Trapp v. O. Lee, LLC et al
Filing
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MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendants' motion to supplement [#11] is granted. IT IS FURTHER ORDERED that defendants motion to dismiss [#3] is denied. Signed by District Judge Catherine D. Perry on January 16, 2013. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL TRAPP,
Plaintiff,
vs.
O. LEE, LLC, d/b/a DRAIN
SURGEONS, LLC, et al.,
Defendants.
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Case No. 4:12CV717 CDP
MEMORANDUM AND ORDER
Plaintiff Michael Trapp worked as a drain operator/metal trades technician
for defendant O. Lee, LLC, doing business as Drain Surgeons, LLC. Trapp alleges
that defendants failed to pay him for his overtime and “on call” hours, and he
brings claims under the Fair Labor Standards Act (FLSA), the Missouri Minimum
Wage Law (MMWL), and Missouri common law. Defendants brought this motion
to dismiss, seeking to limit Trapp‟s common-law claims pursuant to Missouri‟s
two-year statute of limitations.
Missouri law distinguishes between regular, or straight time, wages and
overtime wages. Overtime wages are paid for hours worked in excess of forty
hours per week, and must be at a rate of not less than one and one-half times the
employee‟s regular rate. Mo. Rev. Stat. § 290.505(1). As set forth more fully
below, Missouri law also distinguishes between straight time and overtime wages
for statute of limitations purposes. Plaintiff‟s common-law claims can be read to
seek damages based on straight time or overtime wages. I agree with defendants
that Missouri‟s two-year statute of limitations applies to all claims for overtime
wages, but I agree with plaintiff that the longer five-year statute of limitations
applies to the common-law claims to the extent they seek straight time wages. I
will therefore deny defendants‟ motion to dismiss to the extent that plaintiff‟s
common-law claims seek regular or straight time wages.
Background
Drain Surgeons, LLC is a Missouri corporation that provides drain cleaning
assistance to individuals and businesses throughout Eastern Missouri. Defendant
Connie Grimes is the President of O. Lee, LLC, which purchased Drain Surgeons
from defendant James Von Klemen in April of 2010.
Plaintiff Michael Trapp worked for Drain Surgeons as a drain opener and
metal trades technician from August 1998 until August 15, 2011. Beginning in
2004, Trapp worked at the Drain Surgeons facility in Imperial, Missouri. Trapp
alleges that until May 20, 2011, he worked without pay during evenings and
weekends for approximately twenty-five hours per week in addition to his regular
forty hour work week. He further alleges that he performed work on an “on call
basis” outside of both his regular hours and twenty-five overtime hours. During
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the “on call” time, Trapp was unable to use the time for personal pursuits, as he
was required to respond to calls in a short amount of time, in uniform and with the
company van, and he was unable to refuse a call. Trapp was not paid for his time
spent “on call.”
Trapp filed this complaint alleging seven separate counts. Counts 1 and 2
allege violations of the FLSA and seek damages for the period three years before
the filing of the complaint. Counts 3 and 4 allege violations of the MMWL and
seek damages for two years before the filing of the complaint. Counts 5, 6, and 7
are for breach of contract, quantum meruit, and unjust enrichment, respectively,
and seek damages “equal to all unpaid wages” due within five years before the
filing of the complaint. Defendants filed this motion to dismiss, arguing that
counts 5, 6, and 7 are subject to a two-year statute of limitations.
Discussion
A defendant may move to dismiss a claim “for failure to state a claim upon
which relief can be granted” under Fed. R. Civ. P. 12(b)(6). The purpose of a
motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the
complaint. When considering a 12(b)(6) motion, the factual allegations of a
complaint are assumed true and are construed in favor of the plaintiff. Neitzke v.
Williams, 490 U.S. 319, 326 (1989). “The possible existence of a statute of
limitations defense is not ordinarily a ground for Rule 12(b)(6) dismissal unless the
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complaint itself establishes the defense.” Joyce v. Armstrong Teasdale, LLP, 635
F.3d 364, 367 (8th Cir. 2011) (quoting Jessie v. Potter, 516 F.3d 709, 713 n. 2 (8th
Cir. 2008)).
There are two Missouri statutes of limitations dealing with the recovery of
unpaid minimum wages and overtime compensation. The general two-year statute
of limitations applies to:
An action for libel, slander, assault, battery, false imprisonment,
criminal conversation, malicious prosecution or actions brought under
section 290.140. An action by an employee for the payment of
unpaid minimum wages, unpaid overtime compensation or
liquidated damages by reason of the nonpayment of minimum wages
or overtime compensation, and for the recovery of any amount under
and by virtue of the provisions of the Fair Labor Standards Act of
1938 and amendments thereto, such act being an act of Congress,
shall be brought within two years after the cause accrued.
Mo. Rev. Stat. § 516.140 (emphasis added). The Minimum Wage Law also
contains its own two-year statute of limitations:
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.
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Mo. Rev. Stat. § 290.527. Missouri‟s five-year statute of limitations, however,
applies to:
All actions upon contracts, obligations or liabilities, express or
implied, except those mentioned in section 516.110 and except upon
judgments or decrees of a court of record, and except where a
different time is herein limited . . .
Mo. Rev. Stat. § 516.120.
Although the two-year limitations period in § 516.140 applies to Trapp‟s
claims seeking overtime pay for breach of contract, quantum meruit, and unjust
enrichment, the five-year statute of § 516.120 applies to the claims insofar as those
claims seek recovery of regular or straight time wages. The two-year statute of
limitations in § 290.527 does not apply because it applies only to claims arising
under the MMWL for an employee who is paid less wages than required by §§
290.500 to 290.530. The last sentence of § 290.527 creates a two-year statute of
limitations for “[a]ll actions for the collection of any deficiency in wages.”
Despite its broad language, this sentence must be read in the context of § 290.527
as a whole, which explicitly limits its application to actions arising under §§
290.500 to 290.530.
Section 516.140, while not limited to claims arising under the MMWL,
explicitly refers to actions for the payment of unpaid minimum wages or overtime
compensation. Trapp‟s common-law claims for straight time wages have their
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basis in general contract law, and thus are governed by the five-year statute of
limitations of § 516.120.
The limited caselaw on this subject supports the conclusion that § 290.527
only applies to claims arising under §§ 290.500 to 290.530, and that § 516.120
only applies to claims for minimum wage or overtime compensation. In Banks v.
Ameren UE, 4:05CV477 JCH, 2005 WL 2176927 (E.D. Mo. Sep. 8, 2005), the
plaintiff sued his former employer to recover the statutory penalty provided in Mo.
Rev. Stat. § 290.110 for delaying payment due a discharged employee. Id. at *5.
The employer tried to assert § 290.527‟s two-year statute of limitations. Banks
noted, in a footnote, that § 290.527 did not apply because it is “the statute of
limitations for unpaid minimum wages.” Id. (emphasis in original).
Wells v. Fedex Ground Package System, Inc., No. 4:10CV2080 JCH, 2011
WL 1769665 (E.D. Mo. May 9, 2011), also discussed the application of § 290.527.
The plaintiff in Wells alleged that “„Defendant unlawfully withheld and diverted
monies from the compensation earned by Plaintiffs and for business expenses of
Defendant,‟ in violation of Missouri Revised Statutes § 290.010 et. seq.” Id. at *2
(quoting Compl. ¶ 43, Wells, 2011 WL 1769665). Wells cited § 290.527 as the
applicable statute of limitations. Although on its surface Wells appears to apply §
290.527 outside the context of §§ 290.500 to 290.530, on closer inspection it can
be seen that this is not the case. It is true that plaintiffs in their complaint – and the
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court, in citing that complaint – stated that the action arose under § 290.010 et seq.
However, in arguing the motion to dismiss, plaintiffs clarified that their wage
claim was being brought under § 290.502 and conceded that § 290.527 was the
applicable statute of limitations. Pl.‟s Mem. In Opp‟n re Mot. to Dismiss Case at
9, Wells, 2011 WL 1769665. The application of § 290.527 in Wells – offered
without further explanation – is therefore either silent to or consistent with the
conclusion that § 290.527 applies only to §§ 290.500 to 290.530.
Nobles v. State Farm Mutual Automobile Insurance Company, No.
2:10CV4175 NKL, 2011 WL 5563444 (W.D. Mo. Nov. 15, 2011), applied the
five-year statute of limitations of § 516.140 to plaintiffs‟ unjust enrichment claim
concerning non-overtime wages. Id. at *2. In so holding, the court distinguished
plaintiffs‟ MMWL claim, which focused on “failure to pay overtime damages,”
and the unjust enrichment claim, the gravamen of which was “a contract claim for
„straight-time‟ (non-overtime) wages.” Id. Because the unjust enrichment claim
represented “a clearly independent claim aimed at redressing a different
grievance,” the five-year statute of limitations of § 516.140 applied. Id.
Sutton-Price v. Daugherty Systems, Inc., No. 4:11CV1943 CEJ, 2012 WL
2282344 (E.D. Mo. June 18, 2012), also addressed the three statutes of limitations
at issue here. In Sutton-Price, plaintiffs brought claims for unpaid overtime
compensation under the FLSA, MMWL, and Missouri common law. Sutton-Price
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held that the two-year statute of limitations of § 516.140 applies to “all claims for
unpaid overtime,” despite the plaintiffs‟ argument that it only applies to claims
under the MMWL. Id. at *2 (emphasis in original). The court explained, “the
MMWL contains its own two-year statute of limitations” in § 290.527, and to limit
§ 516.140 to apply only to the MMWL would render § 290.527 superfluous. Id.
Sutton-Price only dealt with the application of § 516.140 to claims for overtime
compensation, and did not extend to claims for straight time wages. To the extent
Trapp seeks only straight time wages under his Missouri common-law counts,
therefore, Sutton-Price is inapposite. Furthermore, in clarifying that § 516.140 is
not limited to the MMWL, Sutton-Price implied that § 290.527 is so limited. To
interpret § 290.527 otherwise would in turn render § 516.140 superfluous.
Davenport v. Charter Communications, LLC, No. 4:12CV7 AGF, 2012 WL
5050580 (E.D. Mo. Oct. 18, 2012), is the one case to hold that even common-law
claims for straight time wages are governed by a two-year statute of limitations.
Id. at *3-4. Like the present case, the plaintiffs in Davenport brought claims for
collection of both straight time and overtime wages. Id. at *1. In addition to
claims under the FLSA and MMWL, plaintiffs brought counts for breach of
contract, quantum meruit, and unjust enrichment. Id. In applying the two-year
statute of limitations to the common-law claims, the court stated that it was
following Sutton-Price, “which held in a similar context that under Missouri law,
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claims such as those under consideration were governed by a two-year limitations
period.” Davenport, 2012 WL 5050580, at *4. However, as discussed above, I do
not read Sutton-Price so broadly. Sutton-Price dealt only with the application of §
516.140 to overtime compensation, and not to straight time wages. For that reason,
and all others stated above, I disagree with the conclusion in Davenport. To the
extent that Trapp‟s common-law claims seek straight time wages – and only to that
extent – those claims are governed by the five-year statute of limitations of §
516.120.
Accordingly,
IT IS HEREBY ORDERED that defendants‟ motion to supplement [#11]
is granted.
IT IS FURTHER ORDERED that defendants‟ motion to dismiss [#3] is
denied.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 16th day of January, 2013.
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