Figueroa v. Butterball, LLC, 5:20-CV-585-D

CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina
Writing for the CourtJAMES C. DEVER III United States District Judge.
PartiesOSVALDO FIGUEROA, Plaintiff, v. BUTTERBALL, LLC, Defendant.
Docket Number5:20-CV-585-D
Decision Date27 July 2022



No. 5:20-CV-585-D

United States District Court, E.D. North Carolina, Western Division

July 27, 2022


JAMES C. DEVER III United States District Judge.

On September 15, 2021, the court granted Butterball, LLC's (“Butterball” or “defendant”) motion to dismiss Osvaldo Figueroa's (“Figueroa” or “plaintiff”) first amended complaint and granted Figueroa leave to file a second amended complaint [D.E. 21]. See Figueroa v. Butterball, LLC. No. 5:20-CV-585-D,2021 WL 4203652 (E.D. N.C. Sept. 15, 2021) (unpublished). On October 4, 2021, Figueroa filed a second amended complaint against Butterball alleging claims under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”) and the North Carolina Wage and Hour Act, N.C. Gen. Stat §§ 95-25.1 et seq. (“NCWHA”) [D.E. 22]. On November 1, 2021, Butterball moved to dismiss the second amended complaint under Federal Rule of Civil Procedure 12(b)(6) [D.E. 25] and filed a memorandum in support [D.E. 26]. On November 23, 2021, Figueroa responded in opposition [D.E. 28]. On December 10, 2021, Butterball replied [D.E. 31]. As explained below, the court grants in part and denies in part Butterball's motion to dismiss. The court dismisses with prejudice Figueroa's NCWHA claims. Figueroa may proceed with his FLSA claim.


Butterball, a turkey producer, is a limited liability corporation with its principal place of business in Gamer, North Carolina. See Second Am. Compl. [D.E. 22] ¶¶ 20-21. Figueroa is a


resident of Clinton, North Carolina, who worked as a poultry loader/catcher at Butterball's processing plant in Warsaw, North Carolina, from approximately May 8, 2017, to May 2019. See Id. ¶¶ 19,32-34. Figueroa's work catching and loading turkeys was “unskilled, repetitive, and rote.” Id. ¶ 37. He had no authority over the hiring and firing of other employees, and he did not manage other employees. See Id. ¶¶ 40-41.

Figueroa typically worked the night shift six days per week, from 6:30 p.m. until 9:30 a.m. the next day. See Id. ¶ 42. Approximately once per month, the loaders/catchers' machines would break, causing Figueroa to work until 2:00 p.m. or 3:00 p.m. See Id. Butterball provided “a one-hour, uninterrupted lunch break,” but the “lunch break depended on the general pace of the r production line.” Id. ¶ 43. Figueroa alleges he worked approximately 90 hours per week. See Id. ¶44.

During this litigation, Figueroa has given contradictory accounts of the compensation, Butterball promised him at the beginning of his employment. In his original complaint, Figueroa alleged that Butterball “instructed [him] he would be paid on a piece-rate basis at a rate of $12 per truck load of turkeys” and would receive an overtime premium for all hours worked over 40 in a workweek. Compl. [D.E. 1] ¶ 36. Figueroa alleged he “load[ed] approximately 14-16 trucks” in a typical shift and “18-20 trucks per shift” during the holiday season. Id. ¶ 30. In his first amended complaint, Figueroa gave a similar account-i.e., that Butterball “instructed [him] he would be paid on a piece-rate basis at a rate of $12 per truck load of turkeys,” and that his manager, Rocco, and a human resources (“HR”) representative told Figueroa he would receive an overtime premium for all hours worked over 40 in a workweek. Am. Compl. [D.E. 13] ¶49. Figueroa again alleged he loaded approximately 14 tol6 trucks in a typical shift, and loaded approximately 18 to 20 trucks per shift during the holiday season. See Id. ¶ 39.


In his second amended complaint, Figueroa tells a completely different story. He now alleges that Rocco and the HR representative told him “he would be paid an hourly rate and a premium rate of time and one-half his regular hourly rate for all hours over 40 per week” Second Am. Compl. ¶ 49. The HR representative translated Rocco's explanation of the terms of Figueroa's employment into Spanish for Figueroa. See Id. Figueroa alleges it was his “understanding he would be compensated on an hourly basis, especially since there was no proper explanation of the piece-rate compensation system in conjunction with the promise to be compensated overtime for hours worked over 40 per week.” Id. ¶ 50. Figueroa does not allege, however, what Rocco and the HR representative told him his hourly rate would be. Although Figueroa has previously estimated the number of trucks he loaded per shift, he now says “no record exist[s] documenting the number of i loads” he completed. Id. ¶ 52. According to Figueroa, Butterball required Figueroa to track his daily hours worked, and Butterball reported what Figueroa characterizes as an hourly rate on his pay stub. See Id. ¶ 56.

Figueroa's pay stubs state that a portion of Figueroa's wages were “LoadTrip” earnings. Id. ¶ 57. Figueroa alleges he did not understand what “LoadTrip” calculations were used to determine his pay, and he thought he was being paid hourly plus an overtime premium. See Id. ¶¶ 57-58. Figueroa alleges that Butterball routinely paid him less than his regular hourly rate plus any applicable overtime premium for hours worked above 40 in a workweek. See Id. ¶¶ 59-60.

As an example, Figueroa cites the pay period of January 22 to January 28,2018. See Id. ¶ 61. During that pay period, Figueroa worked 70.32 hours. The pay stub indicates Butterball paid Figueroa a “LoadTrip” amount of $1,184.64 and gross earnings (presumably including overtime) of $1,419.66. Id. ¶61. Figueroa alleges the pay stub lists an hourly rate of $18.54. See Id. ¶ 62. Based on this pay stub and his allegations that Butterball instructed him that he would be paid hourly,


Figueroa alleges that duringthis pay period, Butterball underpaid him by $165.14. See Id. Figueroa also alleges that Butterball “systemically undercalculate[d]” his wages. See Id. ¶ 59.

Figueroa alleges that Butterball failed to pay proper overtime wages under the FLSA. See Id. ¶¶ 86-101. Figueroa brings his FLSA claim as a collective action on behalf of himself and similarly situated employees. See Id. ¶¶ 66-75. Figueroa also alleges NCWHA violations. See Id. ¶¶ 111-26. Figueroa brings his NCWHA claims as a class action on behalf of himself and all similarly situated employees. See Id. ¶¶ 76-85. Figueroa seeks collective action certification, class certification, and monetary damages. See Id. at 23-24.


Initially, Butterball argues the court should treat as judicial admissions the statements in Figueroa's first amended complaint that Figueroa contradicts in his second amended complaint. See [D.E. 26] 6-15. Alternatively, Butterball argues the court should strike the inconsistent pleadings from the second amended complaint. See Id. Figueroa disagrees. See [D.E. 28] 12-17.

Figueroa's contradictory pleading to avoid a Rule 12(b)(6) dismissal is very troubling. Cf. Fed.R.Civ.P. 11(b)(3); United States ex rel. Nicholson v. MedCom Carolinas. Inc., No. 21-1290, 2022 WL 2838813, at *7-10 (4th Cir. July 21, 2022) (affirming district court decision to deny leave to amend complaint based on bad faith arising from plaintiff withholding information from the complaint without explanation and making misleading and inconsistent assertions). However, the tension between the judicial admissions doctrine and the nature of amended pleadings forecloses Butterball's argument.

Generally, “a party is bound by the admissions of his pleadings.” Lucas v. Burnley, 879 F.2d 1240,1242 (4th Cir. 1989) (quotation omitted); see Brown v. Sikora & Assocs., Inc., 311 Fed.Appx. 568,571 (4th Cir. 2008) (per curiam) (unpublished). Accordingly, “factual assertions in pleadings


and pretrial orders are considered to be judicial admissions conclusively binding on the party who made them.” White v. ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir. 1983).

A judicial admission is a representation that “go[es] to matters of fact which, otherwise, would require evidentiary proof.” Everett v. Pitt Cnty. Bd. of Educ., 788 F.3d 132,141 (4th Cir. 2015) (quotation omitted); see In re Motors Liquidation Co., 957 F.3d 357,360 (2d Cir. 2020) (per curiam) (“To constitute a judicial admission, the statement must be one of fact-a legal conclusion does not suffice.”); New Amsterdam Cas. Co, v. Waller, 323 F.2d 20,24 (4th Cir. 1963). Such a representation is conclusive unless the court allows the party who made the representation to withdraw it. See Minter v. Wells Fargo Bank. N.A. 762 F.3d 339.347 (4th Cir. 2014). A lawyer's statement on behalf of a client (i.e., a representation or waiver made outside the pleadings or a pretrial order) can be a judicial admission if it is “deliberate, clear, and unambiguous.” Id. (quotation omitted); see Fraternal Order of Police Lodge No, 89 v. Prince George's Cnty., 608 F.3d 183,190 (4th Cir. 2010); Meyer v. Berkshire Life Ins. Co., 372 F.3d 261,265 n.2 (4th Cir. 2004). The court has discretion to determine whether a representation constitutes a judicial admission. See Minter, 762 F.3d at 347.

“To qualify as a judicial admission, the statement must be (1) made in a judicial proceeding; (2) contrary to a fact essential to the theory of recovery; (3) deliberate, clear, and unequivocal; (4) such that giving it conclusive effect meets with public policy; and (5) about a fact on which a judgment for the opposing party can be based.” Heritage Bank v. Redcom Laby's, Inc., 250 F.3d 319, 329 (5th Cir. 2001). If a party has made a binding judicial admission, a court may relieve a party of that admission if (1) “the admitted fact is clearly untrue” and (2) “the party [that made the admission] was laboring under a mistake when he made the admission.” New Amsterdam Cas. Co., 323 F.2d at 24.


Figueroa made the factual representations at issue in his first amended complaint (i.e., as part of a judicial proceeding), they are contrary to his theory of recovery (as the court explained in its September 15, 2021 order), his...

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