Butler et al v. Directsat USA, LLC et al

Filing 28

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/6/11. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JEFFRY BUTLER, et al.
:
v.

:

Civil Action No. DKC 10-2747

:
DIRECTSAT USA, LLC, et al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this Fair Labor
Standards Act case is the motion to dismiss filed by Defendants
DirectSat USA, LLC, UniTek USA, LLC, and UniTek Global Services,
Inc.

(ECF No. 19).

The issues are fully briefed and the court

now rules, no hearing deemed necessary.

Local Rule 105.6.

For

the reasons that follow, Defendants’ motion will be granted in
part and denied in part.
I.

Background
Plaintiffs Jeffry Butler and Charles N. Dorsey bring this

lawsuit, on behalf of themselves and others who were employed or
are

currently

production

employed

technicians,

by
or

Defendants
similar

as

service

positions,

Defendants failed to pay overtime wages.

technicians,

alleging

that

(ECF No. 1 ¶ 2).

their complaint, Plaintiffs allege the following.

In

Defendants

DirectSat USA, LLC, UniTek USA LLC, and UniTek Global Services,
Inc.

are

Pennsylvania

businesses
that

headquartered

install

and

or

service

incorporated
satellite

in

dishes

throughout

Maryland,

Virginia,

and

the

District

of

Columbia.

(Id. ¶¶ 19-21).
Plaintiffs

were

classified

by

Defendants

as

non-exempt

under federal and state wage and hour laws and paid an hourly
rate.

The

actual

rate

Plaintiffs

were

paid

varied

and

was

contingent on the number of jobs completed by each technician on
a weekly basis.

Plaintiffs allege that they were permitted, and

routinely required, to work in excess of forty hours per week
without overtime compensation.

(Id. ¶¶ 5-6).

Plaintiffs state

that Defendants trained and directed them to record less time
than

they

actually

(Id. ¶ 7).

worked

on

their

handwritten

time

sheets.

In addition, Plaintiffs worked without pay when

“receiving work orders at their homes, mapping out directions
for

their

jobs,

receiving

calls

from

dispatch,

preparing

satellite dishes, loading satellites and other equipment into
their vehicles, unloading the same materials from their vehicles
at the end of each day, participating in periodic inventories of
their equipment, maintaining their company vehicles, completing
paperwork regarding completed work orders, and attending weekly
meetings, amongst other things.”
Butler

worked

as

an

(Id. ¶ 8).

hourly-paid,

Plaintiff Jeffry

non-exempt

technician

for

Defendants in Maryland, Virginia, and the District of Columbia;
Plaintiff Charles Dorsey worked as an hourly-paid, non-exempt
service technician for Defendants in Maryland.

2

(Id. ¶¶ 15-16).

Plaintiffs filed their complaint on October 4, 2010.

In it

they seek to bring a Fair Labor Standards Act (“FLSA”) overtime
claim as a collective action pursuant to 29 U.S.C. § 216(b) and
state overtime and unpaid wage claims as class actions pursuant
to

Fed.R.Civ.P.

23.

(Id.

¶¶

13-14).

In

count

I

of

the

complaint, Plaintiffs allege that they were not paid for all
hours worked in excess of forty hours in a workweek in violation
of the maximum hours provision of FLSA, 29 U.S.C. § 207(a).
(Id. ¶¶ 42-50).

In count II, Plaintiffs allege violations of

the Maryland Wage and Hour Law, Md. Code Ann., Lab. & Empl. § 3401,

et

seq.

(“MWHL”).

In

count

III,

Plaintiffs

allege

violations of the Maryland Wage Payment and Collection Law, Md.
Code Ann., Lab. & Empl. § 3-501, et seq. (“MWPCL”).
count

IV

Plaintiffs

allege

violations

of

the

Finally, in
District

of

Columbia Minimum Wage Law, D.C. Code § 32-1001, et seq.
On

December

complaint.

17,

2010,

(ECF No. 19).

Defendants

moved

to

dismiss

the

Defendants contend that Plaintiff

Jeffry Butler’s claims must be dismissed pursuant to the first
to file rule because he has already opted-in to a collective
action pending in the Western District of Wisconsin that raises
the same claims against Defendants.

Defendants also argue that

the FLSA claims are inadequately pled, and the state law claims
are preempted and cannot be pursued in a Rule 23 class action
simultaneously

with

a

FLSA

collective

U.S.C. § 216(b).
3

action

pursuant

to

29

II.

Representative Plaintiff Jeffry Butler
Defendants first move to dismiss claims by Plaintiff Jeffry

Butler pursuant to the first-to-file rule.

Prior to initiating

this suit, he opted-in to a collective action pending in the
Western

District

of

Wisconsin

(ECF No. 19-1, at 12-13).

that

raises

similar

claims.

In response, Plaintiffs attached a

copy of the certificate of service Jeffry Butler’s voluntary
opt-out from the Wisconsin case (ECF No. 24-3) and argue that
Butler has now elected to proceed locally with his FLSA and
state law claims.
that

Butler’s

In their reply, however, Defendants argue

withdrawal

was

ineffective

because

he

did

obtain court approval as required by Fed.R.Civ.P. 41(a).

not
The

case in Wisconsin has now been decertified and the claims of all
opt-in

plaintiffs

were

dismissed

without

prejudice.

(ECF No. 27-1).
The first-to-file rule refers to the doctrine that when the
same party or parties have filed similar litigation in separate
federal fora, the matter that was filed first should proceed,
and the later-filed action should be stayed, transferred, or
enjoined.

See, e.g., Nutrition & Fitness, Inc. v. Blue Stuff,

Inc.,

F.Supp.2d

Renker
F.R.D.

264

Fitness,
264,

L.L.C.

269

Intercontinental

357,
v.

360

Icon

(C.D.Cal.
Florist,

(W.D.N.C.
Health

1998);

Inc.,

860

2003)
&

(citing

Guthy-

Fitness,

Inc.,

179

800-Flowers,

Inc.

v.

F.Supp.

128,

131-32

(S.D.N.Y. 1994); Hop-In Food Stores, Inc. v. S & D Coffee, Inc.,
4

642 F.Supp. 1106, 1107 (W.D.Va. 1986); Columbia Plaza Corp. v.
Sec.

Nat’l

deciding

Bank,

525

whether

F.2d
apply

to

620,

626

the

(D.C.Cir.

first-to-file

1975)).
rule,

In

courts

consider the chronology of filing, the similarity of the parties
involved,

and

Neuralstem,
(D.Md.

the

Inc.

2008)

similarity
v.

of

StemCells,

(noting

that

the

issues

Inc.,

573

first-to-file

at

stake.

F.Supp.2d
rule

Id.;

888,

should

900

not

be

District

of

Butler

had

disregarded lightly).
Here
Wisconsin

there

is

action

no

was

dispute
filed

that

first

the

or

Western

that

Jeffry

opted-in to that action prior to commencing this lawsuit.

(See

ECF No. 19-2, Jeffry Butler’s Consent to Join Collective Action
signed July 28, 2010).

The Defendants are the same in both

cases, and Jeffry Butler is a plaintiff in both cases.1
also

substantial

Defendants’
pursuant

to

overlap

service
FLSA

in

the

technicians
for

the

claims.

are

same

seeking

categories

In

There is

both

overtimes
of

cases,
wages

activities.

(Compare ECF No. 1 with Espenscheid v. DirectSat USA, LLC, No.
3:09-cv-00625-bbc, ECF No. 1 (W.D.Wis. filed October 13, 2009)).
Despite these facts, Butler argues that the court should not

1

Plaintiffs reference the Western District of Wisconsin
case in their complaint but failed to attach it as an exhibit.
(See ECF No. 1 ¶ 25; ECF No. 24 n. 5 (stating that “Plaintiffs
inadvertently failed to attach the opinions as exhibits to their
complaint and plan to rectify that omission in a future
pleading)). Nevertheless, the court may take judicial notice of
court records.
5

apply

the

first-to-file

rule

because

this

forum

is

more

convenient for all parties and because dismissing one plaintiff
will not relieve this court from its obligation to adjudicate
the

FLSA

and

state

(ECF No. 24, at 19).

law

claims

of

the

other

Plaintiffs.

Butler also notes that he has voluntarily

opted-out of the Wisconsin case and is electing to proceed with
his claims only in this court.

(Id. at 20).

If Jeffry Butler is no longer a plaintiff in the Wisconsin
case, the first-to-file rule is not inapplicable.

Defendants

point out, however, that Butler could not withdraw from the
Wisconsin
obtained

case
that

without

court

approval.

approval

(ECF

No.

and

25,

he

at

has

2-5).

not

yet

Opt-in

plaintiffs are considered party plaintiffs with the same status
as the named plaintiffs, see Pricket v. DeKalb Cnty., 349 F.3d
1294, 1297 (11th Cir. 2003), and as a result Defendants maintain
that Butler must comply with Fed.R.Civ.P. 41 in order to dismiss
his claims in the Wisconsin case.

In particular, Defendants

contend that because an answer had been filed in the Wisconsin
case and all parties did not submit a joint stipulation for
Butler’s dismissal, Butler could not opt-out without a court
order.

See Fed.R.Civ.P. 41(a)(1)(A).

Defendants’ argument had merit at the time it was filed.
Subsequently the Wisconsin class was decertified and all opt-in
plaintiffs,
prejudice.

including
The

first

Jeffry
to

Butler,

file
6

rule

were
no

dismissed
longer

without

operates

to

preclude Butler from participating in this case and he will not
be dismissed.

In addition, count IV alleging claims under the

District of Columbia Minimum Wage Law will not be dismissed on
the basis that no representative plaintiff could state such a
claim.
III. Failure to State a Claim
A.

Standard of Review

The purpose of a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6)

is

to

test

the

sufficiency

of

the

plaintiff’s

complaint.

See Edwards v. City of Goldsboro, 178 F.3d 231, 243

(4th

1999).

Cir.

Except

in

certain

specified

cases,

a

plaintiff’s complaint need only satisfy the “simplified pleading
standard” of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S.
506, 513 (2002), which requires a “short and plain statement of
the

claim

showing

Fed.R.Civ.P.
requires

a

that

the

8(a)(2).

is

Nevertheless,

‘showing,’

rather

entitlement to relief.”
544, 555 n.3 (2007).

pleader

than

a

entitled
“Rule

to

relief.”

8(a)(2)

blanket

still

assertion,

of

Bell Atl. Corp. v. Twombly, 550 U.S.

That showing must consist of more than “a

formulaic recitation of the elements of a cause of action” or
“naked

assertion[s]

Ashcroft

v.

Iqbal,

devoid

of

further

129

S.Ct.

1937,

factual
1949

enhancement.”

(2009)(internal

citations omitted).
In its determination, the court must consider all well-pled
allegations in a complaint as true, Albright v. Oliver, 510 U.S.
7

266, 268 (1994), and must construe all factual allegations in
the light most favorable to the plaintiff.

See Harrison v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999)(citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir.

1993)).

The

court

need

not,

however,

accept

unsupported legal allegations, Revene v. Charles County Comm’rs,
882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as
factual allegations, Iqbal, 129 S.Ct. at 1950, or conclusory
factual allegations devoid of any reference to actual events,
United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.
1979).

See

also

(4th Cir. 2009).

Francis

v.

Giacomelli,

588

F.3d

186,

193

“[W]here the well-pleaded facts do not permit

the court to infer more than the mere possibility of misconduct,
the complaint has alleged, but it has not ‘show[n] . . . that
the pleader is entitled to relief.’”
(quoting Fed.R.Civ.P. 8(a)(2)).

Iqbal, 129 S.Ct. at 1950

Thus, “[d]etermining whether a

complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.”
B.

Id.

FLSA claims

Defendants argue that Plaintiffs’ complaint fails to state
a

claim

standards

under

FLSA

set

forth

because
in

they

Iqbal

fail

and

to

meet

Twombly.

the

pleading

Specifically,

Defendants maintain that because Plaintiffs fail to allege any
facts concerning the number of hours worked in a given week in
8

excess of forty, their complaint is insufficient to state a
claim for overtime compensation.

(ECF No. 19-1, at 17-18).

Plaintiffs disagree and maintain that their “factual assertions
stretch far beyond the basic level necessary.”

(ECF No. 24,

at 5).
To assert a claim for overtime compensation pursuant to 29
U.S.C.

§

207,

“a

plaintiff

must

plead

(1)

that

he

worked

overtime hours without compensation; and (2) that the employer
knew or should have known that he worked overtime but failed to
compensate him for it.”

Hawkins v. Proctor Auto Serv. Ctr.,

No. RWT-09-1908,

1346416

(citing

Davis

1986)).2

v.

2010

WL

Food

Lion,

792

*1

(D.Md.

F.2d

1274,

Mar.
1276

30,
(4th

2010)
Cir.

In the wake of the Iqbal and Twombly decisions, courts

across the country have expressed differing views as to the
level of factual detail necessary to plead a claim for overtime
compensation under FLSA.

Many courts have held, as Defendants

argue, that a plaintiff should at a minimum allege approximately
the number of hours worked for which overtime wages were not
received.

See Anderson v. Blockbuster, Inc., No. 10-158, 2010

WL 1797249 *2-3 (E.D.Cal. May 4, 2010) (conclusory allegations
that plaintiffs consistently worked in excess of forty hours a

2

The analogous provisions of the MWHL are Md. Code Ann.,
Lab. & Empl. §§ 3-415 and 3-420.
The analogous provisions of
the D.C. Minimum Wage Law are D.C. Code §§ 32-1003(c) and 321012.
9

week

insufficient);

Solis

v.

Time

Warner

Cable

San

Antonio,

L.P., CA No. 10-231, 2010 WL 2756800 (W.D.Tex. July 13, 2010)
(denying motion to dismiss where plaintiffs alleged approximate
number

of

overtime

hours

worked

per

week);

Villegas

v.

J.P

Morgan Chase & Co., CA No. 09-261, 2009 WL 605833 *4-5 (N.D.Cal.
Mar. 9, 2009) (allegation that plaintiff “worked more than 40
hours in a work-week and more than 8 hours in a work day, thus
entitling

her

to

overtime

pay”

was

insufficient);

Jones

v.

Casey’s Gen. Stores, 538 F.Supp.2d 1094, 1102 (S.D.Iowa 2008)
(complaint

alleging

that

assistant

managers

were

not

paid

overtime, that the defendant “regularly and repeatedly” failed
to pay plaintiff for all hours actually worked, and that the
defendant failed to keep accurate time records to avoid paying
plaintiffs overtime wages was “implausible on its face”); Mell
v. GNC Corp., No. 10-945, 2010 WL 4668966 *8 (W.D.Pa. Nov. 9,
2010) (plaintiffs’ claim insufficient where they failed to even
“estimate the time period in which they worked without proper
overtime compensation”).

On the other hand, many courts have

found the basic allegation that plaintiff worked overtime more
than

forty

hours

in

a

week

and

did

not

receive

overtime

compensation to be sufficient, including another judge in this
district.

See

Hawkins,

Mainland

Nursery,

Inc.,

2010
CA

WL

No.

1346416

07-0229,

at
2007

*1);
WL

Uribe

v.

4356609

*3

(E.D.Cal. Dec. 11, 2007) (plaintiffs who alleged they were nonexempt employees who had not been compensated at the appropriate
10

overtime

rates

had

satisfied

Twombly);

Xavier

v.

Belfor

USA

Group, Inc., CA No. 06-491 et al., 2009 WL 411559 *5 (E.D.La.
Feb. 13, 2009) (plaintiffs’ allegations they routinely worked
more

than

forty

compensation,
state

a

hours

and

claim);

per

week,

were

covered

Qureshi

v.

were

not
were

employees

Panjwani,

paid

sufficient

No.

overtime

08-3154,

2009

to
WL

1631798 *3 (S.D.Tex. Jun. 9, 2009) (plaintiffs’ allegations that
“they

were

required

to

work

in

excess

of

a

forty-hour

week

without overtime compensation, and that they were employed by
the

defendants”

were

sufficient

to

state

a

claim

under

the

FLSA); see also Pruell v. Caritas Christi, CA No. 09-11466, 2010
WL 3789318 *3 (D.Mass. Sept. 27, 2010) (recognizing differing
approaches and noting that court need not decide whether more
stringent

pleading

was

required

because

plaintiffs

had

not

alleged they worked more than forty hours a week).
The more lenient approach is appropriate here.
be

little

benefit

to

dismissing

this

claim

and

There would
requiring

Plaintiffs to amend to provide an estimate of the number of the
overtime hours worked.

The existing complaint details the types

of work activities that occupied Plaintiffs’ alleged overtime
hours

and

provides

Defendants

with

sufficient

basis of the allegations to form a response.

notice

of

the

Thus, Plaintiffs

have stated a plausible claim for their entitlement to overtime
wages.

While

estimate

of

Defendants

the

overtime

might

appreciate

having

hours

worked

this

11

at

Plaintiffs’

stage

of

the

litigation, it would be subject to change during discovery and
if/when the size of the collective action grows and thus of
limited value.
violation

of

Accordingly, Plaintiffs have stated a claim for
FLSA’s

overtime

provision

and

the

overtime

provisions of the MWHL and the DCMWL.
Defendants
sufficient

also

facts

to

argue

that

support

(ECF No. 19-1, at 22).

Plaintiffs

their

have

willfulness

not

alleged

allegations.

Although not explicit in Defendants’

motion, the import of this argument is that FLSA extends the
statute of limitations for overtime compensation claims from two
years to three years for willful violations of the Act.

29

U.S.C. § 255(a); see also Desmond v. PNGI Charles Town Gaming,
LLC, 630 F.3d 351 (4th Cir. 2011).

To establish willfulness, the

plaintiff must show that “the employer either knew or showed
reckless disregard for the matter of whether its conduct was
prohibited by the statute.”

McLaughlin v. Richland Shoe Co.,

486 U.S. 128, 133 (1988).

Defendants argue that Plaintiffs’

willfulness allegations consist only of conclusory allegations
and legal conclusions and therefore are insufficient under Iqbal
and Twombly.
Here,

(ECF No. 19-1, at 22-23).
in

addition

to

the

Plaintiffs’

allegation

that

Defendants’ conduct was willful in paragraphs 47, 50, and 53 of
the complaint, Plaintiffs also alleged facts in support of this
allegation.

Specifically, Plaintiffs alleged that “Defendants

trained and directed their technicians to record less time than
12

they actually worked” (ECF No. 1 ¶ 7), “require[d] them to work
unpaid

time”

(id.

¶

8),

and

“willfully

encouraged

their

technicians to perform tasks and work additional time, including
overtime, while off-the-clock.”

(Id. ¶ 9).

Assuming the truth

of these allegations, Plaintiffs have stated a claim for willful
violation of FLSA’s overtime provisions.
C.

Maryland Wage Payment and Collection Law Claim

Defendants argue that the MWPCL count should be dismissed
because

the

MWPCL

only

applies

to

claims

that

focus

on

the

manner and timing of wage payment and does not apply to suits
that

focus

(ECF

No.

avenue

on

19-1,

for

Maryland

the
at

underlying
20).

asserting

law

is

entitlement

Defendants
entitlement

the

Maryland

overtime

contend

to

Wage

to

that

overtime

and

Hour

wages.

the

proper

wages

under

law,

uniformly

recognized as the state law counterpart to the FLSA.

(Id.).

support,

from

Defendants

cite

to

several

prior

cases

In
this

district recognizing the distinction between the MWHL and the
MWPCL, most notably McLaughlin v. Murphy, 372 F.Supp.2d 465,
474-75

(D.Md.

claims

are

2004),

limited

where
to

Judge

actions

Blake

explained

challenging

the

that

MWPCL

timing

or

mechanisms of wage payment and not actions seeking to establish
entitlement to payment.

(ECF No. 19-1, at 20-21).

Plaintiffs argue in response that courts in this district
have permitted MWPCL claims for unpaid overtime wages to proceed
along

side

FLSA

and

MWHL

claims,
13

citing

Hoffman

v.

First

Student, Inc., 2009 WL 1783536 at *9-10 (D.Md. June 23, 2009).
(ECF No. 24, at 9-10).

In addition, Plaintiffs maintain that

any prior lack of clarity regarding whether this type of claim
could

proceed

amendment

pursuant

during

the

to

the

MWPCL

2009-2010

was

eliminated

legislative

session

with

an

making

explicit that unpaid overtime wages were included in the MWPCL’s
definition of wages.

(Id. at 10-11 (citing Md. Code Ann. Lab.

& Empl. § 3-501(c)(iv)).
The MWPCL provides for treble damages for violations of
§ 3-5023 or § 3-505.4

3

Section 3-502 addresses the timing of wage

Md. Code. Ann., Lab.& Empl. § 3-502 provides:
(a)(1) Each employer:
(i) shall set regular pay periods; and
(ii) except as provided in paragraph (2) of
this subsection, shall pay each employee at
least once in every 2 weeks or twice in each
month.
(2) An employer may pay an administrative,
executive, or professional employee less
frequently than required under paragraph
(1)(ii) of this subsection.
(b) If the regular payday of an employee is
a nonworkday, an employer shall pay the
employee on the preceding workday.
(c) Each employer shall pay a wage:
(1) in United States currency; or
(2)
by
a
check
that,
on
demand,
is
convertible at face value into United States
currency.
14

(d)(1)
In
this
subsection,
includes a governmental unit.

“employer”

(2) An employer may not print or cause to be
printed an employee’s Social Security number
on the employee’s wage payment check, an
attachment to an employee’s wage payment
check, a notice of direct deposit of an
employee’s wage, or a notice of credit of an
employee’s wage to a debit card or card
account.
(e) This section does not prohibit the:
(1) direct deposit of the wage of an
employee into a personal bank account of the
employee in accordance with an authorization
of the employee; or
(2) credit
debit card
employee is
withdrawal,

of the wage of an employee to a
or card account from which the
able to access the funds through
purchase, or transfer if:

(i) authorized by the employee; and
(ii) any fees applicable to the debit card
or card account are disclosed to the
employee in writing in at least 12 point
font.
4

§ 3-505 provides:
Payment on cessation of employment:
(a) Except as provided in subsection (b) of
this section, each employer shall pay an
employee or the authorized representative of
an employee all wages due for work that the
employee performed before the termination of
employment, on or before the day on which
the employee would have been paid the wages
if the employment had not been terminated.
(b) An employer is not required
accrued leave to an employee if:
15

to

pay

payments and Section 3-505 addresses the payment of wages upon
termination

of

employment.

The

MWPCL

does

not

specifically

address payment of overtime wages or provide a cause of action
directed

at

employer’s

failure

to

pay

overtime.

For

these

actions, plaintiffs must look to the MWHL, Md. Code Ann., Lab.
& Empl. §§ 3-415 and 3-420.

Accordingly, other judges in this

district have rejected plaintiffs’ attempts to state claims for
violation

of

the

MWPCL

where

the

parties’

core

dispute

is

whether plaintiffs were entitled to overtime wages at all and
not whether overtime wages were paid on a regular basis or upon
termination.
v.

Md.

See McLaughlin, 372 F.Supp.2d at 474-75; Williams

Office

Relocators,

485

F.Supp.2d

616,

621-22 (D.Md.

2007); Tucker v. Sys. Specialist Furniture Installation, Inc.,
No. JFM-07-1357, 2007 WL 2815985 *1 (D.Md. Sept. 26, 2007);
Watkins v. Brown, 173 F.Supp.2d 409, 416 (D.Md. 2001); Fisher v.
Rite Aid Corp., No. 09-1909, 2010 WL 2332101 *2 (D.Md. June 8,
2010).

(1) the employer has a written policy that
limits the compensation of accrued leave to
employees;
(2) the employer notified the employee of
the employer’s leave benefits in accordance
with § 3-504(a)(1) of this subtitle; and
(3) the employee is not entitled to payment
for accrued leave at termination under the
terms of the employer’s written policy.
16

The

focus

of

Plaintiffs’

allegations

is

that

Defendants

withheld overtime wages to which they were entitled.

Plaintiffs

do not allege that Defendants failed to pay them on a regular
basis or that they were not paid upon termination.

Aside from

the vague statement that “Plaintiffs are individuals who were
employed or are currently employed by Defendants,” (ECF No. 1
¶ 2), Plaintiffs’ complaint does not even reference termination,
and there is no allegation that either of the representative
Plaintiffs has been terminated.

On these facts, Plaintiffs have

not stated a claim for violation of the MWPCL.

Moreover, these

facts are readily distinguishable from the two cases upon which
Defendants primarily rely, Reed v. Code 3 Sec. & Prot. Servs.,
Inc., No. AW-09-1162, 2009 WL 5177283, (D.Md. Dec. 18, 2009) and
Hoffman v. First Student, Inc., No. AMD-06-1882, 2009 WL 1783536
(D.Md. June 23, 2009).
limited

to

termination.

those

In Reed, the MWPCL claim was expressly

plaintiffs

seeking

wages

Reed, 2009 WL 5177283 at *4.

withheld

upon

In Hoffman, the

plaintiffs’ MWPCL claims were not based on defendant’s failure
to

pay

overtime

wages

and

the

parties

did

not

dispute

the

plaintiffs’ entitlement to compensation for the hours worked.
Hoffman, 2090 WL 1783536 at *9-10.

Instead, the dispute in

Hoffman was “whether defendant has ‘withheld’ or ‘failed to pay
timely’ wages due to plaintiffs.”

Id.

Here the dispute is

whether Plaintiffs are entitled to overtime wages; because that

17

claim does not fall within the scope of the MWPCL, count III
will be dismissed.
IV.

Preemption of State Law Claims
Defendants also argue that Plaintiffs’ state law claims are

preempted

by

FLSA

and

should

be

dismissed

on

that

basis.

(ECF No. 19, at 25-28).

Defendants are correct in noting that

courts

state

Where

have
a

mechanism

found

some

state

statutory

for

enforcement,

law

regime

claims

preempted

creates

however,

even

both
if

a

by

FLSA.

right

parallel

to

and
the

rights and remedies established in FLSA, state law claims are
not preempted.
As Plaintiffs note, FLSA contains a “saving clause”, 29
U.S.C. § 218(a), that permits states or municipalities to enact
laws that provide additional protections for employees beyond
the minimum requirements established by FLSA.
Merch.

Shipping

Ass’n

v.

Aubry,

918

F.2d

See, e.g., Pac.
1409,

1418,

1425

(9th Cir. 1990) (“[T]he purpose behind the FLSA is to establish a
national

floor

under

which

wage

protections

cannot

drop.”).

While the Fourth Circuit has not directly addressed the question
of whether FLSA preempts state statutory regulation of overtime
wages, courts in this district and other circuits have addressed
the issue and have held that it does not.
First

Student,

Inc.,

No.

AMD-06-1882,

See, e.g., Hoffman v.
2009

WL

1783536

*8-9

(D.Md. June 23, 2009); Overnite Transp. Co. v. Tianti, 926 F.2d
220, 222 (2d Cir.) (“every Circuit that has considered the issue
18

has reached the same conclusion-state overtime wage law is not
preempted
(1991);

by

.

.

.

the

FLSA”),

cert.

denied,

502

U.S.

856

Agsalud v. Pony Express Courier Corp., 833 F.2d 809

(9th Cir. 1987); Williams v. W.M.A. Transit Co., 472 F.2d 1258
(D.C.Cir. 1972).
The cases relied on by Defendants are distinguishable in
that they involved FLSA’s preemption of state common law claims,
see Anderson v. Sara Lee Corp., 508 F.3d 181, 191 (4th Cir. 2007)
(dismissing North Carolina common law claims as preempted by
FLSA); Petras v. Johnson, No. 92 Civ. 8298, 1993 WL 228014 *2
(S.D.N.Y.
claims

June

for

22,

same

1993)

conduct

(dismissing
that

state

constituted

common
FLSA

law

tort

violation);

Nimmons v. RBC Ins. Holdings (USA) Inc., No. 6:07-cv-2637, 2007
WL 4571179 (D.S.C. Dec. 27, 2007) (dismissing state common law
claims for breach of contract and wrongful retention of overtime
pay as preempted by FLSA)5; plaintiffs attempting to invoke state
law remedies for violation of rights conferred by FLSA, see Wood
v. TriVita, Inc., No. CV-08-0765-PHX-SRB, 2008 WL 6566637 *3-4

5

The cases cited in Defendants’ footnote 6 are also
examples where state common law tort claims were preempted. See
Lopez v. Flight Servs. & Sys. Inc., No. 07-6186, 2008 WL 203028,
*7 (W.D.N.Y. Jan 23, 2008); Chen v. St. Beat Sportswear, Inc.,
364
F.Supp.2d
269,
292-93
(E.D.N.Y.
2005);
Flores
v.
Albertson’s, Inc., No. 01-0515, 2003 WL 24216269 *5 (C.D.Cal.
Dec. 9, 2003): Alexander v. Vesta Ins. Grp., Inc., 147 F.Supp.2d
1223, 1240-41 (N.D.Ala. 2001); Tombrello v. USX Corp., 763
F.Supp. 541, 545 (N.D.Ala. 1991); Moeck v. Gray Supply Corp.,
No. 03-1950, 2006 WL 42368 *2 (D.N.J. Jan. 6, 2006); Johnston v.
Davis Sec., Inc., 217 F.Supp.2d 1224, 1227-28 (D.Utah 2002).
19

(D.Ariz. 2008) (precluding plaintiff from seeking a remedy under
Arizona state law for overtimes wages guaranteed by FLSA but not
guaranteed by a parallel Arizona state law provision); or where
plaintiffs are attempting to seek double recovery, once under
FLSA and again under state law, for the same injury.

See Foman

v. Maietta Constr. Inc., 147 F.3d 71, 76 (1st Cir. 1998) (holding
that because plaintiff received compensation under the FLSA for
his

claims

he

could

not

recover

again

under

Maine

law);

Martinez-Hernandez v. Butterball, LLC, 578 F.Supp.2d 816, 819
(E.D.N.C.

2008)

compensation
permitting

(prohibiting

under

state

law

recovery

under

plaintiffs
for

state

from

violations

law

for

of

violations

claiming
FLSA
of

but
state

law).6
Here the Maryland code provisions both create a right and a
means of enforcing that right that provides additional remedies
not available under FLSA, such as attorney’s fees, interest,
costs and “any other relief deemed appropriate by the court.”
Hoffman, 2009 WL 1783536 at *9.

While courts have held that

state

available

laws

violations,

cannot
there

is

enlarge
nothing

the
in

FLSA

remedy

preventing

for

FLSA

states

from

creating a parallel regulatory scheme that provides additional

6

One additional case cited by
of Chesapeake, Va, 174 F.3d 437
plaintiffs’ attempt to use another
§ 1983, to enforce their rights to
FLSA.
This ruling has no bearing
preemption of state law.
20

Defendants, Kendall v. City
(4th Cir. 1999), involved
federal statute, 42 U.S.C.
overtime compensation under
on the question of FLSA’s

protections for employees.

Ultimately Plaintiffs will not be

able to recover twice for the same injury, but they may be
entitled to the additional types of relief afforded by the MWHL.
Accordingly, count II, asserting a claim for violation of the
MWHL, will not be dismissed on the basis of federal preemption.
V.

Class Action Pursuant to Fed.R.Civ.P. 23
Defendants

next

argue

that

FLSA’s

collective

action

provision, 29 U.S.C. § 216(b), precludes Plaintiffs from raising
their

state

law

Fed.R.Civ.P. 23.

claims

in

a

class

(ECF No. 19, at 29).

action

pursuant

to

Defendants argue that

the opt-out nature of a Rule 23 class action irreconcilably
conflicts

with

the

opt-in

requirement

for

FLSA

collective

actions and that permitting both causes of action to proceed
simultaneously would run directly counter to Congress’ intent in
enacting § 216(b).

(Id. at 29-33).

Defendants further contend

that permitting Plaintiffs to proceed with their state law class
action claims would violate the Rules Enabling Act, 28 U.S.C.
§ 2072(b), because the application of Fed.R.Civ.P. 23 in these
circumstances would have the effect of “abridging, enlarging, or
modifying a substantive right.”

(Id. at 33).7

7

As Defendants note in footnote 9 of their memorandum in
support of the motion to dismiss, the District of Columbia
Minimum Wage Law provides for an opt-in collective action
analogous to those authorized by the FLSA.
(ECF No. 19 n.9
(citing D.C. Code § 32-1012)). D.C. Code § 32-1012(b) provides:
21

Plaintiffs
action

counts

argue
are

in

not

response

that

incompatible

with

their
a

Rule

23

collective

class
action

under FLSA and cite a number of district court opinions from
this

circuit

allowing

simultaneously.

both

types

of

claims

to

proceed

(ECF No. 24, at 15 (citing Carver v. Velocity

Express Corp., No. 1:07cv407, 2008 WL 1766629 *1 (W.D.N.C. Apr.
14, 2008); Beltran-Benitez v. Sea Safari, Ltd., 180 F.Supp.2d
772, 774 (E.D.N.C. 2001); Westfall v. Kendle Intern., CPU, LLC,
No.

1:05-cv-00118,

2007

WL

486606

(N.D.W.Va.

2007)).

In

response to Defendants’ Rules Enabling Act argument, Plaintiffs
maintain that FLSA’s collective action opt-in procedure confers
procedural

and

not

substantive

rights

and

thus

is

not

implicated.
A.
Compatibility of Fed.R.Civ.P. 23 and 29 U.S.C.
§ 216(b)
Pursuant

to

29

U.S.C.

permitted under FLSA.
FLSA

claims

on

behalf

§ 216(b),

collective

actions

are

Plaintiffs may invoke § 216(b) to raise
of

similarly

situated

employees,

Action to recover damages sued for under
this subchapter may be maintained in any
court of competent jurisdiction in the
District of Columbia by any 1 or more
employees for and on behalf of the employee
and
other
employees
who
are
similarly
situated.
No employee shall be a party
plaintiff to any action brought under this
subchapter unless the employee gives written
consent to become a party and the written
consent is filed in the court in which the
action is brought.
22

but

unnamed

plaintiffs

must

affirmatively

opt-in

approved form in order to join the case.

using

a

court

Id. (“no employee

shall be a party plaintiff to any such action unless he gives
his consent in writing to become such a party and such consent
is filed in court in which such action is brought”); see also
Hoffman-LaRoche v. Sperling, 493 U.S. 165, 173 (1989).

Congress

added the opt-in requirement for collective actions under FLSA
in the Portal-to-Portal Act of 1947, “in part responding to
excessive litigation spawned by plaintiffs lacking a personal
interest in the outcome,” Hoffman-LaRoche, 493 U.S. at 173, and
to free employers of the burdens of representative actions.

Id.

In contrast, in class actions pursuant to Fed.R.Civ.P. 23(b)(3),
plaintiffs must affirmatively opt-out in order to be excluded
from the class and not bound by the court’s decisions.
Defendants argue that because of this difference allowing
class actions to proceed simultaneously with § 216(b) collective
actions

would

nullify

irreconcilable conflict.

Congress’

intent

and

create

(ECF No. 19-1, at 23-24).

an

Defendants

explain:

“individuals who affirmatively choose not to opt in to

the

action

FLSA

will

nevertheless

be

included

in

a

Rule

23

action that will adjudicate factual and legal issues relevant to
(and dispositive of) the unasserted FLSA claims.”
at

17).

Additionally,

Defendants

argue

that

(ECF No. 25,
the

“conflict

obstructs the protections of § 216(b) and, consequently, serves
to preempt a Rule 23 class action.”
23

(Id.).

District
incompatibility
consensus

has

courts
have

that

have

reached

emerged.8

The

considered

different
Fourth

this

potential

conclusions

Circuit,

and

and

most

no

other

8

Although not an exhaustive list, in the following cases
district courts have prevented plaintiffs from maintaining FLSA
collective actions alongside state law based Rule 23 class
actions.
See, e.g., Ellis v. Edward D. Jones & Co., L.P., 527
F.Supp. 2d 439, 452 (W.D.Pa. 2007); De Luna-Guerrero v. N.C.
Grower’s
Ass’n,
Inc.,
338
F.Supp.2d
649,
653
(E.D.N.C.
2004)(declining to exercise supplemental jurisdiction over state
law
based
Rule
23
class
actions);
Burkhart-Deal
v.
Citifinancial, Inc., No. 7-1747, 2008 WL 2357735 (W.D.Pa. June
5, 2008)(relying on Ellis court’s analysis).
A number of the other cases cited by Defendants in support
of their position are no longer good law.
The decisions from
the Northern District of Illinois were overruled in effect by
the Seventh Circuit’s decision in Ervin v. OS Rest. Servs.,
Inc., 632 F.3d 971, 977 (7th Cir. 2011). See Riddle v Nat’l Sec.
Agency, Inc., No. 05-5880, 2007 WL 2746597, (N.D.Ill. Sept. 13,
2007) and McClain v. Leona’s Pizzeria, Inc., 222 F.R.D. 574, 577
(N.D.Ill. 2004). Similarly, the decisions in Rose v. Wildflower
Bread Co. and Daprizio v. Harrah’s Las Vegas, Inc., were both
vacated on motions for reconsideration.
Rose v. Wildflower
Bread Co., No. 09-1348, 2010 WL 1781011 (D.Ariz. May 4, 2010),
vacated by 2011 WL 196842 (D.Ariz. Jan. 20, 2011); Daprizio v.
Harrah’s Las Vegas, Inc., No. 2:10-cv-00604-GMN-RJJ, 2010 WL
3259920 (D.Nev. Aug. 17, 2010), vacated by 2010 WL 5099666 *3
(D.Nev. Dec. 7, 2010).
In the following cases, courts have ruled that Rule 23
class actions and § 216(b) collective actions are not
incompatible.
Rose v. Wildflower Bread Co., No. 09-1348, 2011
WL 196842 (D.Ariz. Jan. 20, 2011); Beltran-Benitez v. Sea
Safari, Ltd., 180 F.Supp.2d 772, 774 (E.D.N.C. 2001); Gardner v.
W. Beef Props., Inc., No. 07-cv-2345, 2008 WL 2446681 *2
(E.D.N.Y. June 17, 2008); Bouaphakeo v. Tyson Foods, Inc., 564
F.Supp.2d 870, 888 (N.D.Iowa 2008); Hickton v. Enterprise RentA-Car Co., No. 07-1687, 2008 WL 4279818 *7 (W.D.Pa. Sept. 12,
2008)(“the court at this juncture only holds that the FLSA
collective action and the Rule 23 PMWA class action are properly
pled together on the face of the complaint, and to the extent
that jurisdiction over the Rule 23 claim is based on original
jurisdiction under CAFA, the court cannot dismiss that claim.”).
24

circuits, have not directly addressed this issue.

The Seventh

Circuit recently considered the question, however, and held that
an action could combine a Rule 23 class action and § 216(b)
collective action and remain consistent with the regime Congress
established in the FLSA.

See Ervin v. OS Rest. Servs., Inc.,

632 F.3d 971, 977 (7th Cir. 2011).

The Seventh Circuit firmly

rejected

that

the

defendant’s

argument

there

was

a

tension

between permitting a plaintiff who ends up a part of the Rule 23
class

by

parties

her
should

own
not

inaction
be

and

allowed

the
to

idea
take

that

disinterested

advantage

explaining:
. . . such a plaintiff is doing no such
thing. She will not be entitled to a single
FLSA remedy, because she is not part of the
FLSA litigating group.
The most that one
can say is that her state claim has found
its way into federal court under the court’s
supplemental jurisdiction. But that is a
complaint that could be brought in almost
every claim that rests on section 1367
jurisdiction. In the case before us, the
Rule
23(b)(3)
class
and
the
federal
collective action are each comprised of a
set of employees asserting injuries under
either state or federal law. Should either
or both groups prevail on the merits, each
group member will receive only the relief
that is prescribed under the law governing
her part of the case. Some may be part of
both the FLSA group and the Rule 23 class;
some may be in one but not the other.
We
conclude that there is nothing in the FLSA
that forecloses these possibilities.

25

of

FLSA,

The Ervin decision persuasively illustrates that a collective
action under FLSA can be accompanied by a Rule 23 class action
asserting state law based claims.
Defendants

also

fail

to

set

forth

a

viable

procedural

justification for the dismissal of Plaintiffs’ claims in the
event there was an irreconcilable conflict.

Plaintiffs have

alleged that this court has original jurisdiction over these
claims pursuant to the Class Action Fairness Act, codified at 28
U.S.C. § 1332(d)(2); they are not before the court pursuant to
supplemental
decline

to

jurisdiction.
exercise

Accordingly,

supplemental

the

jurisdiction

court

cannot

pursuant

U.S.C. § 1367 and thereby dismiss the claims.

to

28

Defendants also

argue that § 216(b) preempts the Rule 23 class actions, but they
do

not

offer

any

support

for

their

preemption is applicable in this case.

theory

that

conflict

Courts invoke preemption

to ensure the supremacy of federal law over conflicting state
law; the doctrine is not applicable to alleged conflicts between
federal statutes and federal rules.
B.

Rules Enabling Act

The Rules Enabling Act, 28 U.S.C. § 2072, (“REA”) dictates
that rules of practice or procedure “shall not abridge, enlarge
or modify any substantive right”.

Defendants argue that the

application of Rule 23 alongside § 216(b) of FLSA would violate
the

REA

confer

because

substantive

FLSA’s

opt-in

rights.

(ECF
26

collective
No.

19-1,

action
at

provisions

34-35).

The

substantive
§ 216(b)

rights

protects

that

Defendants

employees

from

identify

unknowing

are:

(1)

involvement

that
in

an

FLSA collective action and (2) that § 216(b) places a strict
limitation on employer lawsuits, thereby reducing the number and
size of FLSA lawsuits that an employer must face.

(ECF No. 19-

1, at 34)(citing Ellis, 527 F.Supp.2d at 458, n.8).
disagree

with

this

characterization

and

argue

Plaintiffs
that

FLSA’s

collective action provisions, just like Fed.R.Civ.P. 23’s class
action

provisions,

are

procedural

in

nature.

(ECF

No.

24,

at 17-18).
Yet again there is little guidance from the circuit courts
and the district courts that have considered this issue are
divided.

As Defendants note, some courts have deemed § 216(b)’s

collective action provision to be substantive and thus found
that

simultaneous

application

of

Fed.R.Civ.P.

23(b)(3)

violate the REA.

See Ellis, 527 F.Supp.2d at 458.

have

that

having

not

abridge,

determined

plaintiffs
conferred

does
by

FLSA.

See

a

state

enlarge

Damassia

v.

would

Other courts

law

class

of

opt-out

or

modify

the

rights

Duane

Reade,

Inc.,

250

F.R.D. 152, 164 (S.D.N.Y. 2008); Cohen v. Gerson Lehman Group,
Inc., 686 F.Supp.2d 317, n.2 (S.D.N.Y. 2010); Lindsay v. Gov’t
Emp.

Ins.

Co.,

448

F.3d

416,

424-225

(D.C.Cir.

2006);

Bouaphekeo, 564 F.Supp.2d at 886; Osby v. Citigroup, Inc., 2008
WL 2074102 at *4 (W.D.Mo. May 14, 2008); Lehman v. Legg Mason,
Inc.,

532

F.Supp.2d

726

(M.D.Pa.
27

2007)

(recognizing

that

differences between a collective action under FLSA and a state
law class action under Rule 23 are procedural).
Again Plaintiffs’ position is more persuasive.

It makes

little sense to classify the opt-out requirement in Fed.R.Civ.P.
23

as

procedural

substantive.
collective

but

the

opt-in

requirement

of

FLSA

as

And even if the right to participate in an FLSA
action

were

substantive,

Plaintiffs

have

not

established that the right would be modified or abridged in any
way

by

permitting

simultaneously.

a

state

law

opt-out

class

to

proceed

On this point, the decision of Judge Crabb in

the pending case involving Defendants in the Western District of
Wisconsin is instructive:
the right conferred on an employee by the §
216(b) opt-in requirement is the right not
to “be a party plaintiff to [an FLSA
collective] action unless he gives his
consent in writing to become such a party.”
29 U.S.C. § 216(b). The certification of a
Rule 23 class does not affect an employee’s
ability to opt in or not to an FLSA
collective action. Thus, such certification
does not “abridge, enlarge or modify” the
rights conferred by the FLSA, whether those
rights
are
substantive
or
procedural.
Damassia, 250 F.R.D. at 164; see also Guzman
[v. VLM], 2008 WL 597186, at *10 [E.D.N.Y.
Mar. 2, 2008)](rejecting argument that Rules
Enabling Act precludes class action for
state law wage claim); Klein [v. Ryan Beck
Holdings, Inc.,], 2007 WL 2059828, at *6
[S.D.N.Y. July 20, 2007)](same). Similarly,
the right conferred on an employer by the
opt-in requirement is not the expansive
right
to
be
free
of
the
burden
of
representative
actions
generally,
but
rather, the right to be free of the burden
of representative actions specifically for
28

violations of the FLSA. Klein[,] 2007 WL
2059828, at *6 (“The FLSA guarantees merely
that all collective actions brought pursuant
to it be affirmatively opted into. It does
not guarantee that employers will never face
traditional class actions pursuant to state
employment law.”) (emphasis in original). By
its own terms, the FLSA opt-in requirement
does not confer rights on employers of
employees with respect to the manner of
litigation
of
state
law
wage
claims.
Accordingly, the Rules Enabling Act presents
no barrier to proceeding with both claims in
this action.
Espenscheid

v.

DirectSat

USA,

LLC,

708

F.Supp.2d

781,

793

(W.D.Wis. 2010).
For these reasons, Plaintiffs’ collective and class actions
claims are not incompatible.
requirements

for

Plaintiffs must still meet the

collective

action

and

class

action

certification when the time comes and at that time the court
will

again

face

the

challenges

inherent

in

maintaining

both

collective and class actions in one suit.
VI.

Conclusion
For the foregoing reasons, Defendants’ motion to dismiss

will be granted in part and denied in part.

A separate Order

will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge

29