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

Filing 270

ORDER AND REASONS denying Defendant Guy Olano, III's 232 Motion to Dismiss for Failure to State a Claim. Signed by Judge Jane Triche Milazzo. (Reference: 17-1093)(ecm)

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

CIVIL ACTION

VERSUS

NO: 15-05848
C/W: 17-1093
RE: 17-1093

FAMOUS BOURBON MGMT
GROUP, INC., ET AL

SECTION: “H”(2)

ORDER AND REASONS
Before the Court is Defendant Guy Olano, III’s Motion to Dismiss (Doc.
232). For the following reasons, the Motion is DENIED.
BACKGROUND
Plaintiff Adam Weber filed his First Amended Complaint (“Complaint”)
on June 28, 2017 asserting claims pursuant to the collective action provisions
of the Fair Labor Standards Act (“FSLA”), 29 U.S.C. § 201 et seq for unpaid
overtime and minimum wages on behalf of himself and others similarly

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situated. 1 Plaintiff named thirteen business entities and three individuals,
including Defendant Guy Olano, III, as defendants. Plaintiff generally alleges
that the individual Defendants operated the corporate defendants as a
collective enterprise for which Plaintiff worked and that Defendants paid
Plaintiff a daily rate that fell below the federally-mandated minimum wage
and overtime pay rates.
Defendant Guy Olano, III now moves to dismiss Plaintiff’s Complaint
under Federal Rule of Civil Procedure 12(b)(6) for the failure to make specific
allegations against Olano that he is an employer of Plaintiff. Plaintiff opposes
the Motion.
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.” 2 A claim is
“plausible on its face” when the pleaded facts allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.” 3
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.” 4 The Court need not,
however, accept as true legal conclusions couched as factual allegations. 5
To be legally sufficient, a complaint must establish more than a “sheer
possibility” that the plaintiff’s claims are true. 6 “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’’’

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Doc. 226.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
Id.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
Iqbal, 556 U.S. at 678.
Id.

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will not suffice. 7 Rather, the complaint must contain enough factual allegations
to raise a reasonable expectation that discovery will reveal evidence of each
element of the plaintiff’s claim. 8
LAW AND ANALYSIS
The existence of an employer-employee relationship is an element of both
an unpaid minimum wage and unpaid overtime claim under the FLSA. 9 “The
Fifth Circuit uses the ‘economic reality’ test to evaluate whether there is an
employer/employee relationship.” 10 Courts should 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.” 11 Individual managers may be held liable as
joint employers alongside the companies for which they work when the
managers exercise sufficient operating control over plaintiff employees. 12
Plaintiff’s Complaint alleges that Defendant Olano, inter alia, “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.” 13 These are factual
allegations that, at the 12(b)(6) stage, are sufficient to state a claim against
Olano personally as a joint employer. That the allegations echo the test for
Id. at 678 (quoting Twombly, 550 U.S. at 555).
Lormand, 565 F.3d at 255–57.
9 See Johnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014)
(overtime); Gray v. Powers, 673 F.3d 352, 355 (5th Cir. 2012) (minimum wage).
10 Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012).
11 Id. at 354 (quoting Williams v. Henagan, 595 F.3d 610, 620 (5th Cir. 2010)).
12 Id. at 357.
13 Doc. 226 at 8.
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establishing a joint employer relationship does not on its own make them
conclusory.
CONCLUSION
For the foregoing reasons;
IT IS ORDERED that Defendant’s Motion is DENIED.

New Orleans, Louisiana this 15th day of June, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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