Blankenship et al v. Kwick Rentals, LLC et al

Filing 47

ORDER denying 37 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 5/9/2016. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DYLAN BLANKENSHIP, et al.,1
Plaintiffs,
vs.
KWICK RENTALS, LLC and
K&L RENTALS, LLC,
Defendants

)
)
)
)
)
)
)
)
)
)

Case No. CIV-15-1057-D

ORDER
Before the Court is Defendants Kwick Rentals, LLC and K&L Rentals, LLC’s Motion
to Dismiss [Doc. No. 37]. Defendants move for dismissal under Fed. R. Civ. P. 12(b)(6).
Because they have previously answered the Complaint, however, the Motion is one for
judgment on the pleadings under Fed. R. Civ. P. 12(c).2 Plaintiffs have responded in
opposition to the Motion, which is fully briefed.3
Plaintiffs bring suit against their joint employers to recover unpaid overtime wages
allegedly due under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19. Plaintiffs
seek to pursue claims for themselves and other similarly situated employees in a collective
FLSA action under § 216(b). Defendants move for a judgment of dismissal, asserting that

1

Plaintiff Dylan Blankenship voluntarily dismissed his claims by filing a Notice of Dismissal
Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). Although the case was transferred from another judicial district,
it does not appear from the case record that a change in the caption has been ordered. Thus, the Court utilizes
the caption of the Complaint [Doc. No. 1], which is the operative pleading.
2

After the time for filing a Rule 12(b) motion has expired, the defense of failure to state a claim may
be raised “by a motion under Rule 12(c).” See Fed. R. Civ. P. 12(h)(2).
3

No reply brief was timely filed pursuant to LCvR7.1(i).

the allegations of the Complaint are conclusory and fail to state a plausible FLSA claim for
nonpayment of overtime wages.
Standard of Decision
Motions under Rule 12(b)(6) and Rule 12(c) are governed by the same standard. See
Aspenwood Inv. Co. v. Martinez, 355 F.3d 1256, 1259 (10th Cir. 2004). “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Robbins v.
Oklahoma, 519 F. 3d 1242, 1247 (10th Cir. 2008). “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.” Iqbal, 556 U.S. at 678. In considering a
Rule 12(c) motion, “[a]ll well-pleaded allegations in the complaint are accepted as true and
construed in the light most favorable to the plaintiff.” See Aspenwood, 355 F.3d at 1259.
With limited exceptions, materials outside the complaint may not be considered. See GFF
Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997); see also
Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1144 (10th Cir. 2013).
Plaintiffs’ Allegations 4
Defendants are related limited liability companies that supply rental equipment to
oilfield production areas in Oklahoma, Texas, and Kansas. The named plaintiffs are or were

4

Pursuant to the standard of decision, the factual allegations of the Complaint are accepted as true,
and factual matters outside the Complaint argued in Defendants’ brief are disregarded.

2

salaried employees of Defendants who worked as “fuelers and delivery drivers.” See Compl.
[Doc. No. 1], ¶ 19. They were compensated according to Defendants’ wage policy of paying
each worker a combination of salary, per diem, and mileage, without overtime pay for hours
worked in excess of 40 hours in a single workweek. Plaintiffs do not describe the job duties
of their positions or the work performed, but they allege “[a]ll of Defendants’ salaried
workers perform manual labor in support of Defendants’ oilfield related rental business.”
Id. ¶ 28. Plaintiffs also assert they were non-exempt employees under FLSA entitled to
overtime pay for hours worked in excess of 40 hours in a week, that they were routinely
scheduled “for 10 or more hours each work day” and “as many as 7 days in a workweek,”
and that they did not receive overtime pay. Id. ¶¶ 25, 29-30, 32-33. Plaintiffs allege
Defendants knew their salaried workers worked more than 40 hours in a week, were nonexempt employees, and were not paid overtime wages required by FLSA.
Plaintiffs claim Defendants violated FLSA, 29 U.S.C. § 207, by failing to pay them
“overtime at rates not less than one and one-half times their proper regular rates” and
Defendants’ conduct constituted a willful FLSA violation. Id. ¶¶ 56-57. Plaintiffs make
similar allegations on behalf of other salaried employees of Defendants in order to bring a
collective action under 29 U.S.C. § 216(b).5 Plaintiffs seek damages for unpaid overtime
compensation, liquidated damages, attorney fees, and costs.

5

Plaintiffs have filed a motion for conditional certification of a class of similarly situated employees.
Defendants argue, in part, that Plaintiffs’ statements in support of the motion are inconsistent with the
Complaint and defeat their FLSA claim. See Defs.’ Mot. Dismiss [Doc. No. 37], p.9. However, the motion
is not part of Plaintiffs’ pleading. See Fed. R. Civ. P. 7 (distinguishing pleadings from motions).

3

Discussion
With certain exceptions, an employer engaged in interstate commerce is required by
FLSA to pay an employee “for his employment in excess of [40 hours in a workweek] at a
rate not less than one and one-half times the regular rate at which he is employed.” See 29
U.S.C. § 207(a). Defendants contend the Complaint is deficient because “Plaintiffs have
only asserted conclusory allegations that they worked in excess of forty hours in an unknown
time period.” See Defs.’ Mot. Dismiss [Doc. No. 37], p.5. Defendants point out that the
Complaint lacks “factual allegations regarding the average rate at which [Plaintiffs] were
paid, and the amount of overtime wages Plaintiffs believe they are entitled [to].” Id., pp.7-8.
Defendants also argue that “Plaintiffs should have set forth the number of hours worked as
overtime, and how much the additional pay [such as per diem and mileage] failed to
compensate them for hours worked.” Id., pp.10-11. Finally, Defendants assert the allegation
that Plaintiffs were “delivery drivers” triggers FLSA’s overtime wage exemption for
employees who are subject to requirements of the Secretary of Transportation establishing
qualifications and maximum hours of service under the Motor Carrier Act (“MCA”), 49
U.S.C. § 31502. See 29 U.S.C. § 213(b)(1).
Defendants’ contention that the Complaint fails to state a plausible FLSA overtime
wage claim is not supported by binding precedent but by case law from appellate courts other
than the Tenth Circuit. See Defs.’ Mot. Dismiss [Doc. No. 37], pp. 4-5, 6-7 (citing Pruell
v. Caritas Christi, 678 F.3d 10, 13 (1st Cir. 2012); Lundy v. Catholic Health Sys. of Long
Island, Inc., 711 F.3d 106, 114 (2d Cir. 2013); Landers v. Quality Commc’ns., Inc., 771 F.3d
4

638, 642-43 (9th Cir.), cert. denied, 135 S. Ct. 1845 (2015)). In Landers, the Ninth Circuit
surveyed the standards applied by federal appellate courts and considered the specificity
needed to state a plausible overtime wage claim. It found that “[n]o circuit court has
interpreted Rule 8 as requiring FLSA plaintiffs 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.” Landers, 771 F.3d at 641-42. The court in Landers concluded
that “at a minimum, a plaintiff asserting a violation of the FLSA overtime provisions must
allege that she worked more than forty hours in a given workweek without being
compensated for the hours worked in excess of forty hours during that week.” Id. at 645-46.
In this case, the Court finds Plaintiffs’ factual allegations to be sufficient, although barely,
to state an FLSA overtime claim.
Regarding the MCA exemption of § 213(b)(1), Defendants contend the Complaint is
deficient because it does not show Plaintiffs’ employment as “delivery drivers” falls outside
MCA’s coverage. This contention has a faulty premise. An employer subject to FLSA bears
the burden to establish an exemption applies. See Lederman v. Frontier Fire Prot., Inc., 685
F.3d 1151, 1156 (10th Cir. 2012); see also Deherrera v. Decker Truck Line, Inc.,
No. 15-1220, 2016 WL 1593691, *3 (10th Cir. April 21, 2016) (to be published). While an
affirmative defense may be appropriate for consideration in ruling on the sufficiency of a
complaint, the facts establishing the defense must be set forth in the complaint. See Jones
v. Bock, 549 U.S. 199, 215 (2007) (“If the allegations [of a complaint], for example, show
that relief is barred by the applicable statutes of limitations, the complaint is subject to
5

dismissal for failure to state a claim . . . .”); see also Vasquez Arroyo v. Starks, 589 F.3d
1091, 1096-97 (10th Cir. 2009).6 Here, the Complaint states only that Plaintiffs worked as
delivery drivers; it contains insufficient allegations to show Plaintiffs’ positions were covered
by the MCA exemption, which applies only to drivers engaged in “interstate commerce” as
defined by the Act, implementing regulations, and case law. See Foxworthy v. Hiland Dairy
Co., 997 F.2d 670, 672-73 (10th Cir. 1993); see also Deherrera, 2016 WL 1593691 at *4.
Therefore, the Court rejects Defendants’ contention that the Complaint fails to state an FLSA
overtime wage claim due to the possible application of the MCA exemption.
Conclusion
For these reasons, the Court finds the Complaint is sufficient to state an FLSA claim.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss [Doc. No. 37]
is DENIED, as set forth herein.
IT IS SO ORDERED this 9th day of May, 2016.

6

Where more specific facts might support a dispositive motion, such as a date that would establish
a statute of limitations defense, “the preferable procedure . . . is to require the plaintiff to provide a more
definite statement under Fed. R. Civ. P. 12(e).” Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010).

6