Wischnewsky et al v. Coastal Gulf & International, Inc. et al

Filing 50

ORDER & REASONS re dfts Coastal Gulf & International, Inc. and Michael Caravella's 17 Motion to Dismiss for Failure to State a Claim or, in the Alternative, Motion for More Definite Statement: for the reasons stated, IT IS HEREBY ORDERED that the Motion to Dismiss for Failure to State a Claim or, in the Alternative, Motion for More Definite Statement is DENIED. Signed by Judge Nannette Jolivette Brown on 5/2/2013. (rll, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BENJAMIN WISCHNEWSKY AND SOLOMON
GUEVARA, both individually and on behalf of all
other similarly situated persons,

CIVIL ACTION

VERSUS

CASE NO. 12-2277

COASTAL GULF & INTERNATIONAL, INC. and
MICHAEL CARAVELLA

SECTION: “G” (4)

ORDER AND REASONS
Before the Court is Defendants Coastal Gulf & International, Inc. and Michael Caravella's
(collectively, "Defendants") Motion to Dismiss for Failure to State a Claim or, in the Alternative,
Motion for More Definite Statement,1 wherein they move for dismissal of the complaint filed by
Benjamin Wischnewsky and Solomon Guevara, both individually and on behalf of all other similarly
situated persons (collectively, "Plaintiffs"), for failure to state a claim for which relief may be
granted or, alternatively, for an order requiring Plaintiffs to provide a more definite statement of the
claims, pursuant to Federal Rule of Civil procedure 12(e). Having considered the motion, the
memorandum in support, the response, the amended complaint, the record, and the applicable law,
the Court will deny the motion to dismiss and decline to require Plaintiffs provide a more definite
statement.

I. Background
A. Factual Background
This case involves a claim for unpaid overtime wages and damages under the Fair Labor
Standards Act, 29 U.S.C. §201 et seq. (“FLSA”). Plaintiffs allege that Defendants “have employed

1

Rec. Doc. 17.

1

individuals in locations in Louisiana, Mississippi, and Texas to perform field inspections to certify
oil, gas and chemical products,” over the past three years.2 According to Plaintiffs, these individuals
are referred to as both “inspectors” and “surveyors,” but regardless of the job title, they are
responsible for monitoring and documenting the condition and transfer of oil, gas and chemical
products in the course of commerce.3 The named plaintiffs, Benjamin Wischnewsky and Solomon
Guevara, allege that they were given written employment offers indicating that they were being
hired as non-exempt workers and were given a copy of CGI’s Personnel Guidelines, stating that CGI
“pays all hourly and non-exempt employees one and one-half times their regular hourly rate of pay
for each hour actually worked in excess of forty (40) hours per workweek,” but they were
“specifically told at the time they were hired that Defendants did not pay overtime to Inspectors.”4
Defendants allegedly required Wischnewsky and Guevara to regularly work in excess of forty hours
per week without overtime pay as a matter of company practice or policy.5

B. Procedural Background
Plaintiffs commenced this putative collective action against Defendants on September 14,
2012, seeking overtime compensation, liquidated damages, attorney’s fees, and costs associated with
the litigation under the FLSA, 29 U.S.C. § 201, et seq.6 On October 26, 2012, Defendants filed a
Motion to Dismiss for Failure to State a Claim or, in the Alternative, Motion for More Definite

2

Rec. Doc. 19 ¶¶ 22-23.

3

Id. ¶ 23.

4

Id. ¶¶ 24-34.

5

Id. ¶¶ 30-32.

6

Rec. Doc. 1.

2

Statement.7 On November 9, 2012, Plaintiffs filed a First Amended Complaint,8 and simultaneously
filed an Opposition to the Motion to Dismiss.9

II. Parties' Arguments
A. Defendants' Motion to Dismiss
Defendants argue that Plaintiffs' complaint does not satisfy the minimal pleading standards
under Federal Rule of Civil Procedure 8 and must be dismissed for failure to state a claim for which
relief can be granted. First, Defendants contend that "Plaintiffs have failed to sufficiently allege or
provided factual support for their claim that Mr. Caravella was an employer" or a "joint employer"
of Plaintiff under the FLSA.10 Defendants specifically note that Plaintiffs do not allege that "Mr.
Caravella (1) possessed the power to hire and fire the employees, (2) supervised and controlled
employee work schedules or conditions of employment, (3) determined the rate and method of
payment, or (4) maintained employment records."11
Second, Defendants contend that Plaintiffs do not allege their individual FLSA claims with
sufficient particularity, including the approximate number of unpaid regular and overtime hours
allegedly worked, their rate of pay, or their method of compensation.12 Instead, Defendants assert
that "Plaintiff's complaint is a formulaic recitation of the elements of the cause of action."13

7

Rec. Doc. 17.

8

Rec. Doc. 19.

9

Rec. Doc. 20.

10

Rec. Doc. 17-1 at p. 2.

11

Id. at p. 7.

12

Id. at p. 2.

13

Id. at p. 9 (internal quotations omitted).

3

Third, Defendants reason that "Plaintiffs' allegations of willfulness are insufficient to state
a plausible claim for relief for a willful violation of the FLSA."14 Defendants explain that Plaintiffs
"rely solely on a single conclusory allegation [that] 'Defendants' failure to pay Plaintiffs the proper
wages and its failure to pay wages in a timely fashion as required by law was willful."15
Fourth, Defendants argue that Plaintiffs do not meet the minimum pleading requirements
necessary to maintain a collective action claim under 29 U.S.C. § 216(b), with respect to all
employees whose "'primary job duty' is to perform field inspections."16 Defendants contend that
Plaintiffs have failed to allege that they are similarly situated to the other employees they seek to
represented, because:
(1) neither Plaintiff alleges to have ever held any position with CGI and/or Mr.
Caravella other than "Inspector;" (2) Plaintiffs have not provided the job titles of any
employees they seek to represent, short of Surveyors, instead stating only that they
bring this action on behalf of "any other title" who performs field inspections; (3)
Plaintiffs have not provided a sufficient description of the job duties of these
unnamed positions; and (4) Plaintiffs have not alleged that they and these
purportedly similarly situated employees were paid in the same method–or even the
manner of compensation these employees received.
In the alternative, Defendants request that Plaintiffs be required to provide specific factual
allegations concerning their asserted claims.

B. Plaintiff's Response
Plaintiffs explain that they filed a First Amended Complaint17 in response to the motion to
dismiss which satisfies the requirements of Rule 8 and the pleading issues raised by Defendants.

14

Id. at p. 2.

15

Id. at p. 15.

16

Id. at p. 2.

17

Rec. Doc. 19.

4

First, Plaintiffs reason that the amended complaint adequately addresses Mr. Caravella's status as
an employer under the FLSA. Plaintiff notes that the amended complaint alleges that Mr. Caravella,
as President and Owner of CGI, "act[ed] directly and indirectly in CGI's interest in relation to its
employees[;]" approved changes to the Personnel Guidelines, vacation days, unpaid leave, and
postings on company bulletin boards; and "was responsible for the policy or practice of not paying
Inspectors overtime for hours in excess of 40 hours per week."18 Therefore, Plaintiffs argue that
the amended complaint, by alleging direct control by Mr. Caravella over the wage policy at issue,
has sufficiently alleged that Mr. Carvella was Plaintiffs' employer under the FLSA.
Next, Plaintiffs emphasize that Defendants "cite a number of out-of-Circuit cases for the
proposition that Plaintiffs must plead their dates of employment, a description of their duties, their
rate of pay, and the approximate number of overtime hours worked, in order to state an FLSA
claim."19 According to Plaintiffs, they are not required to plead all of the information sought by
Defendants to meet the notice pleading requirements of Rule 8(a). Nonetheless, Plaintiffs explain
that the amended complaint pleads the dates of Plaintiffs' employment; describes their primary duty
of conducting field inspections of oil, gas, and chemicals; and states that Plaintiff were paid on a
salary basis.20 While Plaintiffs recognize that they do not allege a specific number of hours of
unpaid overtime, the amended complaint clearly states that "the named Plaintiff generally worked
40-60 hours per week" without any overtime pay.21
In response to Defendants contention that the facts do not support a claim for willfulness,
Plaintiffs explain that the amended complaint alleges:

18

Rec. Doc. 20 at pp. 1-3.

19

Id. at p. 4.

20

Id.

21

Id.

5

Plaintiffs and other similarly situated workers were hired as FLSA "non-exempt"
workers, that Defendants provided Inspectors with CGI's Personnel Guidelines which
specifically stated that non-exempt employees were entitled to overtime, that
Defendants knew Inspectors were working more than 40 hours per week, [] that
Defendants nevertheless refused to pay overtime for hours over 40[,] . . . [and]
Defendants directed Plaintiffs not to keep track of all of Plaintiff's work time.22
Accordingly, Plaintiffs argue that these factual allegations are sufficient to render the conclusion that
Defendants knew their conduct violated the FLSA plausible.23
Finally, contrary to Defendants assertion that there are "no facts to demonstrate that
[Plaintiffs] are similarly situated to . . . employees in the other classifications [Plaintiffs] attempt to
bring" into the collective action, Plaintiffs aver that the amended complaint contains allegations that
clearly justify collective action treatment under 29 U.S.C. § 216(b).24 Specifically, Plaintiffs note
that the amended complaint alleges:
(1) the existence of other workers performing the same job duties as the named
plaintiffs, (2) that those workers were designated FLSA non-exempt and paid on the
same salary basis that Plaintiffs were, (3) that they regularly worked overtime, and
(4) that they did not receive overtime payments pursuant to the same policy or
practice that resulted in the named Plaintiffs not receiving overtime payments.25

III. Law and Analysis
A. Standard on a Motion to Dismiss
The Federal Rules of Civil Procedure provide that an action may be dismissed “for failure
to state a claim upon which relief can be granted.”26 “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible

22

Id. at p. 8.

23

Id. (internal citations omitted).

24

Id. at p. 6.

25

Id.

26

Fed. R. Civ. P. 12(b)(6).

6

on its face.’”27 “Factual allegations must be enough to raise a right to relief above the speculative
level,”28 and a claim is facially plausible when the plaintiff has pled facts that allow the court to
“draw a reasonable inference that the defendant is liable for the misconduct alleged.”29 However,
“[a] motion to dismiss on the basis of the pleadings alone should rarely be granted.”30
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant, and
all facts pleaded are taken as true.31 However, although required to accept all “well-pleaded facts”
as true, the court is not required to accept legal conclusions as true.32 “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”33 Similarly,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements”
will not suffice.34 The complaint need not contain detailed factual allegations, but it must offer more
than mere labels, legal conclusions, or formulaic recitations of the elements of a cause of action.35
That is, the complaint must offer more than an “unadorned, the defendant-unlawfully-harmed-me
accusation.”36 From the face of the complaint, there must be enough factual matter to raise a
reasonable expectation that discovery will reveal evidence as to each element of the asserted

27

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

28

Twombly, 550 U.S. at 556.

29

Id. at 570.

(2008)).

30

Madison v. Purdy, 410 F.2d 99, 100 (5th Cir. 1969).

31

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007).
32

Iqbal, 556 U.S. 662, 677-78.

33

Id. at 679.

34

Id. at 678.

35

Id.

36

Id.

7

claims.37 If factual allegations are insufficient to raise a right to relief above the speculative level,
or if it is apparent from the face of the complaint that there is an “insuperable” bar to relief, the claim
must be dismissed.38

B. Applicable Law
The FLSA sets forth requirements for minimum wage, overtime pay, and record keeping for
certain employees who are not exempt because they hold executive, administrative, or professional
positions,39 and the FLSA creates a private right of action for employees when these rights are
violated.40 Pursuant to 29 U.S.C. § 216(b), the FLSA provides that employers violating certain of
the FLSA's provisions may be held liable by the affected employees in the "amount of their unpaid
overtime compensation." Section 203(d) of the FLSA defines "employer" broadly to include "any
person acting directly or indirectly in the interest of an employer in relation to an employee." The
United States Court of Appeals for the Fifth Circuit has recognized that the "overwhelming weight
of authority is that a corporate officer with operational control of a corporation's covered enterprise
is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid
wages."41 Further, the Fifth Circuit has "underscored the importance of the economic realities of
employment."42 Thus, an officer qualifies as an FLSA employer if the individual has "substantial

37

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).

38

Moore v. Metropolitan Human Serv. Dep’t, No. 09-6470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8,
2010) (Vance, C.J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 & n. 9 (5th
Cir. 2007)).
39

29 U.S.C. §§ 206(a)(1), 207(a)(1), 213(a)(1). The employer bears the burden of proving the applicability
of an exemption. Corning Glass Works v. Brennan, 417 U.S. 188, 197 (1974).
40

29 U.S.C. § 216(b).

41

Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir. 1984).

42

Id.

8

control of the terms and conditions of the [employee's] work."43
Also under Section 216(b) of the FLSA, one or more employees can pursue a collective
action in a representative capacity on behalf of similarly situated employees.44 There are two
requirements to proceed as a representative action: (1) all plaintiffs must be “similarly situated;”and
(2) a plaintiff must consent in writing to take part in the suit. Although the FLSA does not define
"similarly situated," court have held that the plaintiffs must allege facts sufficient to demonstrate that
they and potential plaintiffs were victims of a common policy or plan that violated the law.45

C. Analysis
Having reviewed the amended complaint and the pleading issues raised in Defendants'
motion to dismiss, this Court finds that amended complaint contains sufficient allegations to defeat
a motion to dismiss. First, on the issue of whether Mr. Caravella is an employer under the FLSA,
the amended complaint specifically alleges that Mr. Caravella was the President and Owner of CGI
and that he was responsible for approving changes to the Personnel Guidelines, approving vacation
days and unpaid leave, and authorizing postings on company bulletin boards. Indeed, the amended
complaint even alleges that Mr. Caravella was responsible for the policy at issue here of not paying
inspectors overtime, and it is not for the Court on a motion to dismiss to determine whether Plaintiff
can prove such an allegation. Instead, this Court must accept factual allegations as true. Thus, the
allegations provided in the amended complaint are certainly sufficient to plausibly establish that Mr.
Caravella acted directly and indirectly in CGI's interest in relation to Plaintiffs and had substantial

43

Id. at 971-972.

44
“An action to recover the liability . . . may be maintained against any employer (including a public
agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of
himself or themselves and other employees similarly situated.” Id.
45

Zhong v. August August Corp., 498 F. Supp. 2d 625, 628 (S.D.N.Y. 2007).

9

control over the terms and conditions of Plaintiffs' work.
Plaintiffs' amended complaint also addresses Defendants' contentions that Plaintiffs'
individual FLSA claims are not plead with sufficient particularity to state a claim for violations of
the FLSA or that Defendants acted willfully. The amended complaint directly addresses Defendants'
assertion that Plaintiffs did not provide the approximate number of unpaid regular and overtime
hours worked, their rate of pay, or their method of compensation by alleging that Plaintiffs worked
approximately 40 to 60 hours per week without overtime pay and were paid on a salary basis.
Plaintiffs have also provided details such as their dates of employment and a description of their
primary duties. In addition, the amended complaint alleges that they were hired as "non-exempt"
workers, provided CGI's Personnel Guidelines stating that non-exempt workers were entitled to
overtime, consistently worked more than 40 hours per week with Defendants' knowledge, were
directed not to keep track of their overtime, and were not paid overtime. The Court finds that the
amended complaint alleges a factual basis to plausibly support the assertion that Defendants' actions
were willful and in violation of the FLSA. Accordingly, Plaintiffs individual claims and their claim
for willfulness do not warrant dismissal at this stage.
Finally, the Court finds that Plaintiffs have alleged facts sufficient to demonstrate that they
and other employees who primarily performed field inspections to certify oil, gas, and chemical
products were victims of a common policy or plan that violated the law and therefore state a
collective action claim under 29 U.S.C. § 216(b), as will be described in greater depth in the Court's
Order and Reasons granting Plaintiff's Motion to Conditionally Certify FLSA Collective Action,46
which will be issued contemporaneously with this Order. Therefore, the Court finds that the
amended complaint meets the pleading requirement imposed under Rule 8 of the Federal Rules of

46

Rec. Doc. 21.

10

Civil Procedure and cures any defects Defendants allege existed in the original complaint.

IV. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the Motion to Dismiss for Failure to state a Claim or, in
the Alternative, Motion for More Definite Statement47 is DENIED.
NEW ORLEANS, LOUISIANA, this _____ day of May, 2013.
____________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

47

Rec. Doc. 17.

11