Cook et al v. Flight Services And Systems, Inc.

MOTION to Dismiss for Failure to State a Claim

E.D. La.December 5, 2016

2818314v1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA STANLEY COOK, individually and on ) CIVIL ACTION NO. 2:16-cv-15759 behalf of all other similarly situated, ) ) Plaintiffs, ) v. ) ) JUDGE: JANE TRICHE MILAZZO FLIGHT SERVICES & SYSTEMS, INC., ) ) MAG: DANIEL E. KNOWLES, III Defendant. ) DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant Flight Services & Systems, Inc. (“Defendant” or “FSS”) respectfully moves the Court to dismiss Plaintiffs’ Complaint against it in its entirety, for failure to state a claim for which relief may be granted. FSS is entitled to such relief because Plaintiffs, individually and collectively: (1) fail to allege violations of the Fair Labor Standards Act (“FLSA”) with sufficient particularity, by failing to allege approximate hours and date ranges that they worked, as well as their rate of pay; and, (2) fail to allege facts to sufficiently plead collective wage and hour violations, such as any facts regarding job titles or duties held by themselves or other putative class members. Thus, Plaintiffs’ Complaint should be dismissed because of its numerous fatal pleading inadequacies, as described in more detail in the accompanying memorandum of law. In addition, because Plaintiffs fail to state a claim upon which relief can be granted, they lack the requisite standing to bring a claim for violation of the FLSA as a collective action, and their Complaint therefore must be dismissed in its entirety. Case 2:16-cv-15759-JTM-DEK Document 10 Filed 12/05/16 Page 1 of 3 2818314v1 2 WHEREFORE, Defendant Flight Services & Systems, Inc. respectfully requests that this Court deny Plaintiff’s Complaint in its entirety, and dismiss Plaintiffs’ Complaint with prejudice. Respectfully Submitted: CHAFFE McCALL, LLP /s/ Sarah Voorhies Myers Sarah Voorhies Myers (La. Bar No. 30107) 2300 Energy Centre 1100 Poydras Street New Orleans, LA 70163 T: (504) 585-7009 F: (504) 544-6092 E: myers@chaffe.com LoPRESTI MARCOVY & MAROTTA, LLP /s/ Thomas P. Marotta Thomas P. Marotta, Esq. (OH Bar No. 0024884) Michael S. Lewis (OH Bar No. 0079101) (Pro Hac Vice pending) 1468 West Ninth Street, Suite 330 Cleveland, Ohio 44113 T: (216) 241-7740 F: (216) 241-6031 E: tpm@lmm-llp.com msl@lmm-llp.com Attorneys for Defendant Flight Services & Systems, Inc. Case 2:16-cv-15759-JTM-DEK Document 10 Filed 12/05/16 Page 2 of 3 2818314v1 3 CERTIFICATE OF SERVICE I hereby certify that on this 5 th day of December, 2016, a true and correct copy of the foregoing Motion to Dismiss Plaintiff’s Complaint was served by filing the same in this Court’s CM/ECF System, upon the following: Christopher L. Williams Williams Litigation, L.L.C. 639 Loyola Ave., Suite 1850 New Orleans, LA 70113 and Michael T. Tusa, Jr. (02154 Sutton, Alker & Rather, LLC 4080 Lonesome Road, Suite A Mandeville, LA 70448 Attorneys for Plaintiff /s/ Sarah Voorhies Myers Case 2:16-cv-15759-JTM-DEK Document 10 Filed 12/05/16 Page 3 of 3 1 2818359-1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA STANLEY COOK, individually and on ) CIVIL ACTION NO. 2:16-cv-15759 behalf of all other similarly situated, ) ) Plaintiffs, ) v. ) ) JUDGE: JANE TRICHE MILAZZO FLIGHT SERVICES & SYSTEMS, INC., ) ) MAG: DANIEL E. KNOWLES, III Defendant. ) DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Defendant Flight Services & Systems, Inc. (“Defendant” or “FSS”) respectfully submits this Memorandum of Law in Support of its Motion to Dismiss Plaintiffs’ Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. I. INTRODUCTION Plaintiffs’ “Complaint - Collective Action” (the “Complaint”) asserts a cause of action against Defendant Flight Services & Systems, Inc. (“Defendant” or “FSS”) for failure to pay minimum wage and overtime under the Fair Labor Standards Act (“FLSA”), based on Plaintiffs’ allegations that they were not paid for all the hours they worked, including both straight-time and overtime. Complaint at ¶1. Plaintiffs’ conclusory allegations, however, cannot plausibly give rise to a claim for relief under the standards set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Specifically, Plaintiffs fail to allege any facts in support of their bare allegation that they regularly worked more than 40 hours in a workweek, such as identifying how often they worked Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 1 of 17 2 2818359-1 more than 40 hours in a workweek and how many hours over 40 they worked during those weeks; their rate of pay and the wage they claims they were paid that was less than the minimum wage; and any dates over which they allegedly were underpaid. Plaintiffs also fail to sufficiently plead collective wage and hour violations, as they allege insufficient facts describing “similarly situated” individuals. Although thirteen Plaintiffs are identified in the Complaint and allegedly are suing individually, none of the Plaintiffs are pled as individuals. None of them identify when they worked for FSS or what positions they held at FSS, whether as a “ramp agent” or as an “other non-exempt position,” as vaguely alleged in paragraph 7 of their Complaint. Nor do any of the individual plaintiffs allege the number of hours of regular time or overtime that they are allegedly owed. The specificity of time (regular v. overtime) is necessary in this matter because FSS may be exempt from the FLSA claims alleged by Plaintiffs. See, generally, 29 U.S.C. §213(b); and, 45 U.S.C. 181, et seq. In the absence of any specific allegations, Plaintiffs’ allegations fall woefully short of a plausible showing that FSS violated the FLSA. Accordingly, FSS is simply left guessing as to the basis for Plaintiff’s FLSA claim. Further, because Plaintiffs fail to state a claim upon which relief can be granted, they lack standing to bring their claim under the FLSA as a collective action. The purported collective action alleged in the Complaint therefore also must be dismissed. For these reasons, and the other reasons discussed below, Plaintiffs fail to state a claim upon which relief can be granted. II. FACTS Despite the broad and argumentative allegations throughout the Complaint that FSS failed to pay Plaintiffs and other putative class members’ minimum wage or for overtime hours worked, the facts alleged by Plaintiffs only reveal the following: Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 2 of 17 3 2818359-1 1. Plaintiffs were formerly employed with FSS as a non-exempt “ramp agents” and/or in other non-exempt positions. (Complaint [Rec. Doc. 1], ¶7.) 2. Plaintiffs are “similarly situated employees” because they were all classified as non-exempt by FSS and, allegedly, had their hours cut randomly by FSS. (Id., ¶¶8, 9.) 3. Plaintiff and similarly situated individuals have not been paid for all hours worked under forty (40), and overtime for all time worked over forty (40). (Id., ¶16.) 4. Plaintiffs’ paychecks did not reflect the correct number of hours worked. (Id., ¶¶9, 10, 12, 13.) 5. FSS’ denial of wages and overtime compensation to Plaintiff and similarly situated individuals was “willful” (Id., ¶15), and FSS’ conduct constitutes a willful violation of the FLSA. (Id., ¶23.) 6. Plaintiffs are “similarly situated” because they have “substantially similar job requirements and pay provisions.” (Id., ¶ 17.) 7. Plaintiffs also are “similarly situated” because they are subject to “Defendant’s common practice, policy, or plan of unlawfully failing to pay minimum wage and overtime compensation for all hours over 40 worked in one week.” (Id., ¶18.) III. LEGAL ARGUMENT A. Standard of Review Federal Rule of Civil Procedure 12(b)(6) allows for the dismissal of a cause of action if a plaintiff’s complaint fails to “state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 8(a)(2) requires a pleading to contain, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint may be Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 3 of 17 4 2818359-1 dismissed pursuant to Rule 12(b)(6) for failure to satisfy the federal notice pleading standard set forth in Rule 8. See Bank of Abbeville & Trust Co. v. Commonwealth Land Title Ins. Co., 201 Fed. Appx. 988, 990 (5th Cir. 2006) (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §1203 (3d ed. 2004) (“[T]he form and sufficiency of a statement of a claim for relief under Rule 8(a)(2) may be tested by a motion to dismiss for failure to state a claim upon which relief can be granted, Rule 12(b)(6) * * *.”)). Although a complaint does not need “detailed factual allegations,” more than labels and conclusions are necessary, and “a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (internal citations and quotations omitted); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”) Courts do not accept as true “conclusory allegations, unwarranted factual inferences, or legal conclusions.” Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 695 (5th Cir. 2005)). That is, the complaint must offer more than an “unadorned, the defendant-unlawfully-harmed-me accusation,” and a plaintiff may not rely on mere “naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Twombly, 500 U.S. at 557). See, also, Christopher v. Harbury, 536 U.S. 403, 416 (2002) (elements of a plaintiff’s claim(s) “must be addressed by allegations in the complaint sufficient to give fair notice to a defendant”). Further, to survive a Rule 12(b)(6) motion to dismiss, Plaintiff must plead enough facts to, “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Facial plausibility exists “when the plaintiff pleads factual content that allows Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 4 of 17 5 2818359-1 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “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,’” and thus is inadequate. Id., (quoting Twombly, 550 U.S. at 557). Further, in order to survive a motion to dismiss, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff’s claim. Lormand v.US Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009). B. Plaintiffs’ FLSA Claim Fail as a Matter of Law Pursuant to Fed. R. Civ. P. 12(b)(6). 1. Plaintiffs Fail to Allege FLSA Violations with Sufficient Particularity. Plaintiffs’ allegations in support of their FLSA claim are insufficient to satisfy the federal notice pleading standard of Rule 8, as they fail to allege elements of a cause of action under the FLSA. Where Plaintiffs do allege other elements of a cause of action, they make a mere “formulaic recitation of the elements,” which does not suffice to establish this cause of action. See, Twombly, 550 U.S. at 570. “[I]n order to state a claim for unpaid overtime or minimum wages under the FLSA, a plaintiff must plead: “(1) that there existed an employer-employee relationship during the unpaid * * * periods claimed; (2) that the employee engaged in activities within the coverage of the FLSA; (3) that the employer violated the FLSA’s overtime [or minimum wage] requirements; and (4) the amount of overtime [or minimum wage] compensation due.” Mejia v. Bros. Petroleum, LLC, E.D. La. No. 12-2842, 2015 U.S. Dist. LEXIS 74339, at *10 (E.D. La. June 9, 2015) (quoting Johnson v. Heckmann Water Res., Inc., 758 F.3d 627, 630 (5th Cir. 2014)). See, also, Solis v. Time Warner Cable San Antonio, L.P., W.D.Tex. No. 10-CA-0231 XR, 2010 Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 5 of 17 6 2818359-1 U.S. Dist. LEXIS 69876, at *3-5 (W.D. Tex. July 13, 2010) (Court held that the plaintiff’s original complaint contained boilerplate allegations of FLSA violations; however, “[p]laintiff's amended complaint identifies the employees related to the claim, their job duties, their job titles, and how they were paid[,]” and, thus, was sufficiently pled to survive a motion to dismiss); Qureshi v. Panjwani, S.D.Tex. No. H-08-3154, 2009 U.S. Dist. LEXIS 48142, *5-7 (S.D. Tex. June 9, 2009) (Plaintiffs made detailed allegations regarding their job positions, dates worked in those positions, hours worked per week, and rates of pay, which were sufficient facts to state a claim upon which relief could be granted in FLSA action). Regarding minimum wage provisions, the Jones court stated: The language of the FLSA's minimum wage provision establishes the elements that should be alleged in order to survive a motion to dismiss. 29 U.S.C. § 206(a) provides: "Every employer shall pay to each of his employees who in any workweek is engaged in commerce . . . wages at the following rates . . . [$ 5.15 per hour]." Thus, "where the plaintiff alleges violations of the FLSA's minimum . . . wage provision[], the complaint should, at least approximately, allege the [**18] hours worked for which these wages were not received." Zhong v. August August Corp., 498 F. Supp. 2d 625, 628 (S.D.N.Y. 2007). Moreover, "where a plaintiff brings an FLSA claim 'for and [o]n behalf of himself . . . and other employees similarly situated,' the complaint should indicate who those other employees are, and allege facts that would entitle them to relief." Id. (citing 29 U.S.C. § 216(b)). Jones v. Casey's Gen. Stores, 538 F.Supp.2d 1094 (S.D.Iowa 2008). While FSS acknowledges that Plaintiffs are not required to plead specific instances of unpaid overtime, some factual allegations are required. See, DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 88-91 (2d Cir. 2013) (“[I]t is employees’ memory and experience that lead them to claim in federal court that they have been denied overtime in violation of the FLSA in the first place. Our standard requires that plaintiffs draw on those resources in providing complaints with sufficiently developed factual allegations.”) Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 6 of 17 7 2818359-1 Here, Plaintiffs fail to allege any basic facts to show that FSS violated overtime or minimum wage requirements, or the amount of compensation allegedly owed to them. The allegations in Plaintiffs’ complaint is boilerplate and insufficient to state a claim upon which relief can be granted. Plaintiffs failure to plead the approximate hours per week they claim to have worked, regular and/or overtime for which they were not paid, the period over which they allegedly worked such hours, and their rate of pay or position during those times is fatal to their complaint. Of the thirteen plaintiffs identified in the complaint’s caption, not one plaintiff is individually pled or identified within the allegations of the Complaint. Plaintiffs’ allegations thus fall short of the pleading standard required by Rule 8, and warrant dismissal under Rule 12(b)(6). a. Plaintiffs Failed to Allege Sufficient Facts Regarding the Hours Worked for Which They Were Not Paid, and Therefore Do Not Adequately Allege that FSS Violated the FLSA or the Amount of Compensation Owed. Although Plaintiffs allege that they are entitled to unpaid wages and overtime under the FLSA, the Complaint does not state the number of hours, even approximately, for which they allegedly were not paid. Nor do Plaintiffs allege, even approximately, the date range over which they claim they were under-compensated or their rate of pay. Instead, Plaintiffs allegations are simply that they and others have not been paid for all the hours they worked. (Rec. Doc. 1, ¶17). These allegations leave FSS to speculate as to Plaintiffs’ FLSA claim, and do not sufficiently state a violation of the FLSA. While courts in this jurisdiction have not required plaintiffs to allege exact date ranges or number of hours worked for which they allege they were not compensated, they do expect a plaintiff’s allegations to at least put defendants on notice as to approximate dates and hours worked. Mejia, E.D.La. No. 12-2842, 2015 U.S. Dist. LEXIS 74339, at *18-19 (finding that Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 7 of 17 8 2818359-1 plaintiffs adequately pleaded the uncompensated overtime element of their FLSA claim because they alleged that they worked approximately 70-80 hours per week before July of 2012, and then approximately 50 hours per week thereafter, without receiving overtime pay). Here plaintiffs as a collective have not alleged any approximation of dates, and only alleged a generalized failure of FSS to pay for hours worked up to and over forty hours. This is insufficient. See, generally, Anderson v. Blockbuster, Inc., CA No. 10-158, 2010 U.S. Dist. LEXIS 53854, *6-7 (E.D. Cal. May 4, 2010) (general allegations that plaintiff worked more than 40 hours per week and defendants "willfully failed to pay all overtime" were "no more than conclusions [and]. . .not entitled to the assumption of truth"). Courts in other jurisdictions also routinely hold that to state a claim for relief under the FLSA, a plaintiff must allege, at least approximately, the number of hours they worked per week and the timeframe in which such hours were worked. See, DeSilva v. North Shore-Long Island Jewish Health Sys., Inc., 770 F. Supp. 2d 497, 509 (E.D.N.Y. 2011) (holding that plaintiffs “must provide at least some approximation of the overtime hours that defendants required them to work and a time frame for when those hours were worked”); Zhang v. L.G. Apparel Inc., E.D.N.Y. No. 09-CV-3240, 2011 U.S. Dist. LEXIS 26816, at *4 (E.D.N.Y. Feb. 18, 2011) (“At a minimum, an FLSA complaint ‘must set forth the approximate number of unpaid regular and overtime hours allegedly worked.’”) quoting, Nakahata v. New York-Presbyterian Healthcare Sys., Inc., S.D.N.Y. 10 Civ. 2661, 2011 U.S. Dist. LEXIS 8585, at *21 (S.D.N.Y. Jan. 28, 2011); Mell v. GNC Corp., W.D.Pa. No. 10-945, 2010 U.S. Dist. LEXIS 118938, at *8-9 (W.D. Pa. Nov. 9, 2010) (finding that where plaintiffs failed to allege approximately how many hours each week they worked without being paid, the facts alleged by plaintiffs failed to establish Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 8 of 17 9 2818359-1 a right to relief). Specificity in the complaint permits a defendant to evaluate a plaintiff's claim - both its likelihood of success and the potential amount of any recovery. Zhong v. August August Corp., 498 F. Supp. 2d 625, 628 (S.D.N.Y. 2007). Indeed, “more is required of a plaintiff than an ‘all purpose pleading template’ with allegations providing no factual context and no way for the court to determine that the plaintiff has stated a claim as opposed to repeating the statutory elements of the cause of action.” Coleman v. John Moore Servs., Inc., S.D.Tex. No. H-13-2090, 2014 U.S. Dist. LEXIS 1501, at *10 (S.D. Tex. Jan. 7, 2014) (granting motion to dismiss plaintiff’s FLSA claim where complaint merely alleged that Plaintiff worked “in excess of forty (40) hours” during “one or more weeks” of his employment). Nor are Plaintiffs’ bare allegations that they were not paid for hours under forty hours or that they were regularly not paid for hours over forty sufficient to support their FLSA claim, as expressly held recently by numerous circuit courts. In Pruell v. Caritas Christi, 678 F.3d 10, 13 (1st Cir. 2012), the court held that allegations that plaintiffs “regularly worked hours over 40 in a week and were not compensated for such time” were insufficient to state a claim under Twombly and Iqbal because such allegations were “threadbare,” “speculative,” and “little more than a paraphrase of the statute.” Similarly, in DeJesus, 726 F.3d 85, 86, 89, the court held that plaintiff’s allegation that she worked “more than forty hours per week during ‘some or all weeks’” was inadequate because it was “devoid of any numbers to consider beyond those plucked from the statute.” And, as the court stated in Zhang, in rejecting a similar complaint as insufficient: Plaintiff’s complaint here states only that “she worked over forty (40) hours per week” and “often worked over ten (10) hours per day.” The complaint says nothing about how much she was compensated for the hours she worked or even Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 9 of 17 10 2818359-1 approximately how many overtime hours she worked. This deficiency is another reason to deny plaintiff’s motion. E.D.N.Y. No. 09-CV-3240, 2011 U.S. Dist. LEXIS 26816, at *10-11 (internal citations and quotations omitted). See, also, Anderson, CA No. 10-158, 2010 U.S. Dist. LEXIS 53854, *6-7 (plaintiff’s general allegation that he worked more than 40 hours per week was mere conclusion that was “not entitled to the assumption of truth”) (quoting Iqbal, 556 U.S. 664). Additionally, a claim under the FLSA “should indicate the applicable rate of pay and the amount of unpaid minimum or overtime wages due,” particularly where the earnings a plaintiff alleges he is owed cannot be readily determined from his statements regarding his pertinent salary and working hours. Zhong, 498 F. Supp. 2d at 629. Here, Plaintiffs wholly fail to allege their rates of pay, which, in conjunction with their other failures to allege their working hours, make it impossible to determine from the face of the complaint the regular or overtime compensation Plaintiffs claim to be owed. It also is impossible to determine from the face of the complaint whether Plaintiffs’ claim that they were paid below minimum wage is plausible. Taken together, the factual allegations noticeably absent from Plaintiffs’ Complaint render it wholly inadequate. The Complaint should be dismissed accordingly. b. The Complaint is inadequate because the applicability of the FLSA overtime provisions cannot be determined from the allegations. The infirmity of the Complaint is further illustrated by the fact that FSS is unable to determine, from the face of the Complaint, whether and to what extent the FLSA even applies here. Plaintiffs’ failure to clearly state how much, if any, of their claim consists of overtime hours makes it impossible for the defendant to determine whether an exemption from FLSA overtime rules applies. Section 13(b)(3) of the FLSA [29 USC §213(b)(3)] provides that, Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 10 of 17 11 2818359-1 (b) Maximum hour requirements. The provisions of section 7 [29 USCS §207] shall not apply with respect to-- (1) any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act, 1935 [49 USCS § 31502]; or (2) any employee of an employer engaged in the operation of a rail carrier subject to part A of subtitle IV of title 49, United States Code [49 USCS §§ 10101 et seq.]; or (3) any employee of a carrier by air subject to the provisions of title II of the Railway Labor Act… (Emphasis added). Thus, any carrier subject to the Railway Labor Act (“RLA”) is exempt from the application of the FLSA’s overtime rules (although not its minimum wage rules). In Roca v. Alphatech Aviation Servs., 961 F.Supp.2d 1234,1238 (S.D.Fla.2013), the court stated that, Under the FLSA, employers are required to pay their employees at overtime rates for work in excess of 40 hours per week. See 29 U.S.C. § 207. However, certain classes of employees are exempt from this overtime requirement. Thus, the air carrier exemption removes from coverage "any employee of a carrier by air subject to the provisions of Title II of the Railway Labor Act." Id. § 213(b)(3). Title II of the Railway Labor Act ("RLA"), in turn, covers "every common carrier by air . . . , and every air pilot or other person who performs any work as an employee or subordinate official of such carrier or carriers, subject to its or their continuing authority to supervise and direct the manner of rendition of his service." 45 U.S.C. § 181. (Emphasis added). Employers such as FSS who are not themselves air carriers, but who perform services for air carriers, are considered carriers subject to the Railway Labor Act, and so are exempt from the FLSA’s overtime regulations, if they satisfy the two-prong test established by the NMB and the courts. Roca at 10; Verrett v. The Sabre Grp., 70 F. Supp. 2d 1277, 1281 (N.D. Okla. 1999). To determine whether there is sufficient carrier control over a company, the NMB looks to several Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 11 of 17 12 2818359-1 factors, including: extent of the carrier’s control over the manner in which the company conducts its business; access to the company’s operations and records; role in personnel decisions; degree of supervision of the company’s employees; whether employees are held out to the public as carrier employees; and control over employee training. Bradley Pacific Aviation, above; Dobbs Int’l Servs. d/b/a Gate Gourmet, above; Aircraft Servs. Int’l Group, above; Signature Flight Support/Aircraft Serv. Int’l, Inc., 32 NMB 30 (2004). The National Mediation Board (“NMB”), which has jurisdiction over carriers in NLRB- related matters, has repeatedly determined that airline services contractors performing the same and similar functions under virtually identical factual circumstances as FSS are significantly controlled by carriers and, thus, are subject to RLA jurisdiction. See, Swissport NMB CJ-6935 (2008); Primeflight Aviation Services NMB File No. CJ-6915 (2007); AirServ NMB File No. CJ- 6892 (2006). Indeed, FSS, through its parent company, International Total Services, Inc. has, in numerous prior decisions of the National Mediation Board, been determined to be subject to the RLA. See, International Total Services., 20 NMB 537 (1993); International Total Services., Inc., 16 NMB 44 (1988); International Total Services., Inc., 11 NMB 67 (1983), International Total Services, 9 NMB 392 (1982); and International Total Services, 26 NMB 12 (1998). Thus, to the extent that Plaintiffs’ claims arise from allegedly unpaid overtime, FSS is exempt under to FLSA. FSS intends to, and hereby does raise this exemption as an affirmative defense. However, given the vagueness of the allegations in the Complaint, it is impossible to determine whether overtime comprises any part of the claim, much less how great a part. For this reason, the Complaint should be dismissed. Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 12 of 17 13 2818359-1 2. Plaintiffs Fails to Allege Facts to Sufficiently Plead Collective Wage and Hour Violations for “All Others Similarly Situated.” Plaintiffs purport to plead their FLSA claim on a collective action basis under 29 U.S.C. §216(b). “There are two requirements to proceed as a representative action: (1) all plaintiffs must be ‘similarly situated,’ and (2) a plaintiff must consent in writing to take part in the suit.” Wischnewsky v. Coastal Gulf & Int’l, Inc., E.D.La. No. 12-2277, 2013 U.S. Dist. LEXIS 62965, at *9 (E.D. La. May 2, 2013). Although the FLSA does not define ‘similarly situated,’ court[s] have held that the plaintiffs must allege facts sufficient to demonstrate that they and potential plaintiffs were victims of a common policy or plan that violated the law. Zhong, 498 F. Supp. 2d at 631 citing, Realite v. Ark Restaurants Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998) (“While neither the FLSA nor its accompanying regulations define the term "similarly situated," courts have held that plaintiffs must, at least, provide "a modest factual showing sufficient to demonstrate that they and potential plaintiffs . . . were victims of a common policy or plan that violated the law.”) See, also, Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261-62 (providing an example of sufficient pleading for similarly situated employees which included supporting affidavits from other restaurant managers, a description of the company-wide policy at issue, and evidence that the identified group of employees were subject to that policy). Where, as here, Plaintiffs attempt to bring suit on behalf of “others” who “are referenced only minimally in the body of the complaint itself,” and neither generally nor specifically name or reference themselves or any other Plaintiffs in the complaint, Plaintiffs have not offered sufficient notice of their claim or a factual basis from which a court can determine whether similarly situated plaintiffs even exist. Zhong, 498 F. Supp. at 631 (to the extent a plaintiff attempts to signal an effort to initiate a collective action merely by invoking the phrase “others Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 13 of 17 14 2818359-1 similarly situated,” he is unable to meet the standard for alleging an action on behalf of others similarly situated). For example, in Creech, the court found the plaintiff’s collective action allegations to lack the level of factual specificity necessary to survive a Rule 12(b)(6) motion where the complaint failed to provide any description or details about other “similarly situated” employees, other than allegations that other class members performed the same or similar job duties in that they “provided customer services” for defendants. Creech v. Holiday CVS, LLC, M.D.La. No. 11-46-BAJ-DLD, 2012 U.S. Dist. LEXIS 144838 at *7-8 (M.D. La. Sept. 28, 2012) (“This is not descriptive enough to give rise to a plausible right to relief.”). Here, while Plaintiffs purport to bring their Complaint on behalf of themselves and others similarly situated, they fails to allege any facts to demonstrate who they are, let alone who any of these other employees are. Nor do these Plaintiffs sufficiently plead whether they truly are “similarly situated” to one another or to those putative collective class members that they seek to add. FSS does not know because Plaintiffs have not pled sufficient facts to inform whether these Plaintiffs’ claimant are typical amongst themselves, let alone an entire putative class of plaintiffs who they seek to have opt-in. Indeed, the only clues the Complaint offers regarding the possible identities of the individuals “similarly situated” to Plaintiffs are allegations stating that similarly situated employees are hourly employees, classified as “ramp agents” or the non-descript “other non-exempt” employees, and that they were subject to Defendant’s alleged “common practice, policy, or plan” of unlawfully failing to pay (i) minimum wage for hours worked under forty (40), and/or (ii) overtime compensation for all hours worked over forty (40) in a workweek. (Rec. Doc. 1) Notably, Plaintiffs make no mention of their own job titles or positions. Certainly, Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 14 of 17 15 2818359-1 Plaintiffs make no mention of the job titles/positions held by these other putative collective employees, or any other information regarding those allegedly similarly situated persons. None of the Plaintiffs clarify in the complaint whether the alleged harm done to them was a failure to pay minimum wage, regular wages, or overtime wages. Further, none of the Plaintiffs testify as to approximately how many of each of those hours they were not compensated in a manner consistent with the FLSA. Consequently, FSS is left completely in the dark as to whether these plaintiffs or those who they seek to join their action are similarly situated individuals who shared Plaintiffs’ job titles or job duties, had similar job requirements, were paid by the same method, were not being compensated in the same or similar manner, or were subject to the same policies or procedures. Where a complaint fails to sufficiently allege the attributes of the similarly situated employees, the collective action claim may be dismissed at the pleading stage, and district courts within the Fifth Circuit have found it appropriate to do so. Creech, M.D.La. No. 11-46-BAJ- DLD, 2012 U.S. Dist. LEXIS 144838 at *7-8 (granting defendants’ motion to dismiss the collective action component of plaintiff’s claim under the FLSA); Pickering v. Lorillard Tobacco Co., M.D.Ala. No. 2:10-CV-633-WKW[WO], 2011 U.S. Dist. LEXIS 3647, at *5-7 (M.D. Ala. Jan. 13, 2011) (dismissing FLSA collective action allegations where there was no description of job duties, or even job titles of the proposed similarly situated employees, nor any allegations concerning the other employees’ pay provisions). Here, Plaintiffs seek to represent a broad and vague group of individuals of unspecified job titles or any description of the job duties of these unnamed positions. Accordingly, the collective action allegations of Plaintiffs’ Complaint should be dismissed as insufficiently pled. Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 15 of 17 16 2818359-1 IV. CONCLUSION For the foregoing reasons, Plaintiffs’ claim under the Fair Labor Standards Act must be dismissed with prejudice. Further, because the named Plaintiff has failed to state a claim upon which relief can be granted, he lacks the requisite standing to bring a claim for violation of the FLSA as a collective action. Therefore, Plaintiffs’ Complaint must be dismissed in its entirety. Respectfully Submitted: CHAFFE McCALL, LLP /s/ Sarah Voorhies Myers Sarah Voorhies Myers (La. Bar No. 30107) 2300 Energy Centre 1100 Poydras Street New Orleans, LA 70163 T: (504) 585-7009 F: (504) 544-6092 E: myers@chaffe.com and LoPRESTI MARCOVY & MAROTTA, LLP /s/ Thomas P. Marotta Thomas P. Marotta, Esq. (OH Bar No. 0024884) Michael S. Lewis (OH Bar No. 0079101) (Pro Hac Vice pending) 1468 West Ninth Street, Suite 330 Cleveland, Ohio 44113 T: (216) 241-7740 F: (216) 241-6031 E: tpm@lmm-llp.com msl@lmm-llp.com Attorneys for Defendant Flight Services &Systems, Inc. Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 16 of 17 17 2818359-1 CERTIFICATE OF SERVICE I hereby certify that on this 5 th day of December, 2016, a true and correct copy of the foregoing Defendant’s Memorandum in Support of Motion to Dismiss Plaintiff’s Complaint was served by filing the same in this Court’s CM/ECF System, upon the following: Christopher L. Williams Williams Litigation, L.L.C. 639 Loyola Ave., Suite 1850 New Orleans, LA 70113 and Michael T. Tusa, Jr. (02154 Sutton, Alker & Rather, LLC 4080 Lonesome Road, Suite A Mandeville, LA 70448 Attorneys for Plaintiff /s/ Sarah Voorhies Myers Case 2:16-cv-15759-JTM-DEK Document 10-1 Filed 12/05/16 Page 17 of 17 2818372_1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA STANLEY COOK, individually and on ) CIVIL ACTION NO. 2:16-cv-15759 behalf of all other similarly situated, ) ) Plaintiffs, ) v. ) ) JUDGE: JANE TRICHE MILAZZO FLIGHT SERVICES & SYSTEMS, INC., ) ) MAG: DANIEL E. KNOWLES, III Defendant. ) NOTICE OF SUBMISSION PLEASE TAKE NOTICE that Defendant Flight Services & Systems, Inc., by and through undersigned counsel, will bring the attached Motion to Dismiss Plaintiffs’ Complaint before the Honorable Judge Jane Triche Milazzo, United States District Court for the Eastern District of Louisiana, 500 Poydras Street, Courtroom C224, New Orleans, Louisiana, 70130, on January 11, 2017 at 9:30 a.m. or as soon thereafter as counsel may be heard, on the basis of the record and without oral argument unless otherwise ordered by the Court. Respectfully Submitted: CHAFFE McCALL, LLP /s/ Sarah Voorhies Myers Sarah Voorhies Myers (La. Bar No. 30107) 2300 Energy Centre 1100 Poydras Street New Orleans, LA 70163 T: (504) 585-7009 F: (504) 544-6092 E: myers@chaffe.com and Case 2:16-cv-15759-JTM-DEK Document 10-2 Filed 12/05/16 Page 1 of 2 2818372_1 2 LoPRESTI MARCOVY & MAROTTA, LLP /s/ Thomas P. Marotta Thomas P. Marotta, Esq. (OH Bar No. 0024884) Michael S. Lewis (OH Bar No. 0079101) (Pro Hac Vice pending) 1468 West Ninth Street, Suite 330 Cleveland, Ohio 44113 T: (216) 241-7740 F: (216) 241-6031 E: tpm@lmm-llp.com msl@lmm-llp.com Attorneys for Defendant Flight Services & Systems, Inc. CERTIFICATE OF SERVICE I hereby certify that on this 5 th day of December, 2016, a true and correct copy of the foregoing Defendant’s Notice of Submission was served by filing the same in this Court’s CM/ECF System, upon the following: Christopher L. Williams Williams Litigation, L.L.C. 639 Loyola Ave., Suite 1850 New Orleans, LA 70113 and Michael T. Tusa, Jr. (02154 Sutton, Alker & Rather, LLC 4080 Lonesome Road, Suite A Mandeville, LA 70448 Attorneys for Plaintiff /s/ Sarah Voorhies Myers Case 2:16-cv-15759-JTM-DEK Document 10-2 Filed 12/05/16 Page 2 of 2