Bascomb et al v. Express Courier International Inc et al

Filing 27

MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 10/5/2018. (JLC)

FILED
2018 Oct-05 AM 11:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JESSIE BASCOMB, et al.,
Plaintiffs,
v.
EXPRESS COURIER
INTERNATIONAL, INC., et al.,
Defendants.

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CIVIL ACTION NO.
2:18-CV-00064-KOB

MEMORANDUM OPINION
This matter comes before the court on Defendants Express Courier
International, Inc. and EMP LSO Holding Corp.’s motion to dismiss Plaintiffs’
First Amended and Substituted Complaint. (Doc. 17). The 203 individually
named Plaintiffs in this matter performed courier duties for Defendants under a
contract that identified each Plaintiff as an independent contractor and not an
employee of Defendants. Plaintiffs allege that they are actually employees of
Defendants and that Defendants failed to pay them minimum and overtime wages
in violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”).
Defendants contend that Plaintiffs are not employees, and that even if Plaintiffs
were employees, Plaintiffs have not sufficiently alleged minimum and overtime
wage violations.
As further explained below, the court WILL GRANT Defendants’ motion to
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dismiss only on the basis of Plaintiffs’ failure to sufficiently allege minimum and
overtime wage violations. The court will reach no decision at this point on
whether Plaintiffs are covered employees under the FLSA. And the court WILL
GRANT Plaintiffs’ request for leave to file a second amended complaint.
I.

STANDARD OF REVIEW
A motion to dismiss challenges the legal sufficiency of a complaint. Under

Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to
dismiss a complaint for “failure to state a claim upon which relief can be granted.”
To survive a motion to dismiss, “a complaint must allege ‘enough facts to state a
claim to relief that is plausible on its face.’” Adinolfe v. United Tech. Corp., 768
F.3d 1161, 1169 (11th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). To be plausible on its face, the claim must contain enough
“factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). On a motion to dismiss, the court accepts as true the factual
allegations in the complaint and construes them in the light most favorable to the
plaintiff. Id.
But not all allegations can defeat a motion to dismiss. “[L]abels and
conclusions[] and a formulaic recitation of the elements of a cause of action will
not do,” and “[f]actual allegations must be enough to raise a right to relief above
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the speculative level.” Twombly, 550 U.S. at 555. If the court determines that
well-pleaded facts, accepted as true, do not state a plausible claim, the claim must
be dismissed. Iqbal, 556 U.S. at 678.
II.

BACKGROUND
The FLSA provides (1) minimum and overtime wage protections (2) to

covered employees. 29 U.S.C. §§ 206, 207. Plaintiffs allege that they are covered
employees under the FLSA and Defendants vigorously contest that allegation. But
the court will present only facts relevant to the alleged minimum and overtime
wage violations because as explained below, Defendants’ motion to dismiss is due
to be granted regardless of whether Plaintiffs are covered employees.
Defendants’ courier and package delivery business depended crucially on
the 203 individually named Plaintiffs in this case. With Plaintiffs’ personal
vehicles, Plaintiffs picked up parcels from Defendants’ warehouses and delivered
them to Defendants’ customers. (Doc. 7 at ¶¶ 221, 249, 276). Each Plaintiff
performed services for Defendants under an “owner-operator agreement.” (Id. at ¶
243). The agreement identified each Plaintiff as an “independent contractor.” (Id.
at ¶¶ 242, 272). Defendants paid Plaintiffs “through a combination of piece rates,
route rates or delivery rates.” (Id. at ¶ 252).
According to Plaintiffs, “Defendant generally did not pay any drivers any
overtime premium for hours that they worked over forty hours per week. . . . If
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any driver worked more than forty hours per week, Defendant’s policy was not to
pay that driver an overtime premium of one and one half times the driver’s regular
rate for the hours over forty.” (Doc. 7 at ¶¶ 266-67). 1 Plaintiffs contend that
“Defendant knew or should have known that the job duties of Plaintiffs required
Plaintiffs to work hours in excess of forty per week, yet Defendant failed and
refused to compensate Plaintiffs for their work as required by the FLSA.” (Id. at ¶
270). In addition, Plaintiffs assert that “[a]fter deducting for expenses related to
the operation of at least some Plaintiffs’ vehicles in the course of performing job
duties for Defendant, some Plaintiffs’ pay regularly fell below the minimum wages
required by the FLSA.” (Id. at ¶ 269).
Defendants contend that Plaintiffs have failed to state a plausible claim of a
minimum wage or overtime violation under the FLSA because Plaintiffs do not
allege (1) who received less than minimum wage or worked more than forty hours
in one week without overtime pay; (2) how many hours a week each Plaintiff
worked; (3) whether a Plaintiff worked more than forty hours a week; and (4)
whether the expenses that a Plaintiff incurred actually brought his or her wage
below minimum wage. (Doc. 18 at 15). Defendants argue also that Plaintiffs’
allegation that “some” Plaintiffs received less than minimum wage “does not
render it plausible that each Plaintiff had his or her wages fall below the minimum
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In their brief in opposition to Defendants’ motion to dismiss, Plaintiffs state that they
refer to both Defendants collectively as “Defendant” in the amended complaint. (Doc. 22 at 27).
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wage.” (Id.). Defendants similarly argue that “an allegation that some unidentified
Plaintiffs worked more than 40 hours in a week cannot render plausible that the
remaining unidentified Plaintiffs did so.” (Id. at 15-16).
With the parties’ positions in mind, the court next analyzes the sufficiency of
Plaintiffs’ amended complaint and finds that it fails to state a plausible claim for
relief under the FLSA.
III.

ANALYSIS
As the court mentioned above, the FLSA establishes a minimum and

overtime wage for covered employees. 29 U.S.C. §§ 206, 207. Any employer
who fails to pay its covered employees overtime compensation or less than
minimum wage “shall be liable to the employee or employees affected in the
amount of their unpaid minimum wages, or their unpaid overtime compensation, as
the case may be, and in an additional equal amount as liquidated damages.” 29
U.S.C. § 216(b). Because of the FLSA’s clear mandates, the Eleventh Circuit has
found that “the requirements to state a claim of a FLSA violation are quite
straightforward. The elements that must be shown are simply a failure to pay
overtime compensation and/or minimum wages to covered employees . . . .” Sec’y
of Labor v. Labbe, 319 F. App’x 761, 763 (11th Cir. 2008).
Plaintiffs rely on Labbe as if it lowers the pleading standard for an FLSA
claim below the standard established in Twombly and Iqbal. It does not. See
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Cooley v. HMR of Alabama, Inc., 259 F. Supp. 3d 1312, 1318 (N.D. Ala. 2017)
(finding that Labbe does not lower the Twombly/Iqbal pleading standard for FLSA
claims in part because “Labbe is an unpublished opinion and therefore not binding
on this Court. See U.S. Ct. of App. 11th Cir. Rule 36-2. Further, Labbe was
decided prior to Iqbal.”); Gonzalez v. Old Lisbon Rest. & Bar L.L.C., 820 F. Supp.
2d 1365, 1370 & n.3 (S.D. Fla. 2011) (finding that Twombly/Iqbal governs the
sufficiency of FLSA pleadings notwithstanding Labbe). The elements of an FLSA
claim certainly are straightforward, but Plaintiffs’ conclusory allegations that they
have established those elements with respect to some unknown Plaintiffs do not
constitute well-pleaded factual allegations demonstrating a plausible claim for
relief.
The court finds several flaws in Plaintiffs’ amended complaint. First and
most notably, Plaintiffs do not identify which of the 203 Plaintiffs received less
than minimum wage. Plaintiffs refer only to “some” Plaintiffs whose “pay
regularly fell below the minimum wages.” (Doc. 7 at ¶ 269). The court cannot say
that 203 individual Plaintiffs each have stated a plausible claim for relief when
they collectively refer only to “some” who suffered an FLSA violation. Cf. Ryte v.
Express Courier Int’l, Inc., 2018 WL 3723709, at *3 (N.D. Ga. July 31, 2018)
(“Plaintiffs still must allege which Plaintiffs suffered a minimum wage and/or
overtime violation. It is not enough to say that some Plaintiffs suffered a minimum
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wage violation and/or overtime violation. Here, Plaintiffs’ Complaint only alleges
that some Plaintiffs suffered a minimum wage violation. . . . Therefore, Plaintiffs’
Complaint does not sufficiently allege FLSA minimum wage or overtime
violations.”) (emphasis in original) (footnote omitted).
Next, Plaintiffs do not allege that any Plaintiff received less than minimum
wage or worked more than 40 hours in a week without overtime pay. Plaintiffs
allege only that Defendants “generally” did not pay overtime and had a “policy”
not to pay overtime “[i]f any driver worked more than forty hours per week.”
(Doc. 7 at ¶¶ 266-67). These allegations leave the court to speculate whether any
Plaintiff actually worked more than forty hours in a week and fell victim to that
policy. Even what Plaintiffs consider to be their most specific allegations—
“Defendant knew or should have known that the job duties of Plaintiffs required
Plaintiffs to work hours in excess of forty per week, yet Defendant failed and
refused to compensate Plaintiffs for their work as required by the FLSA,” (id. at ¶
270), and, “Defendant also unlawfully refrained from paying Plaintiffs an overtime
premium for hours over forty per week,” (id. at ¶ 277)—do not actually allege that
any Plaintiff worked more than forty hours in a week and did not receive overtime
pay. Plaintiffs’ contentions amount to conclusory allegations and illusory
references that do not “allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
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Plaintiffs’ argument that “[i]n the Eleventh Circuit, however, Plaintiffs are
not required to plead how many hours they worked each week, what weeks they
worked more than forty hours or how frequently they worked more than forty
hours,” though correct, misses the point. (Doc. 22 at 10) (collecting cases).
Plaintiffs’ claim fails because they have not alleged that any specific Plaintiff
actually received less than minimum wage or worked more than 40 hours in a
week without overtime pay.
And none of the numerous cases cited by Plaintiffs saves their claim. (See
Doc. 22 at 10-12). In each of those cases, unlike in this case, the plaintiff or
plaintiffs asserted affirmatively that a specific plaintiff or plaintiffs received less
than minimum wage or worked more than 40 hours in a week without overtime
pay. And contrary to Plaintiffs’ assertions, courts in the Eleventh Circuit have
consistently dismissed complaints for failure to allege a specific instance of a
minimum wage or overtime violation. See, e.g., Cooley, 259 F. Supp. 3d at 1319
(“[T]o plausibly state a claim for failure to pay overtime under the FLSA, the
Plaintiffs must provide sufficient factual allegations to support a reasonable
inference that they worked more than forty hours in at least one workweek and that
the Defendant failed to pay the requisite overtime premium for those overtime
hours.”) (footnote omitted); Beck v. Fin. Tech. Corp., 2017 WL 5668388, at *6
(N.D. Ala. Nov. 27, 2017) (dismissing FLSA claim where Plaintiff alleged only
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that she “frequently worked in excess of 40 hours per week”); Stafflinger v. RTD
Constructions, Inc., 2015 WL 9598825, at *2 (M.D. Fla. Dec. 14, 2015), report
and recommendation adopted, 2016 WL 48110 (M.D. Fla. Jan. 5, 2016)
(dismissing FLSA claim where “Plaintiff never actually allege[d] that he ever
worked in excess of 40 hours in a workweek while employed by Defendant”); St.
Croix v. Genentech, Inc., 2012 WL 2376668, at *1 (M.D. Fla. June 22, 2012)
(dismissing FLSA claim where Plaintiff alleged only that “‘at all material times
hereto’ she worked in excess of forty hours per work week”). As in those cases,
Plaintiffs here have not sufficiently alleged an FLSA minimum wage or overtime
violation.
However, in their brief in opposition to Defendants’ motion to dismiss,
Plaintiffs request leave to file a second amended complaint “if this Court agrees
that Plaintiffs must plead more facts with particularity.” (Doc. 22 at 28).
Generally, “[w]hen ‘a more carefully drafted complaint might state a claim, a
plaintiff must be given at least one chance to amend the complaint before the
district court dismisses the action with prejudice.’” Evans v. Georgia Reg’l Hosp.,
850 F.3d 1248, 1254 (11th Cir. 2017) (quoting Bryant v. Dupree, 252 F.3d 1161,
1163 (11th Cir. 2001)). And the Federal Rules of Civil Procedure direct courts to
“freely give leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Plaintiffs filed their original complaint on January 12, 2018 and amended their
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complaint as a matter of course on April 11, 2018, only two months before
Defendants moved to dismiss and only to add five new Plaintiffs. Plaintiffs might
state a claim with a more carefully drafted complaint that cures the deficiencies
identified above, and so the court will grant Plaintiffs’ request for leave to file a
second amended complaint. Cf. Cooley, 259 F. Supp. 3d at 1323 (granting leave to
amend original complaint for the same reasons); Ryte, 2018 WL 3723709, at *3
(granting leave to file a third amended complaint for Plaintiffs “to allege which
Plaintiffs suffered minimum wage and overtime violations . . . .”).
Finally, Defendants argue that the court should dismiss all claims against
Defendant EMP LSO Holding because Plaintiffs do not allege any facts specific to
EMP LSO Holding. (Doc. 18 at 32). Plaintiffs contend that they refer to both
Defendants collectively as “Defendant” in their complaint and “intended to make
each allegation against each Defendant because both Defendants engaged in the
same conduct.” (Doc. 22 at 27). Plaintiffs have the opportunity in their second
amended complaint to clarify that they bring claims against both Defendants and
state the basis for their claims, and so the court will not at this stage preclude
Plaintiffs from bringing any claims against EMP LSO Holding.
IV.

CONCLUSION
By separate order, the court WILL GRANT Defendants’ motion to dismiss

and WILL DISMISS WITHOUT PREJUDICE Plaintiffs’ first amended
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complaint. The court WILL GRANT Plaintiffs LEAVE TO FILE a second
amended complaint on or before November 5, 2018.
DONE and ORDERED this 5th day of October, 2018.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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