White et al v. 14051 Manchester, Inc. et al

Filing 40

MEMORANDUM AND ORDER re: 34 IT IS HEREBY ORDERED that Motion to Dismiss First Amended Complaint or, in the Alternative, Motion for More Definite Statement (ECF No. 34 ) is DENIED. Signed by Honorable John A. Ross on 6/11/12. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THELMA WHITE, et al.,
Plaintiffs,
vs.
14051 MANCHESTER, INC. d/b/a
HOTSHOTS SPORTS BAR & GRILL, et al.,
Defendants.

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Case No. 4:12CV469 JAR

MEMORANDUM AND ORDER
This matter is before the Court on the Motion to Dismiss First Amended Complaint or, in
the Alternative, Motion for More Definite Statement (“Motion”; ECF No. 34). This matter is fully
briefed and ready for disposition.
BACKGROUND
Plaintiffs Thelma White and Nicole Carroll (“Plaintiffs”) are former servers and bartenders
at HotShots Sports Bar & Grill (“HotShots”) and purport to represent similarly situated HotShots
employees. (First Amended Complaint (“FAC”), ECF No. 32, ¶¶6-7). Plaintiffs assert that
Defendants violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§201, et seq., and the
Missouri Minimum Wage Law (“MMWL”), Mo.Rev.Stat. §290.5271 by paying these employees
less than the minimum wage. The FLSA and MMWL permit employers to pay less than the full
hourly wage to tipped employees under a “tip credit.” (Id., ¶23). The “tip credit” allows restaurants
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Section 290.527 provides that “Any employer who pays any employee less wages than the
wages to which the employee is entitled under or by virtue of sections 290.500 to 290.530 shall be
liable to the employee affected for the full amount of the wage rate and an additional equal amount
as liquidated damages, less any amount actually paid to the employee by the employer and for costs
and such reasonable attorney fees as may be allowed by the court or jury. The employee may bring
any legal action necessary to collect the claim. Any agreement between the employee and the
employer to work for less than the wage rate shall be no defense to the action. All actions for the
collection of any deficiency in wages shall be commenced within two years of the accrual of the
cause of action.”

to take a credit against the minimum wage for employee tips. (Id.). To qualify for the tip credit,
restaurants must adhere to certain restrictions, including allowing employees to retain all of their
tips. (Id., ¶24). As an exception to that requirement, employees can participate in a “tip pool”
whereby employees who receive tips directly from customers can pool their tips with other
“customarily and regularly” tipped employees. (Id., ¶¶25-27). Plaintiffs assert that Defendants
required participation in a tip pool. (Id., ¶28). Plaintiffs also allege that the HotShots tip pool
required that Plaintiffs and other similarly situated servers and bartenders share their tips with the
“back of the house” employees who are not “customarily and regularly” tipped, such as cooks and
dishwashers. (Id., ¶¶27-28). Plaintiffs contend that Defendants’ misuse of tips and the requirement
that they share their tips with non-tipped employees invalidates HotShots’ tip pool and nullifies
Defendants’ entitlement to claim a tip credit against the minimum wage. (Id., ¶29).
DISCUSSION
I.

STANDARD OF REVIEW
In ruling on a motion to dismiss, the Court must view the allegations in the Complaint

liberally in the light most favorable to Plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th
Cir. 2008) (citing Luney v. SGS Auto Servs., 432 F.3d 866, 867 (8th Cir. 2005)). Additionally, the
Court “must accept the allegations contained in the complaint as true and draw all reasonable
inferences in favor of the nonmoving party.” Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005)
(citation omitted). To survive a motion to dismiss, a complaint must contain “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(abrogating the “no set of facts” standard for Fed. R. Civ. P. 12(b)(6) found in Conley v. Gibson,
355 U.S. 41, 45–46 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement
to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of
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a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must allege facts, which,
when taken as true, raise more than a speculative right to relief. Benton v. Merrill Lynch & Co., 524
F.3d 866, 870 (8th Cir. 2008)(citation omitted).
With respect to a motion for more definite statement under Fed. R. Civ. P. 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.” When a
“pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can
move for a more definite under Rule 12(e) before responding.” McCoy v. St. Louis Pub. Schs, No.
4:11CV918, 2011 U.S. Dist. LEXIS 118287, at *5 (E.D. Mo. Oct. 13, 2011) (quoting Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002)). A motion for more
definite statement is proper when a party is unable to determine issues he must meet, or where there
is a major ambiguity or omission in the complaint that renders it unanswerable. Tinder v. Lewis
County Nursing Home Dist., 207 F. Supp. 2d 951, 959 (E.D. Mo. 2001)(internal citations omitted).
II.

ANALYSIS
At issue in this case is whether Plaintiffs have alleged an employment relationship with

respect to all of the Defendants under the FLSA and the MMWL. Under the FLSA and the MMWL,
an “employer” is “any person acting directly or indirectly in the interest of an employer.” 29 U.S.C.
§203(d); Mo.Rev.Stat. §290.500(4).1
In their Motion, Defendants assert that Plaintiffs do not allege properly that, or which,
Defendants were Plaintiffs’ employer(s). Defendants note that the HotShots restaurants are all
separate legal entities and that Plaintiffs have not identified the specific restaurant(s) for which they

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The full definition of “employer” under the FLSA “includes any person acting directly or
indirectly in the interest of an employer in relation to an employee and includes a public agency, but
does not include any labor organization (other than when acting as an employer) or anyone acting
in the capacity of officer or agent of such labor organization.” 29 U.S.C. §203(d).
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worked. Defendants contend that, under Plaintiffs’ general and conclusory allegation that they were
employed by HotShots, it is impossible to know what specific entity or entities employed Plaintiffs.
(Memorandum in Support of Motion to Dismiss First Amended Complaint or, in the Alternative,
Motion for More Definite Statement (“Memorandum”), ECF No. 35, p. 4). In addition, Defendants
assert that Plaintiffs have not alleged that they were employed by Daniel and Julie Volmert . (Id.,
pp. 8-9). Defendants claim that Plaintiff’s allegations that the Volmerts were owners, members
and/or officers of HotShots is merely a “multi-faceted guess” and does not rise above the level of
speculation. (Id.).
Defendants primarily rely on Loyd v. Ace Logistics, LLC. In Loyd, the district court
outlined the “four factors used to determine whether an entity may be held to be a joint employer
under the FLSA”, which are “whether the alleged employer: (1) had the power to hire and fire the
plaintiff; (2) supervised and controlled plaintiff’s work schedules or conditions of employment: (3)
determined the rate and method of payment; and (4) maintained plaintiff's employment records.”
Loyd v. Ace Logistics, LLC, No. 08-CV-00188-W-HFS, 2008 U.S. Dist. LEXIS 100633, at *10-11
(W.D. Mo. Dec. 12, 2008)(citing Schubert v. Bethesda Health Group, Inc., 319 F. Supp. 2d 963, 971
(E.D. Mo. 2004)); see also Arnold v. DirecTV, Inc., No. 4:10CV00352, 2011 U.S. Dist. LEXIS
22843, at *17 (E.D. Mo. Mar. 7, 2011).1 In that case, the plaintiff alleged FLSA violations against
Ace Nextday, its parent company, Ace Logistics, and TSL, a professional employee leasing
company. Pursuant to an agreement with Ace Nextday, TSL furnished personnel and handled the
payroll and worker’s compensation insurance for such personnel.

The plaintiff asserted that the

defendants were all joint employers. See Loyd, 2008 U.S. Dist. LEXIS 100633, at *11. The district
court held that plaintiff’s allegations that defendants TSL and Ace Logistics were her employers

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Judge Fleissig noted in Arnold v. Direct TV that Loyd “is not controlling on this Court.”
Arnold, 2011 U.S. Dist. LEXIS 22843, at *19.
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within the meaning of the FLSA were insufficient. Id., at *12.3 The plaintiff did not allege who
hired or fired her, controlled her work schedule or conditions of employment or maintained
employment records. Id.
In response, Plaintiffs assert that they have properly alleged a joint employment relationship
with all of the HotShots locations. (Plaintiffs’ Memorandum in Opposition to Defendants’ Motion
to Dismiss First Amended Complaint or, in the Alternative, Motion for More Definite Statement
(“Response”), ECF No. 26, pp. 5-10). Specifically, Plaintiffs allege that they worked for HotShots
at various HotShots locations based upon an employee-sharing arrangement between the various
entities. (FAC, ¶¶17-19). Likewise, Plaintiffs allege that the Volmerts were employers of Plaintiffs
because they are owners, members, and/or officers of HotShots who manage and direct all of the
HotShots locations. (Id., ¶¶17-18). The Volmerts also maintain control over the day-to-day
functions of the stores, maintain control over the the corporate defendants’ pay practices, and have
authority to hire and fire employees who work at the various HotShots locations. (Id.).
Plaintiffs also differentiate the Loyd case. In that case, the plaintiff did not allege which
entity hired, fired and paid them. Here, Plaintiffs assert that they have alleged a joint employment
relationship whereby HotShots locations shared employees and the Volmerts control the hiring,
firing and pay practices for all locations. (Response, p. 7). Plaintiffs also contrast Loyd because,
in that case, TSL and Ace Logistics disputed plaintiff Loyd’s employment status based upon a
business agreement regarding the leasing of employees. That is, Loyd involved a dispute over
whether the plaintiff, an employee of Ace Nextday, also could be an employee of the employee
leasing agency (TSL) or the parent company of business to which Ace Nextday reported (Ace
Logistics). In contrast, Plaintiffs contend that they have alleged an enterprise relationship whereby

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The claim against Ace Nextday was not dismissed because it conceded that it employed the
plaintiff. Loyd, 2008 U.S. Dist. LEXIS 100633, at *1, 8,n.5.
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they could be considered employees of all of the “chain” locations, as well as the Volmerts. (Id.;
FAC, ¶19).
The Court finds that Plaintiffs’ First Amended Complaint provides factual allegations to
support an employment relationship between Plaintiffs and Defendants under the extremely broad
definition of employer under the FLSA and MMWL. Plaintiffs do more than merely state a legal
conclusion that Defendants are their employers. Plaintiffs allege a joint employment relationship
with all of the HotShots legal entities as Plaintiffs allege that they worked at “multiple HotShots
locations.” (FAC, ¶7). As further support of this joint employment relationship, Plaintiffs allege
that “Defendants’ chain of restaurants/bars engage in related activities of selling/serving food and
beverage to customers and have interrelated operations, common management, centralized control
of labor relations of the various HotShots restaurant locations, and common ownership and financial
control.” (Id., ¶19). Contrary to Defendants’ assertion that Plaintiffs do not identify who hired or
fired them or who controlled their work schedules and pay practices (Memorandum, p. 4), the First
Amended Complaint states that Defendants Daniel and Julie Volmert maintained control over the
pay practices and had authority to hire and fire HotShots employees. (FAC, ¶¶17-18). Given
Plaintiffs’ allegation that they were employed by multiple HotShots, the Court can discern that the
Volmerts were in charge of Plaintiffs’ work schedules and pay practices at all of the locations. (Id.).
At this stage of the litigation, the Court finds that Plaintiffs sufficiently allege that all of the
Defendants were their joint employers.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Motion to Dismiss First Amended Complaint or, in the
Alternative, Motion for More Definite Statement (ECF No. 34) is DENIED.

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Dated this 11th day of June, 2012.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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