Evans v. Nebraska Beef, Inc. et al
MEMORANDUM AND ORDER - Plaintiff shall have until August 10, 2012, to amend his Complaint and clearly state a claim upon which relief may be granted against Defendants, in accordance with this Memorandum and Order. If Plaintiff fails to file a suf ficient amended complaint, Plaintiff's Complaint will be dismissed without further notice for failure to state a claim upon which relief may be granted. In the event that Plaintiff files an amended complaint, Plaintiff shall restate the allegations of the current Complaint (filing no. 1 ), and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. Plaintiff shall keep the court informed of his current address at al l times while this case is pending. Failure to do so may result in dismissal without further notice. (Pro Se Case Management Deadline set for 8/10/2012: check for amended complaint and dismiss if none filed.) 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,
NEBRASKA BEEF, INC., et al.,
Plaintiff filed his Complaint in this matter on May 9, 2012. (Filing No. 1.)
Plaintiff has previously been given leave to proceed in forma pauperis. (Filing No.
5.) The court now conducts an initial review of the Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
Plaintiff filed his Complaint in this matter on May 9, 2012, against several
Defendants including Nebraska Beef, Inc. (Filing No. 1 at CM/ECF p. 1.) Plaintiff’s
Complaint is difficult to decipher. However, as best as the court can tell, and liberally
construed, Plaintiff alleges that Defendants violated the Fair Labor Standards Act
(“FLSA”) because they failed to compensate him for overtime. (Id. at CM/ECF pp.
2-3.) Plaintiff alleges that he worked for Defendants “for over 3 plus years,” and
“received no proper overtime compensation/economic remuneration” during his
employment. (Id. at CM/ECF p. 2.) Plaintiff seeks damages in the amount of “10
million dollars.” (Id. at CM/ECF p. 3.)1
Plaintiff generally references a separate class action matter, Case No.
8:08CV90, in which he is not a named party. The court granted final approval of the
parties’ settlement agreement in that separate matter on May 17, 2012. (Case No.
8:08CV90, Filing No. 394.) While there may be some relationship between these two
matters, Plaintiff’s Complaint lacks sufficient detail for the court to make that
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must
dismiss a complaint or any portion thereof that states a frivolous or malicious claim,
that fails to state a claim upon which relief may be granted, or that seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
A pro se plaintiff must set forth enough factual allegations to “nudge their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (2009) (“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient
to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
DISCUSSION OF CLAIMS
Liberally construed, Plaintiff asserts a claim for unpaid overtime compensation
under the FLSA. See 29 U.S.C. § 215. Under the FLSA, “‘it shall be unlawful for
any person’ to violate the minimum wage, overtime, and recordkeeping provisions
of that statute.” Reich v. Stewart, 121 F.3d 400, 404 (8th Cir. 1997) (quoting 29
U.S.C. § 215(a)(2), (5)). In accordance with the FLSA, the Eighth Circuit has longheld that “[a]n employee must be compensated for duties ‘before and after scheduled
hours . . . if the employer knows or has reason to believe the employee is continuing
to work and the duties are an integral and indispensable part of the employee’s
principal work activity.’” 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)).
However, to succeed on an unpaid overtime claim, a plaintiff must allege and show
“that [he] worked above [his] scheduled hours without compensation and that [his
employer] knew or should have known that [he was] working overtime.” Id. (citing
Reich, 121 F.3d at 407).
Here, Plaintiff’s entire claim for unpaid overtime is as follows:
Plaintiff seeks 10,000,000.00 in damages and we seek damages for wage
hour violations including claims for unpaid overtime compensation &
failure (note as regards overtime we all had to be there at 6:15 a.m. &
most lots of times plaintiff was last to go & received no proper overtime
compensation/economic remuneration as required by federal wage laws.
(Filing No. 1 at CM/ECF p. 2.) The remainder of Plaintiff’s Complaint is devoted to
referencing generally “discrimination,” having to use the “garage door” for breaks
instead of the door that “everybody else” used, and other claims non-specific
allegations. 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
However, on its own motion, the court will permit Plaintiff 30 days in which
to amend his Complaint to sufficiently allege an FLSA claim against Defendants.
Any amended complaint shall restate the allegations of Plaintiff’s prior Complaint
(filing no. 1), and any new allegations. Failure to consolidate all claims into one
document will result in the abandonment of claims. If Plaintiff fails to file a
sufficient amended complaint in accordance with this Memorandum and Order, this
matter will be dismissed without prejudice for failure to state a claim upon which
relief may be granted.
IT IS THEREFORE ORDERED that:
Plaintiff shall have until August 10, 2012, to amend his Complaint and
clearly state a claim upon which relief may be granted against Defendants, in
accordance with this Memorandum and Order. If Plaintiff fails to file a sufficient
amended complaint, Plaintiff’s Complaint will be dismissed without further notice for
failure to state a claim upon which relief may be granted.
In the event that Plaintiff files an amended complaint, Plaintiff shall
restate the allegations of the current Complaint (filing no. 1), and any new allegations.
Failure to consolidate all claims into one document may result in the abandonment
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: Check for amended complaint on
August 10, 2012, and dismiss if none filed.
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 without
DATED this 12th day of July, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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