Butler v. Directsat USA, LLC

• Decision Date: 06 July 2011
• Docket Number: Civil Action No. DKC 10–2747.
• Citation: 800 F.Supp.2d 662
• Parties: Jeffry BUTLER, et al. v. DIRECTSAT USA, LLC, et al.
• Court: U.S. District Court — District of Massachusetts

800 F.Supp.2d 662

Jeffry BUTLER, et al.

v.DIRECTSAT USA, LLC, et al.

Civil Action No. DKC 10–2747.

United States District Court, D. Maryland.

July 6, 2011.

Daniel Adlai Katz, Andalman and Flynn, Silver Spring, MD, Jac A. Cotiguala, Jac A. Cotiguala and Associates, James B. Zouras, Ryan F. Stephan, Stephan Zouras LLP, Chicago, IL, for Plaintiff.

Colin D. Dougherty, Eric J. Bronstein, Gregory S. Voshell, John P. Elliott, Elliott Greenleaf and Siedzikowski PC, Blue Bell, PA, John Augustine Bourgeois, Katrina J. Dennis, Kramon and Graham PA, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for review in this Fair Labor Standards Act case is the motion to dismiss filed by Defendants DirectSat USA, LLC, UniTek USA, LLC, and UniTek Global Services, Inc. (ECF No. 19). The issues are fully briefed and the court now rules, no hearing deemed necessary. Local Rule 105.6. For the reasons that follow, Defendants' motion will be granted in part and denied in part.

I. Background

Plaintiffs Jeffry Butler and Charles N. Dorsey bring this lawsuit, on behalf of themselves and others who were employed or are currently employed by Defendants as service technicians, production technicians, or similar positions, alleging that Defendants failed to pay overtime wages. (ECF No. 1 ¶ 2). In their complaint, Plaintiffs allege the following. Defendants DirectSat USA, LLC, UniTek USA LLC, and UniTek Global Services, Inc. are businesses headquartered or incorporated in Pennsylvania that install and service satellite dishes throughout Maryland, Virginia, and the District of Columbia. ( Id. ¶¶ 19–21).

Plaintiffs were classified by Defendants as non-exempt under federal and state wage and hour laws and paid an hourly rate. The actual rate Plaintiffs were paid varied and was contingent on the number of jobs completed by each technician on a weekly basis. Plaintiffs allege that they were permitted, and routinely required, to work in excess of forty hours per week without overtime compensation. ( Id. ¶¶ 5–6). Plaintiffs state that Defendants trained and directed them to record less time than they actually worked on their handwritten time sheets. ( Id. ¶ 7). In addition, Plaintiffs worked without pay when “receiving work orders at their homes, mapping out directions for their jobs, receiving calls from dispatch, preparing satellite dishes, loading satellites and other equipment into their vehicles, unloading the same materials from their vehicles at the end of each day, participating in periodic inventories of their equipment, maintaining their company vehicles, completing paperwork regarding completed work orders, and attending weekly meetings, amongst other things.” ( Id. ¶ 8). Plaintiff Jeffry Butler worked as an hourly-paid, non-exempt technician for Defendants in Maryland, Virginia, and the District of Columbia; Plaintiff Charles Dorsey worked as an hourly-paid, non-exempt service technician for Defendants in Maryland. ( Id. ¶¶ 15–16).

Plaintiffs filed their complaint on October 4, 2010. In it they seek to bring a Fair Labor Standards Act (“FLSA”) overtime claim as a collective action pursuant to 29 U.S.C. § 216(b) and state overtime and unpaid wage claims as class actions pursuant to Fed.R.Civ.P. 23. ( Id. ¶¶ 13–14). In count I of the complaint, Plaintiffs allege that they were not paid for all hours worked in excess of forty hours in a workweek in violation of the maximum hours provision of FLSA, 29 U.S.C. § 207(a). ( Id. ¶¶ 42–50). In count II, Plaintiffs allege violations of the Maryland Wage and Hour Law, Md.Code Ann., Lab. & Empl. § 3–401, et seq. (“MWHL”). In count III, Plaintiffs allege violations of the Maryland Wage Payment and Collection Law, Md.Code Ann., Lab. & Empl. § 3–501, et seq. (“MWPCL”). Finally, in count IV Plaintiffs allege violations of the District of Columbia Minimum Wage Law, D.C.Code § 32–1001, et seq.

On December 17, 2010, Defendants moved to dismiss the complaint. (ECF No. 19). Defendants contend that Plaintiff Jeffry Butler's claims must be dismissed pursuant to the first to file rule because he has already opted-in to a collective action pending in the Western District of Wisconsin that raises the same claims against Defendants. Defendants also argue that the FLSA claims are inadequately pled, and the state law claims are preempted and cannot be pursued in a Rule 23 class action simultaneously with a FLSA collective action pursuant to 29 U.S.C. § 216(b).

II. Representative Plaintiff Jeffry Butler

Defendants first move to dismiss claims by Plaintiff Jeffry Butler pursuant to the first-to-file rule. Prior to initiating this suit, he opted-in to a collective action pending in the Western District of Wisconsin that raises similar claims. (ECF No. 19–1, at 12–13). In response, Plaintiffs attached a copy of the certificate of service Jeffry Butler's voluntary opt-out from the Wisconsin case (ECF No. 24–3) and argue that Butler has now elected to proceed locally with his FLSA and state law claims. In their reply, however, Defendants argue that Butler's withdrawal was ineffective because he did not obtain court approval as required by Fed. R.Civ.P. 41(a). The case in Wisconsin has now been decertified and the claims of all opt-in plaintiffs were dismissed without prejudice. (ECF No. 27–1).

The first-to-file rule refers to the doctrine that when the same party or parties have filed similar litigation in separate federal fora, the matter that was filed first should proceed, and the later-filed action should be stayed, transferred, or enjoined. See, e.g., Nutrition & Fitness, Inc. v. Blue Stuff, Inc., 264 F.Supp.2d 357, 360 (W.D.N.C.2003) (citing Guthy–Renker Fitness, L.L.C. v. Icon Health & Fitness, Inc., 179 F.R.D. 264, 269 (C.D.Cal.1998); 800–Flowers, Inc. v. Intercontinental Florist, Inc., 860 F.Supp. 128, 131–32 (S.D.N.Y.1994); Hop–In Food Stores, Inc. v. S & D Coffee, Inc., 642 F.Supp. 1106, 1107 (W.D.Va.1986); Columbia Plaza Corp. v. Sec. Nat'l Bank, 525 F.2d 620, 626 (D.C.Cir.1975)). In deciding whether to apply the first-to-file rule, courts consider the chronology of filing, the similarity of the parties involved, and the similarity of the issues at stake. Id.; Neuralstem, Inc. v. StemCells, Inc., 573 F.Supp.2d 888, 900 (D.Md.2008) (noting that first-to-file rule should not be disregarded lightly).

Here there is no dispute that the Western District of Wisconsin action was filed first or that Jeffry Butler had opted-in to that action prior to commencing this lawsuit. ( See ECF No. 19–2, Jeffry Butler's Consent to Join Collective Action signed July 28, 2010). The Defendants are the same in both cases, and Jeffry Butler is a plaintiff in both cases.¹ There is also substantial overlap in the claims. In both cases, Defendants' service technicians are seeking overtimes wages pursuant to FLSA for the same categories of activities. ( Compare ECF No. 1 with Espenscheid v. DirectSat USA, LLC, No. 3:09–cv–00625–bbc, ECF No. 1 (W.D.Wis. filed October 13, 2009)). Despite these facts, Butler argues that the court should not apply the first-to-file rule because this forum is more convenient for all parties and because dismissing one plaintiff will not relieve this court from its obligation to adjudicate the FLSA and state law claims of the other Plaintiffs. (ECF No. 24, at 19). Butler also notes that he has voluntarily opted-out of the Wisconsin case and is electing to proceed with his claims only in this court. ( Id. at 20).

If Jeffry Butler is no longer a plaintiff in the Wisconsin case, the first-to-file rule is not inapplicable. Defendants point out, however, that Butler could not withdraw from the Wisconsin case without court approval and he has not yet obtained that approval. (ECF No. 25, at 2–5). Opt-in plaintiffs are considered party plaintiffs with the same status as the named plaintiffs, see Prickett v. DeKalb Cnty., 349 F.3d 1294, 1297 (11th Cir.2003), and as a result Defendants maintain that Butler must comply with Fed.R.Civ.P. 41 in order to dismiss his claims in the Wisconsin case. In particular, Defendants contend that because an answer had been filed in the Wisconsin case and all parties did not submit a joint stipulation for Butler's dismissal, Butler could not opt-out without a court order. See Fed.R.Civ.P. 41(a)(1)(A).

Defendants' argument had merit at the time it was filed. Subsequently the Wisconsin class was decertified and all opt-in plaintiffs, including Jeffry Butler, were dismissed without prejudice. The first to file rule no longer operates to preclude Butler from participating in this case and he will not be dismissed. In addition, count IV alleging claims under the District of Columbia Minimum Wage Law will not be dismissed on the basis that no representative plaintiff could state such a claim.

III. Failure to State a ClaimA. Standard of Review

The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). Except in certain specified cases, a plaintiff's complaint need only satisfy the “simplified pleading standard” of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Nevertheless, “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That showing must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal citations omitted).

In its determination, the court must consider all well-pled allegations in a...