DPS’s Br. (ECF No. 16) at 11-12. However, as discussed supra, because this court

concludes that Plaintiff has adequately pleaded enterprise coverage, this court need not address the

individual-coverage argument.

DPS next contends that Plaintiff has failed to state a plausible claim for unpaid overtime

pursuant to both the FLSA and the PMWA. DPS’s Br. (ECF No. 16) at 14. According to DPS,

“Plaintiff has ‘merely alleged’ that he ‘worked in excess of 40 hours’ and that he did not receive

‘overtime,’” which DPS contends does not satisfy the pleading standard set forth in Davis, supra.

Id. at 16.

“[T]o recover overtime compensation under the FLSA, an employee must prove that he [or

she] worked overtime hours without compensation, and he [or she] must show the amount and

extent of his [or her] overtime work as a matter of just and reasonable inference.” Davis, 765 F.3d

at 241 (internal quotation marks omitted). In Davis, the Third Circuit examined the “level of detail

necessary to plead an FLSA overtime claim,” id., and adopted

the middle-ground approach taken by the Court of Appeals for the Second Circuit

in Lundy v. Catholic Health System of Long Island Inc., 711 F.3d 106 (2d Cir.

2013). In Lundy, the court held that “in order to state a plausible FLSA overtime

claim, a plaintiff must sufficiently allege [forty] hours of work in a given workweek

as well as some uncompensated time in excess of the [forty] hours.” Id. at 114

(emphases added) (citing 29 U.S.C. § 207(a)(1) (requiring that, “for a workweek

longer than forty hours,” an employee who works “in excess of” forty hours shall

be compensated time and a half for the excess hours)).

Davis, 765 F.3d at 241-42. In Davis, the Third Circuit affirmed the district court’s dismissal of an

FLSA complaint, where “[n]one of the named plaintiffs ha[d] alleged a single workweek in which

he or she worked at least forty hours and also worked uncompensated time in excess of forty

hours.” Id. at 243. Instead, each plaintiff in Davis alleged that “he or she ‘typically’ worked shifts

totaling between thirty-two and forty hours per week and further allege[d] that he or she

‘frequently’ worked extra time.” Id. at 242.

In the instant matter, Plaintiff avers that he and the “Putative Class Members worked well

in excess of 40 hours each week while employed by DPS.” Compl. (ECF No. 1) at ¶ 29. In

addition, Plaintiff states that DPS “failed to provide [Plaintiff and the putative class members] with

overtime pay for hours that they worked in excess of forty (40) hours in a workweek.” Id. at ¶ 27.

These allegations clearly satisfy the pleading standard set forth by Davis. In fact, the Davis court

specifically stated that it did “not hold that a plaintiff must identify the exact dates and times that

[he or] she worked overtime.” Davis, 765 F.3d at 243. Instead, the Court provided that “a

plaintiff’s claim that [he or] she ‘typically’ worked forty hours per week, worked extra hours

during such a forty-hour week, and was not compensated for extra hours beyond forty hours he or

she worked during one or more of those forty-hour weeks, would suffice.” Id.

Thus, because Plaintiff has alleged that he and the other putative class members worked in

excess of 40 hours each week they worked at DPS, and that they were not compensated for those

additional hours, Plaintiff has set forth a plausible FLSA claim. Accordingly, DPS’s motion to

dismiss Plaintiff’s FLSA claim on the basis that Plaintiff has failed to plead adequately entitlement

to overtime is denied.2

C. Failure to Plead PMWA Non-Exemption

Finally, DPS claims that Plaintiff has failed to state a claim pursuant to the PMWA because

his allegations demonstrate that he was exempt from overtime pay pursuant to the administrative-

employee exemption.3 See DPS’s Br. (ECF No. 16) at 18-21. In support of its claim, DPS has

2 With respect to this issue, DPS argues that the “PMWA is interpreted consistent[ly] with the

FLSA.” DPS’s Br. (ECF No. 16) at 17. Thus, DPS contends “Plaintiff’s PMWA [claim] should

also be dismissed for failure to state a claim.” Id. However, as discussed supra, Plaintiff has set

forth a plausible FLSA claim. Accordingly, this court also denies DPS’s motion to dismiss the

PMWA claim on this basis.

3 “‘An employer seeking to rely on an exemption must prove its application as an affirmative

defense’ and ‘[m]atters relating to the duties performed by employees present questions of fact.’”

Hively v. Allis-Chalmers Energy, Inc., 2013 WL 2557629, at *2 (W.D. Pa. 2013) (quoting

Castellino v. M.I. Friday, Inc., 2012 WL 2513500, at *3 (W.D.Pa. 2012) (emphasis added)).

Nevertheless, district courts have considered exemptions in the context of motions to dismiss, and

this court will do so as well. See Anzaldua v. WHYY, Inc., 160 F. Supp. 3d 823, 826 (E.D. Pa.

2016).

attached to its brief three exhibits in support of its contentions.4 Plaintiff responds that even if this

court were to consider the documents attached to DPS’s motion to dismiss, DPS has failed to

establish that Plaintiff has qualified for the administrative-employee exemption.5 Pl.’s Br. (ECF

No. 18) at 10.

Under the PMWA’s administrative employee exemption, anyone employed

in a “bona fide ... administrative ... capacity” is exempt from the PMWA’s overtime

protections. 43 P.S. § 333.105(a)(5). The exemption applies to employees whose

(1) salaried compensation is at least “$250 per week, exclusive of board, lodging

or other facilities,” 34 Pa. Code § 231.83(5), (2) “primary duty consists of the

performance of office or nonmanual work directly related to management policies

or general operation of his employer or the customers of the employer,” id.

§ 231.83(1), and (3) primary duty “requir[es] the exercise of discretion and

independent judgment,” id. § 231.83(5).

Baum v. Astrazeneca LP, 372 F. App’x 246, 248 (3d Cir. 2010) (footnotes omitted).

4 The fact that DPS has attached documents to its motion to dismiss reinforces the appropriateness

of considering this issue on summary judgment, as opposed to a motion to dismiss. Nevertheless,

this court summarizes those attachments. In support of its motion to dismiss, DPS refers to three

documents: (1) a declaration by DPS vice president, Timothy T. Schultz, Jr., which states that

Plaintiff “received a day rate of at least $325,” see Declaration of Timothy T. Schultz, Jr. (“Schultz

Declaration”) (ECF No. 16-1) at 1; (2) a document signed by Plaintiff on March 29, 2017, entitled

“Agreement for Independent Contractor Services” (“Agreement”), see Agreement (ECF No. 16-

1) at 3-9; and (3) a document referring to Plaintiff that indicates his day rate is $325 (“Exhibit B”),

see Exhibit B (ECF No. 16-1) at 11.

5 Plaintiff first contends that DPS may not rely on the Schultz Declaration, the Agreement, and

Exhibit B. See Pl.’s Br. (ECF No. 18) at 7-9. “In deciding a motion to dismiss, the court should

consider the allegations in the complaint, exhibits attached to the complaint, and matters of public

record.” Fortes v. Boyertown Area Sch. Dist., 2014 WL 3573104, at *3 n.14 (E.D. Pa. 2014).

Additionally, “a district court may examine an undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.”

In re Rockefeller Ctr. Properties, Inc. Securities Litig., 184 F.3d 280, 287 (3d Cir. 1999).

The three documents attached to the motion to dismiss are certainly not matters of public

record. Moreover, it is not entirely clear at this juncture whether the documents are both

“undisputedly authentic” and if Plaintiff’s claims rely upon these documents. However, even if

this court were to consider these documents in deciding the instant motion, as discussed infra, the

court’s conclusion would not be different. Accordingly, this court need not determine whether

these documents were attached appropriately as part of DPS’s motion to dismiss.

According to DPS, “Plaintiff’s factual allegations and the documents on which they are

based conclusively establish that he meets each of the three requirements of the [aforementioned]

test and, therefore, is exempt from the PMWA’s overtime provision.” DPS’s Br. (ECF No. 16) at

19. First, DPS, relying on the Schultz Declaration and Independent Contractor Agreement,

contends that Plaintiff was paid a day rate of $325, which is more than the $250 per week required

under the PMWA exemption. Id. at 19. Next, DPS contends that “Plaintiff’s primary duty consists

of nonmanual work directly related to the general operation of DPS.” Id. at 20. Finally, DPS

argues that Plaintiff’s job duties entailed “work requiring the exercise of discretion and

independent judgment.” Id. at 21. In response, Plaintiff does not necessarily dispute the dollar

amount set forth supra, but contends that even if this court were to consider DPS’s attached

documents, DPS still would not prevail because Plaintiff’s complaint does not conclusively

demonstrate the applicability administrative employee exemption. Pl’s Br. (ECF No. 18) at 9.

Specifically, the parties dispute whether Plaintiff’s duties involve the exercise of discretion. See

DPS’s Br. (ECF No. 16) at 20-21; Pl.’s Br. (ECF No. 18) at 10.

“It is the employer’s burden to establish that all three elements of this affirmative defense

are satisfied. On a motion to dismiss, the factual predicate of [the exemption must be]...apparent

from the face of the complaint.” Anzaldua, 160 F. Supp. 3d at 826 (internal footnotes and quotation

marks omitted). “‘In general, the exercise of discretion and independent judgment involves the

comparison and the evaluation of possible courses of conduct, and acting or making a decision

after the various possibilities have been considered.’ 29 C.F.R. § 541.202(a) (explaining

‘discretion and independent judgment’ for the purposes of the [FLSA]).” Baum 372 F. App’x at

248; see also 34 Pa. Code § 231.83.

In Anzaluda, the district court pointed out that “[t]he determination of whether an employee

is an exempt administrative employee is extremely individual and fact-intensive, requiring a

detailed analysis of the time spent performing administrative duties and a careful factual analysis

of the full range of the employee’s job duties and responsibilities.” 160 F.Supp.3d at 828 (internal

quotation marks and footnotes omitted). The district court further stated that it “cannot adequately

analyze [a plaintiff’s] full range of duties without a developed factual record and courts have

routinely found that it is inappropriate to do so.” Id.

In his complaint, Plaintiff has alleged that “DPS controlled all significant or meaningful

aspects of the job duties performed by” Plaintiff. Compl. (ECF No. 1) at ¶ 34. Furthermore,

Plaintiff contended that his “daily and weekly activities … were routinely and largely governed by

standardized plans, procedures, and checklists created by DPS.” Id. at ¶ 45. In addition,

“[v]irtually every job function was pre-determined by DPS, including the tools used, the data to

research and compile, the work schedule and related work duties.” Id. ¶ 46. Finally, according to

Plaintiff, he was “prohibited from varying [his] job duties outside of the pre-determined

parameters.” Id. at ¶ 47.

Thus, although DPS disputes the aforementioned allegations set forth in Plaintiff’s

complaint with regard to the extent of Plaintiff’s discretion,6 at this juncture, it is inappropriate to

conclude that the administrative-employee exemption is applicable. See Andaluza, 160 F.Supp.3d

at 828 (“While it is possible that Plaintiff exercised discretion in matters of significance, it is not

apparent from the face of Plaintiff’s complaint.”). Accordingly, DPS’s motion to dismiss

Plaintiff’s PMWA allegation on the basis of the administrative-employee exemption is denied.

6 Specifically, DPS references other parts of Plaintiff’s complaint where Plaintiff asserts that “job

was to acquire property, identify easements and right-of-ways, and negotiate oil and gas leases.”

DPS’s Br. (ECF No. 16) at 21 (citing Compl. (ECF No 1) at ¶ 22).

IV. CONCLUSION

Based on the foregoing, DPS’s motion to dismiss is denied in its entirety.

Dated: May 21, 2020 . BY THE COURT:

s/ Cynthia Reed Eddy

Chief United States Magistrate Judge

cc: Counsel of record

via electronic filing