Holcomb-Jones et al v. Stonemor Partners, L.P. et al
MEMORANDUM OPINION. Signed by Judge Annemarie Carney Axon on 10/10/2018. (TLM, )
2018 Oct-10 PM 02:24
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
REBA LACKEY, STEVEN JOEL )
PARTAIN, SHARON ANN
RAWLS, and PAMELA
ROBERTS, on behalf of themselves )
and all others similarly-situated,
STONEMOR PARTNERS, L.P., )
Case No.: 4:17-CV-01555-ACA
This matter comes before the court on Defendant StoneMor Partners, L.P.’s
(StoneMor) motion to dismiss. (Doc. 31). Before this motion, StoneMor filed a
motion to dismiss (doc. 6), which became moot when the court (Hopkins, J.) granted
plaintiffs leave to amend their complaint. (Doc. 18). Plaintiffs amended their
complaint and StoneMor filed another motion to dismiss.
(Docs. 21, 24).
StoneMor’s second motion to dismiss also became moot when plaintiffs were
granted leave to amend their complaint for a second time. (Doc. 29). Plaintiffs filed
a second amended complaint and it is StoneMor’s motion to dismiss that complaint,
its third motion to dismiss overall, which is now before the court. (Docs. 6, 24, 30,
31). StoneMor seeks dismissal of unpaid minimum wage and overtime claims
brought by plaintiffs Marla Holcomb-Jones, Reba Lackey, Steven Joel Partain,
Sharon Ann Rawls, and Pamela Roberts (collectively, “Plaintiffs”) on behalf of
themselves and a putative class of similarly situated employees. According to the
plaintiffs, StoneMor violated the Fair Labor Standards Act (“FLSA”) by failing to
pay them wages that they are due.
For the reasons set out in this opinion, the court GRANTS StoneMor’s motion
to dismiss because plaintiffs’ allegations are factually inadequate to make their
FLSA claims plausible.
STANDARD OF REVIEW
A well-pled 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)); see also
Harris, 572 F.3d at 71–72. To be plausible, the complaint need not show a
probability of plaintiff’s success, but it must evidence more than a mere possibility
of a right to relief. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; Twombly, 550 U.S. at
556, 127 S.Ct. 1955. And in evaluating whether a complaint states a plausible claim,
the court draws upon “’judicial experience and common sense’ to determine whether
the factual allegations, which are assumed to be true, ‘plausibly give rise to an
entitlement of relief.” Landers v. Quality Communications, Inc. 771 F.Ed 638, 641,
citing Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
When resolving a motion to dismiss, the court must “accept the allegations
in the complaint as true and constru[e] them in the light most favorable to the
plaintiff.” Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir. 2015)
(quoting Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam)).
Although the court must accept well-pleaded facts as true, the court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Twombly, 550
U.S. at 555.
StoneMor, a national provider of deathcare services, owns and operates
cemeteries and funeral homes across the United States and in Alabama. (Doc. 30, ¶
22). Part of its operation is in sales, selling various cemetery products and services.
(Doc. 30, ¶ 23). In 2014 and 2015, plaintiffs were a part of StoneMor’s sales
operation, employed as so-called “family counselors” and/or “family advisors.”
(Doc. 30, ¶ 9-13, 24-25). Plaintiffs worked as family counselors and family advisors
at different locations, but were all indisputably employed by StoneMor in nonexempt jobs at all times relevant to the complaint.
Working as family counselors and advisors, plaintiffs were paid a commission
on their sales. (Id. ¶ 29). The sales commission was the only compensation paid to
plaintiffs if, in a given week, they earned enough commission to exceed payment of
the equivalent minimum wage requirement for a forty-hour week. (Id.). If the
commission did not satisfy the forty-hour minimum wage requirement, plaintiffs
received commissions plus additional compensation to meet the FLSA’s minimum
wage requirement, but not to exceed the minimum wage requirement for a fortyhour week. (Id.). Plaintiffs were regularly required to work more than forty hours
a week, irrespective of whether their pay was generated from commission or
minimum wage. (Id. ¶ 30). And they were instructed not to record working more
than forty hours per workweek even when required to do so regularly. (Id.).
Individually, the plaintiffs allege the following:
• Ms. Holcomb-Jones alleges that she “worked more than 40 hours per week
[sic] on a regular basis but was told not to record more than 40 hours and was
therefore not paid either minimum wage or overtime for every hour she
worked. (Doc. 30, ¶ 32).
• Ms. Reba Lackey alleges that she “worked the six days the last week of March
(Monday through Saturday and was then called in Sunday afternoon to meet
with a family.” She also alleges that during “the first week of April, 2016,
she worked (Monday through Saturday,) and was called in again that Sunday.
During the second week of April, 2016, she worked Monday through
Saturday, and was told that she was going to be on call that Sunday. Ms.
Lackey was not paid for any hours in excess of 40 either week.” She was
required to watch a video on overtime pay and sign a document stating that
overtime pay would “not be paid if not preapproved by management.” And
“many times” she worked until 8:00 P.M. for call nights on Tuesdays and
Thursdays. She also alleges that if she worked through lunch, 30 minutes was
deducted from her time “whether she received lunch or worked through lunch
doing non-exempt work.” (Doc. 30, ¶¶ 34-37).
• Mr. Steven Joel Partain alleges he “worked more than 40 hours per week on
numerous occasions but was not paid overtime compensation.” (Doc. 30, ¶
• Ms. Sharon Ann Rawls alleges that on “numerous occasions” she worked
“more than 40 hours per week but she did not receive overtime
compensation.” (Doc. 30, ¶ 39).
• Ms. Pamela Roberts alleges that she was “required to work on Saturday and
Sunday after working a full workweek but was only allowed to record that she
had worked forty hours that week and therefore not paid overtime
compensation.” (Doc. 30, ¶ 40).
As a result of StoneMor’s practices and policies, plaintiffs allege that they and other
similarly-situated employees have been damaged by not receiving wages due to
them under the FLSA. (Doc. 30).
The second amended complaint contains allegations about StoneMor’s
recordkeeping. (Doc. 30, ¶¶ 48, 49). StoneMor defends those allegations on grounds
that the FLSA does not create a private right of action for recordkeeping violations
and therefore plaintiffs have failed to state a claim. (Doc. 32, p. 10-14). And they
cite case law to support their position. Id. The court need not reach the issue here,
however, because plaintiffs expressly disavow making an FLSA recordkeeping
claim. 1 On this concession, the court understands the recordkeeping allegations as
Plaintiffs concede that the “Second Amended Complaint does not reference the
record keeping provisions of the FLSA in the Claims for Relief sections, and the
plaintiffs explain them – only factual allegations made in relation to the minimum
wage and overtime claims that predominate their complaint. Accordingly, there is
no stand-alone FLSA recordkeeping claim pled.
Unpaid Minimum Wage and Overtime Claims
A prima facie case of an FLSA minimum wage violation “requires a
showing that ‘as a matter of just and reasonable inference . . . the wages paid to
[plaintiffs] did not satisfy the requirements of the FLSA.’” Beck v. Financial
Technology Corp., 2017 WL 5668388, at *3 (N.D. Ala. 2017), citing Donovan v.
New Floridian Hotel, Inc., 676 F.2d 468, 475 n.12 (11th Cir. 1982). And “to
establish a prima facie case for unpaid overtime, a plaintiff must show that (1) the
defendant employed the plaintiff; (2) the defendant is covered by the FLSA; (3) the
plaintiff actually worked in excess of a 40–hour workweek; and (4) the defendant
did not pay Plaintiff any overtime wages.” Id. citing Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1277 (11th Cir. 2008). The prima facie elements for
both claims concern under-compensation, either by not getting paid the minimum
amount or the failure to pay a premium amount for overtime. And so, what the
plaintiffs were paid and how much they worked matter.
Plaintiffs are clearly not seeking any separate relief (other than relief available to
them for failure to pay overtime and minimum wage during workweeks) for the
Defendants’ failure to comply with the law.” (Doc. 33, p. 15).
Here, the parties disagree about how specific plaintiffs must be with their
factual allegations of under-compensation, each arguing for a different benchmark.
The court considers these arguments with both Rule 8 and the Twombly/Iqbal
directives in mind. Because the same analysis applies equally to both plaintiffs’
minimum wage and overtime claims, the court addresses them together.
Plaintiffs have amended their complaint twice. (Docs. 21, 30). Despite
amendment, the factual allegations still lag behind the claims asserted. The first
amended complaint, bereft of any detail, collectively alleged that the plaintiffs
“regularly worked hours in excess of forty (40) hours per week” and “were instructed
to never allow time sheets to reflect hours worked over forty (40) hours per week
and were not paid overtime compensation for these weeks.” (Doc. 21, ¶ 32). The
second amended complaint fairs only slightly better. Improving upon the first
amendment, the second amendment does align factual allegations with individual
plaintiffs. (Doc. 30, ¶¶ 31-40). But three of the five plaintiffs still assert only a
threadbare allegation that they worked more than forty hours on a “regular basis” or
on “numerous occasions.” (Doc. 30, ¶¶ 32, 38, 39). As for the two plaintiffs who
have alleged more than just the barebones, their allegations of weekend work after a
“full workweek,” night work, work for consecutive days, or work during
lunchbreaks, still fall short. Critical facts about the plaintiffs’ work schedules, the
number of hours worked in a given workday or workweek, or the commission or
wages they were paid, are still missing from those allegations. None listed the weeks
each claimed to have worked more than forty hours. Nor are there allegations that
the time spent in excess of forty hours was compensable under the FLSA. And
without that information, the court cannot tell if the plaintiffs actually worked more
than forty hours or were underpaid. An allegation of working, after having already
worked for six consecutive days, just means someone worked more than six days in
a row – it does not mean, necessarily, that he or she worked more than forty hours.
The court has no idea how many hours were worked each of those six days any more
than it knows what a “full workweek” means. And the court will not guess at how
much plaintiffs worked or were compensated.
So, despite providing some additional detail in the second amended
complaint, the fact remains that the plaintiffs fail to allege a single workweek in
which they actually worked in excess of forty hours. Nor does the complaint allege
the amount of compensation plaintiffs received, their rates of pay, or any facts
relating to the commissions received. These allegations are the same type of
allegations that other courts have either found insufficient to state a plausible FLSA
claim or are revealed as such when compared to allegations that courts have found
Recently, the Eleventh Circuit examined the sufficiency of FLSA allegations
at the motion to dismiss stage. See Cooley v. HMR of Alabama, 2018 WL 4232041
(11th Cir. Sept. 6, 2018). In that case, the amended complaint “list[ed] the weeks
each employee claim[ed] to have worked more than 40 hours.” Cooley, 2018 WL
4232041 at *2. Also, allegations were made about the type of compensable work
the plaintiffs performed during uncompensated meal breaks. Id. These allegations
plausibly suggested that the plaintiffs were entitled to FLSA relief. Id. But here, the
plaintiffs’ allegations are not as factually developed as in Cooley. Most notably,
there are no allegations listing the weeks each employee claims to have worked over
Several other circuits for the court of appeals have considered the level of
detail required to state an FLSA minimum wage or unpaid overtime claim. 2 Those
decisions consistently balance Rule 8(a)(2) with Twombly and Iqbal, recognizing
that some factual detail is necessary to satisfy a plausibility baseline even if exacting
detail is not required. See Landers v. Quality Communications, Inc. 771 F.3d 638,
640-41 (9th Cir. 2014); Lundy v. Catholic Health Systems of Long Island, 711 F.3d
106, 114 (2d Cir. 2013); Pruell v. Caritas Christi, 678 F.3d 10, 12-13 (1st Cir. 2012).
These decisions do not presume that plaintiffs must, or even can, “plead their hours
Plaintiffs cite to the Eleventh Circuit’s unpublished opinion in Secretary of Labor v. Labbe, 319
Fed. Appx. 761 (11th Cir. 2008), which was decided prior to the Iqbal decision, to support their
position. (Doc. 33, p. 19-25). Labbe holds that the FLSA does not require overly detailed
allegations. Labbe, 319 Fed. Appx. at 764. Dismissing plaintiffs’ claims here is not inconsistent
with that holding as the court is not requiring overly detailed allegations to state a claim, just
factually sufficient ones to support a reasonable inference that they worked more than forty hours
in a given week.
with mathematical precision.” See e.g. DeJesus v. HF Mgmt. Services, LLC, 726
F.3d 85, 90 (2d. Cir. 2013). But they do require “sufficient detail about the length
and frequency of their unpaid work to support a reasonable inference that they
worked more than forty hours in a given week” and “nudge” their claims “from
conceivable to plausible.”
DeJesus, 726 F.3d at 90; Nakahata v. New York-
Presbyterian Healthcare System, Inc., 723 F.3d 192, 201 (2d Cir. 2013).
Here, it may be conceivable that plaintiffs were under-compensated if, as
alleged, they regularly worked more than forty hours a week. But it’s not plausible
because the facts are insufficiently developed. Merely alleging that they were not
paid for overtime or minimum wage is not enough for plaintiffs to state a claim.
And, like the Nakahata case, allegations of weekend work, night work, or work
during meal breaks without compensation may “raise the possibility that Plaintiffs
were undercompensated . . . [but] absent any allegation that Plaintiffs were
scheduled to work forty hours in a given week, these allegations do not state a
plausible claim for such relief.” Nakahata, 723 F.3d at 201. Because “it is
employees’ memory and experience that lead them to claim in federal court that they
have been denied overtime in violation of the FLSA in the first place,” plaintiffs
must “draw on those resources in providing complaints with sufficiently developed
factual allegations.” Dejesus, 726 F.3d at 90. And here plaintiffs have not done so.
The factual allegations are not sufficiently developed – there are no facts about the
plaintiffs’ work schedule, wages, or hours worked to exceed forty in a given week,
to plausibly give rise to an entitlement to relief. It’s not that the complaint needs
exacting allegations, just sufficient ones for this court, guided by judicial experience
and common sense, to determine that it is plausible that the plaintiffs were not paid
minimum wage and/or overtime. The court cannot make that determination here.
The court has liberally and freely allowed plaintiffs to amend their complaint
twice. See Fed. R. Civ. P. 15(a)(2). But the allegations are still factually inadequate
to make their FLSA claims plausible.
Accordingly, the court finds further
amendment futile and GRANTS StoneMor’s motion to dismiss. The court will enter
a separate order dismissing this case with prejudice.
DONE and ORDERED this October 10, 2018.
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE
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