Thomas v. Wallace, Rush, Schmidt, Inc.

Filing 163

RULING AND ORDER granting 158 Motion for Summary Judgment. The Plaintiffs claims against Defendant D&A Enterprises, Inc. are DISMISSED. Signed by Judge Brian A. Jackson on 6/2/2020. (KMW)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DE’MARCUS THOMAS

CIVIL ACTION

VERSUS
WALLACE, RUSH, SCHMIDT, INC.,
ET AL.

NO.: 16-00572-BAJ-RLB

RULING AND ORDER
Before the Court is Defendant D&A Enterprises, Inc. d/b/a Servpro of Fort
Collins’ (“D&A”) Motion for Summary Judgment (Doc. 158). Plaintiff filed an
Opposition (Doc. 161), and Defendant filed a reply memorandum in further support.
See (Doc. 162). For the reasons stated herein, the Motion is GRANTED.
I.

BACKGROUND
This action stems from a wage-and-hour dispute in which Plaintiff alleges

Defendant Wallace, Rush, Schmidt, Inc. (“WRS”) “unlawfully failed and refused to
pay Plaintiff…wages for hours worked and overtime pay.” (Doc. 51, at ¶ 2). After the
suit had commenced, WRS, the sole Defendant at the time, filed a Suggestion of
Bankruptcy (Doc. 40). In response, the Court stayed this matter pending resolution
of the proceeding before the bankruptcy court. See (Doc. 42). Once the stay was lifted,
Plaintiff moved to file a Third Amended Complaint, which added D&A as a
Defendant.
WRS is a “Natural Disaster Cleanup and Recovery personnel resource
management company” that hires employees to do largely physical labor. (Doc. 51, at

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¶ 12–13). According to Plaintiff, D&A used WRS’s services for labor recruitment
following the August 2016 flooding affecting Baton Rouge, Louisiana. (Id. at ¶ 15).
Plaintiff avers that WRS contracted with D&A to supply labor to job sites and that
his job site supervisors were representatives of both Defendants. (Id. at ¶ 21). During
his employment, Plaintiff worked at two job sites: the Baker Dialysis Center and
Amite High School. (Id. at ¶ 52). After two weeks of work, Plaintiff quit when he was
allegedly unable to obtain payment from WRS for the work he performed. (Id. at
¶ 69). He then brought this suit.
In a prior ruling, the Court denied a Motion for Summary Judgment (Doc. 91)
filed by D&A that was similar to the instant Motion and provided Plaintiff with
additional time to conduct discovery. (Doc. 106, at p. 3). However, the Court later
dismissed Plaintiff’s class allegations, as well as his collective action, fraud, and
negligence claims asserted against D&A. See (Doc. 132). Following that dismissal,
Plaintiff filed a Motion for New Trial, Alteration or Amendment of Judgment, and
Reconsideration (Doc. 136), which the Court denied. See (Doc. 141). Next, Plaintiff
sought entry of final judgment for his dismissed claims, which the Court also denied.
See (Doc. 151). Now that Plaintiff has had an ample opportunity to conduct discovery
connecting D&A to the facts of this case, D&A again seeks summary judgment.
II.

LEGAL STANDARD
Pursuant to Rule 56, “[t]he [C]ourt shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A dispute is “genuine”
if “the evidence is such that a reasonable jury could return a verdict for the
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nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1968). A fact is
“material” if it “might affect the outcome of the suit.” Id. at 248.
In determining whether the movant is entitled to summary judgment, the
Court views the facts in the light most favorable to the non-movant and draws all
reasonable inferences in the non-movant's favor. Coleman v. Houston Independent
School Dist., 113 F.3d 528, 533 (5th Cir. 1997). The Court “resolve[s] factual
controversies in favor of the nonmoving party, but only where there is an actual
controversy, that is, when both parties have submitted evidence of contradictory
facts.” Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013) (citation
omitted) (emphasis added).
“Where the nonmovant bears the burden of proof at trial, the movant may
merely point to an absence of evidence, thus shifting to the nonmovant the burden of
demonstrating by competent summary judgment proof that there is an issue of
material fact warranting trial.” In re La. Crawfish Producers, 852 F.3d 456, 462 (5th
Cir. 2017) (citation omitted).
III.

DISCUSSION
At this stage in this protracted litigation, Plaintiff maintains four claims

against Defendant D&A: a claim for unpaid wages and overtime under the Fair Labor
Standards Act (FLSA), a claim for unpaid wages and overtime under the Louisiana
Wage Payment Act, breach of contract, and a detrimental reliance claim. See (Doc.
132) (dismissing Plaintiff’s other claims against D&A). Throughout this action,
Plaintiff has struggled to adequately plead claims. The claims against D&A are no
different.
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Primarily at issue is whether Plaintiff can make any showing of an
employment relationship with D&A. Plaintiff has repeatedly failed to do so, and in
fact fails to demonstrate any relationship whatsoever with D&A. Supported by a
number of declarations indicating no connection between Plaintiff and D&A,
Defendant has brought attention to the complete lack of evidence indicating
otherwise. The burden, accordingly, shifts to Plaintiff to demonstrate that an issue of
fact exists in this case. In re La. Crawfish Producers, 852 F.3d, 462.
Despite having been provided several months to conduct discovery, Plaintiff
has come up entirely short.1 His sole offering is a three-page declaration in which he
states that Servpro representatives provided some instruction on job sites and that
“[o]bviously WRS and [D&A] communicated with each other regarding my schedule.”
(Doc. 164–1, at ¶ 12–13). Rather than provide evidence in support of his position,
Plaintiff urges the Court to ignore Defendant’s “self-serving testimony,” an argument
that the Court has already rejected. (Doc. 106, at p. 2 n.1).
In its Motion, Defendant essentially argues that it did not employ Plaintiff and
that any “Servpro” presence at Plaintiff’s job sites were actually two separate
organizations within the Servpro franchise, but not Servpro of Fort Collins.
(Doc. 158–1, at p. 5). The record is replete with declarations submitted by Defendant
indicating that there was no D&A (Servpro of Fort Collins) presence at either of
Plaintiff’s two job sites. (Docs. 158–3 at ¶ 7–8; 158–4 at ¶ 4–7). Defendant has offered
evidence indicating that its employment records contain no references indicating that

Plaintiff was provided until November 29, 2019 to obtain discovery. (Doc. 145, ¶ 2(b)). Defendant has
indicated that Plaintiff made no effort to obtain any discovery during this deadline. (Doc. 158–1, at
p. 4).
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it employed anyone using Plaintiff’s name. (Doc. 158–3 at ¶ 6). Further, pay stubs
issued by WRS indicate that WRS’s customers at the job sites where Plaintiff worked
were Service Master and Servpro of Greater Boulder, both of which are separate
entities from Servpro of Fort Collins. (Doc. 158–2 at ¶ 6).
Plaintiff offers no evidence indicating anything to the contrary. In his
Opposition, Plaintiff continues to equate Defendant with other Servpro franchises,
offering that Defendant must have been his employer because he was told to wear a
“Servpro shirt” at job sites. (Doc. 161 at p. 7). He submits a snippet of inconclusive
testimony from WRS’s proceedings at the bankruptcy court.2 (Id. at p. 4–5). Though
Plaintiff brings wage claims under state and federal law, he fails to make anything
other than mere conclusory arguments supporting the threshold requirement that
D&A was his employer. Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012) (“The FLSA
requires “employers” to pay their employees a minimum wage”); see also Tillman v.
Louisiana Children's Med. Ctr., No. CV 16-14291, 2017 WL 1399619, at *3 (E.D. La.
Apr. 19, 2017) (the Louisiana Wage Payment Statute states that an employee must
be paid…wages owed). He seeks to enforce an oral contract valued in excess of $500
without providing the testimony of witnesses and other corroborating evidence, as
required by Louisiana Civil Code art. 1846. Read v. Willwoods Cmty., 2014-1475 (La.
3/17/15), 165 So. 3d 883, 888. His detrimental reliance claim must fail because he
neglected to point to any interaction at all with Defendant. The evidence before the

 The Court has previously found that this testimony only pertained to the arrangement between WRS
and D&A. It did not address Plaintiff’s alleged employment relationship with D&A. (Doc. 106 at
p. 2 n.1).

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Court is conclusive. There simply is no genuine dispute of material fact with respect
to the claims against D&A.
IV.

CONCLUSION
Accordingly,
IT IS ORDERED that Defendant D&A Enterprises, Inc.’s Motion for

Summary Judgment (Doc. 158) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s claims against Defendant D&A
Enterprises, Inc. are DISMISSED.

Baton Rouge, Louisiana, this 2nd day of June, 2020

_____________________________________
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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