Ruiz v. Masse Contracting, Inc. et al

Filing 19

ORDER AND REASONS - IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 8 ) is DENIED, as set forth in document. Signed by Judge Barry W Ashe on 6/12/2019. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JOSE RUIZ, on behalf of himself and
other persons similarly situated

CIVIL ACTION
NO. 18-5721

VERSUS
SECTION M (2)
MASSE CONTRACTING, INC. AND
BOLLINGER SHIPYARDS, L.L.C.
ORDER & REASONS
Before the Court is a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to state a claim, or alternatively, motion to dismiss under Rule 12(b)(7) for
failure to join necessary parties, or motion for a more definite statement pursuant to Rule 12(e),
filed by defendants Masse Contracting, Inc. (“Masse”) and Bollinger Shipyards, L.L.C.
(“Bollinger”) (collectively, “Defendants”).1 Plaintiff Jose Ruiz (“Ruiz”) filed a memorandum in
opposition,2 to which Defendants replied.3 Having considered the parties’ memoranda, the
record, and the applicable law, the Court issues this Order & Reasons.
I.

BACKGROUND
Ruiz brought this action, on behalf of himself and others similarly situated, raising claims

under the Fair Labor Standards Act (“FLSA”) for unpaid overtime wages.4 Ruiz, a resident of
Morgan City, Louisiana, alleges that Masse hired him in 2015 to work as a pipefitter at
Bollinger’s shipyard in Amelia, Louisiana, and he held that job for approximately three years.5
Ruiz alleges that Bollinger employed at its Amelia shipyard at least 200 workers whose services

1

R. Doc. 8.
R. Doc. 10.
3
R. Doc. 15.
4
R. Doc. 1 at 1.
5
Id. at 2.
2

were obtained from labor subcontractors.6 Masse was one of those labor subcontractors and
supplied about 50 of the workers at Bollinger’s Amelia shipyard.7 Ruiz alleges that he was
employed by both Masse and Bollinger, and that both entities supervised his activities,
determined his work schedule, and kept an employment file on him.8 However, Ruiz also alleges
that Bollinger largely “supervise[d] and control[led] the workers as de facto employees,” but that
Masse paid him.9
Ruiz alleges that he normally worked more than forty hours per week, and “[o]n average
worked at least sixty-seven hours per week.”10 Ruiz alleges that his regular rate of pay was
$13.00 per hour, and he received overtime pay of $19.50 per hour and a $70.00 per diem for days
he worked at least five hours.11 He further alleges that he did not incur any expenses in
furtherance of Defendants’ interests that would qualify as reimbursable per diem payments under
the FLSA, and thus the payments to him amounted to “disguised wages” that Defendants did not
include in calculating Ruiz’s overtime premium pay.12
Ruiz seeks to represent two classes.13 The first proposed class is the “Amelia Overtime
Class,” consisting of:
all current and former employees of Defendants at the Bollinger Shipyard in
Amelia, Louisiana, who are or have been employed by Bollinger, either through
Masse or another labor subcontractor, during the three years immediately
preceding the filing of this suit as hourly employees and who, during that period,
received daily per diem payments and worked in excess of forty hours in any
work week and failed to receive the correct rate of premium pay, a rate of oneand-a-half times their regular rate of pay, for all hours worked in excess of forty
in a workweek.14
6

Id. at 5.
Id.
8
Id. at 2-4.
9
Id. at 4-5.
10
Id. at 5.
11
Id. at 2.
12
Id. at 5 & 7.
13
Id. at 6-8.
14
Id. at 6.
7

2

The second proposed class is the “Masse Overtime Class,” consisting of:
all current and former employees of Masse who are or have been employed by
Masse during the three years immediately preceding the filing of this suit as
hourly employees and who, during that period, received daily per diem payments
and worked in excess of forty hours in any work week and failed to receive the
correct rate of premium pay, a rate of one-and-a-half times their regular rate of
pay, for all hours worked in excess of forty in a workweek.15
II.

PENDING MOTION
Defendants filed the instant motion to dismiss arguing that Ruiz’s complaint does not

adequately allege FLSA claims against them and fails to include necessary parties.16

In

particular, Defendants argue that Ruiz does not allege facts demonstrating that the per diem
payments were improper because he does not allege when he received such payments, whether
he always received the same amount, whether he received the payments no matter his worksite,
or whether he received the payments regardless of what expenses he incurred on his employer’s
behalf.17 Defendants also argue that Ruiz did not allege the time periods at issue or the amount
of overtime compensation due with sufficient factual specificity because he did not identify any
workweek or workweeks in which he worked more than forty hours without receiving proper
overtime pay.18 Further, Defendants argue that Ruiz did not properly plead a collective action
under the FLSA because the two proposed classes are too general and fail to demonstrate that
other potential claimants are similarly situated in that (1) subcontractor employers other than
Masse are implicated in the proposed Amelia Overtime Class, and (2) the geographic location
and job duties potentially involved in the Masse Overtime Class are too divergent.19 Finally,
Defendants argue that Ruiz has not properly pleaded that Bollinger was his employer because he

15

Id. at 7.
R. Doc. 8-1.
17
Id. at 9-11.
18
Id. at 11-13.
19
Id. at 14-16.
16

3

does not allege that Bollinger had the power to hire and fire him or set his rate of pay.20 Rather,
according to Defendants, the complaint points to Masse as Ruiz’s employer, as it alleges he was
hired and paid by Masse.21
Defendants also argue that Ruiz’s FLSA collective action claim against Bollinger should
be dismissed because it implicates unnamed subcontractors.22 Defendants argue that these other
subcontractors are necessary parties “[i]f the Court is inclined to allow Plaintiff to seek overtime
from entities who were not his employers.”23
Alternatively, under Rule 12(e), Defendants argue that Ruiz should be required to file a
more definite statement addressing the following items:
1.

“how Defendants’ alleged practice of paying per diem violates the FLSA
or why the alleged per diem should have been factored into his regular rate
of pay for the purposes of calculating his overtime pay including the time
periods of when he received per diem, the conditions of his receipt of per
diem, [and] the expenses he incurred or didn’t incur.”24

2.

“the approximate date ranges and number of hours worked for which he
claims he was undercompensated and his job duties.”25

3.

“how members of the two proposed putative classes are similarly
situated including the identity of other alleged subcontractors, whether
Plaintiff actually worked for those unidentified subcontractors, whether all
putative class members were paid a per diem, what that per diem was,
the conditions for paying per diem, and how the payment of per diem
violated the FLSA, and descriptions or details about individuals at the
various worksites.”26

4.

“Bollinger’s status as Plaintiff’s employer and the putative class members
including the factors under the economic realities test.”27

20

Id. at 16-19.
Id.
22
Id. at 19-20.
23
Id. at 19.
24
Id. at 20.
25
Id.
26
Id.
27
Id. at 21.
21

4

Ruiz responds that his complaint should not be dismissed, and he should not be required
to file a more definite statement, because his complaint adequately puts Defendants on notice of
his claims.28 He says he adequately alleged that Defendants violated the FLSA by improperly
disguising wages as per diem payments so as to avoid including those amounts in the calculation
of overtime premium wages.29 Ruiz also argues that he put Defendants on notice of his dates of
employment (2015 to 2018) and the amount of unpaid overtime, having alleged that he normally
worked more than forty hours per week – on average, at least sixty-seven hours per week.30
Further, Ruiz argues that his class allegations put Defendants on notice of the proposed
classes and adequately explain that the “classes are limited to only those [individuals] who were
paid an hourly rate, received a daily per diem, worked over 40 hours in a work week, did not
receive the proper overtime rate of pay, and thus were subject to the same policy of regular
wages characterized as per diems and improperly excluded from the calculation of their overtime
rate of pay.”31 Ruiz contends that Defendants’ motion to dismiss is trying to short-circuit the
class certification process, and that a proposed class can be narrowed, if found to be too broad,
following discovery and briefing on class certification.32
Finally, Ruiz argues that he has sufficiently alleged that Bollinger was his employer by
alleging that Bollinger supervised his work, set his schedule, and had an employment file on
him.33 Ruiz says he is entitled to discovery to determine if Bollinger indeed meets the economic
reality test so as to be considered his employer under the FLSA.34

28

R. Doc. 10.
Id. at 1-3.
30
Id. at 3-4 (citing, inter alia, R. Doc. 1 at 5).
31
Id.at 4-10.
32
Id. at 5, 7-8.
33
Id.at 9-10.
34
Id.
29

5

As to Defendants’ alternative motions, Ruiz urges that the Amelia Overtime Class’s
potential implication of unnamed labor subcontractors does not justify dismissal.35 Further, Ruiz
argues that Defendants’ arguments regarding a more definite statement are the same as their
arguments in favor of dismissal, and thus that a more definite statement is not required because
his complaint is adequate.36
III.

LAW & ANALYSIS
A. Defendants’ Motion to Dismiss for Failure to State a Claim
1. Rule 12(b)(6) Standard
The Federal Rules of Civil Procedure require a complaint to contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The statement of the claim must
“‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’”
Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A pleading does
not comply with Rule 8 if it offers “labels and conclusions,” “a formulaic recitation of the
elements of a cause of action,” or “‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-57).
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

35
36

Id. at 10-11.
Id.

6

550 U.S. at 570). A claim is plausible on the face of the complaint “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556).

Plausibility does not

equate to probability, but rather “it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that
are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility
and plausibility of “entitlement to relief.”’” Id. (quoting Twombly, 550 U.S. at 557). Thus, if the
facts pleaded in the complaint “do not permit the court to infer more than a mere possibility of
misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to
relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court
employs the two-pronged approach utilized in Twombly. The court “can choose to begin by
identifying pleadings that, because they are no more than conclusions [unsupported by factual
allegations], are not entitled to the assumption of truth.” Id. However, “[w]hen there are wellpleaded factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. Motions to dismiss are disfavored and rarely
granted. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State Farm
Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).
A court’s review of a Rule 12(b)(6) motion to dismiss “is limited to the complaint, any
documents attached to the complaint, and any documents attached to the motion to dismiss that
are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). A court may also take judicial notice of certain
matters, including public records and government websites. Dorsey v. Portfolio Equities, Inc.,
7

540 F.3d 333, 338 (5th Cir. 2007); see also Kitty Hawk Aircargo, Inc. v. Chao., 418 F.3d 453,
457 (5th Cir. 2005). Thus, in weighing a Rule 12(b)(6) motion, district courts primarily look to
the allegations found in the complaint, but courts may also consider “documents incorporated
into the complaint by reference or integral to the claim, items subject to judicial notice, matters
of public record, orders, items appearing in the record of the case, and exhibits attached to the
complaint whose authenticity is unquestioned.” Meyers v. Textron, Inc., 540 F. App’x 408, 409
(5th Cir. 2013) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).
2. The FLSA
The FLSA mandates that employers pay covered employees overtime wages for hours
worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). If the employer fails to do so,
it “shall be liable to the employee or employees affected in the amount of … their unpaid
overtime compensation.” Id. § 216(b). To state a claim for unpaid overtime or minimum wages
under the FLSA a plaintiff must plead: “(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 wage
requirements; and (4) the amount of overtime compensation due.” Johnson v. Heckmann Water
Res., Inc., 758 F.3d 627, 630 (5th Cir. 2014). Defendants contend that Ruiz did not plead
enough facts concerning the first element (as to Bollinger), and the third and fourth elements (as
to both Defendants).
a. Employer-Employee Relationship
The FLSA broadly defines “employer” as “any person acting directly or indirectly in the
interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). Similarly, “employee”
is defined as “any individual employed by an employer.” Id. § 203(e)(1).

8

Because these

definitions are vague, courts use the “economic reality test” to determine FLSA coverage.
Williams v. Henagan, 595 F.3d 610, 620 (5th Cir. 2010).
“The touchstone of ‘economic reality’ in analyzing a possible employee/employer
relationship for purposes of the FLSA is dependency.” Weisel v. Singapore Joint Venture, Inc.,
602 F.2d 1185, 1189 (5th Cir. 1979).

In other words, courts must consider whether “the

personnel are so dependent upon the business with which they are connected that they come
within the protection of FLSA or are sufficiently independent to lie outside its ambit.” Id.
(quoting Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1311 (5th Cir. 1979)).
Under the economic reality test, courts evaluate “‘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.’” Orozco v. Plackis, 757 F.3d 445, 448 (5th Cir. 2014).
(quoting Gray v. Powers, 673 F.3d 352, 355 (5th Cir. 2012)). The plaintiff “need not establish
each element in every case.” Id. (citing Gray, 673 F.3d at 357). “Moreover, ‘[t]he remedial
purposes of the FLSA require the courts to define ‘employer’ more broadly than the term would
be interpreted in traditional common law applications.’” Id. (quoting McLaughlin v. Seafood,
Inc., 867 F.2d 875, 877 (5th Cir. 1989)).
An employee may have more than one FLSA employer. 29 C.F.R. § 791.2(a) (“A single
individual may stand in the relation of an employee to two or more employers at the same time
under the [FLSA] ….”); see also Martin v. Bedell, 955 F.2d 1029, 1034 n.10 (5th Cir. 1992)
(quoting 29 C.F.R. § 791.2(a) and noting “that under the FLSA an individual can be employed
by one employer or by more than one joint employer”). When there are multiple alleged
employers, each putative employer must satisfy the economic reality test. Orozco, 757 F.3d at
448 (citing Gray, 673 F.3d at 355).
9

Ruiz’s complaint plausibly alleges that Bollinger controlled his work by supervising him,
setting his schedule, and maintaining an employment file on him. Further, it is also plausible
that Ruiz’s employment was dependent upon Bollinger’s need for employees and that his pay
could have been determined by whatever Bollinger paid Masse for his services. Ruiz alleges that
Masse hired him to work at Bollinger, as opposed to any site where Masse had a contract to
provide workers. Thus, it is reasonable to infer that Ruiz would have become unemployed had
Bollinger terminated its contract with Masse. Consequently, Ruiz has plausibly alleged that
Bollinger was one of his FLSA employers, while it is undisputed that Masse was the other.
b. Violation of Overtime Wage Requirements
The FLSA requires employers to pay employees at least one-and-one-half the employee’s
regular hourly rate for hours worked in excess of forty in a workweek. 29 U.S.C. § 207(a)(1).
“The employee’s ‘regular rate’ of pay is thus the ‘keystone’ of section 7(a),” because the amount
of overtime wages depends on the employee’s “regular rate.” Urnikis-Negro v. Am. Family
Prop. Servs., 616 F.3d 665, 673 (7th Cir. 2010).
The FLSA defines “regular rate” of pay as including “all renumeration for employment
paid to, or on behalf of, the employee.” 29 U.S.C. § 207(e). More specifically, “the regular rate
refers to the hourly rate actually paid the employee for the normal, non-overtime workweek for
which he is employed.” Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424
(1945) (citations omitted). The FLSA’s implementing regulations explain that the “regular rate”
is calculated “by dividing [the employee’s] total remuneration for employment (except statutory
exclusions) in any workweek by the total number of hours actually worked by him in that
workweek for which such compensation was paid.” 29 C.F.R. § 778.109.
For the purpose of calculating overtime compensation, an employee’s “regular rate” does
not include “reasonable payments for traveling expenses, or other expenses, incurred by an
10

employee in the furtherance of his employer’s interests and properly reimbursable by the
employer; and other similar payments to an employee which are not made as compensation for
his hours of employment.” 29 U.S.C. § 207(e)(2). Such per diem payments include, but are not
limited to:
(1) The actual amount expended by an employee in purchasing supplies, tools,
materials, or equipment on behalf of his employer.
(2) The actual or reasonably approximate amount expended by an employee in
purchasing, laundering or repairing uniforms or special clothing which his
employer requires him to wear.
(3) The actual or reasonably approximate amount expended by an employee, who
is traveling “over the road” on his employer's business, for transportation
(whether by private car or common carrier) and living expenses away from
home, other travel expenses, such as taxicab fares, incurred while traveling on
the employer's business.
(4) “Supper money,” a reasonable amount given to an employee, who ordinarily
works the day shift and can ordinarily return home for supper, to cover the
cost of supper when he is requested by his employer to continue work during
the evening hours.
(5) The actual or reasonably approximate amount expended by an employee as
temporary excess home-to-work travel expenses incurred (i) because the
employer has moved the plant to another town before the employee has had an
opportunity to find living quarters at the new location or (ii) because the
employee, on a particular occasion, is required to report for work at a place
other than his regular workplace.
29 C.F.R. § 778.217(b) (illustrative, not exhaustive, list of items that qualify as per diem
payments). Further, “only the actual or reasonably approximate amount of the expense is
excludable from the regular rate. If the amount paid as ‘reimbursement’ is disproportionately
large, the excess amount will be included in the regular rate.” Id. § 778.217(c). Conversely,
payments made by the employer for everyday expenses normally incurred by the employee for
his own benefit are part of the employee’s regular rate of pay and are included in overtime
calculations. Id. § 778.217(d). Examples of such payments include “traveling to and from work,
11

buying lunch, paying rent, and the like.” Id. The FLSA “requires each employee’s expenses to
be examined on a case-by-case basis to see whether the ‘per diem’ is appropriate and
reasonable.” Berry v. Excel Grp., Inc., 288 F.3d 252, 254 (5th Cir. 2002).
Ruiz has alleged enough facts in the complaint to state a plausible claim of an FLSA
violation related to the per diem payments. Ruiz’s allegations put Defendants on notice that he
claims he did not incur any expenses on the employer’s behalf that would justify the payment of
a per diem excludable from his regular rate. Thus, he contends such payments were disguised
wages that were improperly excluded from his regular rate of pay in the calculation of overtime
payments. These allegations state that Ruiz did not incur any qualifying expenses, why the per
diem payments should have been factored into his regular rate of pay, and how Ruiz believes
Defendants’ per diem payments violate the FLSA. See Atkins v. Primoris Serv. Corp., 2017 WL
4697517, at *2 (W.D. La. Oct. 19, 2017) (finding similar allegations sufficient under Rule 12
standard to allege an FLSA violation premised on improper per diem payments).
c. Amount of Wages Due
A plaintiff adequately pleads the amount of overtime compensation due by alleging the
date ranges of employment, the approximate number of hours worked, and the regular rate of
pay. Valle v. Beauryne Builders LLC, 2018 WL 1463692, at *3 (M.D. La. Mar. 23, 2018)
(quoting Maldanado v. New Orleans Millworks, LLC, 2017 WL 2472358, at *2 (E.D. La. June 8,
2017)).
Ruiz has alleged all of the aforementioned items. Specifically, he alleges that he worked
for Defendants from approximately 2015 to 2018; that his regular rate of pay was $13.00 per
hour, and he received overtime pay of $19.50 per hour and a $70.00 per diem for days he worked
at least five hours; and that he often worked sixty-seven hours per week. Thus, Ruiz has
properly alleged, and put Defendants on notice of, the amount of overtime compensation due.
12

Id. (finding similar allegations sufficient under a Rule 12 standard); Ecoquij-Tzep v. Hawaiian
Grill, 2016 WL 3745685, at *4 (N.D. Tex. July 12, 2016) (finding similar allegations sufficient
and citing other cases in accord). These allegations also put Defendants on notice of the time
periods when Ruiz claims the per diem was paid – namely, on days between 2015 and 2018
when he worked more than five hours. This information is sufficient for Defendants to consult
their own records and investigate Ruiz’s claims. See England v. Adm’r of the Tulane Educ.
Fund, 2016 WL 6520146, at *3-4 (E.D. La. Nov. 3, 2016) (“By identifying the relevant time
period, the spreadsheet provides Defendant with enough information to search its own records to
more accurately investigate Plaintiff’s period of employment [and FLSA overtime claim].”).
3. FLSA Class Allegations
An employee may sue an employer for violating the overtime provisions of the FLSA
either individually or as a collective action on behalf of himself or herself and “other employees
similarly situated.” 29 U.S.C. § 216(b). Courts have taken two different approaches to resolve
the issue of whether plaintiffs are similarly situated to a proposed class: the spurious class action
approach, which originated in Shushan v. University of Colo., 132 F.R.D. 263 (D. Colo. 1990);
and the “two-step” approach, as in Lusardi v. Xerox Corp., 122 F.R.D. 463 (D.N.J. 1988). The
Fifth Circuit has yet to adopt either test. However, district courts in this circuit have generally
applied Lusardi’s “two-step” approach. See Guidry v. Target Corp., 2009 WL 1604591 (E.D.
La. June 5, 2009); Basco v. Wal-Mart Stores, Inc., 2004 WL 1497709, at *4 (E.D. La. July 2,
2004) (the two-step approach “is the preferred method for making the similarly situated
analysis”).
The Lusardi two-step approach consists of a “notice stage” and a “decertification stage.”
Mooney v. Aramco, 54 F.3d 1207, 1213 (5th Cir. 1995), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003). At the notice stage, the court determines, based only
13

on the pleadings and any affidavits that have been submitted, whether the putative collective
action members should receive notice of the action. Id. at 1214. “Because the court has minimal
evidence, this determination is made using a fairly lenient standard, and typically results in
‘conditional certification’ of a representative class.” Id. “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 infected by discrimination.’” Id. at 1214 n.8
(quoting Sperling v. Hoffman-LaRoche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988)). If the district
court finds that the putative collective action members are similarly situated, it conditionally
certifies the class and the putative collective action members are given notice and the opportunity
to opt in. Id. at 1214. “The action proceeds as a representative action throughout discovery.” Id.
The decertification stage is precipitated when the defendant, after discovery is largely
completed and the matter is ready for trial, files a motion to decertify the class. “At this stage,
the court has much more information on which to base its decision, and makes a factual
determination of the similarly situated question.” Id. If the district court finds that the claimants
are not similarly situated, it decertifies the class and dismisses without prejudice the opt-in
plaintiffs' claims, and the class representatives (i.e., the original plaintiffs) proceed to trial on
their individual claims. On the other hand, if the district court finds that the claimants are
similarly situated, it allows the representative action to proceed to trial. Id.
This case has not yet reached the conditional certification stage. Ruiz has not filed for
class certification, proposed a notice to claimants, or had a chance to develop a record related to
the similarly-situated question. Defendants move to dismiss (or for a more definite statement)
arguing that Ruiz should allege:
how members of the two proposed putative classes are similarly situated
including the identity of other alleged subcontractors, whether Plaintiff actually
worked for those unidentified subcontractors, whether all putative class members
14

were paid a per diem, what that per diem was, the conditions for paying per diem,
and how the payment of per diem violated the FLSA, and descriptions or details
about individuals at the various worksites.37
Most of this information is known only to Defendants, not Ruiz.
Defendants’ “challenge on the pleadings seeks to end-run the certification process by
trying certification on the face of the complaint.” Lang v. DirectTV, Inc., 735 F. Supp. 2d 421,
435-36 (E.D. La. Aug. 13, 2010). At the certification stage, this Court will analyze whether the
putative class members are similarly situated, and whether certification is otherwise appropriate.
To consider Defendant’s arguments against certification “now would be premature.” Id. at 436.
B. Defendants’ Motion to Dismiss for Failure to Add Necessary Parties
Rule 12(b)(7) permits a party to move to dismiss an action for failure to join a party
under Rule 19. Rule 19 requires that a plaintiff join as a party “[a] person who is subject to
service of process and whose joinder will not deprive the court of subject-matter jurisdiction …
if in that person’s absence, the court cannot accord complete relief among existing parties.” Fed.
R. Civ. P. 19(a)(1)(A).
Defendants argue that Bollinger’s unnamed labor subcontractors are necessary parties “if
the Court is inclined to allow Plaintiff to seek overtime from entities who were not his
employers.”38 But Ruiz has not prayed for such relief. Rather, Ruiz seeks to represent a class of
persons who were employed by Bollinger at its Amelia shipyard, even if Bollinger contracted
their labor through a subcontractor other than Masse. In other words, Ruiz seeks to represent
others with whom he was similarly situated with respect to Bollinger qua employer, not the
subcontractor qua employer. Thus, as to the Amelia Overtime Class, Ruiz is not seeking

37
38

R. Doc. 8-1 at 20-21.
Id. at 19.

15

renumeration from Bollinger’s other labor subcontractors, but directs his claims against only
Bollinger and Masse. Therefore, the other subcontractors are not necessary parties.
C. Defendants’ Motion for a More Definite Statement
Under Rule 12(e), “[a] party may move for a more definite statement of a pleading to
which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response.” Because this Court has already found that Ruiz’s complaint is
adequate to put Defendants on notice of his claims, a more definite statement is not warranted.
IV.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Defendants’ motion (R. Doc. 8) is DENIED.

New Orleans, Louisiana, this 12th day of June, 2019.

________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

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