Donatti, et al v. Charter Communications, LLC, et al

Filing 118

ORDER denying 105 motion to strike and/or dismiss. Signed on 1/15/2014 by Magistrate Judge Matt J. Whitworth. (Bode, Kay)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

PETER DONATTI, et al.,
Plaintiffs,
v.
CHARTER COMMUNICATIONS,
L.L.C., et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 11-4166-CV-C-MJW

ORDER
Defendants Charter Communications LLC and Charter Communications, Inc.,
(collectively, “Charter”) have filed a motion to strike and/or dismiss the claims of plaintiffs Peter
Donatti and Matthew Cowan. Charter alleges Plaintiffs’ complaint makes allegations foreclosed
by the law of the case and that fail to state a claim on which relief may be granted. Plaintiffs
have filed suggestions in opposition to the motion and Charter filed reply suggestions in support.
Background
This case was filed on June 27, 2011, alleging violations of the FLSA and Mo. Rev. Stat.
§ 290.500, et seq., and seeking to proceed as a collective action. At the onset, the parties agreed
that two threshold issues should be resolved prior to proceeding with the remainder of the case.
Since that time, this Court has ruled two summary judgment motions on these threshold issues.
These issues included this Court’s holding that the policies of Charter do not violate the FLSA.
Subsequent to the rulings of this Court on the threshold issues, Plaintiffs sought leave to
amend their complaint. Plaintiffs’ original motion for leave to file a second amended complaint
was denied, without prejudice. The motion was denied because Plaintiffs’ proposed second
amended complaint attempted to reassert claims that had already been resolved in prior summary
judgment orders. Pursuant to order of this Court, Plaintiffs filed an amended motion for leave to
file a second amended complaint on August 12, 2013. This motion was granted over the
objection of Charter. In granting the amended motion for leave to file a second amended
complaint, this Court determined that Plaintiffs’ second amended complaint was not challenging

the previous rulings of the Court’s summary judgment orders. The holdings of the summary
judgment orders previously entered were affirmed, including the holding that the pre- and postcommute and pre- and post-shift activities of Charter technicians and their required transporting
of equipment, as outlined in Charter’s policies, do not violate the FLSA.
Plaintiffs’ second amended complaint filed on September 30, 2013, alleges that the
patterns and practices of Charter deviate from its policies, and thus, while its policies don’t
violate the FLSA, its practices do. The second amended complaint alleges that plaintiffs
Matthew Cowan and Peter Donatti, at Charter’s Sedalia, Missouri, location, along with other
similar Charter Communications cable technicians in other Missouri locations and throughout
the United States, were required to perform “cash drops” (turn in/deposit customer cash
payments received from customers to Charter facility locations), which is a principal duty
indispensable to their primary job duties as cable technicians, off-the-clock, and thus, they were
not compensated for this time, in violation of the FLSA. Additionally, Cowan and Donatti
further allege that cable technicians were “required to drive to [and/or from] customer sites and
perform other pre- and post-shift activities before and after returning cash deposits to the Charter
business locations,” without compensation. Plaintiffs allege these activities are integral and
indispensable to their primary job duties, and therefore, Charter’s failure to compensate for such
time violates the FLSA.
Discussion
Charter’s motion argues that the allegations made by Plaintiffs in the second amended
complaint are foreclosed by the law of the case and should be stricken. Charter argues that
Plaintiffs’ allegations go beyond those for which they were granted leave to amend. Specifically,
Charter argues Plaintiffs’ second amended complaint continues with allegations/references to the
lack of compensation for transportation of company equipment and pre- and post-shift activities,
beyond the cash drops themselves, which have already been ruled upon by the Court. Charter
cites to the Court’s July 22, 2013 order which denied Plaintiffs’ motion for leave to file a first
amended complaint based on Plaintiffs’ attempt to reassert claims that Charter’s policies or
practices violated the FLSA. Charter notes the Court’s holding that its policies, including
policies on transporting materials and equipment to job sites and pre- and post-shift activities
have already been determined by the Court to not violate the ECFA and FLSA.

2 

Charter argues that Plaintiffs’ second amended complaint further fails to state a claim on
which relief may be granted for the individual claims of Cowan and Donatti and for the
collective cause-of-action claims. Charter argues that Plaintiffs have failed to make any
allegation as to who or what required them to perform uncompensated cash drops in clear
violation of Charter’s policies, or when such alleged off-the-clock cash drops were required.
Motion to Strike
Upon review, Charter’s motion to strike is denied. As previously set forth, in this Court’s
Order granting leave to amend, the Court does not believe Plaintiffs’ second amended complaint,
as filed on September 30, 2013, violates the law of the case. Plaintiffs’ claims do not purport to
challenge the prior rulings of this Court, but rather seek relief on claims different from those
dismissed on summary judgment; specifically that Charter’s pattern and practices requiring cashdrops off-the-clock, contrary to Charter’s policies, violate the FLSA. Plaintiffs’ additional
allegations made in conjunction with these off-the-clock cash drops seeking compensation for
drive time and activities before and/or after these cash drops are based upon the “continuous
workday” rule. Accordingly, these claims are also different than those ruled by this Court on
summary judgment.
The Department of Labor has a “continuous workday rule,” generally defining an
employee's “workday” as “the period between the commencement and completion on the same
workday of an employee's principal activity or activities.” 29 C.F.R. § 790.6(b); IBP, Inc. v.
Alvarez, 546 U.S. at 21, 37 (2005) (describing and applying the continuous workday rule).
During the continuous workday, the compensability of all activities that otherwise satisfy the
requirements of the FLSA, are not affected by the Portal–to–Portal Act's exceptions. In Alvarez,
the Supreme Court held that “during a continuous workday, any walking time that occurs after
the beginning of the employee's first principal activity and before the end of the employee's last
principal activity is excluded from the scope of the Portal–to–Portal Act, and as a result is
covered by the FLSA.” Alvarez, 546 U.S. at 37.
Accordingly, in this case, despite a previous finding by this Court that Charter’s policies
do not violate the FLSA, the allegations of plaintiffs Cowan and Donatti that their required offthe-clock cash drops and subsequent work activities violate the FLSA are not foreclosed by the
law of the case. While policies of Charter clearly prohibit the actions of cash drops off-the-clock
and/or failure to pay cable technicians for their time working, here Plaintiffs allege that the
3 

pattern and practice of cash drops off-the-clock is in violation of Charter’s policies. Further,
while the actions subsequent to Plaintiffs’ cash drops are clearly not, in and of themselves,
sufficient to engage the requirements of the FLSA, in combination with the pattern or practice of
requiring cash drops be made off-the-clock, an argument can be made, as has been made by the
Plaintiffs here, that the continuous workday rule makes these otherwise not compensable
activities, compensable under the FLSA.
Motion to Dismiss for Failure to State a Claim
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires the complaint to contain Aa
short and plain statement of the claim showing that the pleader is entitled to relief.@ Detailed
factual allegations are not required, but Aa plaintiff=s obligation to provide the >grounds= of his
>entitle[ment] to relief= requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a
right to relief above the speculative level. . . .@ Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). ATo survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to >state a claim to relief that is plausible on its face.=@ Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp., 550 U.S. at 570).
Upon review, the FLSA claims of the Plaintiffs individually are sufficient to state a claim
under the FLSA. Plaintiffs provide sufficient allegations and basic facts sufficient to support, at
this motion-to-dismiss stage of this case, their claims that they have been required to work in
excess of 40 hours a week without compensation, in violation of the FLSA.
As to Charter’s motion for dismissal of Plaintiffs’ claims seeking to proceed with a
collective action on behalf of all similarly situated employees, this Court finds, again, that at this
stage of the proceedings, the allegations of Plaintiffs are sufficient. The allegations give Charter
notice of Plaintiffs’ claims and provide a basic factual basis supporting such claims. Charter’s
arguments seeking dismissal of these collective action claims are more relevant for purposes
determining whether conditional certification of a collective action should be granted. See
Dernovish v. AT&T Operations, Inc., 2010 WL 143692 (W.D. Mo. 2010); Kautsch v. Premier
Communications, 504 F. Supp. 2d 685, 688 (W.D. Mo. 2007); and Lindsay v. Wells Fargo
Advisors, LLC, 2013 WL 943736 (E.D. Mo. 2013) (all cases discussing the two-step procedure,
applied by courts in the Eighth Circuit, for collective actions maintained under 29 U.S. C.
216(b)). See also Littlefield v. Dealer Warranty Services, LLC., 679 F. Supp. 2d 1014, 1017
4 

(E.D. Mo. 2010) (To satisfy their burden at the conditional certification stage, plaintiffs can
satisfy their burden through use of affidavits, supported by admissible evidence. The plaintiffs
may not meet this burden through unsupported assertions of additional plaintiffs and widespread
FLSA violations.); Taylor v. Bear Communications, LLC., 2013 WL 3270971 *2 (W.D. Mo.
2013) (Although the standard is lenient it is not invisible. Unsupported assertions or those not
based on personal knowledge will not show that plaintiffs are similarly situated for conditional
certification.); Jost v. Commonwelath Land Title Ins. Co., 2009 WL 211943 (E.D. Mo. 2009)
(where there is no evidence that managers, nationwide, failed to follow these policies, a
nationwide class is inappropriate); and McClean v. Health Systems, Inc., 2011 WL 6153091
(W.D. Mo. 2011) (intermediate standard of review applied in evaluating appropriateness of
conditional certification where some discovery has already commenced).
Conclusion
Plaintiffs’ second amended complaint does not violate the law of the case and is
sufficient at this stage to proceed. Accordingly,
IT IS ORDERED that Charter’s motion to strike and/or dismiss is denied. [105]
Dated this 15th day of January, 2014, at Jefferson City, Missouri.

/s/

Matt J. Whitworth

MATT J. WHITWORTH
United States Magistrate Judge

5