Maldonado v. New Orleans Millworks, LLC et al

Filing 32

ORDER & REASONS. It is ORDERED that Defendants' 16 Motion to Dismiss is GRANTED IN PART and DENIED IN PART. It is FURTHER ORDERED that Plaintiff is granted an additional 21 days from the entry of this Order and Reasons to file an amended complaint alleging a Fair Labor Standards Act collective action. If an amended complaint is not filed, Plaintiff's Fair Labor Standards Act collective action claims will be dismissed with prejudice. Signed by Judge Carl Barbier. (gec)

Case 2:17-cv-01015-CJB-MBN Document 32 Filed 06/08/17 Page 1 of 10

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

OSMAN MALDANADO

CIVIL ACTION

VERSUS

No.: 17-1015

NEW ORLEANS MILLWORKS,
LLC, ET AL.

SECTION: “J”(5)
ORDER & REASONS

Before the Court is a Rule 12(b)(6) Motion to Dismiss (R.
Doc.

16)

filed

(“Metalworks”)

by
and

Defendants
its

owner

New
David

Orleans

Metalworks,

Waldheim

Inc.

(collectively,

“Defendants”). Plaintiff Osman Maldonado opposes the motion (R.
Doc. 29). Having considered the motion and legal memoranda, the
record, and the applicable law, the Court finds that the motion
should be GRANTED IN PART and DENIED IN PART.
FACTS AND PROCEDURAL BACKGROUND
This litigation arises from Defendants’ alleged violation of
the Fair Labor Standards Act (“FLSA”). Plaintiff alleges that he
and

other

similarly

situated

employees

were

not

paid

proper

overtime compensation. (R. Doc. 9 at 1.) Plaintiff alleges that
Defendant O&G Construction, LLC (“O&G Construction”), owned by
Defendant Olan David Del Arca Sabat, provides manual labor for
general contractors such as Metalworks. Id. at 3. Plaintiff alleges
he was employed as a painter for Defendants from February 2015 to
September 2016 and he was paid approximately $15.00 per hour

Case 2:17-cv-01015-CJB-MBN Document 32 Filed 06/08/17 Page 2 of 10

regardless of the number of hours worked per week. Id. at 2, 5.
Additionally, Plaintiff alleges that Defendants failed to pay
other similarly situated employees overtime in violation of the
FLSA’s overtime requirements. Id. at 5.
On March 13, 2017, Plaintiff filed the present lawsuit and
asked the Court to certify a collective action, pursuant to 29
U.S.C § 216(b), against New Orleans Millworks (“Millworks”) and
its

owner

Scott

Taranto.

(R.

Doc.

1.)

Plaintiff

amended

his

complaint and added O&G Construction and Olan David Del Arca Sabat
as Defendants, R. Doc. 4 at 3-4, and amended his complaint again
to replace Millworks and Scott Taranto with Metalworks and David
Waldheim, R. Doc. 9 at 3. On May 3, 2017, Defendants Metalworks
and Waldheim filed the present Motion to Dismiss. Defendants argue
that

Plaintiff’s

complaint

fails

to

adequately

allege

an

individual or collective FLSA claim. Plaintiff contends that his
complaint sufficiently alleges both an individual and collective
action against Defendants for failure to pay proper overtime
compensation. Defendants’ motion is now before the Court on the
briefs and without oral argument.
PARTIES’ ARGUMENTS
1.

Defendants’ Arguments
Defendants

argue

that

Plaintiff’s

FLSA

claims

must

be

dismissed under the Federal Rules of Civil Procedure 12(b)(6)
because his allegations are too vague and conclusory. (R. Doc. 162

Case 2:17-cv-01015-CJB-MBN Document 32 Filed 06/08/17 Page 3 of 10

1 at 2). As to Plaintiff’s individual claim, Defendants contend
Plaintiff

fails

to

adequately

allege

the

amount

of

overtime

compensation he is owed because he does not identify the time
period and overtime hours he worked. Id. at 4. Defendants also
argue that Plaintiff has not alleged sufficient facts to warrant
a collective action. Id. at 4-6. Defendants assert that Plaintiff’s
allegations do not adequately describe the work, pay, or hours of
other similarly situated employees. Id. at 5. Defendants buttress
their argument by noting that Plaintiff is the only “painter” on
staff, and Defendants’ employees either perform different duties
or are independent contractors hired at a fixed price. Id.
2.

Plaintiff’s Arguments
Plaintiff

argues

that

he

has

adequately

alleged

the

approximate dates and amount of time he worked and that he was not
paid any overtime during this period. (R. Doc. 29 at 2.) Thus,
Plaintiff contends that he has properly alleged an individual FLSA
claim for overtime compensation. Plaintiff also argues that he has
adequately alleged an FLSA collective action. Id. at 3-4. While
Plaintiff

admits

that

he

seeks

to

certify

a

broad

range

of

employees, he argues against narrowing the field of eligible class
members before discovery because employers tend to control the
information necessary to an FLSA plaintiff’s claims. Id. at 4.
Plaintiff

argues

he

has

alleged

3

sufficient

facts

to

survive

Case 2:17-cv-01015-CJB-MBN Document 32 Filed 06/08/17 Page 4 of 10

Defendants’ motion and that he should not be barred from filing a
motion for conditional certification at a later date.
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
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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
4

Case 2:17-cv-01015-CJB-MBN Document 32 Filed 06/08/17 Page 5 of 10

228, 232 (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.

“[C]onclusory

allegations

or

legal

conclusions

masquerading as factual conclusions will not suffice to prevent a
motion to dismiss.” Taylor, 296 F.3d at 378.
DISCUSSION
The

FLSA

mandates

that

covered

employers

pay

covered

employees “at least one and one-half times their normal rate of
pay for hours worked in excess of 40 hours per week.” Scott v.
Gusman, No. 15-4484, 2015 WL 5971767, at *1 (E.D. La. Oct. 14,
2015). To assert an unpaid overtime claim, a plaintiff must plead:
“(1) that there existed an employer-employee 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 [or minimum] wage requirements; and
(4) the amount of overtime compensation due.” Id. (citing Johnson
v. Heckman Water Ress. Inc., 758 F.3d 627, 630 (5th Cir. 2014)).
Plaintiff has alleged that there was an employer-employee
relationship, he engaged in activity covered by the FLSA, and that
Defendants violated the FLSA’s overtime requirements. However,
Defendants contend that Plaintiff has failed to adequately allege
the fourth prong—the amount of overtime compensation due. This
Court has determined that a plaintiff “sufficiently pleads [the
5

Case 2:17-cv-01015-CJB-MBN Document 32 Filed 06/08/17 Page 6 of 10

amount of overtime compensation due] by alleging sufficient facts
to put the defendant on notice as to the approximate date ranges,
as well as the approximate number of hours worked.” Nieto v.
Pizzati Enters., Inc., No. 16-5352, 2016 WL 6962513, at *11 (E.D.
La. Nov. 29, 2016) (internal citations omitted). Here, Plaintiff
alleges that he worked, on average, 55 hours per week from February
2015 to November 2016 and that he was paid his regular wage of
approximately $15 per hour regardless of the number of hours he
worked.

Accordingly,

Plaintiff

has

sufficiently

alleged

the

approximate date range and approximate hours worked to allege the
amount of overtime compensation due. Consequently, Plaintiff has
adequately alleged that Defendants violated the FLSA’s overtime
requirements.
Defendants

rely

on

England

v.

Administrators

of

Tulane

Education Fund to argue that Plaintiff failed to allege the amount
of overtime compensation owed. No. 16-3184, 2016 WL 3902595, at *3
(E.D. La. July 19, 2016). However, England is distinguishable from
the present case because in England the plaintiff only alleged
that he routinely worked overtime from 2012 to 2015. Although the
plaintiff in England alleged that he was paid some overtime he did
not approximate when such compensation occurred, rendering his
FLSA claim incalculable. Compare England, 2016 WL 3902595, at *3
with England v. Admin’s. of Tulane Educ. Fund, No. 16-3184, 2016
WL 6520146, at *3-4 (E.D. La. Nov. 3, 2016) (noting that the newly
6

Case 2:17-cv-01015-CJB-MBN Document 32 Filed 06/08/17 Page 7 of 10

amended complaint, which specified that the overtime violations
occurred between July 2012 through December 2014, sufficiently
pleaded enough facts to put the defendant on notice). Thus, while
this case is similar to England, the Court finds that because
Plaintiff alleges that he worked 55 hours per week from February
2015 to November 2016 and was paid $15 per hour regardless of the
number of hours he worked, Plaintiff has adequately alleged an
individual FLSA overtime claim.
Turning to the collective action issue, the FLSA authorizes
“one or more employees to pursue an action in a representative
capacity for ‘other employees similarly situated.’” Johnson v. Big
Lots Stores, Inc., 561 F. Supp. 2d 567, 572 (E.D. La. 2008) (citing
29 U.S.C. § 216(b)). The FLSA has not, nor has the Fifth Circuit,
defined what “similarly situated” means. See id. at 573. This Court
traditionally follows the Lusardi two-step analysis to determine
whether plaintiffs are similarly situated. Lang v. DirectTV, Inc.,
735 F. Supp. 2d 421, 434-35 (E.D. La. 2010). Step one of Lusardi
asks, at the “notice stage,” whether “notice should be given to
potential members of the collective action” based on the pleadings.
Id. at 435. Because there is little evidence at the notice stage,
the standard is lenient and typically results in a conditional
certification. Id. To determine whether plaintiffs are similarly
situated, the Lusardi test asks: “(1) the extent to which the
employment setting is similar; (2) the extent to which any defenses
7

Case 2:17-cv-01015-CJB-MBN Document 32 Filed 06/08/17 Page 8 of 10

the employer has are common or individuated; and (3) general
fairness and procedural considerations.” Id.
Here, Plaintiff has not yet reached the first certification
stage because he has not yet moved for certification or for
specific notices to be distributed. Accordingly, determination of
a conditional certification is pre-mature; however, in order to
survive

a

Rule

12(b)(6)

motion,

Plaintiff

must

still

“have

adequately pleaded that [he is] similarly situated to potential
collective action members.” See id. at 435-36. (emphasis added).
“[O]pinions from district courts . . . are inconsistent, arriving
at different conclusions as to . . . whether a motion to dismiss
or collective action certification is the proper stage in the
proceedings to address [conditional certification].” Creech v.
Holiday CVS, LLC, No. 11–46, 2012 WL 4483384, at *6–7 (M.D. La.
Sept. 26, 2012). However, this Court finds the proposition that
dismissal of a collective action is inherently improper on a Rule
12(b)(6) motion to dismiss is inaccurate. See, e.g., Lang, 735 F.
Supp. 2d at 436 (holding that, while determination of conditional
certification was pre-mature on a Rule 12(b)(6) motion to dismiss,
the plaintiffs adequately pleaded that a potential class existed
by detailing the scope of the FLSA violations, the job titles of
the putative

class

members,

the

job

duties

of

the

potential

members, and the means by which the violations occurred).

8

Case 2:17-cv-01015-CJB-MBN Document 32 Filed 06/08/17 Page 9 of 10

It is well settled that federal plaintiffs must first satisfy
the mandates of Fed. R. Civ. P. 8(a) and allege facts that are
“enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Here, Plaintiff merely asserts that a
collective action is proper because Defendants “paid the named
Plaintiff and other similarly situated employees at an hourly rate”
treated them “as exempt from FLSA’s overtime requirements,” and
that “they were not exempt from the FLSA’s overtime requirement.” 1
(R. Doc. 9 at 5). These are conclusory allegations disguised as
legal conclusion. See Dyer v. Lara’s Trucks, Inc., No. 12-785,
2013 WL 609307, at *4 (N.D. Ga. Feb. 19, 2013) (“The Plaintiff
merely asserts that she seeks a collective action with a class of
employees that is ‘similarly situated in terms of job duties, pay,
and compensation.’ This is a legal conclusion.”). Plaintiff merely
speculates that a class may exist and that this hypothetical class
may

have

suffered

widespread

FLSA

violations.

This

is

not

sufficient to survive a Rule 12(b)(6) motion. Accordingly, the
Court finds that Plaintiff has not adequately alleged an FLSA
collective action. While the Court is mindful of the unique nature
of FLSA cases, and the fact that employers often hold the evidence
necessary to prove a collective action, “conclusory allegations or
legal conclusions masquerading as factual conclusions will not

1

Plaintiff specifically labeled
“Collective Action Allegations.”

these

9

allegations

in

his

complaint

as

Case 2:17-cv-01015-CJB-MBN Document 32 Filed 06/08/17 Page 10 of 10

suffice to prevent a motion to dismiss.” Taylor, 296 F.3d at 378.
Nevertheless, the Court finds that dismissal is inappropriate and
shall grant Plaintiff an additional twenty-one days to amend his
complaint to properly allege a FLSA collective action.

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (R.
Doc. 16) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiff is granted an additional
twenty-one (21) days from the entry of this Order and Reasons to
file an amended complaint alleging a Fair Labor Standards Act
collective

action.

If

an

amended

complaint

is

not

filed,

Plaintiff’s Fair Labor Standards Act collective action claims will
be dismissed with prejudice.
New Orleans, Louisiana this 8th day of June, 2017.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

10