Flores v. Act Event Servs., Inc.

• Decision Date: 21 October 2014
• Docket Number: Civil Action No. 3:14–CV–2412–G.
• Citation: 55 F.Supp.3d 928
• Parties: Lucia FLORES, et al., Plaintiffs, v. ACT EVENT SERVICES, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

55 F.Supp.3d 928

Lucia FLORES, et al., Plaintiffs

v.ACT EVENT SERVICES, INC., et al., Defendants.

Civil Action No. 3:14–CV–2412–G.

United States District Court, N.D. Texas, Dallas Division.

Signed Oct. 21, 2014.

Timothy M. Dortch, Lauren Catherine Tow, Cooper & Scully PC, Tom A. Carse, Carse Law Firm, Dallas, TX, for Plaintiffs.

Mark A. Shank, Robert R. Harris, Gruber Hurst Johansen Hail Shank LLP, Kenneth M. Stillman, Law Office of Kenneth M. Stillman, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

A. JOE FISH, Senior District Judge.

Before the court are the defendants' motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) (docket entries 13, 15). For the reasons stated below, the motions are granted with respect to the putative collective action and all named plaintiffs, except for Rosa Hernandez. With respect to Hernandez, the motions are denied. On its own motion, the court grants leave to amend the entire complaint no later than November 10, 2014.

I. BACKGROUND

A. Factual Background

The plaintiffs accuse the defendants, ACT Event Services, Inc. (“ACT”), Roman Luis Gaona, and Final & Touch Cleaning Services (“Final Touch”), of violating the Fair Labor Standards Act (FLSA). First Amended Collective Action Complaint (“Complaint”) ¶¶ 1, 7, 9 (docket entry 11). ACT advertises itself as a “multi-dimensional event and rental production company.” Id. ¶ 21. According to the plaintiffs, Gaona owns and operates Final Touch solely to provide workers for ACT.¹ Id. ¶¶ 9, 22, 23. The named plaintiffs are among those individuals referred to ACT by Final Touch. d. ¶ 27.

The plaintiffs believe their interactions with both ACT and Final Touch establish an employer-employee relationship as defined in 29 U.S.C. § 203(d). See id. ¶¶ 28–34. To support this characterization, the plaintiffs highlight the defendants' “substantial control over the actions of Named Plaintiffs and Collective Plaintiffs.” Id. ¶ 29. The defendants told the plaintiffs the “specific hours during which they would be expected to perform their work,” “set the pay amount” the plaintiffs would receive, and “maintained employment records” of the plaintiffs. Id. ¶¶ 29–31.

During the last three years of this relationship, the plaintiffs allege, the defendants violated the FLSA by failing to pay compensable travel time, abide by federal minimum wage laws, and provide overtime compensation. Id. ¶ ¶ 45–49, 50–58, 59–63. In addition to presenting their own FLSA claims, the named plaintiffs “bring this action as a collective action for and on behalf of ... those employees similarly situated pursuant to the ‘opt-in’ provisions of the FLSA....” Id. ¶ 19.

B. Procedural Background

The plaintiffs filed an initial complaint on July 3, 2014. Collective Action Complaint (docket entry 1). After receiving service, both defendants responded by filing motions to dismiss pursuant to Rule 12(b)(6). ACT Event Services, Inc.'s Motion to Dismiss (docket entry 6); Defendant Roman Gaona's Motion to Dismiss (docket entry 9). The defendants argued that the complaint lacked sufficient factual allegations to establish three essential elements of an FLSA claim: (1) that the defendants qualified as the plaintiffs' employers; (2) that the defendants were FLSA covered employers; and (3) that the defendants actually violated the FLSA. ACT Event Services, Inc.'s Brief in Support of its Motion to Dismiss at 2–4 (docket entry 7); Defendant Roman Gaona's Brief in Support of Motion to Dismiss Plaintiffs' Collective Action Complaint at 3–6 (docket entry 10).

The plaintiffs filed their First Amended Collective Action Complaint on August 12, 2014, rendering the above motions moot. See Order Denying Motions to Dismiss (docket entry 12). Still believing that the plaintiffs had failed to assert a claim for relief, the defendants filed new motions to dismiss. ACT Event Services, Inc.'s Motion to Dismiss Plaintiffs' First Amended Collective Action Complaint (docket entry 13); Roman Gaona's Motion to Dismiss Plaintiffs' First Amended Collective Action Complaint (docket entry 15). In the briefs supporting these motions, the defendants reduce their argument to a single contention: that the amended complaint has not alleged any violation of the FLSA.² ACT Event Services, Inc.'s Brief in Support of its Motion to Dismiss (“ACT's Brief in Support”) at 2–3 (docket entry 14); Roman Gaona's Brief in Support of its Motion to Dismiss (“Gaona's Brief in Support”) at 2–3 (docket entry 16). They noted that the specific factual details in the complaint pertained only to an unnamed plaintiff—Rosa Hernandez. ACT's Brief in Support at 3; Gaona's Brief in Support at 3. This led the plaintiffs to add Hernandez as a named plaintiff through a notice of consent. First Notice of Filing Consents to Join Collective Action (docket entry 17).

The plaintiffs believe that this addition cured the complaint's deficiencies. Brief in Support of Response to Roman Gaona's Motion to Dismiss ¶ 6 (docket entry 19); Brief in Support of Response to ACT Event Services' Motion to Dismiss ¶ 6 (docket entry 21) (collectively “Briefs in Support of Response”). However, in their reply brief, the defendants still aver that the allegations fail to state a claim for relief. See Defendants' Joint Reply to Plaintiffs' Responses to Defendants' Motions to Dismiss (“Defendants' Reply”) (docket entry 22). The court now turns to the disposition of these motions.

II. ANALYSIS

A. Applicable Law

1. General Motion to Dismiss Standard

“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.2007) (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ), cert. denied, 552 U.S. 1182, 128 S.Ct. 1230, 1231, 170 L.Ed.2d 63 (2008). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations, quotation marks, and brackets omitted). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” In re Katrina Canal, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ) (internal quotation marks omitted). “The court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Id. (quoting Martin K. Eby Construction Company, Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.2004) ) (internal quotation marks omitted).

The Supreme Court has prescribed a “two-pronged approach” to determine whether a complaint fails to state a claim under Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court must “begin by identifying the pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679, 129 S.Ct. 1937. The court should then assume the veracity of any well-pleaded allegations and “determine whether they plausibly give rise to an entitlement of relief.” Id. The plausibility principle does not convert the Rule 8(a) (2) notice pleading to a “probability requirement,” but “a sheer possibility that a defendant has acted unlawfully” will not defeat a motion to dismiss. Id. at 678, 129 S.Ct. 1937. The plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Id. at 679, 129 S.Ct. 1937 (alteration in original) (quoting Fed. R. Civ. P. 8(a)(2) ). The court, drawing on its judicial experience and common sense, must undertake the “context-specific task” of determining whether the plaintiffs' allegations “nudge” their claims against the defendant “across the line from conceivable to plausible.” See id. at 680, 683, 129 S.Ct. 1937.

2. Motion to Dismiss Standard Applied to FLSA Collective Actions

When considering Rule 12(b)(6) motions in FLSA cases, courts should “distinguish between individual ... claims and those brought on behalf of a putative class.” Creech v. Holiday CVS, LLC, Civil Action No. 11–46–BAJ–DLD, 2012 WL 4483384, at *3, 2012 U.S. Dist. LEXIS 144838, at *7 (M.D.La. Sept. 28, 2012) (citing Mell v. GNC Corporation, Civil Action No. 10–945, 2010 WL 4668966, at *6 (W.D.Pa. Nov. 9, 2010) ). While “[t]here is no specific guidance from the Fifth Circuit Court of Appeals” in regards to how collective action claims are treated differently, id. at *2, 2012 U.S. Dist. LEXIS 144838 at *6, two divergent approaches have arisen throughout the federal system.

Under the first approach, “the plaintiffs need not plead facts to support the propriety of a collective action to survive a Rule 12(b)(6) motion. Whether proceeding collectively is appropriate will be addressed when the plaintiffs move for conditional certification and issuance of notice to the class.” Hoffman v. Cemex, Inc., Civil Action No. H–09–3144, 2009 WL 4825224, at *4 (S.D.Tex. Dec. 8, 2009) ; see also Long v. CPI Security Systems, Inc., No. 3:12–CV–396–RJC–DSC, 2012 WL 3777417, at *5 (W.D.N.C. Aug. 30, 2012) (“Defendant's argument that this Court should dismiss Plaintiff's ‘collective action allegation’ is inappropriate” at the motion to dismiss stage) (internal citation omitted); Lang v. DirecTV, Inc., 735 F.Supp.2d 421, 435 (E.D.La.2010) (“The Court finds that defendants' motion to dismiss is premature because plaintiffs have not moved for...