407 F. App'x 277
10th Cir.2011Background
- Matthews was hired by LaBarge to relocate to Oklahoma as Director of Operations with a promise of promotion to VP of Operations when the current VP retired.
- He began the job in January 2006 and within a year identified statutory and regulatory violations, which he reported to superiors who allegedly ignored them.
- Matthews was fired on March 2, 2007, while reportedly still performing competently, and LaBarge allegedly made derogatory comments about him afterward.
- He initially filed state-court claims (fraud, deceit, defamation, wrongful discharge) that were removed to federal court by LaBarge, which moved to dismiss under Rule 12(b)(6).
- The district court struck Matthews’s third amended complaint for lack of court consent or party consent under Rule 15(a)(2) and dismissed the action; Matthews appealed.
- The panel affirmed the district court’s rulings, holding the claims inadequately pleaded and nonjusticiable; the court denied leave to file new pleadings on appeal and denied in forma pauperis status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the appeal | Matthews argues appeal filed late after dismissal. | LaBarge argues timely under Rule 58 and 4(a)(1)(A). | Appeal timely due to lack of separate judgment document under Rule 58. |
| Standard of review for Rule 12(b)(6) | Matthews contends he stated plausible claims. | LaBarge asserts claims fail to plead plausibly. | We review de novo, accepting well-pleaded facts as true and require plausible entitlement to relief. |
| District court's strike of the third amended complaint | Matthews needed only general consent for the third amendment. | Rule 15(a)(2) requires court or opposing-party consent; he had none. | No abuse of discretion in striking unauthorized pleading. |
| Forfeiture of claims three and four | Matthews relies on those claims despite limited briefing. | Pro se briefing forfeits non-briefed claims under Rule 28 and related standards. | Claims three and four forfeited; appellate review denied for those claims. |
| Claim One (Okla. Stat. tit. 40, § 167) and Claim Two (deceit) and public-policy basis | LaBarge’s promised promotion constitutes false inducement; public-policy claim supported by statutes. | Statutory interpretation excludes Matthews as 'workman' and §167 does not cover this conduct; deceit fails under Rule 9(b); public policy not properly articulated. | §167 claim rejected; deceit claim rejected for failure to plead with particularity; public-policy exception rejected; other statutory claims likewise rejected. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard for pleading to survive a 12(b)(6) dismissal)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (facial plausibility required for claims; pleading must show plausible entitlement)
- Ashby v. McKenna, 331 F.3d 1148 (10th Cir. 2003) (liberal construction of pro se pleadings; Fauledness of allegations)
- Wilburn v. Mid-South Health Dev., Inc., 343 F.3d 1274 (10th Cir. 2003) (public policy articulated by state law required for policy-based claims)
- Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832 (10th Cir. 2003) (well-pleaded facts govern claims; facts limited to complaint)
- Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989) (narrow public-policy exception to at-will employment)
- Twombly, Bell Atl. Corp. v., 550 U.S. 544 (2007) (see above for plausibility standard)