Solis v. El Tequila, LLC et al

Filing 29

OPINION AND ORDER by Judge John E Dowdell Defendants' Second Motion to Dismiss and Brief in Support (Doc. 26) is denied. Defendants are directed to file their Answer(s) on or before 8/1/2013. Additionally, the parties are to submit a joi nt status report by 8/7/2013. ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 8/1/2013); directing parties to file joint status report( Status Report due by 8/7/2013); denying 26 Motion to Dismiss (Re: 24 Amended Complaint ) (SAS, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
HILDA L. SOLIS,
Plaintiff,
v.
EL TEQUILA, LLC, and
CARLOS AGUIRRE,

Defendants.

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Case No. 12-CV-588-JED-PJC

OPINION AND ORDER
The Court has for its consideration Defendants’ Second Motion to Dismiss and Brief in
Support (Doc. 26). The defendants argue that plaintiff’s complaint contains nothing more than
conclusory allegations and therefore is subject to dismissal under the relevant pleading standard.
Plaintiff, Seth D. Harris, Acting Secretary of Labor for the United States Department of
Labor, has alleged claims against defendants El Tequila, LLC and Carlos Aguirre for violations
of the Fair Labor Standards Act of 1938 (the “FLSA”), 29 U.S.C. §§ 201 et seq. Plaintiff
contends that defendants violated the FLSA’s provisions regarding payment of minimum wage,
overtime, and record keeping. Specifically, the second amended complaint (Doc. 24) alleges that
defendant Aguirre owns El Tequila, LLC which operates four restaurants in the Tulsa area, and
that these restaurants pay their employees a weekly salary which remains the same regardless of
the number of hours worked. Plaintiff further alleges that these employees routinely work six to
seven days per week, making their salary less than the minimum wage in violation of the FLSA.
The complaint also asserts that the defendants’ conduct violates the FLSA because these
employees routinely work more than 40 hours per week without being paid overtime. Finally,
the complaint alleges that the defendants do not require employees to keep track of their hours

and that defendants do not keep records of the hours worked by their employees in violation of
the FLSA.
Defendants move to dismiss plaintiff’s complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure.1 In considering a motion under Rule 12(b)(6), a court must determine
whether the plaintiff has stated a claim upon which relief may be granted. A motion to dismiss is
properly granted when a complaint provides no “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). A complaint must contain enough “facts to state a claim to relief that is
plausible on its face” and the factual allegations “must be enough to raise a right to relief above
the speculative level.” Id. (citations omitted). “Once a claim has been stated adequately, it may
be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at
562. Although decided within an antitrust context, Twombly articulated the pleading standard for
all civil actions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009). For the purpose of making the
dismissal determination, a court must accept all the well-pleaded allegations of the complaint as
true, even if doubtful, and must construe the allegations in the light most favorable to claimant.
Twombly, 550 U.S. at 555; Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007);
Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a
court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee
Cnty. Bd. Of Cnty. Com'rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001). “[C]onclusory allegations
without supporting factual averments are insufficient to state a claim upon which relief can be

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Although defendants’ motion to dismiss also states that is it made pursuant to Rule 12(b)(1),
i.e. subject matter jurisdiction, the arguments contained in the motion do not include subject
matter jurisdiction. Thus, the defendants’ motion will be treated solely as one made pursuant to
Rule 12(b)(6). The Court nonetheless observes that jurisdiction is proper under 28 U.S.C. §
1331 as plaintiff alleges claims based upon violations of the FLSA.
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based.” Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009) (quoting Hall v. Bellmon,
935 F.3d 1106, 1109-10 (10th Cir. 1991)).
The Court finds that plaintiff has sufficiently pled his FLSA claims under the
Twombly/Iqbal standard. Determining whether a complaint has sufficiently stated a claim is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679. Here, the claims at issue – minimum wage, overtime,
and record-keeping violations – are straightforward and capable of being described without
reference to a large body of facts. As plaintiff puts it, the second amended complaint “alleges
conduct that in and of itself constitutes violations of the Act”, and the defendants either did or
did not engage in this conduct, which remains to be seen. (Doc. 27, at 4).
The second amended complaint sets forth that the minimum wage violations resulted
from paying employees of the alleged enterprise less than the minimum hourly rate mandated by
the FLSA due to employees being paid a flat salary regardless of the number of hours worked
(Doc. 24, at 3-4); that the overtime violations resulted from defendants not paying their
employees proper overtime for hours worked in a week that exceeded 40 (id., at 4); and that the
record-keeping violations resulted from defendants failure to record the number of hours their
employees worked or to have their employees to do so (id., at 4-5). The Court finds that the
allegations contained in the second amended complaint discussed above are non-conclusory and,
when viewed as a whole and in the light most favorable to plaintiff, are clearly more than
adequate to render it “plausible on its face.” Twombly, 550 U.S. at 555.
IT IS THEREFORE ORDERED that Defendants’ Second Motion to Dismiss and Brief
in Support (Doc. 26) is denied. Defendants are directed to file their Answer(s) on or before
August 1, 2013.

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IT IS FURTHER ORDERED that the parties are to submit a joint status report within
21 days.
SO ORDERED this 17th day of July, 2013.

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