Richardson v. Famous Bourbon Management Group, Inc. et al

Filing 169

ORDER AND REASONS denying 154 Motion to Dismiss for Failure to State a Claim. Signed by Judge Jane Triche Milazzo. (Reference: 17-1093)(ecm)

Case 2:15-cv-05848-JTM-DEK Document 169 Filed 08/01/17 Page 1 of 3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAWRENCE RICHARDSON, ET AL

CIVIL ACTION

VERSUS

NO: 15-05848
c/w 17-1093
APPLIES TO: 17-1093

FAMOUS BOURBON MGMT
GROUP, INC., ET AL

SECTION: “H”(2)

ORDER AND REASONS
Before the Court is a Motion to Dismiss under Rule 12(b)(6) filed by
defendant Joseph Ascani. Plaintiffs oppose the motion. For the following
reasons, the Motion is DENIED.
BACKGROUND
Plaintiffs allege that they are employees of individually named
Defendant, Joseph Ascani. Plaintiffs filed this lawsuit on February 7th, 2017
on their behalf and on the behalf of those similarly situated. Plaintiffs seek
collective action under the Fair Labor Standards Act, alleging that Defendants,
including Defendant Joseph Ascani, wrongfully failed to pay appropriate
minimum and overtime wages. Defendant Ascani asks the Court to dismiss
Plaintiffs complaint against him.
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Case 2:15-cv-05848-JTM-DEK Document 169 Filed 08/01/17 Page 2 of 3

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim to relief that is plausible on its face.”1 A claim is
“plausible on its face” when the pleaded facts allow the court to “[d]raw the
reasonable inference that the defendant is liable for the misconduct alleged.” 2
A court must accept the complaint's factual allegations as true and must “draw
all reasonable inferences in the plaintiff's favor.”3

The Court need not,

however, accept as true legal conclusions couched as factual allegations.4
To be legally sufficient, a complaint must establish more than a “sheer
possibility” that the plaintiff's claims are true.5 “A pleading that offers ‘labels
and conclusions' or ‘a formulaic recitation of the elements of a cause of action’”
will not suffice.6

Rather, the complaint must contain enough factual

allegations to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiffs' claim.7 However, dismissal is not warranted
“unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” 8 The Fifth Circuit
defines this standard as, “whether in the light most favorable to the plaintiff
and with every doubt resolved on their behalf, the complaint states any valid
claim for relief.”9
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
2 Iqbal, 129 S.Ct. at 1949
3 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir.2009).
4 Iqbal, 129 S.Ct. at 1949–50.
5 Id.
6 Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 127 S.Ct. at 1955).
7 Lormand, 565 F.3d at 255–57.
8 Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001).
9 Lowery v. Tex. A & M University System, 117 F.3d 242, 247 (5th Cir. 1997).
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Case 2:15-cv-05848-JTM-DEK Document 169 Filed 08/01/17 Page 3 of 3

LAW AND ANALYSIS
Defendant claims that no factual allegations were made in the complaint
that he is an employer under the FLSA. After the filing of this Motion to
dismiss, Plaintiffs filed an amended complaint that purports to cure the
deficiencies of which Defendants argued in this motion. The amended
complaint individually names Mr. Ascani and alleges that he “directly and
indirectly (i) hired and fired employees of the Famous Bourbon Umbrella
entities; (ii) set their schedules and work hours; (iii) assigned and monitored
their work; (iv) supervised and evaluated their work; (v) set the payroll policies
at issue in this litigation and (vi) determined rates of pay.”10 The filing of the
amended complaint, therefore, cures the deficiencies identified in the Motion
to Dismiss and renders it moot.
CONCLUSION
For the forgoing reasons, Defendant’s Motion is DENIED.
New Orleans, Louisiana this 1st day of August, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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Doc. 161-3, at 8.
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