TIMOTHY D. DeGIUSTI, Chief United States District Judge.
Before the Court is Defendants' Renewed Joint Motion to Dismiss [Doc. No. 24]. Plaintiff has responded in opposition [Doc. No. 28], and Defendants have replied [Doc. No. 33]. The matter is fully briefed and at issue.
Plaintiff, formerly an administrative assistant to the Cleveland County Fair Board ("Fair Board"), asserts claims arising out of Defendants' termination of her employment. Defendants, who are being sued in their individual capacities
To summarize, the First Amended Complaint [Doc. No. 22] alleges:
Plaintiff asserts federal claims against Defendants under 42 U.S.C. § 1983 for violations of her substantive and procedural due process rights under the Fifth and Fourteenth Amendments, her right to associate with members of the Fair Board under the First Amendment, gender and sexual discrimination under Title VII, and violations of her Oklahoma constitutional rights. Plaintiff also asserts state law claims against Defendants for conspiracy to commit intentional torts, tortious interference with prospective economic advantage, and tortious interference with her employment agreement. Further, Plaintiff asserts an intentional infliction of emotional distress claim against Koranda.
"To survive a motion to dismiss [under Rule 12(b)(6)], 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "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." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The "plausibility standard" announced in Twombly and Iqbal is not a "heightened standard" of pleading, but rather a "refined standard." Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (citing Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011)). Under the "refined standard," plausibility refers "to the scope of the allegations in the complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs `have not nudged their claims across the line from conceivable to plausible.'" Khalik, 671 F.3d at 1191; see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
Further, the Tenth Circuit has noted that "[t]he nature and specificity of the allegations required to state a plausible claim will vary based on context." Khalik, 671 F.3d at 1191 (quoting Kansas Penn Gaming, 656 F.3d at 1215). "Thus, [it has] concluded the Twombly/Iqbal standard is `a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do.'" Id. (quoting Robbins, 519 F.3d at 1247).
Finally, "[w]hile the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in [its] complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim." Khalik, 671 F.3d at 1192 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and `that a recovery is very remote and unlikely.'" Sanchez v. Hartley, 810 F.3d 750, 756 (10th Cir. 2016) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
Defendants move to dismiss on the following grounds: (1) there is no private right of action for alleged violations of the Oklahoma Constitution; (2) Title VII does not authorize individual capacity claims; (3) protections under the First Amendment do not extend to public employees' interactions with co-workers while performing their official duties; (4) the Fifth Amendment only applies to federal government actors; (5) the procedural and substantive due process protections under the Fourteenth Amendment are only applicable if a public employee has a protected property interest in her government job; and (6) the First Amended Complaint fails to plead facts sufficient to show intentional infliction of emotional distress, a violation of Title VII, conspiracy, and tortious interference.
Plaintiff alleges that Defendants violated her state constitutional rights under OKLA. CONST. art. II, §§ 2, 7, 22, 33, and 36A. Defendants assert that the Oklahoma Constitution does not provide a private right of action. Even assuming Plaintiff could show a constitutional violation, she has offered no authority suggesting Oklahoma would recognize a private right of action. In Bosh v. Cherokee County Bldg. Auth., 305 P.3d 994, 1001 (Okla. 2013)
After Bosh, the Oklahoma Legislature amended the OGTCA to specify that the State's immunity from suit extended to torts arising from alleged violations of constitutional rights. Barrios v. Haskell County Pub. Facilities Auth., 432 P.3d 233, 238 (Okla. 2018); see also OKLA. STAT. tit. 51, §§ 152(14), 153(B). First, the Legislature amended the definition of "tort" to include tort claims arising from alleged violations of constitutional obligations. Barrios, 432 P.3d at 238; OKLA. STAT. tit. 51, § 152(14). It also made a similar revision to the section describing the scope of the State's tort liability. Barrios, 432 P.3d at 238; OKLA. STAT. tit. 51, § 153(B). Lastly, the Legislature mandated that even if a court, nonetheless, recognized a constitutional tort, the claim would be subject to the liability limits provided for in the OGTCA. Id.
In 2015, the Legislature again amended § 153 of the OGTCA to specify that tort claims arising under the Oklahoma Constitution cannot name any state employee as a defendant unless the employee is alleged to have been acting outside the scope of his employment. Barrios, 432 P.3d at 238 n. 18; see also OKLA. STAT. tit. 51, § 153(C). In Barrios, the Oklahoma Supreme Court concluded that the OGTCA's "specific prohibition against tort suits arising out of the `operation or maintenance of any prison, jail or correctional facility' is a legislative determination to which [it] must now defer." Barrios, 432 P.3d at 240.
Here, Plaintiff has other avenues for recovering her claimed constitutional injuries, and it appears that Plaintiff is also attempting to pursue her state constitutional claims under § 1983. Certainly, Plaintiff is not precluded from taking that approach, assuming she can sufficiently state a claim for relief under § 1983. The Oklahoma Supreme Court has "previously declined to create a new tort cause of action for an alleged constitutional violation where an alternative remedy existed to vindicate the alleged wrong." Barrios, 432 P.3d at 239 n. 21 (citing Perry v. City of Norman, 341 P.3d 689, 692-693 (Okla. 2014)). Here, § 1983 provides Plaintiff a private cause of action for the alleged deprivation of her federal constitutional rights by county actors. Id. Since Article II, Section 7 of the Oklahoma Constitution mirrors the Fourteenth Amendment to the United States Constitution, a violation of this state constitutional right necessarily gives rise to a § 1983 claim. Id.; see also McCormick v. Halliburton, Co., 895 F.Supp.2d 1152, 1157 (W.D. Okla. 2012) ("[T]he Oklahoma Supreme Court has held that `the same due process protections guaranteed by the 14th amendment [to the United States Constitution] are also guaranteed by Art. 2, § 2.'") (quoting E. Okla. Bld. & Constr. Trades Council v. Pitts, 82 P.3d 1008, 1012 (Okla. 2003)).
Further, Plaintiff is not precluded from bringing tort claims against county government actors in their individual capacity for conduct outside the scope of their employment. See, e.g., Koch v. City of
Plaintiff concedes that Defendants are not her employers. [Doc. Nos. 22 at ¶¶ 40, 42, 28 at 10]. "Under Title VII, suits against individuals must proceed in their official capacity; individual capacity suits are inappropriate. The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act." Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996) (emphasis added). Supervisors and managers are not liable for Title VII violations, and liability is imposed only upon an employer. Id. Accordingly, Plaintiff's individual capacity claims under Title VII fail.
Out the outset, the Court notes that Plaintiff, in her response, has attempted to raise a new theory for a First Amendment violation that was not alleged in the First Amended Complaint. [Doc. No. 28 at 23].
This case was originally filed in state court on February 1, 2016 [Doc. No. 1-2, Earles I, CIV-17-33-D (W.D. Okla.)], and removed to federal court on January 10, 2017 [Doc. No. 1, Earles I]. On March 8, 2017, the Court granted Plaintiff leave to file an Amended Complaint, and Plaintiff filed her Amended Complaint on March 10, 2017 [Doc. No. 19, Earles I]. On May 1,
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Under Garcetti and its progeny, a plaintiff must show that the substance of the speech forming the basis for the First Amendment claim involves something that is not a part of the plaintiff's official duties and is a matter of public concern. See Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202 (10th Cir. 2007).
Here, Plaintiff alleges that Koranda violated her First Amendment rights by prohibiting her from associating or having any further contact with members of the Fair Board. The controlling factor in Plaintiff's case is that her expressions were made pursuant to her duties as an administrative assistant to the Fair Board. [Doc. No. 22 at ¶¶ 25, 33, 64]. Plaintiff alleges that Koranda's actions were essentially a demotion as Koranda took over Plaintiff's functions of communicating with the Fair Board and overseeing the Fair Board meetings. Id. at ¶¶ 25, 33. Koranda allegedly limited Plaintiff's role to taking minutes at the meetings. Id. at ¶ 33. Those circumstances distinguish Plaintiff's case from those in which the First Amendment provides protection against discipline.
Plaintiff did not act as a citizen when she conducted her daily professional activities, such as attending Fair Board meetings, communicating with members of the Fair Board, and recording minutes at the meeting. When Plaintiff performed the tasks she was paid to perform, she acted as a government employee. "The fact that [her] duties sometimes required [her] to speak or write does not mean [Koranda was] prohibited from evaluating [her] performance." Garcetti, 547 U.S. at 422, 126 S.Ct. 1951; see also D'Angelo v. Sch. Bd. of Polk County, Fla., 497 F.3d 1203, 1213 (11th Cir. 2007) (Applying Garcetti, the court held that a high school principal's associations in connection with meetings that the principal held or attended about converting the school to charter status were not protected by the First Amendment). "Restricting associational activity that is not undertaken as a citizen, but `that owes its existence to a public employee's
Plaintiff also alleges a due process violation under the Fifth Amendment. However, "[t]he Due Process Clause of the Fifth Amendment applies only to action by the federal government....[,]" and the federal government is not involved here. Koessel v. Sublette County Sheriff's Dep't, 717 F.3d 736, 748 n. 2 (10th Cir. 2013). Accordingly, Plaintiff's Fifth Amendment claim is dismissed.
Plaintiff also asserts claims for violations of her procedural and substantive due process rights under the Fourteenth Amendment. [Doc. No. 22 at 24-28]. The Fourteenth Amendment protects citizens from the deprivation of "life, liberty, or property, without due process of law...." U.S. CONST. amend. XIV, § 1.
To determine whether a plaintiff was denied procedural due process, the Court engages in a two-step inquiry: "(1) Did the individual possess a protected interest to which due process protection was applicable? (2) Was the individual afforded an appropriate level of process?" Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir. 1998). To properly allege a violation of her procedural due process rights, Plaintiff must first demonstrate that she had a protected property interest in her position as an administrative assistant to the Fair Board. An employee possesses a property interest in public employment only if she has tenure, a contract for a fixed term, a clearly implied promise of continued employment, or if state law allows dismissal only for cause or its equivalent. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Greene v. Barrett, 174 F.3d 1136, 1140-1141 (10th Cir. 1999).
Plaintiff does not allege that she had tenure, a fixed-term contract, or that she was subject to a state law that permits dismissal only for cause.
Under Oklahoma law, an implied contract can be formed between employers and at-will employees, which is typically a fact question, unless the alleged promises are nothing more than vague assurances.
Rather, Plaintiff asserts in her response that the statutory procedures of the OMA created "an enforceable implied contract which was interfered with when the [OMA] was violated." [Doc. No. 28 at 15]. "It remains unclear to the Court how the OMA creates an implied contract between Plaintiff and the Board." Trant v. Oklahoma, 874 F.Supp.2d 1294, 1302 (W.D. Okla. 2012) (holding that the OMA does not give rise to an implied contract binding the board to adhere to OMA procedures and "does not guarantee an employee any procedural rights by virtue of his employment"). The statutorily required procedure outlined in the OMA is mandated by the Oklahoma Legislature, not the employer. Id. "The OMA does not constitute a direct promise to any employee, nor is it a statutory scheme to provide individual relief to a particular class of employees." Trant v. Oklahoma, 754 F.3d 1158, 1175 (10th Cir. 2014). Accordingly, Plaintiff's Fourteenth Amendment procedural due process claim is dismissed.
Plaintiff alleges that she was denied both a property interest (continued employment) and a liberty interest (good name and reputation) without due process. "In order to present a claim of denial of `substantive' due process by a discharge for arbitrary or capricious reasons, a liberty or property interest must be present to which the protection of due process can attach." Brenna v. S. Colo. State Coll., 589 F.2d 475, 476 (10th Cir. 1978). Plaintiff asserts that she "enjoyed a limited property right to the procedures provided by the [OMA]." [Doc. No. 28 at 12]. As evidenced supra, Plaintiff has not established that she possessed a property interest in her public employment. Thus, Plaintiff must plead facts to "show a liberty interest exists and then that the liberty interest was infringed upon." Workman v. Jordan, 32 F.3d 475, 480 (10th Cir. 1994).
In most cases in which the Tenth Circuit has considered whether an employee's termination violated a right of substantive due process, the terminated employee had a property interest in continued employment. See, e.g., Workman, 32 F.3d at 479-481 (a captain in the sheriff's department had a property interest in continued public employment); Brenna, 589 F.2d at 476 (tenured college professor); Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 528 (10th Cir. 1998) (tenured law professor). Even where a property interest in employment is at stake, the Tenth Circuit has expressed uncertainty as to whether the interest should be entitled to substantive due process protection, rather than a right of procedural due process. See Hennigh v.
In analyzing her substantive due process claim, Plaintiff cites to McDonald v. Wise, 769 F.3d 1202, 1212 (10th Cir. 2014). [Doc. No. 28 at 13]. In McDonald, the Tenth Circuit held that the plaintiff, a mayoral appointee, did not have a due process property interest in continued employment, but the plaintiff did have a liberty interest "in his good name and reputation as they relate to his continued employment." Id. In making this determination the Tenth Circuit relied on Workman v. Jordan, 32 F.3d 475, 480 (10th Cir. 1994), which involved a plaintiff with a protected property interest in continued employment. The Circuit noted in a footnote that the defendants had argued that a liberty interest only exists if coupled with a property interest, but that the district court had found that the claim was not precluded simply because the plaintiff was an at-will employee. McDonald, 769 F.3d at 1212 n. 2. In making that determination, the district court in McDonald cited to McGhee v. Draper, 639 F.2d 639, 643 (10th Cir. 1981), which cited to Paul v. Davis, 424 U.S. 693, 712-713, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). McDonald v. Miller, 945 F.Supp.2d 1201, 1209 (D. Colo. 2013). In Davis, the United States Supreme Court held that reputation alone does not implicate any liberty or property interests sufficient to invoke the protection of the due process clause, and that something more than simple defamation by the government official must be involved to establish a claim under § 1983. Davis, 424 U.S. at 712, 96 S.Ct. 1155.
A public employee facing discharge qualifies for due process protection "only if he can demonstrate that the termination implicates a property or liberty interest protected by the Due Process Clause; if a property or liberty interest is not implicated, `he must settle for whatever procedures are provided by statute or regulation.'" Lane v. Town of Dover, 761 F.Supp. 768, 771 (W.D. Okla. 1991) (quoting Sipes v. United States, 744 F.2d 1418, 1420 (10th Cir. 1984)). Liberty interests in employment involve protection of the employee's good name, reputation, honor, and integrity, and the employee's freedom to take advantage of other employment opportunities. Lane, 761 F. Supp. at 771 (holding that a police chief did not have a property interest in his employment and that no liberty interest was violated by his discharge). "The manner in which a public employee is terminated may deprive him of either or both of these liberty interests." Sullivan v. Stark, 808 F.2d 737, 739 (10th Cir. 1987) (quoting Miller v. City of Mission, Kan., 705 F.2d 368, 373 (10th Cir. 1983)).
In order to assert a liberty deprivation claim, Plaintiff must sufficiently plead the four elements identified in Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1994): (1) the statements must impugn the good name, reputation, honor, or integrity of the employee; (2) the statements must be false; (3) the statements must occur in the course of terminating the employee or
Under Oklahoma law, an action for intentional infliction of emotional distress will lie only where there is extreme and outrageous conduct coupled with severe emotional distress. Gaylord Entm't Co. v. Thompson, 958 P.2d 128, 149 (Okla. 1998). To prevail on this claim, a plaintiff must prove: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's conduct caused the plaintiff emotional distress; and (4) the emotional distress was severe. Computer Publications, Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002).
Recovery under this theory is "governed by very narrow standards," and the "trial court acts as a gatekeeper regarding the outrageousness of the defendant's conduct and the severity of the plaintiff's distress." Miner v. Mid-America Door Co., 68 P.3d 212, 223 (Okla. Civ. App. 2002); Welton, 49 P.3d at 735. A plaintiff must plead facts to show that a defendant engaged in conduct that was not only unreasonable but was also "`beyond all possible bounds of decency in the setting in which it occurred'" or "`utterly intolerable in a civilized community.'" Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 942 (10th Cir. 1994) (quoting Eddy v.
Oklahoma courts have examined a variety of conduct claimed to be outrageous in the employment setting, establishing a very high bar for actionable conduct. Insufficient facts to support the tort were found where a plaintiff's female supervisor described, during a meeting, how sexual favors could be used to obtain business, made lewd remarks about the plaintiff, and openly made sexual comments in the presence of co-workers. Anderson v. Okla. Temporary Services, Inc., 925 P.2d 574, 577 (Okla. Civ. App. 1996). Also deemed insufficient were allegations that the employer telephoned the plaintiff in the middle of the night and "browbeat him for hours," required him to do unnecessary work, and made derogatory sexual comments about his fiancé. Mirzaie v. Smith Cogeneration, Inc., 962 P.2d 678, 682-683 (Okla. Civ. App. 1998). "In cases arising out of the workplace, Oklahoma appellate courts have found that a defendant engaged in extreme and outrageous conduct only when that defendant intentionally and persistently engaged in a course of conduct that harmed the plaintiff." Hannah v. TCIM Services, Inc., Case No. CV-10-255-CVE-FHM, 2011 WL 2173862, at *3 (N.D. Okla. June 2, 2011) (collecting cases where employer's conduct was not extreme and outrageous).
Similarly, the Tenth Circuit, interpreting Oklahoma law, has emphasized the high burden to be met for liability for intentional infliction of emotional distress. See Daemi, 931 F.2d at 1388 (affirming the district court's decision that an employer who called an employee derogatory names based on his national origin, compelled him to terminate or otherwise eliminate his Iranian subordinates because of their national origin, required him to take a polygraph after two area stores were robbed, and belittled him publicly at seminars was not actionable in tort for intentional infliction of emotional distress); see also Merrick v. N. Natural Gas Co., a Div. of Enron Corp., 911 F.2d 426, 433 (10th Cir. 1990) (an employee did not allege facts sufficient to constitute intentional infliction of emotional distress where he alleged that his supervisor harshly criticized him and yelled and cursed at him in front of others).
Here, Plaintiff alleges that Koranda stood around her in a threatening manner, falsely accused her of anger problems and conducting personal business on her work computer, belittled her to other government actors and employees, made her carry her own luggage to the front of a hotel, and required her to attend a speed dating event. Although the alleged actions show a level of insensitivity, none of the allegations approach the threshold for an intentional infliction of emotional distress claim, and thus fail to plausibly assert such a claim. Accordingly, this claim against Koranda is dismissed.
Plaintiff asserts claims of gender discrimination and sex discrimination based on a hostile work environment under Title VII. Defendants contend that Plaintiff's allegations are insufficient to state a claim on which relief can be granted. The Tenth Circuit has stated regarding Title VII claims that "[w]hile the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim." Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).
Plaintiff also alleges sexual harassment based on a hostile work environment — a claim recognized in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). To state a claim of sex discrimination based on a hostile work environment, Plaintiff must plead facts to "`show (1) that she was discriminated against because of her sex; and (2) that the discrimination was sufficiently severe or pervasive such that it altered the terms or conditions of her employment and created an abusive working environment.'" Morris v. City of Colorado Springs, 666 F.3d 654, 663 (10th Cir. 2012) (quoting Medina v. Income Support Div., 413 F.3d 1131, 1134 (10th Cir. 2005)).
"Title VII does not establish `a general civility code.'" Morris, 666 F.3d at 663 (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). "[R]un-of-the-mill boorish, juvenile, or annoying behavior that is not uncommon in American workplaces is not the stuff of a Title VII hostile work environment claim." Morris, 666 F.3d at 664. Rather, "[a]n employer creates a hostile work environment when `the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Id. (quoting Hall v. U.S. Dep't of Labor, 476 F.3d 847, 851 (10th Cir. 2007)). Further, "[a] plaintiff must show that the environment was both objectively and subjectively hostile or abusive." Morris, 666 F.3d at 664 (internal quotation marks and citation omitted). Courts assess "`the objective severity of the harassment from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.'" Id. (quoting Harsco Corp. v. Renner, 475 F.3d 1179, 1187 (10th Cir. 2007)) (emphasis in original).
Plaintiff has not pled facts to show that the alleged harassment was severe
Moreover, Plaintiff has not asserted any facts to show that the alleged harassment interfered with her work performance. Meritor Sav. Bank, FSB, 477 U.S. at 65, 106 S.Ct. 2399 (Title VII prohibits sexual harassment that unreasonably interferes with an individual's work performance). There are no allegations that Plaintiff, because of Koranda's behavior, was unable to complete her work or that she was criticized or disciplined by the Fair Board prior to her termination. In fact, Plaintiff alleges that prior to her discharge she "adequately and competently performed all essential functions of her job," and she was never disciplined or reprimanded. [Doc. No. 22 at ¶ 65]. Accordingly, Plaintiff's Title VII claim is dismissed.
Plaintiff rounds out her First Amended Complaint with two tortious inference claims against Cleveland and Stacy: (1) tortious interference with prospective economic advantage and (2) tortious interference with an employment agreement.
Upon consideration, the Court concludes in the exercise of discretion under 28 U.S.C. § 1367(c)(3) that it should decline to exercise supplemental jurisdiction over these claims. Because the Court has dismissed Plaintiff's federal claims, all claims over which the Court has original jurisdiction have been adjudicated.
The Tenth Circuit has observed: "When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims." Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011) (internal quotation marks and citation omitted); see also Brooks v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir. 2010) (noting a general rule of declining pendent jurisdiction when federal claims are resolved before trial). The Court finds that Plaintiff's state law claims in Counts Four, Five, and Six should be
Based on the foregoing, Defendants' Renewed Joint Motion to Dismiss [Doc. No. 24] is GRANTED in part and DENIED in part. Counts One, Two, and Three are dismissed with prejudice.
