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Spencer v. Barton County Ambulance District

United States District Court, W.D. Missouri, Southwestern Division

March 2, 2017

ROBERT E. SPENCER, Plaintiff,
v.
BARTON COUNTY AMBULANCE DISTRICT, Defendant.

          ORDER AND OPINION DENYING PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S COUNTERCLAIMS

          ROSEANN A. KETCHMARK, JUDGE.

         Plaintiff filed this suit against the Barton County Ambulance District (“the District”).[1] In its Amended Answer, the District asserts six counterclaims against Plaintiff. Plaintiff seeks dismissal, alleging that none of the counterclaims state a claim for which relief can be granted. As discussed below, the Motion to Dismiss, (Doc. 55), is DENIED.

         Background

         The District alleges the following facts: Plaintiff began working for the District as a part-time paramedic in November 2011, and became the District's co-Administrator in February 2012. (Doc. 50, p. 20, ¶¶ 8-9.) In March 2013, Plaintiff became the District's Administrator and was paid a $60, 000 salary. (Doc. 50, p. 20, ¶ 10.)

         In November 2014, Plaintiff “contacted the [District's] legal counsel and requested a template employment agreement for the employment of an administrator.” (Doc. 50, p. 20, ¶ 10.) He then “made material and substantive revisions and edits” to the template provided by the District's attorney, and in February 2015 presented the edited form to the District for its approval. (Doc. 50, p. 20, ¶¶ 12-13.) Plaintiff did not disclose that he had made changes, nor did he disclose “that he had not shown his edits and changes to [the District's] counsel prior to presenting it to the Board members.” (Doc. 50, p. 20, ¶¶ 14-15.) Instead, Plaintiff “affirmatively represented that the revised and edited Form Employment Agreement had been prepared, reviewed or approved by [the District's] legal counsel.” (Doc. 50, p. 20, ¶ 16.)

         The District executed the Employment Agreement. It provides that Plaintiff will be paid $60, 000 a year and has no provision for the payment of overtime.[2] Nonetheless, Plaintiff submitted timesheets claiming increased pay for overtime, and told the District's office manager and secretary, Margie Bowman, that the Employment Agreement provided that he would be paid overtime. (Doc. 50, p. 21, ¶ 23.) The District alleges that between February 2015 and March 2016, Plaintiff received at least $30, 000 in extra pay based on his false representation to Bowman that the Employment Agreement contained an overtime provision. (Doc. 50, p. 21, ¶ 25.)

         In February 2016, Plaintiff was placed on paid administrative leave pending investigation into a sexual harassment complaint. (Doc. 50, p. 22, ¶ 27.) “[W]hile suspended from his position [Plaintiff] gained access to [the District's] premises under false pretenses” and “removed a laptop from the building without permission from [the District] or the Board.” (Doc. 50, p. 22, ¶¶ 29-30.) The computer had been issued to Plaintiff for use in connection with his duties, but it remained the District's property. (Doc. 50, p. 22, ¶ 33.) The District demanded that Plaintiff return the laptop, but he did not do so “for several days, ” and when he did it was determined that data had been removed; some of the files have been restored but “the remainder of the files stored thereon may not be retrievable.” (Doc. 50, p. 22, ¶¶ 30-32.) In March 2016, Plaintiff was terminated.

         The Amended Complaint asserts four claims, which the Court summarizes to provide context. Count I alleges that Plaintiff was entitled to payment of overtime under the Fair Labor Standards Act (“FLSA”), and he was terminated in retaliation for his assertion of FLSA rights. Count II alleges the Employment Contract was breached. Count III asserts a claim of wrongful discharge in violation of public policy. Count IV alleges a Due Process violation. As stated earlier, the District is the sole remaining Defendant.

         In addition to denying Plaintiff's claims and presenting affirmative defenses, the District asserts six counterclaims against Plaintiff. Count I asserts a claim for fraudulent misrepresentation or concealment. Counts II and III assert claims for unjust enrichment and money had and received, respectively. Count IV alleges a claim for conversion. Counts V and VI assert statutory claims for tampering with computer data and tampering with computer equipment, respectively. Additional details about the counterclaims will be discussed as necessary.

         Discussion

         When considering a motion to dismiss under rule 12(b)(6), the Court “must accept as true all of the complaint's factual allegations and view them in the light most favorable to the Plaintiff[ ].” Stodghill v. Wellston School Dist., 512 F.3d 472, 476 (8th Cir. 2008).

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. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. 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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible if it allows the reasonable inference that the defendant is liable for the conduct alleged. E.g., Horras v. American Capital Strategies, Ltd., 729 F.3d 798, 801 (8th Cir. 2013).

         I. Count I - Fraudulent ...


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