Evans v. Nebraska Beef, Inc. et al

Filing 12

MEMORANDUM AND ORDER - This matter is dismissed without prejudice because Plaintiff's Amended Complaint (filing no. 8 ) fails to state a claim upon which relief may be granted. All other pending Motions are denied. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party) (TEL)

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

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8:12CV162

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On July 12, 2012, the court
conducted an initial review of Plaintiff’s Complaint and found that Plaintiff failed to state
a claim upon which relief may be granted as to all claims asserted. (Filing No. 6.) 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.1
In response, Plaintiff filed an Amended Complaint. (Filing No. 8.) In his Amended
Complaint, Plaintiff states that he cannot “tell how many hours” he worked, or how much
money is owed him for unpaid overtime, or any other information required to state a claim
under the Fair Labor Standards Act (“FLSA”). (Filing No. 8.) Plaintiff also sets forth
unrelated and nonsensical allegations about his job duties,2 having to use a garage door for

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The court also set a hearing in this matter, and in the related Case No. 8:12CV161, in order to allow
Plaintiff to support his allegations. (Filing No. 7.) However, Plaintiff failed to appear for that hearing and
did not seek a continuance of the hearing until after the time of the hearing passed. (Filing No. 10.)
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For example, one paragraph of the Amended Complaint states, “lunch began at 11:15 and now it
changed cause kill floor goes in eariler [sic] cause its hot (start 11:30 lunch now) so as not to cross
contaminate kill with FABRICATION to wit: cause kill floor is inedible blood-don’t wana [sic] combine
packaging with cuting [sic] killing blood.” (Filing No. 8 at CM/ECF p. 4.)

entering/exiting his job location, and other non-specific “discrimination.” (Id.) However,
as with his original Complaint, Plaintiff does not assert 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, whether the duties performed by Plaintiff were
part of his “principal work activity, or that his employer knew that he worked those hours.
Hertz v. Woodbury Cnty., Iowa, 566 F.3d 775, 781 (8th Cir. 2009) (quoting Mumbower v.
Callicott, 526 F.2d 1183, 1188 (8th Cir. 1975)). Liberally construed, Plaintiff states that he
does not know any of this information and therefore cannot allege it. (Filing No. 8 at
CM/ECF p. 3.) Thus, Plaintiff has again failed to state a claim upon which relief may be
granted under the FLSA. For these reasons, and the reasons set forth in the court’s July 12,
2012, Memorandum and Order, this matter is dismissed without prejudice.
IT IS THEREFORE ORDERED that:
1.

This matter is dismissed without prejudice because Plaintiff’s Amended

Complaint (filing no. 8) fails to state a claim upon which relief may be granted.
2.

A separate judgment will be entered in accordance with this Memorandum and

Order and the court’s July 12, 2012, Memorandum and Order.
3.

All other pending Motions are denied.

DATED this 8 th day of August, 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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