Foutch et al v. SB Directional Services LLC et al

Filing 22

MEMORANDUM OPINION AND ORDER granting in part 17 Defendants' Motion for Partial Dismissal of Plaintiffs' Amended Complaint. Plaintiffs to file any amended complaint within 10 days of this order. Status/Scheduling Conference set on 8/1/19 is hereby stricken. Signed by Honorable Robin J. Cauthron on 07/24/19. (wh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CLAYTON FOUTCH, et al.,
Plaintiffs,
vs.
SB DIRECTIONAL SERVICES, LLC,
et al.,
Defendants.

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Case Number CIV-19-362-C

MEMORANDUM OPINION AND ORDER
Plaintiffs filed this action as a putative class action alleging violation of the Fair
Labor Standards Act (“FLSA”) and the Oklahoma Protection of Labor Act (“OPLA”).
Plaintiffs allege that Defendants have a practice of classifying all their employees as
independent contractors and paying them a day wage for each day worked as opposed to
wages. Defendants filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), arguing
that Plaintiffs’ Amended Complaint fails to state a claim for violation of the OPLA and/or
that Plaintiffs are improper class representatives.
Defendants argue that Plaintiffs’ OPLA claim must fail as the allegations in the
Amended Complaint only support a claim for unpaid overtime wages. Defendants argue
the OPLA mandates only that wages must be paid as agreed. Because there was no
agreement to pay overtime wages, there can be no violation of the OPLA. In response,
Plaintiffs argue that Defendants mistake the fact that the OPLA does not require payment
of overtime wages.

As Defendants note, the statute and regulations relied on by Plaintiffs to argue
payment of overtime is required are not contained in the OPLA. Rather, those authorities
are part of the Oklahoma Employment Security Act, which is not asserted by Plaintiffs.
The Tenth Circuit has noted:

“we find no Oklahoma constitutional, statutory or

decisional law which would require an employer . . . to pay overtime compensation to its
employees.” McKenzie v. Renberg's Inc., 94 F.3d 1478, 1487 (10th Cir. 1996). Thus,
to the extent Plaintiffs rely on the OPLA as a mechanism to pursue their claims for unpaid
overtime, those claims fail as a matter of law.

Defendants request these claims be

dismissed with prejudice. While the Court is not persuaded that Plaintiffs can overcome
the legal barriers to this claim, they will be given an opportunity to amend to state a claim
consonant with the rulings herein.
Defendants also challenge Plaintiffs’ status as proper class representatives.
Plaintiffs were directional drillers for Defendants. Plaintiffs’ Amended Complaint seeks
to plead a class action comprised of all employees of Defendants that were treated as
independent contractors. Defendants argue that Plaintiffs, as directional drillers, are not
similarly situated to office or clerical staff and so cannot properly represent those persons
in a class action. Plaintiffs offer no response to Defendants’ argument on this issue.
The Court finds that at this stage Plaintiffs’ pleading is sufficient.

When

certification of a class is proposed, it may be that Defendants’ arguments are correct and
that Plaintiffs are not similarly situated to other persons Defendants treated as independent
contractors. However, at this stage, there is no evidence as to the kind of workers treated

as independent contractors.

Thus, it cannot be said that Plaintiffs are not similarly

situated.
For the reasons set forth herein, Defendants SB Directional Services, LLC’s and
Scott Burch’s Motion for Partial Dismissal of Plaintiffs’ Amended Complaint (Dkt. No.
17) is GRANTED in part. Plaintiffs’ claims for violation of the OPLA are DISMISSED
without prejudice. Plaintiffs shall file any Amended Complaint within 10 days of the date
of this Order. Plaintiffs’ claims under the FLSA remain. The Status and Scheduling
Conference scheduled for August 1, 2019, is STRICKEN to be reset at a later date.
IT IS SO ORDERED this 24th day of July, 2019.