McLeland v. 1845 Oil Field Servs.

Citation97 F.Supp.3d 855
Decision Date16 March 2015
Docket NumberCivil Action No. SA–14–CV–1117–XR.
PartiesMichael McLELAND, et al., Plaintiffs, v. 1845 OIL FIELD SERVICES, Defendant.
CourtU.S. District Court — Western District of Texas

Andrew W. Dunlap, Lindsay R. Itkin, Michael A. Josephson, Fibich, Leebron, Copeland, Briggs & Josephson, Richard J. Burch, Bruckner Burch PLLC, Houston, TX, for Plaintiffs.

Julie J. Gannaway, Melissa Haynes Cranford, Lynn Ross Gannaway & Cranford, LLP, Fort Worth, TX, for Defendant.



On this day the Court considered Defendant's motion to dismiss for lack of subject matter jurisdiction and, in the alternative, failure to state a claim upon which relief can be granted and lack of supplemental jurisdiction. Docket no. 15. For the following reasons, the Court DENIES the motion.


Plaintiff Michael McLeland brought this suit on behalf of himself and all others similarly situated for violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), and the New Mexico Minimum Wage Act, NMSA § 50–4–19 et seq. (“NMMWA”), against his former employer, Defendant 1845 Oil Field Services (Defendant). Defendant is an oil field services company with offices and operations in Texas whose primary business includes “the coordination of drilling sand and other materials into the oil fields.” Docket no. 1 at ¶ 9. McLeland was a “sand coordinator” with the Defendant. Sand coordinators' job responsibilities included: ensuring “the required sand is unloaded from the delivery trucks and loaded into the blender for use;” and “assist[ing] in getting trucks into position, inspect the sand delivered, hook up hoses to trucks that deliver the sand.” Id. at ¶¶ 12–13. McLeland worked for Defendant as a sand coordinator in New Mexico and Texas. Id. at ¶ 4.

McLeland alleges sand coordinators were paid a flat rate for each shift or day worked with no overtime, despite often working over forty hours per week and shifts in excess of eight hours per day. Id. at ¶¶ 28–34. He alleges Defendant's payment structure violated the FLSA and NMMWA. Id. at 38. He invokes this Court's federal question jurisdiction under 28 U.S.C. § 1331 through the FLSA claim, and supplemental jurisdiction under 28 U.S.C. § 1367 for the state law NMMWA claim.

McLeland filed this complaint on December 19, 2014. Docket no. 1. The parties agreed that Defendant would have until February 10, 2015 to answer the complaint. Docket no. 12. Pursuant to that agreement, Defendant filed its motion to dismiss for lack of subject matter and supplemental jurisdiction (docket no. 15), as well as its answer (docket no. 16) on February 10, 2015. In its motion to dismiss, Defendant argues: 1) the Court lacks subject matter jurisdiction because sand coordinators fall under the Federal Motor Carrier Act (FMCA) exemption to the FLSA in 29 U.S.C. § 213(b)(1) ; 2) if the Court exercises subject-matter jurisdiction over the FLSA claim, the claim should be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted because sand coordinators are exempt under the FMCA exemption; and 3) once the FLSA claims are dismissed, the Court lacks supplemental jurisdiction over the state law NMMWA claim, or, in the alternative, if the Court has jurisdiction and maintains the FLSA claim, the NMMWA so dominates the federal law claim that supplemental jurisdiction is improper. McLeland responded to the motion to dismiss on February 27, 2015. Docket no. 17. Defendant replied on March 5, 2015. Docket no. 20.


Defendant moves to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1) based on the FMCA exemption. In the alternative, Defendant moves to dismiss under Rule 12(b)(6) for failure to state a claim. “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id.

The Court must dismiss a cause for lack of subject matter jurisdiction “when the court lacks the statutory or constitutional power to adjudicate the case.” See Home Builders Assn. of Mississippi, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998). A motion to dismiss for lack of jurisdiction under 12(b) (1) may be decided on: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts, plus the Court's resolution of disputed facts. Freeman v. United States, 556 F.3d 326, 334 (5th Cir.2009). Unlike a 12(b)(6) motion, the district court is empowered to consider matters outside the complaint and matters of fact that may be in dispute in a 12(b)(1) motion. Ramming, 281 F.3d at 161.

Next, “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.’ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim for relief must contain (1) “a short and plain statement of the grounds for the court's jurisdiction”; (2) “a short and plain statement of the claim showing that the pleader is entitled to the relief”; and (3) “a demand for the relief sought.” FED. R. CIV. P. 8(a). In considering a motion to dismiss under Rule 12(b)(6), all factual allegations from the complaint should be taken as true, and the facts are to be construed favorably to the plaintiff. Fernandez–Montes v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir.1993). To survive a 12(b)(6) motion, a complaint must contain “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 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.

1. Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction

Defendant argues this Court does not have subject matter jurisdiction because McLeland and the other “sand coordinators” in this lawsuit are exempted from FLSA coverage by the FMCA exemption in 29 U.S.C. § 213(b)(1). Section 213(b)(1) provides an exemption to the FLSA overtime requirements for “any employee with respect to whom the Secretary of Transportation [ (the “Secretary”) ] has power to establish qualifications and maximum hours of service.” 49 U.S.C. § 31502(b)(2) permits the Secretary to set “qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation.” The Secretary may establish qualification and hour requirements if the employees (1) are employed at companies engaged in interstate commerce, and (2) “engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce within the meaning of the [FMCA].” 29 C.F.R. § 782.2(a) ; Allen v. Coil Tubing Servs., L.L.C., 755 F.3d 279, 283 (5th Cir.2014). The FMCA exemption only applies to employees who meet both criteria. Allen, 755 F.3d at 283.

Defendant asserts the Court lacks subject-matter jurisdiction over this lawsuit because the Defendant is engaged in interstate commerce and its sand coordinators “engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce.” Docket no. 15 at 3.

In his response Plaintiff cites several cases demonstrating this question goes to the merits of the case, rather than the court's jurisdiction. See, e.g., Casares v. Henry Limousine Ltd., No. 09 CIV. 458, 2009 WL 3398209, at *1 (S.D.N.Y. Oct. 21, 2009). This Court agrees. See Vanzzini v. Action Meat Distributors, Inc., 995 F.Supp.2d 703, 711–12 (S.D.Tex.2014) (considering the FMCA exemption an affirmative defense decided at the summary judgment stage).

Federal question jurisdiction is properly invoked by pleading a claim “arising under” the laws of the United States. See Bell v. Hood, 327 U.S. 678, 681–685, 66 S.Ct. 773, 90 L.Ed. 939 (1946). A claim “arises under” the laws of the United States when “a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 27–28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). McLeland's claim arises under the laws of the United States as it is brought pursuant to the private right of action in the FLSA. 29 U.S.C. § 216(b).

Therefore, the Court denies Defendant's Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction because questions about the application of the FMCA exemption to an FLSA claim are not jurisdictional and are appropriately handled at the merits stage. See Arbaugh v. Y & H Corp., 546 U.S. 500, 516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ([W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”); Hopkins v. Cornerstone America, 512 F.Supp.2d 672, 681 (N.D.Tex.2007) (applying Arbaugh and holding that whether the plaintiff was an “employee” under the FLSA “does not affect federal-court subject-matter jurisdiction but, instead,” goes to the merits of the FLSA claim); Rivera v. Heights Landscaping, Inc., No. 03C6428, 2004 WL 434214, at *1 (N.D.Ill. Mar. 5, 2004) (“Whether pl...

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