Montanez v. Voss Industries, LLC

Filing 46

Opinion and Order. Defendant Voss Industries' Motion to Dismiss, or in the Alternative, to Strike Class Allegations (Related doc # 19 ) is denied. Defendant Technical Search Consultants' Motion to Dismiss, or in the Alternative, to Strike Class Allegations (Related doc # 20 ) is denied. Judge Christopher A. Boyko on 5/31/2019. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

EVANGELITA MONTANEZ, on behalf )
of herself and all others similarly situated
)
Plaintiff,
)
)
vs.
)
)
VOSS INDUSTRIES, LLC., ET AL.,
)
)
Defendant.
)

CASE NO.1:18CV1378
)
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on the Motions to Dismiss, or in the Alternative, to
Strike Class Allegations by Defendant Voss Industries, LLC., (ECF # 19) and Defendant
Technical Search Consultants, Inc. (ECF # 20). For the following reasons, the Court denies
Defendants’ Motions.
Factual Allegations
According to Plaintiff’s First Amended Complaint (“FAC”), Plaintiff was employed
as a material handler between December 2018 and March 2018 with Defendant Voss
Industries, LLC. (“Voss”), a manufacturer of specialized band clamps, V-band couplings,
flanges, ducting components and other fabricated products. Defendant Technical Search

Consultants, Inc. (“TSC”) is a temporary third-party staffing agency that supplies employees
to Voss. Plaintiff alleges both Voss and TSC are joint employers of Plaintiff and the putative
class. Putative class members include material handlers, engineering assistants and computer
numerically controlled (“CNC”) operators. According to Plaintiff, both Defendants had the
authority to hire, fire and discipline Plaintiff and the putative class members and maintained
employment, time and pay records of the putative class. Plaintiff further alleges Defendants
controlled the manner in which Plaintiff and the putative class performed their work, the
hours, location and how they performed their work and established policies and rules to be
followed. Defendants also controlled the manner in which Plaintiff and the putative class
were paid including the rate, method and time they were paid.
Plaintiff alleges Defendants failed to pay for work performed before the scheduled
start and stop times and failed to pay for overtime in violation of the Fair Labor Standards Act
(“FLSA”) and the Ohio Minimum Fair Wage Standards Act (“OMFWSA”).
Plaintiff brings these claims as a collective action under the FLSA and as a class
action under the OMFWSA. Plaintiff asserts her FLSA claims collectively on behalf of
eligible employees defined as:
All former and current manufacturing employees of Voss Industries, LLC
and/or Technical Search Consultants Inc. at any and all time between June 18,
2015 and the present.
Plaintiff’s class action claim is brought on behalf of a class of Ohio employees defined
as:

All former and current manufacturing employees of Voss Industries, LLC
and/or Technical Search Consultants Inc. in the State of Ohio at any and all
time between June 18, 2015 and the present.
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According to Voss, the FAC should be dismissed because it fails to allege sufficient
facts to render her claims plausible. Should the Court consider the facts as alleged sufficient
to support her claims, Voss asks the Court to strike the class claims because the First
Amended Complaint allegations do not support class certification.
Voss contends that Plaintiff fails to allege facts supporting her conclusory statement
that she was not paid overtime for pre-shift and post-shift off-the-clock work and fails to
allege Defendants knew or should have known about the unpaid off-the-clock work. They
further contend that Plaintiff fails to assert any factual allegations supporting her claim that
Defendants had a policy or practice of requiring employees perform off-the-clock work and
completely fails to assert any facts regarding her own job duties or those of the putative class.
Lastly, Defendants ask the Court to strike Plaintiff’s class claims as the nature of the claims
themselves do not support Fed. R. Civ. P. 23's commonality, typicality, predominance and
superiority requirements. The FAC fails to assert a common unlawful practice by Defendants
that violates the FLSA and OMEFWSA and applied to the different job duties of the putative
class. Furthermore, the evidence of damages will not be common to the class but will instead
be highly individualized.
TSC argues the FAC should be dismissed because Plaintiff fails to allege sufficient
facts to plausibly show TSC was a joint employer of Plaintiff and the putative class. As a
temporary employee staffer, TSC did not control relevant aspects of Plaintiff’s and the
putative class’s work. Plaintiff’s threadbare allegations are conclusory in nature and cannot
support her allegation that TSC was a joint employer. None of the consent forms name TSC
as an employer and Plaintiff does not allege TSC had actual or constructive knowledge that

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Plaintiff and the putative class members were not paid overtime wages.
TSC further contends the above defenses apply equally in favor of striking Plaintiff’s
class claims against TSC. TSC further adopts Voss’s arguments for striking the class claims
and asserts that the class claims be stricken for failing to allege that all members of the
putative class were provided to Voss by TSC.
Plaintiff asserts she provided factual allegations sufficient to meet the federal pleading
standard. She alleges facts sufficient to show that she worked more that 40 hours a week and
was not paid for the overtime. She further alleges Defendants knew of the hours worked and,
per Defendants policy or practices, did not pay Plaintiff and the putative class the statutorily
required overtime pay.
Plaintiff further asserts her Complaint alleges facts supporting class and collective
action claims including: that Plaintiff and other similarly situated manufacturing employees
were not paid for all hours worked; that Plaintiff and the putative class were only paid for
work performed between their scheduled start and stop times; Plaintiff and the putative class
were not paid for getting tools and equipment, walking to and from assigned work areas,
getting necessary information from the previous shift and for performing production work.
Plaintiff further alleges she and the putative class were not paid at the statutory rate for
overtime hours worked.
LAW AND ANALYSIS
Standard of Review for Fed.R.Civ.P. 12(b)(6)
In deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must accept as
true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89,

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93-94 (2007). The court need not, however, accept conclusions of law as true:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” As
the Court held in [Bell Atlantic v.] Twombly, 550 U.S. 544, 127 S.Ct. 1955
[(2007)], the pleading standard Rule 8 announces does not require “detailed
factual allegations,” but it demands more than an unadorned,
the-Defendant-unlawfully-harmed-me accusation. Id. at 555. A pleading that
offers “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555. Nor does a complaint suffice if it tenders
“naked assertion[s]” devoid of “further factual enhancement.” Id. at 557.
To 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.” Id. at 570.
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. Id. at 556. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that a
Defendant has acted unlawfully. Id. Where a complaint pleads facts that are
“merely consistent with” a Defendant’s liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’” Id. at 557.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
According to the Sixth Circuit, the standard described in Twombly and Iqbal “obliges
a pleader to amplify a claim with some factual allegations in those contexts where such
amplification is needed to render the claim plausible.” Weisbarth v. Geauga Park Dist., 499
F.3d 538, 541 (6th Cir.2007) (quoting Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir.2007)).
The Court should disregard conclusory allegations, including legal conclusions
couched as factual allegations. Twombly, 550 U.S. at 555; J & J Sports Prods. v. Kennedy,
No. 1:10CV2740, 2011 U.S. Dist. LEXIS 154644, *4 (N.D.Ohio Nov. 3, 2011).
The pleading does not have to demonstrate probability; rather, “just enough factual
information to create an expectation that discovery will uncover evidence supporting the
claim.” Haber v. Rabin, No. 1:16CV546, 2016 WL 3217869, at *3 (N.D.Ohio Jun.10, 2016),

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citing Twombly, 550 U.S. at 556.
Voss’s Motion to Dismiss
Voss primarily argues the FAC does not allege sufficient facts to support both her
FLSA collective action and her OMFWSA claims. Voss urges the Court to adopt the First,
Second, Third and Ninth Circuit pleading requirement that a Plaintiff point the court to a
specific workweek wherein an FLSA violation occurred. Voss acknowledges that the Sixth
Circuit has not promulgated an FLSA pleading standard and points the Court to a number of
cases where district courts within the Sixth Circuit have applied both the more exacting
standard of the First, Second, Third and Ninth Circuits and cases where they have applied a
more lenient standard. Voss further contends that under either the more stringent standard or
the more lenient standard, Plaintiff’s claims fail to allege facts supporting her conclusion she
is owed overtime for pre and post shift work; that Voss and/or TSC knew or should have
known she was not being paid for overtime work; fails to allege facts supporting her claim
that Voss and/or TSC had a policy or practice of requiring employees to perform unpaid pre
and post shift work and fails to allege any facts describing the nature or her duties and those
she seeks to represent.
To 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.” Iqbal, 556 U.S. at
570. Defendants are correct that the Sixth Circuit has not yet issued any binding precedent on
the appropriate pleading standard for FLSA overtime claims. Furthermore, Defendants
correctly point out that courts within the Sixth Circuit vary as to the level of factual support
claimants need to plead in a complaint to satisfy the Twombly/Iqbal standard in FLSA

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overtime claims.
The Court begins its analysis with the Sixth Circuit and Supreme Court’s holding that
the Twombly/Iqbal standard “obliges a pleader to amplify a claim with some factual
allegations in those contexts where such amplification is needed to render the claim
plausible;” Weisbarth v. Geauga Park Dist., 499 F.3d 538, 541 (6th Cir.2007) (quoting Iqbal
v. Hasty, 490 F.3d 143, 157-58 (2nd Cir.2007)), and that courts should disregard conclusory
allegations, including legal conclusions couched as factual allegations. Twombly, 550 U.S. at
555. Mere recitation of the statute and its elements is insufficient to state a claim.
Those circuits that have adopted a stricter pleading standard have held for example
that an allegation that a plaintiff “regularly worked hours over 40 in a week and were not
compensated for such time” was “one of those borderline phrases” that, “while not stating
[an] ultimate legal conclusion[, was] nevertheless so threadbare or speculative that [it] fail[ed]
to cross the line between the conclusory and the factual.” Pruell v. Caritas Christi, 678 F.3d
10, 13 (1st Cir. 2012). The Second Circuit held Iqbal was not satisfied when a plaintiff failed
to “estimate her hours in any or all weeks or provide any other factual context or content.
Indeed, her complaint was devoid of any numbers to consider beyond those plucked from the
statute.” Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 89 (2d Cir. 2013). It further
required that at a minimum plaintiff must allege “an approximation of the total
uncompensated hours worked during a given workweek in excess of 40 hours.” Lundy v.
Catholic Health Sys. of Long Island, Inc., 711 F.3d 106, 114 (2d Cir. 2013). A court within
this circuit has held, “a plaintiff may meet this standard by pleading facts in support of his
conclusions, such as an imprecise numeric estimate of uncompensated hours or unpaid wages,

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to push the strength of his complaint from “possibility” to “plausibility.” Hall v. Plastipak,
No. 15-11428, 2015 WL 5655888, at *3 (E.D. Mich. Sept. 25, 2015).
However, other courts within this circuit have applied a more lenient pleading
standard. In Comer v. Directv, LLC., the court held that when a plaintiff alleges they were not
paid overtime or minimum wage in an average workweek and approximated their weekly
hours, the federal pleading standard was satisfied. Comer v. Directv, LLC, No. 2:14-CV1986, 2016 WL 853027, at *10 (S.D. Ohio Mar. 4, 2016). Comer also cited to the following
cases within the Sixth Circuit applying the less stringent pleading standard in FLSA cases.
Doucette v. Directv, Inc., 2015 WL 2373271, at *7 (W.D. Tenn. May 18, 2015); Mabry v.
Directv, LLC., No. 3:14 CV 00698, 2015 WL 5554023, at *4 (W.D. Ky Sept. 21, 2015)
(quoting Landers v. Quality Comm., Inc. 771 F.3d 638, 641–42 (9th Cir. 2014). (“Twombly
and Iqbal do not require a FLSA plaintiff to plead ‘in detail the number of hours worked, their
wages, or the amount of overtime owed to state a claim for unpaid minimum wages or
overtime wages.’”).
Against this backdrop the Court holds Plaintiff’s FAC alleges facts sufficient to
support her claims. Plaintiff alleges she and other similarly situated manufacturing
employees were only paid for work from the beginning of their scheduled shifts to the end
and were not paid for getting tools and equipment needed to do their jobs; walking to and
from assigned work areas; taking information from prior shift employees and performing their
production work. (FAC para. 28). Plaintiff alleges the above unpaid work resulted in unpaid
time of between 20 to 30 minutes each day. (Id). This unpaid time was due to Defendants’
policies and practices and she worked on average 1.5 to 2.5 hours a week of unpaid overtime.

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(Id at para. 32). Plaintiff also alleges she was employed by Defendants from December 2017
to March 2018 as a material handler. (Id. at para. 18). Based on these allegations, Plaintiff
has asserted sufficient facts to support plausible claims under the FLSA and OMFWSA as
they assert the kind of work Plaintiff and the putative class performed that went unpaid. She
further asserts the approximate time she performed these duties each day and the amount of
unpaid overtime she estimates resulted from this unpaid work.
Contrary to Defendants’ argument, the Court further holds Plaintiff has asserted
sufficient facts supporting her claim that the alleged FLSA and OMFWSA violations were
done with the knowledge of Defendants. Plaintiff asserts that the above described work
performed by Plaintiff and the putative class without pay was required by Defendants for
Defendants’ benefit and was done pursuant to Defendants’ policies or practices that
employees be paid only for work performed between their scheduled start and stop times.
These are more than sufficient to satisfy the federal pleading standard.
Regardless of the more lenient standard favored by courts within the Sixth District or
the more strict standard applied by some circuit courts, the Court holds Plaintiff’s FAC asserts
sufficient facts to satisfy the Twombly/Iqbal plausibility standard and allows Defendants
sufficient notice of the claims in order to defend them; i.e., Plaintiff’s job title, dates worked,
the duties performed for which she was not paid and the approximate hours per week which
she worked overtime without pay per Defendants’ practices and policies.
TSC as Joint Employer
TSC’s Motion to Dismiss incorporates Voss’s arguments but further contends
Plaintiff’s FAC fails to sufficiently alleges facts supporting her claim that TSC is a joint

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employer of Plaintiff.
“The issue of joint employment for the FLSA ‘depends upon all the facts in the
particular case.’ ” Keeton v. Time Warner Cable, No. 2:09-CV-1085, 2010 WL 2076813, at
*2 (S.D. Ohio May 24, 2010) (citing 29 C.F.R § 791.2(a); and Int'l Longshoremen's Ass'n,
AFL-CIO, Local Union No. 1937 v. Norfolk S. Corp., 927 F.2d 900, 902 (6th Cir. 1991)) (the
determination of “joint employer [status] is essentially a factual issue”).
Although the Sixth Circuit has not yet established a joint employer test for claims
brought under the FLSA, in Title VII cases the Sixth Circuit has instructed courts to look at
three factors: “exercise of authority to hire, fire, and discipline, control over pay and
insurance, and supervision.” Sanford v. Main Street Baptist Church Manor, Inc., 327
Fed.Appx. 587, 594 (6th Cir. 2009).
In cases involving labor disputes between unions and employers the Sixth Circuit has
considered four factors: “the interrelation of operations between the companies, common
management, centralized control of labor relations, and common ownership.” Keeton, 2011
WL 2618926, at *3 (citing Int'l Longshoremen’s Ass'n, AFL-CIO., 927 F.2d at 902).
The FLSA's definition of “ ‘[e]mployer’ includes any person acting directly or
indirectly in the interest of an employer in relation to an employee....” 29 U.S.C. § 203(d).3
“In light of its remedial purpose, the FLSA defines ‘employer’ more broadly than the term
would be interpreted in traditional common law applications.” Dole v. Elliott Travel & Tours,
Inc., 942 F.2d 962, 965 (6th Cir. 1991). If a worker is found to be “jointly employed by two
entities, each of [them] is responsible for complying with the FLSA.” Skills Dev. Servs., Inc.
v. Donovan, 728 F.2d 294, 300 (6th Cir. 1984). Whether joint employment exists “depends

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upon all the facts in the particular case.” 29 C.F.R. § 791.2(a).
The FAC alleges the following: Defendants were either a joint employer or single
enterprise due to their “interrelation of operations, common business purpose and activities,
common management, common control of labor relations and common ownership and
financial control.” (FAC para. 13). TSC is a temporary third-party staffing agency that
supplied employees to Defendant Voss. (Id. para. 16). Defendants employed Plaintiff as a
material handler. (Id. para.18). Defendants had the authority to hire, fire, and discipline
Plaintiff. (Id. para. 20). Defendants maintain employment, time and pay records of Plaintiff.
(Id. para. 21). Defendants controlled the manner in which Plaintiff performed her work,
including: hours worked, days worked, locations worked, how she performed her work and
promulgated the rules and policies Plaintiff was required to work. (Id. para. 22). Defendants
controlled the rate and method of pay. (Id. para. 23).
Each of the above allegations are factual allegations that can be proven or disproven
by evidence and, if taken as true as this court is required to interpret them at this stage of the
proceedings, would establish TSC as a joint employer of Plaintiff and those similarly situated
to her. However, TSC is not foreclosed from raising these issues after discovery.
Motion to Strike Class Allegations
Defendants move alternatively to strike the class allegations. According to
Defendants, Plaintiff cannot satisfy the Fed. R. Civ. P. 23 requirements of commonality,
typicality, predominance and superiority. According to Defendants, class certification is
inappropriate as the claims and defenses will require evidence that is not common to the class.
To determine hours worked beyond 40 hours in any given week will require highly

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individualized inquiry. Also, Defendants argue that without sufficient factual allegations as
to Defendants’ knowledge that employees were working overtime without payment and
without identifying specific policies or practices that violated the law, Plaintiff cannot show
commonality. Defendants further argue that because Plaintiff seeks to include in the class
employees of Defendants with different job titles, she lacks commonality with those
employees as she fails to describe her job duties relative to those of the other class members.
In the absence of such descriptions, the Court cannot determine whether the class members
are similarly situated. The above issues also would defeat the superiority and typicality
requirements.
Plaintiff opposes the Motion to Strike, contending that such motions are widely
disfavored. Plaintiff argues that she can satisfy the Rule 23 requirements because all
members of the putative class suffered from the same policies or practices of Defendants,
namely that all performed work before or after their scheduled start and stop times for which
they were entitled to be paid but were not. These unpaid duties include those described
previously. Also, Defendants failed to pay for overtime work. Because the resolution of
these issues will affect the putative class members across the different job duties, class
certification is the superior method. In addition, even if damages will be individualized,
common issues predominate and thus class action is the superior method.
Standard of Review on Motion to Strike Class Allegations
“If the Court determines that the Complaint does not allege facts that would satisfy the
demands of Rule 23, it may strike class action allegations prior to any motion for class
certification.” Progressive Health & Rehab Corp. v. Quinn Med., Inc., 323 F.R.D. 242, 244

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(S.D. Ohio 2017) Geary v. Green Tree Servicing, LLC, No. 2:14–CV–00522, 2015 WL
1286347, at *15–16 (S.D. Ohio Mar. 20, 2015) (citing Pilgrim v. Univ. Health Card, LLC,
660 F.3d 943, 949 (6th Cir. 2011); Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935,
941–44 (9th Cir.2009)).
Federal Rule of Civil Procedure 12(f) reads, “the court may strike from a pleading and
insufficient defense or any redundant, immaterial, impertinent or scandalous matter.”
“Motions to strike are generally disfavored, and the resolution of such motions is reserved to
the sound discretion of the trial court.” Wausau Benefits v. Progressive Ins. Co., 270
F.Supp.2d 980 (S.D. Ohio 2003). “A Rule 12(f) motion is designed ‘to avoid the expenditure
of time and money that must arise from litigating spurious issues by dispensing with those
issues prior to trial.’” Kennedy v. Cleveland, 797 F.2d 297, 305 (6th Cir.1986). “In class
actions, the Sixth Circuit has held that when discovery cannot cure the central defect in the
class claim, class allegations may be stricken from the complaint.” Pilgrim v. Universal
Health Card, LLC, 660 F.3d 943, 949 (6th Cir.2011). World, L.L.C v. Atlas Choice Corp.,
No. 1:15 CV 24, 2015 WL 2381624, at *2 (N.D. Ohio May 19, 2015). “[C]ourts should
exercise caution when striking class action allegations based solely on the pleadings,”
Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 56 (1st Cir.2013), because “class
determination generally involves considerations that are enmeshed in the factual and legal
issues comprising the plaintiff's cause of action,.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (internal citations and quotations omitted).
See also Mazzola v. Roomster Corp., 849 F.Supp.2d 395, 410 (S.D.N.Y.2012) (“[A] motion
to strike class actions ... is even more disfavored because it requires a reviewing court to

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preemptively terminate the class aspects of ... litigation, solely on the basis of what is alleged
in the complaint, and before plaintiffs are permitted to complete the discovery to which they
would otherwise be entitled on questions relevant to class certification”). See also Sauter v.
CVS Pharmacy, Inc., No. 2:13-CV-846, 2014 WL 1814076, at *2 (S.D. Ohio May 7, 2014).
The Court has already determined that the allegations in the FAC meet the
Twombly/Iqbal standard. Therefore, insofar as the same arguments are relied on to support
striking the class allegations, they are denied. The Court also finds the allegations in the FAC
are not so flawed as to support a motion to strike. At this stage of the proceedings the Court
cannot say that factual development will fail to cure any alleged defect in the pleadings. The
Court has found no such defect and recognizes that factual development into the policies and
practices of Defendants, along with the facts regarding the application of such policies or
practices across the spectrum of manufacturing employees, will ultimately determine if the
class suffered a deprivation of their rights under the OMFWSA to be paid for work performed
and for overtime pay. The Court cannot say at this point that the claims do not lend
themselves to class certification in the absence of discovery and the Court cannot hold that the
class did not suffer from such alleged deprivations in pay due to Defendants’ alleged
OMFWSA violating policies or practices which were applied classwide. While discovery
may result in findings adverse to Plaintiff’s class allegations the Court holds that at this stage
the allegations are sufficient. Consequently, the Court denies Defendants’ Motion to Strike.
Therefore, for the foregoing reasons, the Court denies Defendants’ Motions to Dismiss
and Motions to Strike. However, Defendants are not foreclosed from raising many of these
issues again after discovery is completed.

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IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: May 31, 2019

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