Akins v. Worley Catastrophe Response, LLC

• Decision Date: 04 February 2013
• Docket Number: Civil Action No. 12–2401.
• Citation: Akins v. Worley Catastrophe Response, LLC, 921 F.Supp.2d 593 (E.D. La. 2013)
• Parties: John AKINS et al. v. WORLEY CATASTROPHE RESPONSE, LLC et al.
• Court: U.S. District Court — Eastern District of Louisiana

921 F.Supp.2d 593

John AKINS et al.

v.WORLEY CATASTROPHE RESPONSE, LLC et al.

Civil Action No. 12–2401.

United States District Court, E.D. Louisiana.

Feb. 4, 2013.

J.P. Hughes, Jr., Hughes Brown, PLLC, Oxford, MS, April L. Walter, Hessam Parzivand, Michael A. Starzyk, Starzyk & Associates, PC, The Woodlands, TX, John R. Linkosky, John Linkosky & Associates, Carnegie, PA, Joseph E. Fieschko, Jr., Fieschko & Associates, Inc., Pittsburg, PA, for John Akins Et Al.

Jennifer Lynn Anderson, Jones Walker, Baton Rouge, LA, Mary Margaret Lebato, Jones Walker, New Orleans, LA, for Worley Catastrophe Response, LLC Et Al.

ORDER AND REASONS ON MOTION

JOSEPH C. WILKINSON, JR., United States Magistrate Judge.

John Akins and 179 other named plaintiffs, individually on and on behalf of all those similarly situated,¹ filed this putative collective action under the Fair Labor Standards Act(“FLSA”), 29 U.S.C. § 216(b).Plaintiffs allege that their former employers, Worley Catastrophe Response, LLC, Worley Catastrophe Services, LLC(collectively “Worley”) and Michael Allen Worley(“Mr. Worley”), failed to pay them overtime wages as required by the statute.This matter was referred to a United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c), upon the written consent of all parties.RecordDoc. No. 26.

Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), seeking dismissal of (1) the putative collective action claim on the ground that plaintiffs are not entitled to pursue a second collective action against Worley based on the same claim as a previous collective action in this court, which was settled before the instant action was filed; and (2)plaintiffs' claims against Mr. Worley because plaintiffs have failed to allege sufficiently that this defendant was their “employer” for purposes of the FLSA.RecordDoc. No. 38.

Plaintiffs filed a timely opposition memorandum.RecordDoc. No. 42.Defendants received leave to file a reply memorandum.RecordDoc. Nos. 44, 45, 46.

Having considered the complaint, as amended, the submissions of the parties and the applicable law, IT IS ORDERED that the motion is DENIED, for the following reasons.

A.Standards for Motion to Dismiss

Federal Rule of Civil Procedure 8(a)(2) requires a complaint to “contain a short and plain statement of the claim showing that the pleader is entitled to relief....[T]he pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”Ashcroft v. Iqbal,556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009)(quotations omitted).A plaintiff“need not allege in her complaint every fact that she might need to prove to prevail on the merits....This simplified notice pleading standard need only give a defendant fair notice of what the plaintiff's claim is and the grounds upon which rests.The liberal discovery rules and summary judgment motions are then employed to explore the details of the claim.”Goss v. Hardy Energy Servs., Inc.,No. 09–0443, 2010 WL 427748, at *2(W.D.La.Feb. 3, 2010)(citingSwierkiewicz v. Sorema N.A.,534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1(2002));accordLovick v. Ritemoney Ltd.,378 F.3d 433, 438(5th Cir.2004).Motions to dismiss for failure to state a claim are viewed with disfavor and are rarely granted.Turner v. Pleasant,663 F.3d 770, 775(5th Cir.2011).

The Supreme Court recently clarified the standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6):

“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 for relief is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”A claim for relief is implausible on its face when “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.”

Harold H. Huggins Realty, Inc. v. FNC, Inc.,634 F.3d 787, 796(5th Cir.2011)(quotingIqbal,556 U.S. at 678, 129 S.Ct. 1937(quotingBell Atl. Corp. v. Twombly,550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007))).

“[A]court should not dismiss an action for failure to state a claim under Rule 12(b)(6) without giving the Plaintiff an opportunity to amend.”Litson–Gruenber v. JPMorgan Chase & Co.,No. 7:09–cv–056–0, 2009 WL 4884426, at *6(N.D.Tex.Dec. 16, 2009)(citingHart v. Bayer Corp.,199 F.3d 239, 248 n. 6(5th Cir.2000));accordGreat Plains Trust Co. v. Morgan Stanley Dean Witter & Co.,313 F.3d 305, 329(5th Cir.2002);Linck v. Brownsville Navig. Dist.,4 F.3d 989, 1993 WL 360773, at *4(5th Cir.1993).

B.Procedural Background

Section 216(b) of the FLSA grants employees a cause of action to recover overtime compensation and liquidated damages against an employer who violates the statute by failing to pay required overtime.Such an action may be brought individuallyand/or as a collective action on behalf of those similarly situated.

An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.No employee shall be a partyplaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b).Thus, “prospective claimantsmust opt-in under the FLSA, fundamentally distinguishing these suits from Rule 23 class actions in which a prospective plaintiff must opt-out.Collective actions bind only the opt-in plaintiffs.”Roussell v. Brinker Int'l, Inc.,441 Fed.Appx. 222, 225(5th Cir.2011)(citingSandoz v. Cingular Wireless LLC,553 F.3d 913, 916(5th Cir.2008))(emphasis added).

Worley seeks dismissal of plaintiffs' putative collective action claim in the instant case.Worley argues that plaintiffs may pursue their FLSA claims individually, but are not entitled to bring a collective action based on the same factual claim that was asserted by other plaintiffs in a previous collective action in this court, John J. Altier, et al. v. Worley Catastrophe Response, LLC, et al., Civil ActionNo. 11–241, consolidated with No. 11–242, which was settled before the instant lawsuit was filed.The collective action group in Altier was defined identically to the proposed group in the instant action as “all present and former employees of Defendants who have held the position of claims adjuster/evaluator, or who have performed duties similar to the duties performed by the Plaintiffs since June, 2010.”Second Amended Individual and Collective Action Complaint, RecordDoc. No. 110, ¶ 92 in Altier,C.A.No. 11–241;First Amended Individual and Collective Action Complaint, RecordDoc. No. 9, ¶ 293, in Akins, C.A.No. 12–2401.The allegations of unpaid overtime pay in the two lawsuits are identical, the two corporate defendants are identical (Mr. Worley was not a defendant in Altier ), and plaintiffs in both cases are represented by the same attorneys.

After this court conditionally certified Altier as a collective action in July 2011, a court-approved notice was sent to more than 1,300 claims adjusters comprising the defined group, which included all of the named and opt-in plaintiffs in the current Akins action.The notice advised the members of the pendency of the action, their legal rights and the October 21, 2011 deadline to opt in.The notice stated, among other things:

5.EFFECTS OF JOINING THIS SUIT.

If you choose to join in this suit, you will be bound by the Judgment, whether it is favorable or unfavorable....

6.NO LEGAL EFFECT IN NOT JOINING THIS SUIT.

If you choose not to join the Overtime Action, you will not be affected by any judgment or settlement rendered the case, whether favorable or unfavorable to the collective action groups.

If you choose not to join the Overtime Action, you are free to file your own lawsuit under the FLSA.

C.A.No. 11–241, Record Doc. No. 191, at pp. 3–4(emphasis in original).Only one of the 227 Akinsplaintiffs, Gregory Farve, previously consented to join in Altier.

Worley settled with all of the plaintiffs who had opted in and who chose to participate in the final settlement agreement in Altier.The court approved the parties' settlement agreement on January 18, 2012.Altier,C.A.No. 11–241, RecordDoc. No. 312.On August 6, 2012, the collective action was dismissed with prejudice as to all “Participating Plaintiffs,” who were defined as those opt-in plaintiffs who had returned the form specified in the Confidential Settlement Agreement to the third-party administrator by the court-ordered deadline.Altier,C.A.No. 11–241, Record Doc. No. 316at p. 1.The claims of six named “Non–Participating Plaintiffs” who had opted in to the action but had not returned the settlement participation form by the deadline (including Gregory Farve), were “DISMISSED WITHOUT PREJUDICE to any rights such Non–Participating Plaintiffs may have either to re-file such claims in the United States District Court for the Eastern District of Louisiana or to pursue their individual claims either in the existing cases or elsewhere.”Id.Worley argues that this language in the final order of dismissal limits the estimated 800 putative plaintiffs in the instant action to bringing individual claims only and prevents them from maintaining another putative collective action.

C.The FLSA Does Not Prohibit a Collective Action in this Case

Worley argues that the Akinsplaintiffs cannot bring a second putative collective action against them based on the same factual allegations as in Altier because these plaintiffs...