Acosta v. Peregrino et al

Filing 32

ORDER AND MEMORANDUM: For the reasons discussed below, Defendant's Motion to Dismiss 16 is DENIED, and Defendants request for a more definite statement is GRANTED. Signed by District Judge William L. Campbell, Jr on 5/2/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

IN THE UNITED STATES DISTRICT COURT FOR
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
R. ALEXANDER ACOSTA, Secretary
Of Labor, U.S. Department of Labor,
Plaintiff,
v.
RAUL PEREGRINO, an individual,
and RAUL PEREGRINO d/b/a
RAUL PEREGRINO DRYWALL,
a/k/a PEREGRINO’S DRYWALL
Defendants.

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NO. 3:17-cv-01381
JUDGE CAMPBELL

ORDER AND MEMORANDUM OPINION
Pending before the Court is Raul Peregrino and Raul Peregrino d/b/a/ Raul Peregrino
Drywall, a/k/a Peregrino’s Drywall (“Defendants”), Motion to Dismiss and Supporting
Memorandum of Law. (Doc. Nos. 16, 17). Plaintiff filed a response in opposition (Doc. No. 24),
and Defendant has replied. (Doc. No. 27). For the reasons discussed below, Defendant’s Motion
to Dismiss is DENIED, and Defendant’s request for a more definite statement is GRANTED.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff originally brought this action pursuant to 29 U.S.C. § 201 et seq., against
Defendants on October 18, 2017. (Doc. No. 1). Plaintiff alleges under the Fair Labor Standards
Act (“FLSA”), Defendants are employers within the meaning of Section 203(d) of the FLSA and
engage in the business of construction and drywall work in Tennessee. (Id. at II). Plaintiff further
alleges Defendants intentionally misclassified employees as “independent contractors” and
permitted them to work as construction workers, translators, and clerical workers. (Id. at II-III).
According to the Complaint, Defendants failed to pay employees overtime for working over forty
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hours in a workweek in violation of the FLSA. (Id. at III-IV). Since December 2014, Defendants
have alleged willfully and repeatedly violated the FLSA, by failing to preserve records indicating
the hours worked by each employee, as required by the FLSA. (Id. at V). Plaintiff requests the
Defendants be permanently enjoined from violating the FLSA and restrain Defendants from
withholding payment of wages due to employees named in “Exhibit A”. (Id. at VII). Defendants
filed their Motion to Dismiss on January 17, 2018, under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim upon which relief can be granted. (Doc. No. 16). In the
alternative, Defendants request Plaintiff be required to provide a more definite statement under
Rule 12(e).
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6), permits dismissal of a complaint for failure to
state a claim upon which relief can be granted. For purposes of a motion to dismiss, a court must
take all of the factual allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
To survive a motion to dismiss, a complaint must contain sufficient factual allegations, accepted
as true, to state a claim for relief that is plausible on its face. Id. A claim has facial plausibility
when the plaintiff pleads facts that allow the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice. Id. When a complaint includes
well-pleaded factual allegations, a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement of relief. Id. at 1.
Federal Rules of Civil Procedure Rule 12(e) provides that a “party may move for a more
definite statement of a pleading to which a responsive pleading is allowed but which is so vague
or ambiguous that the party cannot reasonably prepare a response.” Federal courts generally

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disfavor motions for more definite statements. E.E.O.C. v. FPM Group, Ltd., 657 F. Supp. 2d 957,
966 (E.D. Tenn. Sept. 28, 2009) (citing Federal Ins. Co. v. Webne, 513 F.Supp.2d 921, 924 (N.D.
Ohio 2007). Thus, in view of the notice pleading standards of Rule 8(a)(2) and the opportunity for
extensive pretrial discovery, courts rarely grant such motions. A motion under Rule 12(e) should
not be granted unless the complaint is “so excessively vague and ambiguous as to be unintelligible
and as to prejudice the defendant seriously in attempting to answer it.” E.E.O.C. v. FPM Group,
Ltd., 657 F. Supp. 2d 957, 966 (E.D. Tenn. Sept. 28, 2009) (quoting Shirk v. Fifth Third
Bancorp, 2008 WL 4449024 at *8 (S.D. Ohio 2008)). Accordingly, if the complaint meets the
notice pleading requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure, the motion
should be denied. Shirk, 2008 WL 4449024 at *8.
III.

ANALYSIS

Defendants argue Plaintiff’s Complaint should be dismissed because Plaintiff fails to plead
with particularity facts to support its allegations and the Complaint is replete with conclusory
allegations that parrot the elements of the FLSA. (Doc. No. 17). Plaintiff responds by stating the
Complaint submits a short and plain statement of facts to show entitlement to relief for Defendants
violations under the FLSA. (Doc. No. 24).
To state a claim under the FLSA, a plaintiff must state sufficient facts to allege, “(1) the
existence of an employer-employee relationship, (2) the employees are protected by the FLSA,
and (3) employer’s failure to pay the employee overtime or a minimum wage as required for those
acts.” Busch v. Metro Pcs d/b/a Tablet Solutions, Inc., 2016 WL 705226 (W.D. Tenn. Feb. 18,
2016) (citing Carter v. Jackson-Madison Cnty. Hospital District, 2011 WL 1256625 at *5 (W.D.
Tenn. 2011)). District Courts within the Sixth Circuit apply a less strict approach to pleading
requirements under the FLSA, and does not require extensive, detailed factual pleadings provided

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a defendant is given sufficient notice of the claims asked to defend. Roberts v. Corrections Corp.
of America, 2015 WL 3905088 at *7 (M.D. Tenn. June 25, 2015); see also Miller v. AT&T Corp.,
2013 WL 5566698 at *2 (N.D. Ohio Oct. 9, 2013), Pope v. Walgreen Co., 2015 WL 471006 (E.D.
Tenn. Feb. 4, 2015) (finding that requiring a plaintiff to specify in their complaint a particular
week in which they worked more than forty hour would be too rigid).
The arguments contained in the briefs of both parties do not equip the Court with sufficient
measures to rule on the Rule 12(b)(6) motion. First, Defendants’ motions to dismiss relies on a
defense that is outside the scope of the current Complaint. (Doc. No. 17). Defendants requests the
Court to dismiss Plaintiff’s complaint on the grounds that Defendants’ workers are “independent
contractors” instead of “employees” as defined under the FLSA. While the Sixth Circuit
distinguishes an “employee” from an “independent contractor,” Defendants’ assertion of a defense
is not an appropriate ground to dismiss a complaint because the Court must only look to the
allegations pleaded in the Plaintiff’s Complaint. Defendants’ assertion that workers signed an
Independent Contractor Agreement that designated the workers as independent contractors falls
outside the scope of the Complaint. (Doc. No. 17 at 2).
In response, Plaintiff addresses an argument not raised by the Defendant. (Doc. No. 24).
Plaintiff focuses much of its response on the statute of limitations and asserts Defendants have the
obligation to plead affirmative defenses. However, when determining whether to dismiss
Plaintiff’s Complaint, the Court must only look to whether the Complaint states a claim for relief,
not arguments in Plaintiff’s briefings. See Guzman v. U.S. Dep't of Homeland Sec., 679 F.3d 425,
429 (6th Cir. 2012). The Court certainly will not consider arguments the parties do not even raise.
Here, the Court must determine whether Plaintiff pleaded sufficient facts to place
Defendants on notice under the Sixth Circuits FLSA pleading requirements. The Court determines

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Plaintiff’s Complaint imitates the statutory language under the FLSA, and does not provide
sufficient factual support under the FLSA. (Doc. No. 1 ¶ III). Plaintiff alleges merely that, “[the]
misclassified employees [worked] as construction workers, as translators, and as clerical workers”
and “Defendants’ employees worked on goods or materials…by virtue of performing construction
work, drywall work, and services related thereto…” (Id.). These facts are not sufficient to establish
an employee-employer relationship under the FLSA.1 Plaintiff further alleges, “Employees were
paid a day rate that did not provide for time and a half when they worked over 40 hours in a
workweek.” (Id.). While the Sixth Circuit has a less stringent requirement for pleading the exact
number of hours or the exact date and time a plaintiff works2, the Complaint is devoid of facts to
show the range of rates at which the employees were paid, that employees were paid less than
minimum wage, or allegations that Defendants lacked timekeeping related to their basic job
functions. See Potts, 2014 WL 7180164 at *3. Furthermore, Plaintiff has not pleaded facts to show
the employees are protected under the FLSA.
However, while Plaintiff’s Complaint merely cites language included in 29 U.S.C § 201 et
seq., without providing any specific facts, the Court believes the Complaint places the Defendants
on notice of the claims against them under the Sixth Circuit FLSA pleading standard. Accordingly,
the Court DENIES Defendant’s motion to dismiss, but GRANTS Defendant’s motion for a more

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See Simpson, 2018 WL 1070897 at *6 (finding that plaintiff alleged she continuously worked for
employer for twelve years, no indication she worked for any other employer, overtime claim
alleged she did not have time to perform other work, facts supported she had little control over her
work, she was assigned tasks that required no skill or training to perform them, and was issued a
W-2 instead of the IRS Form 1099 issued to independent contractors).

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“In general, FLSA plaintiffs are not required to plead with specificity the exact number of hours
for which they seek compensation, the exact amount in controversy, or the exact times and dates
on which the violations allegedly occurred.” Potts v. Nashville Limo & Transport, LLC, 2014 WL
7180164 at *3 (M.D. Tenn. Dec. 16, 2014) (Citing Myers v. Copper Cellar Corp., 192 F.3d 546,
551 (6th Cir.1999)).
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definitive statement under Fed. R. Civ. P. Rule 12(e). The Court hereby orders Plaintiff to submit
a more definitive complaint within 14 days of entry of this order. Failure to do so will be viewed
by the Court that Plaintiff intends to rely on its original Complaint and the Court will revisit the
sufficiency of that pleading consistent with the analysis provided herein.
It is so ORDERED.
____________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE

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