Barnes, II et al v. Gracia Mexican Kitchen, LLC et al

Filing 79

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 35 Denying MOTION to Dismiss 1 Complaint,, Partially granting as to Smith only and denying as to Hoeg 34 MOTION to Dismiss 1 Complaint,, Denying 37 MOTION to Dismiss 1 Complaint,, Denying 36 MOTION to Dismiss 1 Complaint, (Signed by Judge Nelva Gonzales Ramos) Parties notified.(fcarbia, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

March 19, 2019
David J. Bradley, Clerk

VICTOR BARNES, II, et al,

§
§
Plaintiffs,
§
VS.
§ CIVIL ACTION NO. 2:18-CV-140
§
GRACIA MEXICAN KITCHEN, LLC, et §
al,
§
§
Defendants.
§
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION ON
MOTIONS TO DISMISS
Plaintiffs Victor Barnes II and Shawn McBride (collectively, “Plaintiffs”) filed
this collective action primarily under the Fair Labor Standards Act (FLSA) against
Defendants Gracia Mexican Kitchen, LLC (Gracia), Matthew L. Hoeg (Hoeg), Brian
Smith (Smith), David Martinez (Martinez) and Pasta Company Ltd. (Pasta Company) as
their joint employers. D.E. 1. Defendants filed motions to dismiss1 pursuant to Federal
Rule of Civil Procedure 12(b)(6). On December 4, 2018, Magistrate Judge Jason B.
Libby issued a Memorandum and Recommendation (M&R, D.E. 44) recommending that
Defendant Smith’s motions to dismiss be granted and the remaining Defendants’ motions
to dismiss be denied. Defendant Hoeg filed a timely objection (D.E. 50), which is
addressed below.
Defendant Hoeg objects to the M&R, arguing that Plaintiffs’ formulaic and
conclusory allegations fail to state that he is liable under the FLSA as an employer. He
1

Hoeg and Smith’s motion to dismiss (D.E. 34); Martinez’s motion to dismiss (D.E. 35); Pasta Company’s motion
to dismiss (D.E. 36); and Gracia’s motion to dismiss (D.E. 37).

1/3

claims that the allegation that he fired four employees is “too conclusory” to be entitled
to an assumption of truth under a 12(b)(6) review. He also asserts that the allegations
that he and Defendant Martinez promoted Plaintiff Barnes, increased his pay, and
instructed him not to hire or fire other employees do not show that Hoeg personally had
operating control. He also argues that the allegations do not suggest that he had any
involvement in the alleged FLSA violations.
Defendant Hoeg’s arguments go to the merits or truth of Plaintiffs’ allegations and
are not relevant at this stage of the inquiry. After accepting all well-pleaded facts as true,
courts determine whether they plausibly give rise to an entitlement of relief. Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). Applying the economic reality test to the allegations
against Defendant Hoeg, Plaintiffs have pled sufficient facts to state a viable claim under
the FLSA. See Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990) (inquiring
whether the alleged employer had the power to hire and fire employees, supervise and
control employee work schedules or conditions of employment, determine the rate and
method of payment, and maintain employment records); see also Orozco v. Plackis, 757
F.3d 445, 449 (5th Cir. 2014) (holding that each element of the economic reality test
need not be present).
Defendant Hoeg cites to Gray v. Powers, 673 F.3d 352, 355 (5th Cir. 2012) to
argue that a joint decision between co-owners “proves nothing” about whether one is an
employer. However, Plaintiffs do not solely allege that Defendants collectively made
joint decisions to support their claims, but assert specific facts that reasonably infer that

2/3

Hoeg had the necessary control over Plaintiffs’ work conditions.

Thus, Defendant

Hoeg’s objection is OVERRULED.
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s M&R (D.E. 44), as well as Defendant Hoeg’s
objection (D.E. 50), and all other relevant documents in the record, and having made a de
novo disposition of the objected-to portions of the Magistrate Judge’s M&R, the Court
ADOPTS the findings and conclusions of the Magistrate Judge granting Defendant
Smith’s motion to dismiss and denying the remaining Defendants’ motions to dismiss.
Accordingly, Defendant Hoeg and Smith’s motion to dismiss (D.E. 34) is partially
granted as to Smith only and denied as to Hoeg. The motions to dismiss as to Defendants
Martinez (D.E. 35), Pasta Company (D.E. 36), and Gracia (D.E. 37) are DENIED.
ORDERED this 18th day of March, 2019.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

3/3