Shadell, et al v. Cudd Pumping Services, Inc., et al

Motion to Dismiss for Failure to State a Claim and Brief in Support

W.D. Tex.April 5, 2017

DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT - Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WILLIAM SHADELL and STEVEN SHISLER, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, vs. CUDD PUMPING SERVICES, INC. and CUDD PRESSURE CONTROL, INC., Defendants. § § § § § § § § § § § § § NO. 5:17-CV-00133-FB DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT Defendants Cudd Pumping Services, Inc. and Cudd Pressure Control, Inc.,1 (hereinafter collectively “Cudd” or “Defendants”) file this Rule 12(b)(6) Motion to Dismiss2 and respectfully show the Court as follows: I. INTRODUCTION On February 20, 2017, Plaintiffs William Shadell and Steven Shisler (collectively “Plaintiffs”) filed this lawsuit as a purported collective action seeking unpaid overtime and other compensation under the Fair Labor Standards Act (“FLSA”). (Doc. No. 1, Original Complaint - Collective Action (“Complaint”)). Now, in their initial responsive pleading, Defendants respectfully request that this Court dismiss Plaintiffs’ Complaint for failing to state a plausible 1 Cudd Energy Services is not a proper legal entity and is merely a marketing name. 2 By filing this Rule 12(b)(6) Motion to Dismiss, Defendants are not waiving their right to compel arbitration with respect to Plaintiff Steven Shisler. Case 5:17-cv-00133-FB Document 7 Filed 04/05/17 Page 1 of 12 DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT - Page 2 cause of action. Plaintiffs’ Complaint fails to plead FLSA claims with sufficient factual detail, either on behalf of Plaintiffs themselves or on a collective basis, to satisfy the pleading requirements set forth in the Federal Rules of Civil Procedure and the United States Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Therefore, Plaintiffs’ Complaint should be dismissed. II. STANDARD OF REVIEW The standard of review governing Defendants’ motion to dismiss is the federal pleading standard articulated in Federal Rule of Civil Procedure 12(b)(6). Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint when the plaintiff “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (internal quotation marks omitted); Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6) 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.’” See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). To state a claim for relief that is plausible on its face, the complaint must contain “more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). A complaint that offers only “a formulaic recitation of the elements of a cause of action” and “naked assertions” without supporting facts is insufficient. Id. (quoting Twombly, 550 U.S. at 555, 557). Thus, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to Case 5:17-cv-00133-FB Document 7 Filed 04/05/17 Page 2 of 12 DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT - Page 3 legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 555 (“[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions.”) (internal quotation marks omitted). To survive a motion to dismiss, plaintiffs must allege actual facts that “nudge[] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Where, however, the well-pleaded facts in the complaint do not permit the court to infer more than the mere possibility of misconduct, the court should dismiss the complaint because the complaint has merely alleged-but it has not shown-that the pleader is entitled to relief. Iqbal, 556 U.S. at 679. III. ARGUMENT A. Plaintiffs Fail to State a Facially Plausible Claim for Unpaid Overtime Wages. Plaintiffs’ Complaint should be dismissed because Plaintiffs fail to state a plausible claim that Defendants violated the overtime provisions of the FLSA. The FLSA requires certain employers to pay non-exempt employees overtime compensation for each hour worked in excess of 40 hours per week. 29 U.S.C. § 207(a)(1). To state a claim for a violation of the FLSA's overtime requirements and survive a motion to dismiss, a plaintiff must allege, inter alia, that he performed work for which he was undercompensated. See Coleman v. John Moore Servs., Inc., No. H-13-2090, 2014 WL 51290, at *2 (S.D. Tex. Jan. 7, 2014). Further, to meet the minimum pleading standards, federal courts across the country have recognized that “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.” Id. at Case 5:17-cv-00133-FB Document 7 Filed 04/05/17 Page 3 of 12 DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT - Page 4 *4 (discussing Dejesus v. HF Mgmt. Servs., 726 F.3d 85 (2d Cir. 2013) and Pruell v. Caritas Christi, 678 F.3d 10 (1st Cir. 2012)). To that end, multiple federal circuit courts have held that complaints must contain more than bare allegations that a plaintiff regularly worked hours in excess of forty hours per week and was not compensated for such time in order to survive a motion to dismiss. See, e.g., Pruell v. Caritas Christi, 678 F.3d 10, 13 (1st Cir. 2012) (allegations that plaintiffs “regularly worked” over 40 hours a week and were not compensated for such time were “so threadbare or speculative that they fail[ed] to cross the line between the conclusory and the factual”); Dejesus v. HF Mgmt. Servs., 726 F.3d 85, 89 (2d Cir. 2013), cert. denied, 134 S. Ct. 918 (2014) (dismissing allegations that, “in some or all weeks,” plaintiff worked more than 40 hours per week without being paid overtime because “[w]hatever the precise level of specificity that was required of the complaint, [plaintiff] at least was required to do more than repeat the language of the statute”); Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 645-46 (9th Cir. 2014), cert. denied, 135 S. Ct. 1845 (2015) (allegations that the plaintiff “worked more than 40 hours per week for the defendants” and the “defendants willfully failed to make” overtime payments were insufficient to survive a motion to dismiss); see also Kirkpatrick v. Heritage Park of Katy, LLC, 2016 WL 7209668, at *1 (S.D. Tex. Dec. 6, 2016) (granting motion to dismiss where plaintiff offered only conclusory allegations that she was “nonexempt from the overtime pay provisions of the FLSA” and that she “regularly worked in excess of 40 hours per work week.”). In order to survive a motion to dismiss, a plaintiff alleging violations of the FLSA’s overtime wage provisions “should, at least approximately, allege the 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); see also, e.g., Dejesus, 726 F.3d at 89 (dismissing lawsuit with prejudice where Case 5:17-cv-00133-FB Document 7 Filed 04/05/17 Page 4 of 12 DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT - Page 5 the “complaint was devoid of any numbers to consider beyond those plucked from the statute”); Landers v. Quality Commc'ns, Inc., 2012 WL 12888320, at *1 (D. Nev. Apr. 6, 2012), aff'd, 771 F.3d 638 (9th Cir. 2014), as amended (Jan. 26, 2015) (dismissing plaintiff’s complaint for insufficient facts where plaintiff alleged he “was not paid time and one-half his hourly rate for work he performed in excess of 40 hours a week”); Mell v. GNC Corp., 2010 U.S. Dist. LEXIS 118938, at *1, 8 (W.D. Pa. Nov. 9, 2010) (concluding that plaintiffs failed to plead sufficient facts where plaintiffs merely alleged that “[t]hey each worked more than 40 hours a week and were entitled to overtime”). In this case, Plaintiffs’ Complaint relies on conclusory allegations that Plaintiffs “worked more than forty hours per week on a regular, typical basis while working for Defendants” and that Plaintiffs “sometimes worked up to eighty (80) hours in a week.” Complaint, ¶¶21-22. As discussed, however, federal courts have held that such allegations are insufficient to satisfy the Twombly/Iqbal pleading standard. See Hernandez v. Praxair Distrib., Inc., 2015 WL 5608233, at *2 (S.D. Tex. Sept. 23, 2015) (allegations that plaintiff was a nonexempt employee of defendants, was regularly required to work in excess of 40 hours per work week, and was not paid overtime wages insufficient to survive motion to dismiss); Coleman, 2014 WL 51290, at *4 (plaintiff’s allegations that he worked in excess of forty hours “[d]uring one or more weeks” of his employment and that defendant failed to pay him one and a half times his regular rate for each overtime hour worked during “one or more weeks” of his employment were insufficient to state a claim for an FLSA violation); Flores v. Act Event Servs., Inc., 55 F.Supp.3d 928, 939-40 (N.D. Tex. 2014) (allegations that defendants “required [the plaintiffs] to work at events for over forty (40) hours a week and failed to pay them minimum wage or overtime for work done over Case 5:17-cv-00133-FB Document 7 Filed 04/05/17 Page 5 of 12 DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT - Page 6 forty (40) hours a week” are “formulaic recitations of the elements of a cause of action and thus are not entitled to the assumption of truth”) (internal citations and quotations omitted) . Simply put, Plaintiffs’ Complaint is devoid of any factual allegations providing an approximation of overtime hours worked or an amount of unpaid overtime wages. Although Plaintiffs allege that they worked more than forty hours per week “on a regular, typical basis while working for Defendants,” they fail to specify how many workweeks they allegedly worked more than forty hours. Complaint, ¶21; see Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 201 (2d Cir. 2013) (“To plead a plausible FLSA overtime claim, Plaintiffs must provide sufficient detail about the length and frequency of their unpaid work to support a reasonable inference that they worked more than forty hours in a given week.”). Plaintiffs’ Complaint is required to show that they suffered an FLSA violation during particular weeks of their alleged employment. Indeed, “there should be sufficient factual allegations in the [Complaint] - rather than a general and conclusory allegation as to the number of hours ‘routinely’ worked - whereby the Court can reasonably infer that there was indeed one or more particular workweek(s) in which the plaintiff suffered an overtime violation.” Bustillos v. Academy Bus, LLC, 2014 U.S. Dist. LEXIS 3980, at *12 (S.D.N.Y. Jan. 13, 2014). Plaintiffs’ Complaint fails to specify any workweek in which they worked more than forty hours or allege that they worked more than forty hours in any given workweek without being compensated for the hours worked in excess of forty during that week. See Landers, 771 F.3d at 646 (“Notably absent from the allegations in Landers's complaint, however, was any detail regarding a given workweek when Landers worked in excess of forty hours and was not paid overtime for that given workweek.”). Thus, Plaintiffs’ allegations are the same type of threadbare allegations Case 5:17-cv-00133-FB Document 7 Filed 04/05/17 Page 6 of 12 DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT - Page 7 disavowed in Iqbal and, consequently, are insufficient to state a plausible claim for relief under the FLSA. B. Plaintiffs Fail to Adequately Define a Collective Class. Additionally, the Complaint should be dismissed because Plaintiffs fail to adequately define a class of “similarly situated” individuals under the FLSA. Section 216(b) of the FLSA permits employees to recover unpaid overtime compensation by suing an employer on behalf of “themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Before proceeding on a collective basis, a plaintiff must properly allege facts showing that there are similarly situated persons entitled to relief pursuant to 29 U.S.C. § 216(b) and that common issues of fact predominate. Manning v. Boston Med. Ctr., 2012 U.S. Dist. LEXIS 54692, at *8-9 (D. Mass. April 18, 2012) (citing Iqbal, 556 U.S. at 678-79 and Twombly, 550 U.S. at 557); see also Landry v. Peter Pan Bus Lines, Inc., 2009 U.S. Dist. LEXIS 129873, at *3-4 (D. Mass. Nov. 20, 2007) (dismissing class and collective claims where plaintiff only alleged legal conclusions not entitled to assumption of truth). “[W]here a plaintiff brings an FLSA claim ‘for and on 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.” Jones v. Casey's Gen. Stores, 538 F. Supp. 2d 1094, 1102 (S.D. Iowa 2008) (citing 29 U.S.C. § 216(b)). Here, the Complaint includes no such details. Plaintiffs’ proposed class definition seeks to encompass “[a]ll Supervisors (or similar positions) employed by Defendants in the past (3) years.” Complaint, ¶46. The Complaint does not indicate such basic facts as where the various employees worked, what their specific jobs were, when and how they worked allegedly unpaid overtime, and for how long. The Complaint accordingly fails to properly allege that these employees are similarly situated to Plaintiffs. See Landry, 2009 U.S. Dist. LEXIS 129873, at *3 (dismissing collective action claims where the pleadings alleged only that “an unspecified Case 5:17-cv-00133-FB Document 7 Filed 04/05/17 Page 7 of 12 DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT - Page 8 number of individuals, working in unspecified jobs, at unspecified places, were compensated according to an unspecified policy or practice, resulting in an underpayment of wages in violation of the FLSA”); see also Pickering v. Lorillard Tobacco Co., No. 2:10-CV-633-WKW, 2011 WL 111730, at *3 (M.D. Ala. Jan. 13, 2011) (“In sum, the Complaint contains no factual basis by which to assess whether Plaintiff and the other employees are similarly situated. In the absence of any detail, Lucas has not sufficiently alleged an action on behalf of others similarly situated.”). Because Plaintiffs have failed to plead facts supporting the conclusion that a group of similarly situated employees exists, the class allegations in the Complaint should be dismissed. C. Plaintiffs Fail to Sufficiently Plead the Dates of Their Employment. Additionally, the Complaint is further deficient in its failure to allege the dates of employment of Plaintiffs. The Complaint alleges that “[w]ithin three years prior to the filing of this case, Defendants hired Plaintiffs to perform duties as a Supervisor” and “Plaintiffs were employed by Defendants as Supervisors within the statutory time period.” Complaint ¶¶13, 17. These allegations do not contain the specific dates of employment for Plaintiffs. Accordingly, the overtime claims should be dismissed for failure to allege the dates of employment of Plaintiffs. See England v. Adm'r s of the Tulane Educ. Fund, 2016 WL 3902595, at *3 (E.D. La. July 19, 2016) (dismissing complaint which failed to put defendant on notice of approximate date ranges and approximate number of hours worked for which plaintiff claimed he was under- compensated, noting that while plaintiff alleged he worked for defendant from 2012 to 2015, he failed to provide specific dates of employment); Harding v. Time Warner, Inc., 2010 WL 457690, at *5 (S.D. Cal. Jan. 26, 2010) (dismissing complaint which contained no factual allegations indicating when and where plaintiff was employed, finding that this “is a minimal requirement necessary to enable a defendant to frame a response to a FLSA complaint”); Case 5:17-cv-00133-FB Document 7 Filed 04/05/17 Page 8 of 12 DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT - Page 9 Nakahata v. N.Y.-Presbyterian Healthcare Sys., Inc., 2011 WL 321186, at *4 (S.D.N.Y. Jan. 28, 2011), aff'd in part, vacated in part, remanded, 723 F.3d 192 (2d Cir. 2013) (identifying deficiencies in the complaint, including “no factual allegations about when the alleged unpaid wages were earned (i.e., which lunches and breaks were worked through without proper compensation), or the number of hours allegedly worked without compensation[, or] any specific facts about the plaintiffs’ employment, such as their dates of employment, pay, or positions.”); DeSilva v. North Shore-Long Island Jewish Health Sys., Inc., 770 F. Supp. 2d 497, 508 (E.D.N.Y. 2011) (finding “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” and noting prior deficiencies in complaint of failure to identify where named plaintiffs worked, the positions they held, and their dates of employment). D. Plaintiffs Have Inadequately Pled a Willful Violation of the FLSA and Therefore Are Not Entitled to a Three-Year Statute of Limitations. Notwithstanding the facial implausibility of the collective and individual claims, Plaintiffs have failed to plead a “willful” violation of the FLSA. Accordingly, their “third-year” FLSA claims should be dismissed. Claims under the FLSA must be filed within two years after the cause of action accrues or within three years if the alleged violation was “willful,” that is, if the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988) (interpreting the word “willful” as used in 29 U.S.C. § 255(a)). “To state a claim for a willful violation of the FLSA, more than an ordinary violation must be alleged.” Mitchell v. C&S Wholesale Grocers, Inc., 2010 U.S. Dist. LEXIS 68269, at *12 (D.N.J. July 8, 2010) (citing Fraiser v. Gen. Electric Co., 930 F.2d 1004, 1009 (2d Cir. 1991), and Ikossi-Anastasiou v. Bd. of Supervisors of La. State. Univ., 579 F.3d 546, 553 (5th Cir. 2009)). “Thus, in accordance with Case 5:17-cv-00133-FB Document 7 Filed 04/05/17 Page 9 of 12 DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT - Page 10 Iqbal, it is insufficient to merely assert that the employer’s conduct was willful; the Court must look at the underlying factual allegations in the complaint to see if they could support more than an ordinary FLSA violation.” Mitchell, 2010 U.S. Dist. LEXIS, at *12. To plead a facially- plausible “third-year” FLSA claim, Plaintiffs must allege “enough factual matter (taken as true) to suggest that” Defendants knew their alleged conduct was prohibited by the FLSA, or exhibited reckless disregard of the matter. See Twombly, 550 U.S. at 556 (“Asking for plausible grounds to infer [an illegal act] . . . calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence [of the illegal act].”). Here, Plaintiffs pled only that Defendants “knew of or should have been aware of previous litigation and enforcement actions relating to wage and hour violations involving the misclassification of positions very similar to Supervisors” and that Defendant’s conduct and practices “were willful, intentional, unreasonable, arbitrary and in bad faith.” Complaint ¶¶ 31, 52, 57. These “allegations” - which are nothing more than legal conclusions - are precisely the type of “threadbare recitals” the federal courts find insufficient in the wake of Twombly and Iqbal. See Mitchell, 2010 U.S. Dist. LEXIS, at *12 (instructing that after Iqbal, it is insufficient to merely assert that the employer’s conduct was willful). For instance, in Mell v. GNC Corp., the plaintiffs’ complaint alleged that the defendants’ actions in allegedly denying overtime pay were “knowing” and “willful.” 2010 U.S. Dist. LEXIS 118938, at *25. The court found these allegations could not permit the court to reasonably infer that the defendant willfully violated the FLSA under the heightened-pleading standard in Iqbal: “[W]e find the allegations that Defendants’ actions were ‘knowing’ and ‘willful’ are inadequately pled . . . [because] there are no factual allegations which would support a claim that the violations were willful, for example, reports of complaints to supervisors about having to work off the clock which were rebuffed or Case 5:17-cv-00133-FB Document 7 Filed 04/05/17 Page 10 of 12 DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT - Page 11 ignored.” Id. at *25-26. The complaint was dismissed with prejudice. Id. The same result is warranted here. Plaintiffs have not alleged any underlying facts from which this Court could reasonably infer that Defendants willfully violated the FLSA. Accordingly, Plaintiffs’ “third- year” FLSA claims should be dismissed. IV. PRAYER For the foregoing reasons, Defendants respectfully request that the Court grant their 12(b)(6) Motion to Dismiss Plaintiffs’ claims. Dated April 5, 2017 Respectfully submitted, /s/ David B. Jordan David B. Jordan (Lead Counsel) Texas State Bar No. 24032603 Federal ID No. 0040416 LITTLER MENDELSON, P.C. 1301 McKinney Street, Suite 1900 Houston, TX 77010 713.951.9400 (Phone) 713.951.9212 (Fax) djordan@littler.com Saba H. Alvi Texas State Bar No. 24082324 LITTLER MENDELSON, P.C. 2001 Ross Avenue, Suite 1500 Dallas, Texas 75201 214.880.8197 (Phone) 214.722.1476 (Fax) salvi.@littler.com ATTORNEYS FOR DEFENDANTS Case 5:17-cv-00133-FB Document 7 Filed 04/05/17 Page 11 of 12 DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS AND BRIEF IN SUPPORT - Page 12 CERTIFICATE OF SERVICE I hereby certify that on April 5, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system that will send notification of such filing to the following: Josh Sanford SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 josh@sanfordlawfirm.com /s/ David B. Jordan David B. Jordan Firmwide:146701101.2 083687.1000 Case 5:17-cv-00133-FB Document 7 Filed 04/05/17 Page 12 of 12