Murillo et al v. Coryell County Tradesmen LLC et al

Filing 249

ORDER: IT IS HEREBY ORDERED that Defendant Ronald Franks Construction Company, LLC's 69 Motion to Dismiss Plaintiffs' Second Amended Collective Action Complaint is DENIED IN PART and DENIED AS MOOT IN PART. IT IS FURTHER ORDERED that Rona ld Franks' motion is denied as to Plaintiffs' FLSA claims and collective FLSA claims against Ronald Franks. IT IS FURTHER ORDERED that Ronald Franks' motion is denied as moot as to Plaintiffs' PWA claims. Signed by Judge Nannette Jolivette Brown on 3/27/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NANCY MURILLO, et al.

CIVIL ACTION

VERSUS

NO. 15-3641

CORYELL COUNTY TRADESMEN, LLC,
et al.

SECTION: “G”(1)

ORDER
In this litigation, Plaintiffs, approximately 160 individuals hired to work on a construction
and renovation project located at 225 Baronne Street in New Orleans, Louisiana, allege that
Defendants did not pay overtime wages or minimum wages in violation of the Fair Labor Standards
Act (“FLSA”).1 Plaintiffs also bring a cause of action under the Louisiana Private Works Act
(“PWA”).2 Pending before the Court is Defendant Ronald Franks Construction Company, LLC’s
(“Ronald Franks”) “Motion to Dismiss Plaintiffs’ Second Amended Collective Action
Complaint.”3 Having considered the motion, the memoranda in support, the memorandum in
opposition, and the applicable law, the Court will deny the motion in part and deny the motion as
moot in part.

1

Rec. Doc. 48; Rec. Doc. 52-1 at 1.

2

Rec. Doc. 48 at 10.

3

Rec. Doc. 69.

1

I. Background
A.

Factual Background
Plaintiffs allege that this lawsuit arises from the renovation of a luxury hotel and apartment

building in downtown New Orleans named “The Strand” at 225 Baronne Street (“the Project”).4
They allege that the mostly migrant workers who performed the renovation work were not paid
minimum wages or overtime while working “grueling” 70-hour workweeks.5 Plaintiffs further
contend that their recorded hours were often “adjusted” to reflect shorter work periods so that
Defendants Ronald Franks, Coryell County Tradesmen (“CCT”), CC Labor, LLC (“CC Labor”),
Paul Isaacks, Brandon Isaacks, Brent Isaacks, and Roy Anderson Corp. (“Roy Anderson”) could
pay them less.6 Furthermore, Plaintiffs allege that they were forced to wait in long lines just to
punch out of work each evening and were not compensated for that time.7
Defendants CCT and CC Labor are alleged to be two family-run construction companies
owned by Defendants Paul Isaacks, Brandon Isaacks, and Brent Isaacks. 8 Plaintiffs allege that
Ronald Franks and CCT were two of the subcontractors that employed Plaintiffs on the Project.9
Defendant Roy Anderson is alleged to be one of the general contractors that employed Plaintiffs,
and Defendant Travelers Casualty and Surety Company of America (“Travelers”) is alleged to

4

Rec. Doc. 48 at 3.

5

Id. at 3–4.

6

Id. at 4.

7

Id.

8

Id. at 5.

9

Id. at 5–6.

2

have contracted to pay the obligations of Roy Anderson with respect to the work done on the
construction project at issue in this case.10
B.

Procedural Background
Plaintiffs Nancy Murillo, Evelyn Mejia, Ambrocio Benito Castro, and Mechlor Acevedo

filed a complaint on August 19, 2015, against Defendants CCT, CC Labor, Brandon Isaacks, Brent
Isaacks, and Paul Isaacks.11 With leave of Court, on February 18, 2016, Plaintiffs filed an amended
complaint, adding more than 150 plaintiffs and adding as defendants Ronald Franks Construction,
RAC, and Travelers.12 Plaintiffs filed a second amended complaint, with leave of Court, on May
13, 2016.13
On June 10, 2016, Plaintiffs filed a motion for conditional class certification.14 On July 21,
2016, oral arguments on the motion were held.15 On September 20, 2016, this Court granted in
part and denied in part Plaintiffs’ motion for conditional class certification and ordered that Notice
be sent to: “All individuals who provided labor to Coryell County Tradesmen or CC Labor or
Ronald Franks Construction on the 225 Baronne Street construction project in New Orleans,
Louisiana during the previous two years and who are eligible for overtime pay pursuant to the
FLSA, 29 U.S.C. § 207 or minimum wages pursuant to the FLSA, 29 U.S.C. § 206 and who did

10

Id. at 6–7.

11

Rec. Doc. 1.

12

Rec. Doc. 19.

13

Rec. Doc. 48.

14

Rec. Doc. 62.

15

Rec. Doc. 111.

3

not receive full overtime or minimum wage compensation.”16
On June 21, 2016, Ronald Franks filed the instant motion.17 On July 12, 2016, Plaintiffs
filed an opposition.18 On July 19, 2016, with leave of Court, Ronald Franks filed a reply.19
II. Parties’ Arguments
A.

Ronald Franks’ Arguments in Support of Dismissal
In its motion, Ronald Franks argues that this Court should dismiss Plaintiffs’ FLSA and

PWA claims pursuant to Rule 12(b)(6) or, in the alternative, dismiss Plaintiffs’ FLSA claim and
decline to exercise supplemental jurisdiction over Plaintiffs’ state law claim.20 Ronald Franks, a
subcontractor, states that it entered into three subcontracts on February 3, 2014, with Defendant
Roy Anderson, the general contractor, to perform certain work for the Project. 21 On March 17,
2014, Ronald Franks avers that it entered into a sub-subcontract with CCT for “virtually all of the
work” included in Ronald Franks’ subcontract with Roy Anderson.22
Plaintiffs’ FLSA claims

1.

Ronald Franks argues that Plaintiffs’ FLSA claim should be dismissed because Plaintiffs
failed to adequately plead: (1) the existence of an employer-employee relationship; (2) individual

16

Rec. Doc. 159.

17

Rec. Doc. 69.

18

Rec. Doc. 95.

19

Rec. Doc. 106.

20

Rec. Doc. 69-1 at 6.

21

Id. at 7.

22

Id.

4

or enterprise coverage; (3) any conduct violating overtime and/or minimum wage requirements;
and (4) the amount of overtime and/or minimum wage compensation due. 23 First, Ronald Franks
asserts that Plaintiffs’ amended complaint implausibly alleges that all Defendants were the
“employers” of all Plaintiffs at the same time and on the same project. 24 Ronald Franks contends
that Plaintiffs only provide a rote recitation of the legal standard for “employers” without making
specific allegations as to each Defendant.25 Ronald Franks alleges that, because Ronald Franks
subcontracted its work to CCT, and that it was CCT who hired Plaintiffs, Plaintiffs’ complaint
fails to allege that Ronald Franks was their “employer” under the FLSA.26 Moreover, Ronald
Franks avers that, under the Fifth Circuit’s “economic realities test,” Ronald Franks does not
qualify as Plaintiffs’ “employer.”27 Ronald Franks asserts that Plaintiffs make no factual
allegations specific to Ronald Franks as Plaintiffs’ alleged employer, including whether it had the
power to hire and fire Plaintiffs, record hours, maintain employment records, make work
schedules, and maintain payroll documents.28
Second, Ronald Franks argues that, under the Fifth Circuit’s “economic realities test,”
Plaintiffs were not “employees” of Ronald Franks, and thus Plaintiffs have failed to plead the

23

Id. at 9.

24

Id. at 10.

25

Id.

26

Id. at 13–14.

27

Id. at 14.

28

Id. at 15.

5

existence of an employment relationship with Ronald Franks.29 According to Ronald Franks,
Plaintiffs failed to allege the existence of any contract or a permanent relationship with Ronald
Franks or even the dates on which each Plaintiff allegedly worked on the Project.30 Ronald Franks
asserts that Plaintiffs failed to make specific allegations indicating how Ronald Franks exercised
control over any of the Plaintiffs or what the scope of their responsibilities were.31 Ronald Franks
further contends that Plaintiffs did not include any allegations regarding the skill and initiative
required to perform the job or the relative “investments” of each party, such as who provided the
equipment, tools, lodging, meals, or insurance.32 Moreover, Ronald Franks points out that
Plaintiffs do not allege that Ronald Franks determined their opportunities for profit and loss, issued
payments, controlled work hours, or limited their ability to work on other projects.33 According to
Ronald Franks, Plaintiffs have admitted to being hired, managed, and controlled by CCT alone.34
Third, Ronald Franks argues that Plaintiffs’ complaint lacks any allegations establishing
either individual or enterprise coverage as required to receive protection under FLSA. 35 Ronald
Franks avers that Plaintiffs must satisfy the Fifth Circuit’s “practical test” to sufficiently plead
individual coverage, i.e. that Plaintiffs were employees who engaged in commerce or in the

29

Id. at 11–12.

30

Id. at 12.

31

Id.

32

Id. at 13.

33

Id.

34

Id.

35

Id. at 15.

6

production of goods for commerce, but that Plaintiffs’ complaint lacks any allegations regarding
Plaintiffs’ relationship to interstate commerce.36 Moreover, Ronald Franks contends that Plaintiffs
only offer a conclusory allegation that there is enterprise coverage, i.e. that Defendants’ work
constitutes enterprises in commerce.37 Ronald Franks avers that Plaintiffs also fail to allege that
Defendants’ work grossed more than $500,000 annually, which Ronald Franks represents is
required to sufficiently plead enterprise coverage under FLSA.38
Fourth, Ronald Franks argues that Plaintiffs failed to sufficiently plead that overtime and
minimum wage requirements were violated, as the complaint does not specify the periods for
which Plaintiffs were allegedly not properly paid or for which Defendants failed to provide regular
and overtime pay.39 Moreover, Ronald Franks points out that the complaint does not state what
amount of overtime and minimum wage compensation is allegedly due to Plaintiffs.40
Fifth, Ronald Franks contends that Plaintiffs’ complaint fails to sufficiently plead that
Plaintiffs are similarly situated such that they may maintain a collective action under FLSA. 41
Ronald Franks asserts, for example, that Plaintiffs use the term “Defendants” generally without
differentiating between each Defendant.42 Ronald Franks argues it is “illogical” to claim that all

36

Id. at 15–16.

37

Id. at 17.

38

Id.

39

Id. at 18.

40

Id.

41

Id. at 19.

42

Id. at 21.

7

Plaintiffs were all employed at the same time by all Defendants.43 Additionally, Ronald Franks
avers that there are no allegations in Plaintiffs’ complaint that Plaintiffs were the “victims” of “a
single policy, decision, or plan.”44
Plaintiffs’ state law claims

2.

Next, Ronald Franks argues that Plaintiffs broadly assert approximately 160 state law
claims under the PWA but fail to allege any specific state law claims against Ronald Franks.45
Moreover, Ronald Franks contends that Plaintiffs fail to allege that a statement of claims or
privilege was timely filed in order to bring an action under the PWA.46 In the alternative, Ronald
Franks avers that this Court should decline to exercise supplemental jurisdiction over the state law
claims, as, according to Ronald Franks, all of the relevant factors counsel against retaining
supplemental jurisdiction.47
B.

Plaintiffs’ Arguments in Opposition to Dismissal
In response, Plaintiffs contend that: (1) their complaint sufficiently alleges all the necessary

elements required to state a valid FLSA claim; (2) Ronald Franks’ arguments regarding Plaintiffs’
class claims are premature and should be denied; and (3) Plaintiffs have adequately pleaded claims
under the PWA, and this Court should exercise supplemental jurisdiction over those claims.48

43

Id.

44

Id. at 22.

45

Id.

46

Id. at 23.

47

Id. at 24–26.

48

Rec. Doc. 95 at 1.

8

Plaintiffs’ FLSA claims

1.

First, Plaintiffs argue that the Fifth Circuit’s five factor “economic realities” test establishes
that Plaintiffs were “employees” for purposes of FLSA.49 Plaintiffs contend that Ronald Franks
only cites to cases applying the higher summary judgment standard on a plaintiff’s FLSA action.50
By contrast, Plaintiffs assert that in Carnero v. Patterson Structural Moving & Shoring, LLC, a
court in the Eastern District of Louisiana found that alleging at least one of the economic reality
factors, e.g., that the defendants set the plaintiffs’ hours and rate of pay, was sufficient to survive
a motion to dismiss.51 According to Plaintiffs, they allege more than one of the economic realities
factors, such as the fact that Defendants allegedly made Plaintiffs’ work schedules and managed
the work performed.52
Second, Plaintiffs argue that they have plausibly alleged that Ronald Franks was a FLSA
“employer” under the Fifth Circuit’s “economic realities” test.53 Plaintiffs allege that Defendants,
including Ronald Franks, had the power to hire and fire Plaintiffs, make Plaintiffs’ work schedules,
maintain employment files, control the work performed by Plaintiffs, and issue ID badges for
clocking in and out of work.54 Plaintiffs contend that Ronald Franks offers no case law to support

49

Id. at 2.

50

Id. at 3 (citing Thibault v. Bellsouth Telecomm, Inc., 612 F.3d 845 (5th Cir. 2010); Carrell v. Sunland
Construction, 998 F.2d 330 (5th Cir. 1993)).
51

Id. (citing No. 14-2064, 2015 WL 225362, at *2 (E.D. La. Jan. 15, 2015) (Fallon, J.)).

52

Id.

53

Id. at 4.

54

Id.

9

its argument that Plaintiffs are required to specify which factors apply to each Defendant.55
Plaintiffs assert that its factual allegations apply similarly to each Defendant because they are “joint
employers” under FLSA.56
Third, Plaintiffs aver that their complaint facially establishes that their work was connected
to interstate commerce through both individual and enterprise coverage. 57 With regard to
individual coverage, Plaintiffs point out that they are approximately 160 individuals who traveled
to New Orleans from different parts of the country and were renovating a luxury hotel and
apartment building while being employed by several interstate construction companies.58
According to Plaintiffs, this is sufficient to establish that they were engaged in interstate
commerce.59 With regard to enterprise coverage, Plaintiffs assert that it is enough to allege that a
defendant company is involved in nationwide or global activities to establish that it is engaged in
interstate commerce.60 Plaintiffs allege that in their complaint they established that Ronald Franks
is a Tennessee corporation working on a Louisiana construction project and employing workers
from various states, which all supports the finding that Ronald Franks is itself “in commerce” for
purposes of enterprise coverage.61 Moreover, Plaintiffs argue that they pleaded that Ronald Franks

55

Id.

56

Id. at 4–5.

57

Id. at 5–6.

58

Id. at 6.

59

Id.

60

Id. at 7.

61

Id. at 8.

10

is an enterprise “within the meaning of the FLSA, 29 U.S.C. § 203(s)(1),” a statute that Plaintiffs
represent defines “enterprise” as an entity grossing more than $500,000 annually. 62 Additionally,
Plaintiffs point out that they alleged that Defendants owed over two million dollars in unpaid
overtime, which gives rise to the plausible inference that Ronald Franks grosses more than
$500,000 in revenue a year.63
Fourth, Plaintiffs aver that they sufficiently pleaded violations of FLSA, as they alleged
that Defendants were joint employers who failed to compensate Plaintiffs for overtime hours
worked.64 Plaintiffs contend that they also alleged that Plaintiffs were paid between $10 and $20
per hour, often worked more than 40 hours a week, and that Defendants “adjusted” the recorded
hours worked.65 Plaintiffs argue that these allegations are sufficient to state a claim for relief and
give rise to a reasonable inference that Defendants violated FLSA.66 According to Plaintiffs, the
First Circuit and the Ninth Circuit have held that FLSA complaints do not need to compute the
exact amount or an approximation of overtime due to bring a FLSA action.67
Fifth, Plaintiffs assert that it is premature to consider on a motion to dismiss whether

62

Id.

63

Id. at 9.

64

Id.

65

Id. at 9–10.

66

Id. at 10.

67

Id. at 11 (citing Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 645 (9th Cir. 2015); Pruell v. Caritas
Christi, 678 F.3d 10 (1st Cir. 2012)).

11

Plaintiffs are “similarly situated” such that they may bring a collective FLSA action.68 Plaintiffs
argue that Ronald Franks is attempting to improperly “end run” the class certification process.69
Plaintiffs’ PWA claims

2.

Plaintiffs concede that they are not asserting a PWA claim against Ronald Franks.70
However, Plaintiffs further aver that, pursuant to the PWA, they properly filed liens against the
general contractor in this case and attached a copy of their liens to their second amended
complaint.71
C.

Ronald Franks’ Arguments in Further Support of Dismissal
In its reply, Ronald Franks argues that Plaintiffs’ complaint fails to name Ronald Franks

as a defendant with respect to Plaintiffs’ state law claims under the PWA, and that Plaintiffs
concede in their opposition that their individual state law claims are not asserted against Ronald
Franks.

72

Ronald Franks contends that Plaintiffs failed to adequately cite to authority to support

their argument that they sufficiently alleged that they are “employees” under FLSA.73 Moreover,
Ronald Franks asserts that Plaintiffs’ allegations that Ronald Franks is an “employer” under FLSA
is implausible, and that Plaintiffs failed to allege that the Defendants “jointly” employed

68

Id.

69

Id. at 11–12 (citation omitted).

70

Id. at 13 n.56.

71

Id. at 12.

72

Rec. Doc. 106 at 1–2.

73

Id. at 2.

12

Plaintiffs.74 Furthermore, Ronald Franks alleges that the complaint fails to make sufficient factual
allegations to plead either individual or enterprise coverage.75
III. Law and Analysis
A.

Legal Standard on a Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for

failure to state a claim upon which relief can be granted.”76 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”77 “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 on its face.’”78 “Factual allegations must be enough to raise a right to relief above the
speculative level.”79 A claim is facially plausible when the plaintiff has pleaded facts that allow
the court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.”80
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.81 However, although required to accept all “well-pleaded

74

Id. at 3.

75

Id. at 4.

76

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

77

Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

78

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)).

79

Twombly, 550 U.S. at 556.

80

Id. at 570.

81

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).

13

facts” as true, a court is not required to accept legal conclusions as true.82 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.”83
Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” will not suffice.84 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.85 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.”86 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 claims.87 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.88
B.

Applicable Law
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

82

Iqbal, 556 U.S. at 677–78.

83

Id. at 679.

84

Id. at 678.

85

Id.

86

Id.

87

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

Moore v. Metro. Human Serv. Dep’t, No. 09-6470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010)
(Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)); Carbe v. Lappin, 492 F.3d 325, 328 n. 9 (5th Cir. 2007).
88

14

positions.89 Under Section 207 of FLSA, employers are generally required to pay their employees
one and a half times their regular pay rate for any hours an employee works in excess of forty per
week.90 Likewise, under Section 206 of FLSA, every employer must pay each of his employees
minimum wage. Section 216(b) of FLSA provides employees wrongfully denied overtime or
minimum wage with a cause of action against their employers and authorizes a single employee
or group of employees to bring a collective action against their employer to recover unpaid
overtime on their own behalf and on behalf of other “similarly situated” employees. 91 In order to
bring a claim for unpaid overtime compensation or minimum wages under FLSA, a plaintiff must
show by a preponderance of the evidence: “(1) that there existed an employer-employee
relationship during the unpaid overtime periods claimed; (2) that the employee engaged in
activities within the coverage of the FLSA; (3) that the employer violated the FLSA’s overtime
[or minimum] wage requirements; and (4) the amount of overtime [or minimum wage]
compensation due.”92 FLSA imposes a two-year statute of limitations for violation of FLSA, but
the statute of limitations is extended to three years for willful violations of FLSA.93 A violation of

89

29 U.S.C. §§ 206(a)(1), 207(a)(1), 213(a)(1).

90

Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567, 572 (E.D. La. 2008) (Vance, J.) (citing 29 U.S.C.
§ 207(a)(1)).
91
England v. Administrators of the Tulane Educ. Fund, No. 16-3184, 2016 WL 3902595, *2 (E.D. La. July
19, 2016) (Barbier, J.) (citing 29 U.S.C. § 216(b); Big Lot Stores, 561 F. Supp. 2d at 572)).
92

Johnson v. Heckmann Water Res., Inc., 758 F.3d 627, 630 (5th Cir. 2014) (internal citations omitted). See
also Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990); Castellanos v. Saints & Santos Construction, LLC, No.
16-2501, 2016 WL 3564243, *2 (E.D. La. June 20, 2016) (Lemelle, J.); Scott v. Gusman, No. 15-4484, 2015 WL
5971767, at *1 (E.D. La. Oct. 14, 2015) (Lemelle, J.) (citing Johnson v. Heckmann Water Resources, Inc., 758 F.3d
627, 630 (5th Cir. 2014)).
93

See Ramos v. Al-Bataineh, 599 Fed. App’x 548, 551 (5th Cir. 2015) (citing 29 U.S.C. § 255(a)).

15

FLSA is “willful” if “the employer either ‘knew or showed reckless disregard for . . . whether its
conduct was prohibited by the statute.’”94
C.

Analysis
In its motion, Ronald Franks argues that Plaintiffs’ claims under (1) the federal Fair Labor

Standards Act and (2) Louisiana’s Private Work Act should be dismissed for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.95 As an initial matter, the Court
notes that Plaintiffs’ complaint does not appear to directly allege a PWA cause of action against
Ronald Franks,96 and that Plaintiffs clarified in their opposition memorandum that the PWA claims
are not asserted against Ronald Franks.97 Accordingly, the Court will deny as moot Ronald Franks’
motion to dismiss Plaintiffs’ claims under the PWA against Ronald Franks.
Ronald Franks next argues that this Court should dismiss Plaintiffs’ FLSA claims because
Plaintiffs allegedly failed to sufficiently plead: (1) that an employer-employee relationship exists
between Ronald Franks and Plaintiffs; (2) that individual or enterprise coverage exists; (3) that
Ronald Franks violated overtime and/or minimum wage requirements; and/or (4) the amount of
overtime and/or minimum wage compensation due.98 The Court will consider each of Ronald
Franks’ arguments in turn.

94
Donohue v. Francis Services, Inc., No. 04-170, 2005 WL 1155860, *3 (E.D. La. May 11, 2005) (Barbier,
J.) (citing Singer v. City of Waco, Tex., 324 F.3d 813, 821 (5th Cir. 2003) (quoting McLaughlin v. Richland Shoe Co.,
486 U.S. 128, 133 (1988)).
95

Rec. Doc. 69.

96

Rec. Doc. 48 at 10–11.

97

Rec. Doc. 95 at 13 n.56.

98

Rec. Doc. 69-1 at 9.

16

1.

Whether Plaintiffs have sufficiently alleged that Ronald Franks is an
“Employer” and Plaintiffs are “Employees” under FLSA

First, Ronald Franks asserts that Plaintiffs’ amended complaint implausibly alleges that all
Defendants were the “employers” of all Plaintiffs at the same time and on the same project.99
Moreover, Ronald Franks argues that, under the Fifth Circuit’s “economic realities test,” Plaintiffs
were not “employees” of Ronald Franks.100 Ronald Franks alleges that, because Ronald Franks
subcontracted its work to CCT and CCT hired Plaintiffs, there was not an employer-employee
relationship between Ronald Franks and Plaintiffs.101
Pursuant to 29 U.S.C. § 203(d), an “employer” is defined under FLSA as “any person
acting directly or indirectly in the interest of an employer in relation to an employee . . . .” FLSA
further defines “employee” as “any individual employed by an employer”102 and “employ” as “to
suffer or permit to work.”103 The Fifth Circuit has observed that the definition of “employee” under
FLSA “is particularly broad.”104 Likewise, FLSA provides that an employee may be jointly
employed by two or more employers, for which the joint employers would both be responsible,
“individually and jointly, for compliance” with FLSA.105 According to the Code of Federal

99

Id. at 10.

100

Id. at 11–12.

101

Id. at 10–14.

102

29 U.S.C. § 203(e)(1).

103

29 U.S.C. § 203(g).

104

Hopkins v. Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008); see also Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 326 (1992) (noting that the FLSA “stretches the meaning of ‘employee’ to cover some parties
who might not qualify as such under a strict application of traditional agency law principles”).
105

29 C.F.R. § 791.2; see also Schlesinger v. ES & H, Inc., No. 11-294, 2011 WL 3900577, at *3 (E.D. La.

17

Regulations for FLSA, “if the facts establish that the employee is employed jointly by two or more
employers, i.e. that employment by one employer is not completely disassociated from
employment by the other employer(s), all of the employee’s work for all of the joint employers
during the workweek is considered as one employment for purposes of the Act.”106
As a preliminary matter, the Court notes that Ronald Franks contends that Plaintiffs have
only alleged that Ronald Franks separately employed Plaintiffs.107 By contrast, Plaintiffs argue
that their complaint alleges that Defendants, including Ronald Franks, were their joint
employers.108 In their second amended complaint, Plaintiffs allege that Ronald Franks “was one of
the subcontractors that employed the Plaintiffs.”109 Plaintiffs’ complaint also explicitly states that
“Ronald Franks is one of the ‘Defendants’” that employed Plaintiffs.110 Additionally, Plaintiffs
made clear in their complaint that “Defendants CCT, Ronald Franks, and Roy Anderson are each
an ‘employer’ [of Plaintiffs] within the meaning of FLSA.”111 Thus, construing the complaint
liberally, 112 it is clear that Plaintiffs’ complaint alleges that Ronald Franks was a “joint employer”
of Plaintiffs pursuant to FLSA.

Sept. 2, 2011) (Lemelle, J.).
106

29 C.F.R. § 791.2.

107

Rec. Doc. 106 at 3.

108

Rec. Doc. 95 at 9.

109

Rec. Doc. 48 at 6 (emphasis added).

110

Id. (emphasis added).

111

Id. at 10.

112

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).

18

To determine if a company is an “employer” or “joint employer” of a worker under FLSA,
courts in the Fifth Circuit look to “whether, as a matter of economic reality, the worker is
economically dependent upon the alleged employer . . . .”113 Under the “economic reality” test,
courts consider whether the alleged employer: “(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[;] and (4) maintained employment
records.”114 No single factor is determinative, as each factor is used to “gauge the economic
dependence of the alleged employee.”115 In cases where there may be more than one employer,
courts “must apply the economic realities test to each individual or entity alleged to be an employer
and each must satisfy the four part test.”116
In their second amended complaint, Plaintiffs allege that Ronald Franks was “one of the
subcontractors that employed the Plaintiffs” and that Ronald Franks specifically qualifies as an
“employer” within the meaning of FLSA, 29 U.S.C. § 203(d).117 Plaintiffs further state that Ronald
Franks is included in the term “Defendants” as used in the second amended complaint and allege,

113

Hopkins, 545 F.3d at 343 (citing Herman v. Express Sixty–Minutes Delivery Serv., Inc., 161 F.3d 299, 303
(5th Cir. 1998)); see also Lindsley v. BellSouth Telecommunications Inc., 401 F. App’x 944, 945 (5th Cir. 2010);
Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235, 237 (5th Cir. 1973) (holding that “[w]hether a person or
corporation is an employer or joint employer is essentially a question of fact”).
114

Gray v. Powers, 673 F.3d 352, 355 (5th Cir. 2012); Williams v. Henagan, 595 F.3d 610, 620 (5th Cir.

2010).
115

Hopkins, 545 F.3d at 343 (emphasis in original) (citing Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042,
1043–44 (5th Cir. 1987)).
116

Gray, 673 F.3d at 355; Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990).

117

Rec. Doc. 48 at 4–7, 10.

19

inter alia, that: (1) Defendants made Plaintiffs’ work schedules; (2) Defendants recorded
Plaintiffs’ hours; (3) Defendants maintained employment files; (4) Defendants maintained payroll
documents; (5) Defendants issued ID badges to all Plaintiffs with specific ID numbers for each
Plaintiff to enter the Project’s worksite and record their hours worked; (6) Defendants paid
Plaintiffs between $10 to $20 an hour and that Plaintiffs worked an average of 60 to 80 hours a
week for Defendants; (7) Defendants possessed the ability to fire each of the Plaintiffs, “at any
time and for any reason;” and (8) Defendants managed and controlled the work done by
Plaintiffs.118
Based on the above, the Court finds that Plaintiffs have plausibly alleged an employeremployee relationship between Ronald Franks and Plaintiffs, and that Plaintiffs were
“economically dependent” on Ronald Franks.119 Considering the factors adopted by the Fifth
Circuit to determine if a company is a “joint employer” under FLSA,120 Plaintiffs have clearly

118

Id. at 7–9.

119

See Reich v. Circle C. Investments, Inc., 998 F.2d 324, 327 (5th Cir. 1993).

120

The Court notes that Ronald Franks points to Fifth Circuit case law using an alternative five-factor test
for determining if a company qualifies as an “employer.” Rec. Doc. 69-1 at 11. See Thibault v. Bellsouth
Telecommunications, Inc., 612 F.3d 843, 846 (5th Cir. 2010) (using five, non-exclusive factors as a guide to determine
if a worker was an employee: “(a) the permanency of the relationship; (b) the degree of control exercised by the alleged
employer; (c) the skill and initiative required to perform the job; (d) the extent of the relative investments of the worker
and the alleged employer; and (e) the degree to which the worker's opportunity for profit and loss is determined by
the alleged employer.”). However, some courts have noted that the five-factor test is used primarily to determine
“contractor-employer” status. See, e.g., id. (Fifth Circuit using the five factor test to determine if a worker was an
independent contractor or an employee); Schlesinger v. ES & H, Inc., No. 11-294, 2011 WL 3900577, at *3 (E.D. La.
Sept. 2, 2011) (Lemelle, J.) (“The five-factor test has been used in cases to determine contractor-employer status.”).
Nonetheless, even under the Fifth Circuit’s alternative five factor test, the balance of factors would weigh in favor of
finding that Ronald Franks was Plaintiffs’ “employer” for FLSA purposes. For example, Plaintiffs have plausibly
alleged that Ronald Franks exercised a significant degree of control over Plaintiffs and largely determined Plaintiffs’
opportunities for profit and loss, as Plaintiffs allege that Ronald Franks had the power to determine pay, to hire and
fire, and to decide work schedules. While Plaintiffs do not allege the extent of the relative investments or the
permanency of the relationship, the balance of factors weigh in favor of finding that Plaintiffs have plausibly alleged

20

alleged that Ronald Franks: (1) possessed the power to hire and fire Plaintiffs; (2) controlled
Plaintiffs’ work schedules and conditions of employment; (3) determined Plaintiffs’ pay; and (4)
maintained Plaintiffs’ employment records.121 In other words, Plaintiffs have sufficiently alleged
that, as a matter of “economic reality,” Ronald Franks was an “employer” and Plaintiffs were its
“employees” as contemplated under FSLA.122 Thus, the Court finds that, construing Plaintiffs’
complaint liberally and accepting all factual allegations as true, the balance of factors weigh in
favor of finding that an employer-employee relationship existed between Ronald Franks and
Plaintiffs for the purposes of FLSA.
2.

Whether Plaintiffs have plausibly alleged that individual or enterprise
coverage exists

Second, Ronald Franks argues that Plaintiffs have failed to plausibly allege in their
complaint that either individual or enterprise coverage exists as required under FLSA. 123 Ronald
Franks contends that Plaintiffs’ complaint lacks any allegations regarding Plaintiffs’ relationship
to interstate commerce.124 Ronald Franks also avers that Plaintiffs fail to allege that Defendants’
work grossed more than $500,000 annually.125
Pursuant to Congress’s limited powers under the Commerce Clause, FLSA guarantees

that Ronald Franks constitutes an “employer” under FLSA.
121

Gray v. Powers, 673 F.3d 352, 355 (5th Cir. 2012); Williams v. Henagan, 595 F.3d 610, 620 (5th Cir.

122

Lindsley v. BellSouth Telecommunications Inc., 401 F. App’x 944, 945 (5th Cir. 2010).

123

Rec. Doc. 69-1 at 15.

124

Id. at 15–16.

125

Id. at 17.

2010)

21

overtime pay only to those employees engaged in interstate commerce, i.e. “engaged in commerce
or in the production of goods for commerce” (“individual coverage”) or “employed in an enterprise
engaged in commerce or in the production of goods for commerce” (“enterprise coverage”). 126
Either individual or enterprise coverage is enough to invoke FLSA protection.127 “Commerce” is
defined as “trade, commerce, transportation, transmission, or communication among the several
States or between any State and any place outside thereof.”128 FLSA further provides that an
employee is “engaged in the production of goods” when “such employee was employed in
producing, manufacturing, mining, handling, transporting, or in any other manner working on such
goods, or in any closely related process or occupation directly essential to the production thereof,
in any State.”129
Ronald Frank first argues that Plaintiffs have not adequately alleged that there is individual
coverage for the purposes of FLSA.130 As referenced above, individual coverage exists when
“employees who in any workweek [are] engaged in commerce or in the production of goods for
commerce[.]”131 Courts in the Fifth Circuit apply the “practical test” to determine if employees are

126

Martin v. Bedell, 955 F.2d 1029, 1032 (5th Cir. 1992) (quoting 29 U.S.C. § 207(a)(1)); Mejia v. Bros.
Petroleum, LLC, No. 12-2842, 2015 WL 3619894, at *4 (E.D. La. June 9, 2015) (Vance, J.); Mendoza v. Detail Sols.,
LLC, 911 F. Supp. 2d 433, 438 (N.D. Tex. 2012).
127

Martin, 955 F.2d at 1032.

128

29 U.S.C. § 203(b).

129

29 U.S.C. § 203(j).

130

Rec. Doc. 69-1 at 15–16.

131

29 U.S.C. §§ 206(a)(1) and 207(a)(1).

22

personally engaged in interstate commerce.132 “The test is whether the work is so directly and
vitally related to the functioning of an instrumentality or facility of interstate commerce as to be,
in practical effect, a part of it, rather than isolated local activity.” 133 Accordingly, “[w]ork that is
purely local in nature does not meet the FLSA’s requirements, but any regular contact with
commerce, no matter how small, will result in coverage.”134
In their second amended complaint, Plaintiffs allege, inter alia, that they are “largely
migrant workers” employed by Defendants as manual laborers to construct a luxury hotel and
apartment building in downtown New Orleans.135 Plaintiffs assert that they were employed by
Ronald Franks, a Tennessee corporation, CCT and CC Labor, Texas companies, and Roy
Anderson, a Mississippi corporation.136 Plaintiffs further allege that each Defendant, including
Ronald Franks, is in the construction business “throughout the United States.”137 Additionally,
Plaintiffs aver that they were hired to perform a variety of labor and construction tasks, including
painting, cleaning, sheet-rocking, “mudding,” and “finishing” drywall installation.138 Plaintiffs
also explicitly state that Defendants CCT, Ronald Franks, and Roy Anderson are each an

132

See Sobrinio v. Medical Center Visitor's Lodge, Inc., 474 F.3d 828, 829 (5th Cir. 2007); Mendoza v. Detail
Sols., LLC, 911 F. Supp. 2d 433, 439 (N.D. Tex. 2012).
133

Sobrinio, 474 F.3d at 829 (quoting Mitchell v. H.B. Zachry Co., 362 U.S. 310, 324 (1960)).

134
Williams v. Henagan, 595 F.3d 610, 621 (5th Cir. 2010); Sobrinio, 474 F.3d at 829 (quoting Marshall v.
Victoria Transp. Co., 603 F.2d 1122, 1124 (5th Cir. 1979); Mejia v. Bros. Petroleum, LLC, No. 12-2842, 2015 WL
3619894, at *4 (E.D. La. June 9, 2015) (Vance, J.).
135

Rec. Doc. 48 at 3–4.

136

Id. at 5–6.

137

Id.

138

Id. at 7.

23

“enterprise” pursuant to FLSA,139 and that Plaintiffs are owed $2,464,867.88 plus interest for the
labor provided for the Project.140
Based on the allegations in the complaint, the Court finds that that Plaintiffs have pleaded
sufficient facts to plausibly demonstrate that individual coverage exists. Ronald Franks has pointed
to no controlling authority to support their argument that Plaintiffs’ allegations are insufficient to
show they engaged in interstate commerce. Rather, Plaintiffs, who are migrants workers employed
in Louisiana by out-of-state companies to construct a luxury hotel and apartment building, have
sufficiently alleged that they engaged in work that is “so directly and vitally related to the
functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a
part of it, rather than isolated local activity.”141 Accordingly, the Court finds that Plaintiffs have
sufficiently alleged that individual coverage exists.
Additionally, even if individual coverage did not exist, the Court would nonetheless find
that Plaintiffs have sufficiently alleged that enterprise coverage exists. To establish enterprise
coverage, Plaintiffs must show that they were “employed in an enterprise engaged in commerce
or in the production of goods for commerce.”142 Pursuant to 29 U.S.C. § 203(s)(1), an “enterprise”
is an entity that:

139

Id. at 10 (citing 29 U.S.C. §§ 203(r)(1), 203(s)(1)).

140

Id. at 11.

141

Sobrinio, 474 F.3d at 829.

142

Martin, 955 F.2d at 1032.

24

(A)(i) has employees engaged in commerce or in the production of goods for
commerce, or that has employees handling, selling, or otherwise working on goods
or materials that have been moved in or produced for commerce by any person; and
(ii) is an enterprise whose annual gross volume of sales made or business done is
not less than $500,000 (exclusive of excise taxes at the retail level that are
separately stated)[.]143
As stated supra, Plaintiffs allege that they were migrant workers employed by Tennessee,
Texas, and Mississippi corporations who are in the construction business “throughout the United
States” and were constructing a luxury hotel and apartment building in Louisiana.144 Plaintiffs
also explicitly state that Defendants CCT, Ronald Franks, and Roy Anderson are each an
“enterprise” pursuant to the FLSA definition stated supra,145 and that Plaintiffs are owed
$2,464,867.88 plus interest for the labor provided for the Project.146 Accordingly, construing the
complaint liberally, the Court finds that that Plaintiffs have also pleaded sufficient facts to
plausibly allege that enterprise coverage exists.
3.

Whether Plaintiffs have sufficiently alleged that Ronald Franks violated
FLSA’s overtime and minimum wage requirements

Next, Ronald Franks argues that Plaintiffs have not adequately plead that Ronald Franks
violated FLSA’s overtime and minimum wage requirements.147 Under Section 207 of FLSA,
employers are generally required to pay their employees one and a half times their regular pay rate

143

See Morrow v. J W Elec., Inc., No. 11-1988, 2011 WL 5599051, at *2 (N.D. Tex. Nov. 16, 2011).

144

Rec. Doc. 48 at 3, 5–6.

145

Id. at 10 (citing 29 U.S.C. §§ 203(r)(1), 203(s)(1)).

146

Id. at 11.

147

Rec. Doc. 69-1 at 18.

25

for any hours an employee works in excess of forty per week. 148 Likewise, under Section 206 of
FLSA, every employer must pay each of his employees minimum wage. In order to adequately
state a claim for unpaid overtime under FLSA, a plaintiff must prove “that the employer violated
the FLSA’s . . . overtime [or minimum] wage requirements.”149
Here, Plaintiffs allege that they were paid between $10 to $20 dollars an hour but that
Defendants did not pay Plaintiffs any overtime wages.150 Plaintiffs state that for all hours worked
over 40 hours in any particular workweek, Plaintiffs only received their regular rate of pay. 151
Plaintiffs contend that they “regularly” worked more than 40 hours a week, and that they “averaged
between 60 to 80 hours of work a week for the Defendants.”152 Plaintiffs also allege that
Defendants “routinely did not pay Plaintiffs for work performed” and “arbitrarily underpaid
Plaintiffs for certain periods of work.”153 Furthermore, Plaintiffs argue that Defendants had
“adjusted” the recorded hours of Plaintiffs and “paid them for less hours than those Plaintiffs
actually worked.”154 Thus, Plaintiffs allege that Defendants violated the federal minimum wage
requirements by not paying Plaintiffs “for at least some of the work that they performed.”155

148

Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567, 572 (E.D. La. 2008) (Vance, J.) (citing 29 U.S.C.
§ 207(a)(1)).
149

Johnson v. Heckmann Water Res., Inc., 758 F.3d 627, 630 (5th Cir. 2014).

150

Rec. Doc. 48 at 8.

151

Id.

152

Id.

153

Id.

154

Id.

155

Id. at 9.

26

Plaintiffs allege that construction began in 2013 and continues to the present, and that Plaintiffs
were employed by Defendants in 2014 and 2015.156
Based on the allegations in the complaint, the Court finds that Plaintiffs have plausibly
alleged a violation of FLSA’s overtime and minimum wage requirements. The complaint asserts
factual allegations that, if proven, would give rise to a plausible claim that Ronald Franks violated
those provisions under FLSA.157
4.

Whether Plaintiff has alleged sufficient facts regarding the amount of overtime
and minimum wage compensation due

Finally, Ronald Franks argues that Plaintiffs’ complaint “does not allege or even attempt
to compute the amount of overtime [or minimum wage] compensation allegedly due.”158 In order
to bring a claim for unpaid overtime compensation under FLSA, a plaintiff must prove the amount
of overtime or minimum wage compensation due.159 However, several courts have noted that
FSLA plaintiffs are not required to plead a precise amount of unpaid wages to which they are
allegedly entitled.160 For example, this Court has previously noted that, to survive a motion to

156

Id. at 7.

157
29 U.S.C. §§ 206, 208. See also Johnson v. Heckmann Water Res., Inc., 758 F.3d 627, 630 (5th Cir. 2014)
(In order to bring an action for unpaid overtime compensation, the plaintiff must demonstrate that “the employer
violated the FLSA’s overtime wage requirements.”); Nieto v. Pizzati Enterprises, Inc., No. 16-5352, 2016 WL
6962513, at *8 (E.D. La. Nov. 29, 2016) (Brown, J.).
158

Rec. Doc. 69-1 at 18.

159

Johnson v. Heckmann Water Res., Inc., 758 F.3d 627, 630 (5th Cir. 2014).

160

See, e.g., Murphy v. Multi-Shot, LLC, No. 14-1464, 2014 WL 4471538, at *2 (S.D. Tex. Sept. 10, 2014)
(stating that a “FLSA plaintiff is not, however, required to plead the precise amount of unpaid wages to which he is
allegedly entitled”); Solis v. Time Warner Cable San Antonio, L.P., No. 10-0231, 2010 WL 2756800, at *2 (W.D.
Tex. July 13, 2010) (FLSA plaintiff need not prove specific instances of unpaid overtime before having access to
discovery); Acho v. Cort, No. 09–00157, 2009 WL 3562472, at *3 (N.D. Cal. Oct.27, 2009). See also Fed. R. Civ. P.
8(a)(2) (requiring only a “short and plain statement” to put the defendants on notice of the plaintiff’s claims).

27

dismiss, a plaintiff must plead sufficient facts to put the defendant on notice as to “the approximate
date ranges, as well as the approximate number of hours worked” for which the plaintiff claims
that he or she was not fully compensated.161
Here, as stated supra, Plaintiffs have alleged that Defendants did not pay Plaintiffs any
overtime wages.162 Plaintiffs contend that they “regularly” worked more than 40 hours a week,
and that they “averaged between 60 to 80 hours of work a week for the Defendants.” 163 Plaintiffs
also allege that Defendants “routinely did not pay Plaintiffs for work performed” and “arbitrarily
underpaid Plaintiffs for certain periods of work.”164 Furthermore, Plaintiffs argue that Defendants
routinely “adjusted” the recorded hours of Plaintiffs and “paid them for less hours than those
Plaintiffs actually worked.”165 Thus, Plaintiffs allege that Defendants violated the federal
minimum wage requirement by not paying Plaintiffs “for at least some of the work that they
performed.”166 Plaintiffs allege that the construction began in 2013 and continues to the present,
and that Plaintiffs were employed by Defendants in 2014 and 2015.167 Finally, Plaintiffs allege
that they are owed $2,464,867.88 plus interest, for the labor they provided to the Project.168

161

See Nieto, 2016 WL 6962513, at *8; see also England v. Administrators of the Tulane Educational Fund,
No. 16-3184, 2016 WL 3902595, *3 (E.D. La. July 19, 2016) (Barbier, J.) (citing Mejia v. Bros. Petroleum, LLC, No.
12-2481, 2015 WL 3619804, *6 (E.D. La. June 9, 2015) (Vance, J.)).
162

Rec. Doc. 48 at 8.

163

Id.

164

Id.

165

Id.

166

Id. at 9.

167

Id. at 7.

168

Id. at 11.

28

Based on the allegations in the complaint, the Court finds that Plaintiffs have pleaded
sufficient facts to put Ronald Franks on notice as to the amount of overtime and minimum wage
compensation due. Accordingly, the Court finds that Plaintiffs have sufficiently alleged each of
the four factors necessary to bring a claim for unpaid overtime compensation or minimum wages
under FLSA.169 Thus, the Court will deny Ronald Franks’ motion to dismiss Plaintiffs’ FLSA
claims.
5.

Whether Plaintiffs have sufficiently plead that Plaintiffs are similarly situated

Finally, Ronald Franks argues that Plaintiffs have failed to adequately plead that they are
“similarly situated” as required to proceed as a collective action under FLSA. 170 In opposition,
Plaintiffs assert that Ronald Franks’ argument is premature, as Plaintiffs contend that this argument
is appropriate for opposing a motion for class certification.171
First, the Court notes that it already addressed Ronald Franks’ arguments when it granted
conditional class certification in a prior Order and found that Plaintiffs were “similarly situated”
such that they could proceed as a collective action pursuant to 29 U.S.C. § 216(b).172 In its Order,
the Court noted that Plaintiffs “need not be identically situated.”173 Rather, the Court found that,

169

Johnson v. Heckmann Water Res., Inc., 758 F.3d 627, 630 (5th Cir. 2014) (internal citations omitted). See
also Castellanos v. Saints & Santos Construction, LLC, No. 16-2501, 2016 WL 3564243, *2 (E.D. La. June 20, 2016)
(Lemelle, J.).
170

Rec. Doc. 69-1 at 19.

171

Rec. Doc. 95 at 11–12.

172

Rec. Doc. 159 at 28–29.

173

See Rec. Doc. 159 at 21 (quoting Chapman v. LHC Grp., Inc., No. 13-6384, 2015 WL 5089531, at *5
(E.D. La. Aug. 27, 2015) (Brown, J.) (citing Crain v. Helmerich & Payne Int’l Drilling Co., No. 92–0043, 1992 WL
91946 (E.D. La., Apr. 16, 1992); Kuperman v. ICF Int’l, No. 08-565, 2008 U.S. Dist. LEXIS 88605, at *21-22 (E.D.
La., Oct. 31, 2008) (Barbier, J.))).

29

to demonstrate that Plaintiffs are “similarly situated,” Plaintiffs must show that “the putative class
members were together the victims of a single decision, policy, or plan.”174 Thus, a court can
foreclose a plaintiff's right to proceed collectively only if “the action relates to specific
circumstances personal to the plaintiff rather than any generally applicable policy or practice.” 175
This Court concluded that the allegations in the complaint and the evidence presented by Plaintiffs
were sufficient to “meet the low burden” of showing that Plaintiffs were similarly situated.176
Second, the Court notes that, even considering Ronald Franks’ arguments now and
considering only the allegations in the complaint, Plaintiffs have alleged sufficient facts to show
that they are “similarly situated” in order to survive a motion to dismiss. In their complaint,
Plaintiffs assert that Defendants employed all Plaintiffs as manual laborers on a single renovation
project in downtown New Orleans.177 According to Plaintiffs, they were all hired to perform
“general labor and construction tasks” for Defendants for approximately $10 to $20 an hour.178
Plaintiffs allege that Defendants controlled their assigned work, work schedules, hours worked,
employment files, and payroll documents.179 Plaintiffs further allege that they did not receive any
overtime wages or minimum wages for certain periods of employment with Defendants.180

174

Id. at 20. See also Xavier v. Belfor USA Grp., Inc., 585 F. Supp. 2d 873, 877–78 (E.D. La. 2008) (Zainey,
J.) (citing Crain v. Helmerich & Payne Int'l Drilling Co., No. 92-0043, 1992 WL 91946, at *2 (E.D. La. Apr. 16,
1992) (Feldman, J.)).
175

Crain, 1992 WL 91946 at *2 (quoting Burt v. Manville Sales Corp., 116 F.R.D. 276, 277 (D.Colo. 1987));
see also Xavier, 585 F. Supp. 2d at 877–78.
176

Rec. Doc. 159 at 28.

177

Rec. Doc. 48 at 4.

178

Id. at 7–8.

179

Id.

180

Id.

30

Moreover, Plaintiffs assert that Defendants issued ID badges to all Plaintiffs to record their hours,
but that Defendants “adjusted” the recorded hours and caused Plaintiffs to wait in long lines to log
their time without paying for any of the time spent waiting. 181 Accordingly, the Court finds that
Plaintiffs have plausibly alleged that they are similarly situated such that a collective FLSA action
may proceed, and thus will deny Ronald Franks’ motion to dismiss Plaintiffs’ collective FLSA
action claims.
IV. Conclusion
For the foregoing reasons, the Court finds that Plaintiffs have sufficiently stated a claim
for unpaid overtime compensation or minimum wages under FLSA, as Plaintiffs have plausibly
alleged that: (1) an employer-employee relationship between Ronald Franks and Plaintiffs existed;
(2) that individual and/or enterprise coverage exists; (3) that Ronald Franks violated the FLSA’s
overtime and/or minimum wage requirements; and (4) the amount of overtime and/or minimum
wage compensation due. Thus, the Court will deny Ronald Franks’ motion to dismiss Plaintiffs’
FLSA claims. Moreover, the Court finds that Plaintiffs have plausibly alleged that they are
“similarly situated” as required for a collective FLSA action to proceed. Accordingly, the Court
will deny Ronald Franks’ motion to dismiss Plaintiffs’ collective action claims. Finally, because
Plaintiffs concede that they are not asserting Louisiana PWA claims against Ronald Franks, the
Court will deny as moot Ronald Franks’ motion to dismiss Plaintiffs’ PWA claims. Accordingly,

181

Id. at 8.

31

IT IS HEREBY ORDERED that Defendant Ronald Franks Construction Company,
LLC’s “Motion to Dismiss Plaintiffs’ Second Amended Collective Action Complaint”182 is
DENIED IN PART and DENIED AS MOOT IN PART.
IT IS FURTHER ORDERED that Ronald Franks’ motion is denied as to Plaintiffs’ FLSA
claims and collective FLSA claims against Ronald Franks.
IT IS FURTHER ORDERED that Ronald Franks’ motion is denied as moot as to
Plaintiffs’ PWA claims.
NEW ORLEANS, LOUISIANA this 27th day of March, 2017.
_____

________________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

182

Rec. Doc. 69.

32