Evans v. Nebr Beef

Filing 12

MEMORANDUM AND ORDER - All claims against Tony Joy and Mike Thatcher are dismissed without prejudice. To obtain service of process on Defendant Nebraska Beef, Plaintiff must complete and return the summons forms which the Clerk of the court will pr ovide. The Clerk of the court shall send ONE summons form and ONE USM-285 form to Plaintiff, together with a copy of this Memorandum and Order. Plaintiff shall, as soon as possible, complete the forms and send the completed forms back to the Clerk of the court. In the absence of the forms, service of process cannot occur. The Clerk of Court is directed to set a pro se case management deadline in this case with the following text: April 1, 2013: Check for completion of service of summons Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party with Summons and 285 form)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES EVANS, III,
Plaintiff,
v.
NEBRASKA BEEF, LTD., et al.,
Defendants.

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8:12CV161

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On September 6, 2012, the
court conducted an initial review of Plaintiff’s Amended Complaint and found that
Plaintiff failed to state a claim upon which relief may be granted as to all claims
asserted. (Filing No. 10.) In particular, the court determined that:
Plaintiff does not allege any facts supporting his claim of unpaid
overtime such as his scheduled work hours, the number of
uncompensated overtime hours or when Plaintiff worked those hours, or
that his employer knew that he worked those hours. As such, the
Complaint fails to state a claim upon which relief may be granted.
(Id. at CM/ECF p. 3.) In light of these pleading deficiencies, the court granted
Plaintiff an opportunity to amend.
In response, Plaintiff filed a second Amended Complaint. (Filing No. 11.) In
it, Plaintiff alleges that he worked for Nebraska Beef from August 2008 to October
2011, and only missed three scheduled work days during the three-year period. On
each of the days he worked, he spent “as much as 30-40 minutes or more” performing
uncompensated work activities such as “preparing, donning, doffing, obtaining,
sanitizing sanitary and safety equipment and clothing, obtaining tools and equipment
[and] supplies necessary for the performance of [his] work.” (Id. at CM/ECF p. 2.)
He did so “before and after paid times, and during unpaid meal breaks.” (Id.) In

addition, Defendant knew Plaintiff performed this uncompensated work. (Id. at
CM/ECF p. 2.) Finally, Plaintiff alleges that he faced the same wage-and-hour
violations as that faced by class members in Cortez v. Nebraska Beef, Inc.,
8:08CV90.1 In a previous filing, Plaintiff alleged that he opted out of the class action
in Cortez on April 19, 2012. (Filing No. 5 at CM/ECF p. 3.)
The court finds that Plaintiff has stated a claim upon which relief may be
granted against Nebraska Beef. However, the court cautions Plaintiff that this is only
a preliminary determination based on the allegations of the second Amended
Complaint.
Separately, the court finds that Plaintiff has failed to state a claim upon which
relief may be granted as to Defendants Mike Thatcher and Tony Joy. Plaintiff does
not mention these Defendants or the actions they took in the body of his second
Amended Complaint. A complaint that only lists a defendant’s name in the caption
without alleging that the defendant was personally involved in the alleged misconduct
fails to state a claim against that defendant. See Krych v. Hvass, 83 F. App’x 854,
855 (8th Cir. 2003) (citing Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974)
(holding that court properly dismissed a pro se complaint where the complaint was
silent as to the defendant except for his name appearing in caption)).

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Cortez was a class-action in which production and support employees of
Nebraska Beef’s meat processing facility alleged that they were entitled to unpaid
wages for the “30-40 minutes or more per day” they spent performing uncompensated
work activities. (8:08CV90 at Filing No. 1 at CM/ECF p. 2.) On May 17, 2012, the
court approved a Class and Collective Action Settlement in Cortez. (8:08CV90 at
Filing No. 394.)
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IT IS THEREFORE ORDERED that:
1.
prejudice.

All claims against Tony Joy and Mike Thatcher are dismissed without

2.
To obtain service of process on Defendant Nebraska Beef, Plaintiff must
complete and return the summons forms which the Clerk of the court will provide.
The Clerk of the court shall send ONE summons form and ONE USM-285 form to
Plaintiff, together with a copy of this Memorandum and Order. Plaintiff shall, as
soon as possible, complete the forms and send the completed forms back to the Clerk
of the court. In the absence of the forms, service of process cannot occur.
3.
Upon receipt of the completed forms, the Clerk of the court will sign the
summons form, to be forwarded with a copy of the second Amended Complaint to the
U.S. Marshal for service of process. The Marshal shall serve the summons and
second Amended Complaint without payment of costs or fees. Service may be by
certified mail pursuant to Fed. R. Civ. P. 4 and Nebraska law in the discretion of the
Marshal. The Clerk of the court will copy the second Amended Complaint, and
Plaintiff does not need to do so.
4.
Fed. R. Civ. Pro. 4 requires service of the complaint on a defendant
within 120 days of filing the complaint. However, Plaintiff is granted, on the court’s
own motion, an extension of time until 120 days from the date of this order to
complete service of process.
5.
Plaintiff is hereby notified that failure to obtain service of process on a
defendant within 120 days of the date of this order may result in dismissal of this
matter without further notice as to such defendant. A defendant has 21 days after
receipt of the summons to answer or otherwise respond to a complaint.

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6.
The Clerk of Court is directed to set a pro se case management deadline
in this case with the following text: “April 1, 2013: Check for completion of service
of summons.”
7.
The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this court. Plaintiff shall keep the court informed of his current
address at all times while this case is pending. Failure to do so may result in
dismissal.
DATED this 3rd day of December, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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