Wegat et al v. Prosteam Carpet Care LLC et al

Filing 19

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion to Dismiss [Doc. No. 9 ] is GRANTED. IT IS FURTHER ORDERED that Plaintiffs Complaint is DISMISSED with prejudice. IT IS FURTHER ORDERED that Plaintiffs Motion to Certify C lass, [Doc. NO. 16 ], is denied as moot, without prejudice to refiling in the event Plaintiffs file an Amended Complaint. IT IS FURTHER ORDERED that plaintiffs may file an Amended Complaint in accordance with this Opinion, Memorandum and Order within 14 days from the date of this Order. ( Amended/Supplemental Pleadings due by 8/25/2017.) Signed by District Judge Henry Edward Autrey on 8/11/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOSH WEGAT, et al.
Plaintiffs,
vs.
PROSTEAM CARPERT CARE LLC ,
et al.,
Defendants.

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No. 4:16-cv-1931 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss, [Doc. No.
9], and Plaintiffs’ Motion to Certify Class, [Doc. No. 16]. The parties oppose the
other’s motion. For the reasons set forth below, the Motion to Dismiss is granted.
The Motion to Certify is denied as moot, without prejudice to refiling.
Facts and Background
Plaintiffs are carpet cleaning technicians who bring this action on behalf of
themselves and a similarly situated class of plaintiffs against their employers.
Plaintiffs contend that even though they are classified as “independent
contractors,” they are, in reality, employees of the LLC and the individual
defendants. Plaintiffs allege that Defendants have violated the Fair Labor
Standards Act, 29 U.S.C. § 216(b), et seq. (“FLSA”) and the Missouri Minimum

Wage Law, § 290.500 RSMo, et seq. (“MMWL”). Defendants have moved to
dismiss, and the matter has now been fully briefed.
According to the complaint, Defendants are engaged in the business of
residential and commercial cleaning of flooring and upholstery, with a specific
focus on carpet cleaning. Defendants employ technicians to perform cleaning
services for Defendants’ customers. Plaintiffs have performed work for
Defendants as technicians.
Plaintiffs allege that although Defendants have classified Plaintiffs as
“independent contractors,” Plaintiffs were in reality employees of Defendants. The
hours worked by Plaintiffs and those similarly situated were not recorded by
Defendants; expenses for travel and related work expenses were not fully
reimbursed; and overtime pay was not paid for all hours worked in a workweek in
excess of forty (40) hours per workweek. By failing to record, report, and/or
preserve accurate records of hours worked by Plaintiffs and other similarly situated
employees, Defendants have failed to make, keep, and preserve records with
respect to each of their workers/employees sufficient to determine their employee
wages, hours, and other conditions and practices of employment, in violation of the
FLSA, 29 U.S.C. § 201, et seq.
Plaintiffs and those similarly situated regularly worked long hours per day
and per workweek in order to complete jobs assigned to them by Defendants.
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Plaintiffs and other similarly situated employees worked in excess of forty (40)
hours per week on a regular basis.
At the time of being hired by Defendants, Plaintiffs had no previous
experience working in Defendants’ industry. Plaintiffs and other similarly situated
workers were required by Defendants to undergo initial training by doing a “ridealong” with an experienced technician for multiple days, and Defendants provided
no pay for this required initial training. After their initial training, Plaintiffs and
other similarly situated workers received ongoing training/instruction from
Defendants as to how to perform their job.
Per Defendants’ policy and practice, if a customer’s carpet has to be recleaned, the technician originally assigned to that job either has to return to the
customer’s location and re-clean the carpet for no additional pay, or Defendants
send another technician to do the re-clean job and pay that other technician a fee,
and then the fee is deducted from the paycheck of the original technician.
Plaintiffs and other similarly situated technicians were required by
Defendants to take Defendants’ company vehicles and other equipment to a third
party shop for repairs and wait for the vehicles to be repaired, and they were not
compensated for that work time.
Plaintiffs and other similarly situated technicians were required by
Defendants to visit potential customer locations to “bid” jobs. Plaintiffs and other
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similarly situated technicians were not compensated for that work time. Plaintiffs
and other similarly situated technicians were required by Defendants to attend
mandatory sales meetings, and they were not compensated for that work time.
In addition to failing and refusing to pay overtime pay for time spent
working on assigned cleaning jobs, Plaintiffs and other similarly situated
employees were not compensated at all for time they spent on other work related
tasks, such as travel time, time in meetings/training, time spent performing
preparatory tasks at Defendants’ shop at the beginning of the work day, time spent
performing tasks at Defendants’ shop at the end of the work day, time spent
obtaining repairs on Defendants’ equipment, time spent at potential customer
locations for job bids, etc.
As a result of being misclassified unlawfully as independent contractors,
Plaintiffs and other similarly situated employees were denied overtime pay
unlawfully, in violation of the FLSA. The deliberate failure of Defendants to pay
Plaintiffs and those similarly situated their earned wages and overtime
compensation violates the FLSA. The net effect of the policies and/or practices
maintained and administered by Defendants, instituted and approved by company
managers, is that Defendants willfully failed to pay wages owed and willfully
failed to keep accurate time records to save payroll costs. Defendants thus enjoyed
ill-gained profits at the expense of its workers.
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Plaintiffs allege Defendants actions violate both the FLSA and the MMWL.
Motion to Dismiss Standard
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim
is to test the legal sufficiency of a complaint so as to eliminate those actions
“which are fatally flawed in their legal premises and deigned to fail, thereby
sparing litigants the burden of unnecessary pretrial and trial activity.” Young v.
City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams,
490 U.S. 319, 326-27 (1989)). “To survive a motion to dismiss, a claim must be
facially plausible, meaning that the ‘factual content. . . allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’” Cole
v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). The Court must “accept the allegations contained
in the complaint as true and draw all reasonable inferences in favor of the
nonmoving party.” Id. (quoting Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir.
2005)). However, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” will not pass muster. Iqbal, 556 U.S. at
678.
Under Fed.R.Civ.P. 12(b)(6), a party may move to dismiss a claim for
“failure to state a claim upon which relief can be granted.” The notice pleading
standard of Fed.R.Civ.P. 8(a)(2) requires a plaintiff to give “a short and plain
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statement showing that the pleader is entitled to relief.” Courts must assess the
plausibility of a given claim with reference to the plaintiff's allegations as a whole,
not in terms of the plausibility of each individual allegation. Zoltek Corp. v.
Structural Polymer Group, 592 F.3d 893, 896 n. 4 (8th Cir.2010) (internal citation
omitted). This inquiry is “a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. The
Court must grant all reasonable inferences in favor of the nonmoving party.
Lustgraaf v. Behrens, 619 F.3d 867, 872–73 (8th Cir.2010).
Discussion
With regard to Plaintiffs’ overtime claims under the FLSA and MMWL,
Defendants argue that the allegations are nothing more than boilerplate legal
conclusions devoid of any factual support. Defendants suggest that Plaintiffs
should specify at least one workweek in which they worked in excess of 40 hours
and were not paid overtime. In support, Defendants cite Landers v. Quality
Commc’ns, Inc., 771 F.3d 638, 644–46 (9th Cir. 2014) (holding plaintiff “must
allege that she worked more than forty hours in a given workweek without being
compensated for the hours worked in excess of forty during that week”), which is
not controlling authority in the Eighth Circuit. Regardless, at least two district
court in this Circuit has applied the Landers standard and accepted allegations
where the plaintiffs identified (1) policies that support their overtime claims, and
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(2) pay periods for which plaintiffs were not paid sufficient overtime (with
supporting time record information). Shoots v. iQor Holdings US Inc., 15-CV-563
(SRN/SER), 2015 WL 6150862, at *15 (D. Minn. Oct. 19, 2015); Terrell v. First
Student Management LLC, 4:16-cv-481-SNLJ, 2016 WL 6679847, at *3 (E.D. Mo.
Nov. 14, 2016)(following Landers and Shoots).
Plaintiffs have identified the general policies supporting their overtime
claims, but they fail to allege any specific facts regarding weeks for which
overtime was improperly withheld. The “policies” identified by Plaintiff include,
for example, the allegations that Defendants require unpaid training, re-cleaning
without pay, travel times, and maintenance time. But plaintiffs do not offer any
facts regarding how this might have looked in practice for any specific technician.
The Court will dismiss the Complaint without prejudice to Plaintiffs’ refiling an
Amended Complaint in this matter alleging those necessary facts. See Iqbal, 556
U.S. at 678.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss [Doc. No.
9] is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Complaint is DISMISSED
with prejudice.

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IT IS FURTHER ORDERED that Plaintiffs’ Motion to Certify Class,
[Doc. NO. 16], is denied as moot, without prejudice to refiling in the event
Plaintiffs file an Amended Complaint.
IT IS FURTHER ORDERED that plaintiffs may file an Amended
Complaint in accordance with this Opinion, Memorandum and Order within 14
days from the date of this Order.
Dated this 11th day of August, 2017.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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