England v. Administrators of the Tulane Educational Fund

Filing 6

ORDER AND REASONS. It is ORDERED that Defendant's 12(b)(6) Motion to Dismiss (Rec. Doc. 3 ) is GRANTED. It is FURTHER ORDERED that Plaintiff must file an amended complaint within 21 days, or the Court will dismiss his claims with prejudice. It is FURTHER ORDERED that Defendant's 5 Motion for Leave to File Reply is DENIED as moot. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRISTOPHER ENGLAND

CIVIL ACTION

VERSUS

NO: 16-3184

ADMINISTRATORS OF THE TULANE
EDUCATIONAL FUND

SECTION: “J” (2)

ORDER AND REASONS
Before the Court are a 12(b)(6) Motion to Dismiss or, in the
Alternative, Rule 12(e) Motion for a More Definite Statement (Rec.
Doc. 3) filed by Defendant, the Administrators of the Tulane
Educational

Fund

d/b/a

Tulane

University

(“Tulane”),

and

an

Opposition thereto (Rec. Doc. 4) filed by Plaintiff, Christopher
England (“Plaintiff”). Having considered the motion and legal
memoranda, the record, and the applicable law, the Court finds
that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This

litigation

arises

from

Plaintiff’s

employment

with

Tulane from 2012 to 2015. Plaintiff alleges that he worked in the
A.B. Freeman School of Business as a “tutor,” earning $19 per hour.
According to Plaintiff, Tulane defined a full-time work week as
thirty-seven and a half hours per seven days. Accordingly, by
Tulane’s own rules, it owed its employees overtime pay for any
hours exceeding thirty-seven and a half in a given work week.

1

Plaintiff alleges that he routinely worked overtime hours, but
“Tulane

creatively

calculated

[Plaintiff’s]

pay,

denied

him

benefits paid to other full-time employees, instructed him not to
clock in using the timekeeping system[,] and finally, terminated
him . . . .” (Rec. Doc. 1, at 2.)
Plaintiff filed suit on April 14, 2016, alleging violations
of the Fair Labor Standards Act (“FLSA”) and Louisiana law.
Additionally, Plaintiff raised claims on behalf of a putative class
“comprised of all similarly situated hourly, non-exempt employees
employed by Tulane within the past three years who worked at least
thirty-seven and a half hours per week, with some overtime, and
were not paid correctly through cash wages and/or benefits.” (Rec.
Doc. 1, at 2.) Defendant filed the instant motion on June 20, 2016,
alleging that Plaintiff’s complaint fails to state a claim under
the FLSA. Plaintiff opposed the motion on July 5. Defendant
subsequently filed a motion for leave to file reply, which is
currently pending before the Court.
PARTIES’ ARGUMENTS
Defendant argues that this Court should dismiss Plaintiff’s
complaint for failure to state a claim pursuant to Federal Rule of
Civil

Procedure

12(b)(6)

(“Rule

12(b)(6)”).

First,

Defendant

contends that Plaintiff’s complaint fails to state a claim for
overtime compensation under the FLSA. Specifically, Defendant
claims that Plaintiff did not adequately plead that he worked more
2

than forty hours in a specific work week without being compensated
for overtime hours during that particular week. Further, Defendant
argues that Plaintiff’s request for overtime for hours worked over
thirty-seven and a half in a work week is not cognizable under the
FLSA. Second, Defendant contends that Plaintiff’s complaint failed
to adequately plead enterprise coverage under the FLSA. According
to Defendant, Plaintiff merely restates that FLSA requirements for
enterprise coverage.
Third, Defendant argues that Plaintiff failed to adequately
plead a collective action under the FLSA. Defendant takes issue
with Plaintiff’s “broad, generalized” descriptions of the putative
class members. According to Defendant, Plaintiff must provide some
description of the similarly situated employees, including their
job titles, divisions, hours worked, method of pay, geographic
location, or other appropriate classification. Fourth, Defendant
contends

that

Plaintiff’s

collective

action

allegations

are

“procedurally defective.” Plaintiff’s complaint asks the Court to
send notice to the similarly situated employees without first
conditionally certifying the class. Fifth, Defendant argues that
the Court should dismiss Plaintiff’s state-law claims along with
his federal claims, in the interest of judicial economy and
fairness.

Finally,

in

the

event

the

Court

does

not

dismiss

Plaintiff’s claims, Defendant asks the Court to compel Plaintiff
to provide a more definite statement.
3

Plaintiff

filed

an

opposition

to

the

motion,

arguing

that his complaint contains clear and unambiguous allegations
of failure to pay overtime. Further, Plaintiff emphasizes that
he provided
emails

exhibits

showing

supporting

Defendant’s

his

failure

allegations,

to

maintain

including

time

records

and evidence of his status as a non-exempt employee. In the
event the Court finds his allegations insufficient, Plaintiff
requests the opportunity to amend his complaint.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 346 (2005). The allegations “must be simple,
concise, and direct.” Fed. R. Civ. P. 8(d)(1).
“Under

Rule

12(b)(6),

a

claim

may

be

dismissed

when

a

plaintiff fails to allege any set of facts in support of his claim
which would entitle him to relief.” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
enough facts to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
4

Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is
facially plausible when the plaintiff pleads facts that allow the
court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. A court must accept all
well-pleaded facts as true and must draw all reasonable inferences
in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d
228, 232-33 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196
(5th Cir. 1996). The court is not, however, bound to accept as
true legal conclusions couched as factual allegations. Iqbal, 556
U.S.at 678.
DISCUSSION
Under

Section

207

of

the

FLSA,

employers

are

generally

required to pay their employees one and a half times their regular
pay rate for any hours the employee works in excess of forty (40)
per week. Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567,
572 (E.D. La. 2008) (citing 29 U.S.C. § 207(a)(1)). Section 216(b)
of the FLSA provides employees wrongfully denied overtime 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. 29 U.S.C. §
216(b); Johnson, 561 F. Supp. 2d at 572. Defendant argues that
Plaintiff’s complaint is deficient under the FLSA for several
reasons. The Court will address each argument in turn.
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I.

Failure to State a Claim for FLSA Overtime Compensation
To adequately state a claim for unpaid overtime under the

FLSA, a plaintiff must plead: “(1) that there existed an employeremployee relationship during the unpaid . . . periods claimed; (2)
that the employee engaged in activities within the coverage of the
FLSA; (3) that the employer violated the FLSA's overtime . . .
wage

requirements;

and

(4)

the

amount

of

overtime

.

.

.

compensation due.” Mejia v. Bros. Petroleum, LLC, No. 12-2841,
2015 WL 3619804, at *2 (E.D. La. June 9, 2015) (citing Johnson v.
Heckmann Water Res., Inc., 758 F.3d 627, 630 (5th Cir. 2014)).
Defendant

does

not

identify

specifically

which

elements

are

unsatisfied in Plaintiff’s complaint. However, Defendant’s motion
seems to focus on numbers (3) and (4)—that the employer violated
the FLSA’s overtime wage requirements and the amount of overtime
compensation due, respectively.
Courts of this District find that a plaintiff satisfies the
uncompensated
sufficient

overtime

facts

to

element

put

the

of

an

FLSA

defendant

on

claim
notice

by
as

pleading
to

the

“approximate date ranges, as well as the approximate number of
hours worked,” for which the plaintiff claims he was undercompensated. Mejia, 2015 WL 3619804, at *6. For example, the
plaintiffs in Mejia alleged “that they worked approximately 70-80
hour[s] per week before July of 2012, and then approximately 50
hours per week thereafter, without receiving overtime pay.” Id. In
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this case, Plaintiff’s complaint states that he “routinely worked
overtime hours and met Tulane’s own definition of a full-time
employee, averaging over thirty-seven and a half (37.5) hours per
week.” (Rec. Doc. 1, at 2.) Further, Plaintiff alleges, “Tulane
did, in fact, pay Mr. England some overtime but still owes for
numerous hours despite amicable demand.” Id. at 5.
These allegations fail to put Defendant on notice of the
approximate date ranges and approximate number of hours worked for
which Plaintiff claims he was under-compensated. While Plaintiff
alleges that he worked for Defendant from 2012 to 2015, he fails
to provide specific dates of employment. Further, Plaintiff does
not allege the approximate hours he worked in each work week.
Plaintiff claims that Defendant paid some of the required overtime,
but he does not allege how much Defendant still owes. For these
reasons, Plaintiff’s complaint fails to state a claim for overtime
compensation under the FLSA.
II.

Failure to Plead Enterprise Coverage under the FLSA
Second, Defendant contends that Plaintiff’s complaint fails

to adequately plead enterprise coverage under the FLSA. The minimum
wage and overtime provisions in the FLSA apply to employees who
are either (1) “engaged in commerce or in the production of goods
for commerce” (“individual coverage”) or (2) “employed in an
enterprise

engaged

in

the

production

of

goods

for

commerce”

(“enterprise coverage”). Mejia, 2015 WL 3619804, at *4 (quoting 29
7

U.S.C.

§§

coverage,

206(a),
the

207(a)).

plaintiff

To

must

state
allege

a

claim

facts

for

giving

enterprise
rise

to

a

reasonable inference that the defendant is an “enterprise engaged
in commerce or in the production of goods for commerce.” Id. The
FLSA defines such an enterprise as one that
(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 . . .
.
29 U.S.C. § 203(s)(1).
In this case, Plaintiff’s complaint alleges, “At all times
relevant to this action, Defendant was an ‘enterprise engaged in
interstate commerce’ within the meaning of the FLSA.” (Rec. Doc.
1, at 3.) Plaintiff merely repeats the enterprise coverage standard
without alleging facts giving rise to a reasonable inference that
Defendant was an enterprise engaged in commerce or the production
of goods for commerce. Mejia, 2015 WL 3619804, at *4. Further,
Plaintiff fails to allege that Defendant’s employees engaged in
commerce or in the production of goods for commerce. Nor does
Plaintiff allege that Defendant’s annual gross volume of business
exceeded $500,000. Thus, Plaintiff’s complaint fails to plead
sufficient facts to plead enterprise coverage under the FLSA.

8

III. Failure to Plead a Collective Action under the FLSA
Third, Defendant argues that Plaintiff’s complaint fails to
adequately plead a FLSA collective action. As explained above,
section 216(b) of the FLSA 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. 29 U.S.C. § 216(b). To
proceed

as

a

representative

action,

all

plaintiffs

must

be

similarly situated and must consent in writing to take part in the
suit. Wischnewsky v. Coastal Gulf & Intern., Inc., No. 12-2277,
2013 WL 1867199, at *4 (E.D. La. May 2, 2013).
To

prevail

against

a

motion

to

dismiss,

a

plaintiff’s

complaint “must allege facts sufficient to demonstrate that [he]
and potential plaintiffs were victims of a common policy or plan
that violated the law.” Id. “Plaintiffs need only show their
positions are similar, not identical.” Creech v. Holiday CVS, LLC,
No. 11-46-BAJ-DLD, 2012 WL 4483384, at *1 (M.D. La. Sept. 28,
2012). Moreover, “[a]s applied to a collective action under the
FLSA, a 12(b)(6) motion should not succeed if the complaint gives
‘the defendant fair notice of the putative class.’” Flores v. Act
Event Servs., Inc., 55 F. Supp. 3d 928, 940 (N.D. Tex. 2014)
(quoting Dyer v. Lara’s Trucks, Inc., No. 1:12–CV–1785–TWT, 2013
WL 609307, at *3 (N.D. Ga. Feb. 19, 2013)).

9

District courts disagree on “whether certain job descriptions
and factual allegations meet the plausibility standard” and on
“whether a motion to dismiss or collective action certification is
the proper stage in the proceedings to address the issue.” Creech,
2012 WL 4483384, at *2. However, the Court finds that Plaintiff’s
collective action allegations do not give Defendant fair notice of
the putative class. The complaint should provide details about or
descriptions

of

the

similarly

situated

parties,

along

with

sufficient facts to show that they were subject to the same pay
provisions. Id. In Creech, the plaintiff claimed that the other
class members “performed the same or similar job duties in that
they ‘provided customer services’ for the Defendants.” Id. The
court found those allegations insufficient. Id.
In this case, Plaintiff’s allegations are similarly vague.
Plaintiff’s proposed putative class “is comprised of all similarly
situated hourly, non-exempt employees employed by Tulane within
the past three years who worked at least thirty-seven and a half
hours, per week, with some overtime, and were not paid correctly
through cash wages and/or benefits.” (Rec. Doc. 1, at 2.) While
Plaintiff states that the class members will be hourly employees,
Plaintiff does not provide any job descriptions of the proposed
class members. See Flores, 55 F. Supp. 3d at 940 (stating that
plaintiffs should use their own job duties to help define a
specific putative class). Further, Plaintiff attempts to include
10

employees who have worked thirty-seven and a half hours per week,
ignoring the fact that the FLSA only applies to employees who work
forty hours per week. Due to its lack of specificity, Plaintiff’s
complaint fails to provide Defendant with fair notice of the
putative class.
IV.

Collective Action Procedures
Fourth, Defendant argues that Plaintiff’s complaint attempts

to circumvent the usual procedures for collective actions. The
complaint asks the Court to issue notice to all similarly situated
employees. However, this Court uses the following standards and
procedures to determine whether to conditionally certify a class:
To certify a collective action under the . . . FLSA, .
. . two requirements must be met. First, the named
representatives and the putative members of the
prospective FLSA class must be similarly situated. . .
. Second, the action at issue must have a general effect.
. . . A court may deny a plaintiff's right to proceed
collectively
only
if
the
action
arises
from
circumstances purely personal to the plaintiff, and not
from any generally applicable rule, policy, or practice.
. . . To resolve the question whether putative collective
action members are similarly situated, courts may employ
a two-step analysis for conditional certification as
established by the Fifth Circuit in Mooney v. Aramco
Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir.1995). First,
at the so-called “notice stage,” the district court
decides whether notice of the action should be given to
potential class members. . . . This decision is usually
based only on the pleadings and any affidavits which
have been submitted. . . . It is made applying a fairly
lenient standard, and usually results in “conditional
certification” of a representative class. . . . At the
notice stage, courts appear to require nothing more than
substantial allegations that the putative class members
were together the victims of a single decision, policy,
or plan . . . . Following conditional certification,
11

putative class members are given notice and the
opportunity to opt in to the collective action. . . .
The case then proceeds throughout discovery as a
collective action. . . . A second step takes place later
on, when and if the defendant files a motion for
decertification, after more extensive discovery has
taken place.
Donahue v. Francis Servs., Inc., No. 04-170, 2004 WL 1161366, at
*1 (E.D. La. May 24, 2004). Defendant correctly asserts that
Plaintiff must file a motion to certify class before the Court can
conditionally certify a class and send notice to putative class
members. Therefore, the Court will disregard Plaintiff’s request
to send notice to putative class members.
V.

Requested Relief
Defendant asks this Court to dismiss Plaintiff’s complaint

entirely, including his state-law claims. While the Court has
jurisdiction

over

Plaintiff’s

state-law

claim

pursuant

to

28

U.S.C. § 1367(a),1 Fifth Circuit precedent suggests that this Court
should dismiss the supplemental state law claims. Parker & Parsley
Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir. 1992).
“[W]hen the single federal-law claim is eliminated at an ‘early
stage’ of the litigation, the district court has ‘a powerful reason

1

“[I]n any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.” 28
U.S.C. § 1367(a).

12

to choose not to continue to exercise jurisdiction.’” Id. (citing
Carnegie–Mellon

Univ.

v.

Cohill,

484

U.S.

343,

351

(1988)).

Further, a district court may decline to exercise supplemental
jurisdiction if it has dismissed all claims over which it has
original jurisdiction. 28 U.S.C. § 1367(c)(3).
While dismissal is the typical result of a successful Rule
12(b)(6) motion, the Court can grant the plaintiff leave to amend
the complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2).
District courts have discretion to grant leave to amend, but the
federal rules favor granting leave over denying it. See Jamieson
By & Through Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir. 1985).
However, justifications for denying leave to amend include: “undue
delay,

bad

faith,

dilatory

motive,

repeated

failure

to

cure

deficiencies by prior amendment, undue prejudice to the opposing
party, and the futility of the amendment.” Id. Allowing a plaintiff
to amend a complaint is “futile” when “the amended complaint would
fail

to

state

a

claim

upon

which

relief

could

be

granted.”

Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir.
2000).
Plaintiff’s amended complaint could potentially state a claim
under the FLSA. Plaintiff has established that he worked for Tulane
and was a non-exempt employee. Plaintiff’s amended complaint will
likely state a claim under the FLSA, as long as it addresses the

13

deficiencies identified by the Court. For these reasons, the Court
will allow him leave to amend.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s 12(b)(6) Motion to Dismiss
is GRANTED.
IT IS FURTHER ORDERED that Plaintiff must file an amended
complaint within 21 days, or the Court will dismiss his claims
with prejudice.
IT IS FURTHER ORDERED that Defendant’s Motion for Leave to File
Reply is DENIED as moot.
New Orleans, Louisiana this 19th day of July, 2016.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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