Haskett v. Continental Land Resources, LLC et al

Filing 47

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 36 Memorandum and Recommendations, granting 10 MOTION to Dismiss Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(3), granting 8 MOTION to Dismiss With B rief In Support, granting 21 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Plaintiff's First Amended Complaint, denying 40 MOTION for Leave to File Second Amended Complaint, granting 19 MOTION to Dismiss Plaintiff's First Amended Complaint With Brief in Support, granting 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . Plaintiff's Objections are over-ruled. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

PHILLIP DAVID HASKETT,
Plaintiff,
v.

CONTINENTAL LAND RESOURCES,
LLC; WESTERN LAND SERVICES,
INC.; PURPLE LAND MANAGEMENT
CORPORATION; UNKNOWN CLIENTS
OF CONTINENTAL, WESTERN AND
PURPLE #1-#9; and JON
DOUGHS #1-#9,
Defendants.

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CIVIL ACTION NO. G-14-0281

ORDER ADOPTING MAGISTRATE JUDGE'S
MEMORANDUM AND RECOMMENDATION

The court has conducted a de novo review of the Magistrate
Judge's

Memorandum

and

Recommendation

(Docket

Entry

No.

36),

Plaintiff's Objections to Magistrate's Memorandum and Recommendation Dated February

9~,

2015 (Docket Entry No. 39), and Plaintiff's

Opposed Motion for Leave to File Second Amended Complaint (Docket
Entry No. 40).
The

Memorandum

amended complaint

and

failed

Recommendation
to allege

found

sufficient

that
facts

Plaintiff's
to

assert

personal jurisdiction over Defendant Western Land Services,

Inc.

It also found that Plaintiff failed to adequately state an Age
Discrimination in Employment Act

("ADEN' )

claim against either

defendant Continental Land Resources, LLC or defendant Purple Land

Management LLC because Plaintiff merely alleged that he had sent
resumes to the defendants and was not hired.
The Memorandum and Recommendation stated that the court would
reconsider that recommendation if Plaintiff attached an amended
complaint

that

cured

his

pleading

deficiencies.

Plaintiff

submitted a proposed Second Amended Complaint, along with a motion
for leave to amend,

in conjunction with his objections to the

Memorandum and Recommendation.
The court has

conducted a

line-by-line comparison between

Plaintiff's live amended complaint and his proposed second amended
complaint.

The proposed complaint adds no new jurisdictional facts

concerning

Defendant

Western

Land

Services,

Inc.

The

court

therefore ADOPTS the Memorandum and Recommendation's findings with
respect to Defendant Western Land Services, Inc.
In

his

proposed

Second

Amended

Complaint

(Docket

Entry

No. 40-2) Plaintiff has also alleged that an industry survey showed
that less than ten percent of landmen have Registered Professional
Landman certification, a status that he received in 2008. 1
on

this

new

allegation,

Plaintiff

claims

that

he

is

Based
better

qualified than most applicants and concludes that he was not hired
because of his age. 2

Plaintiff also states that he has learned

1Doc. Entry No. 40-2, Ex. 2 to Pl.'s Mot.
Compl., Pl.' s Proposed 2 nd Am. Compl., p. 4.
2Id.
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to File 2 nd Am.

that many older landmen such as himself have had difficulty in.
finding steady employment and complains that companies such as
Defendants prefer to train younger individuals rather than training
older landmen in their forties or fifties.
fail

because

Plaintiff

has

not

3

alleged

These new allegations
the

specific

employee

position sought, that the successful candidate was younger than he
was, that he was not hired "but for H his age, and that he timely
filed an administrative complaint of discrimination with respect to
that position.
Plaintiff also expands on the amended complaint's allegations
arising from his conversation with an Equal Employment Opportunity
Commission ("EEOC H

)

investigator.

The investigator allegedly told

Plaintiff that none of the Defendants denied hiring persons under
the

age

of

forty

for

independent

proposed Second Amended Complaint

contractor
alleges

positions. 4

that,

The

based on this

statement, Plaintiff understood this to be a "backward confession H
by

Defendants

admitting

they

had

hired

persons

younger

than

Plaintiff for independent contractor positions, but that Defendants
believed

that

fact

was

inconsequential

contractor positions were not

because

covered by the ADEA.

independent
Plaintiff

complains that these posted landmen positions should be considered
employee positions, falling within the protection of the ADEA.

3Id. at 9.
4Id. at 11 ~ 36.
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He

seeks a declaration stating that the advertised positions should be
deemed employee positions, not independent contractor positions.
The ADEA prohibits age discrimination in employment.
u.S.C.

§

621(b).

In relevant part, the ADEA makes it unlawful for
. any individual .

an employer "to fail or refuse to hire

29 U.S.C.

because of such individual's age."
"employee"
employer.

See 29

is

defined

"

"an

as

29 U.S.C.

§

individual

630(f).

§

623 (a) (1) .

employed

by

An
any

In determining whether a

person is an employee covered by Title VII or the ADEA, courts have
applied an "economic realities/common law control" test.

Juino v.

Livingston Parish Fire Dist. No.5, 717 F.3d 431, 433-35 (5th Cir.
2013).

The Fifth Circuit has explained that the economic realities

portion of the test requires proof that the putative employees, "as
a matter of economic reality,
which they render service."
v. Harris Hosp.-Methodist,

are dependent on the business to

Juino, 717 F.3d at 434 (quoting Diggs
Inc.,

847 F.2d 270, 272 n.3

(5th Cir.

1988)) .
The common law control portion of the test, which is the more
important aspect of the analysis,

inquires into "the extent to

which the one for whom the work is being done has the right to
control

the

completed."

details
Juino,

and
717

means
F.3d at

by
434

which

the

work

is

to

(citation omitted).

following factors are to be considered by the court:
(1) the kind of occupation, with reference to whether the
work usually is done under the direction of a supervisor
or is done by a specialist without supervision; (2) the
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be
The

skill required in the particular occupation; (3) whether
the "employer" or the individual in question furnishes
the equipment used and the place of work; (4) the length
of time during which the individual has worked; (5) the
method of payment, whether by time or by the job; (6) the
manner in which the work relationship is terminated [,]
i.e., by one or both parties, with or without notice and
explanation;
(7) whether annual leave is afforded;
(8) whether the work is an integral part of the business
of the "employer" [,] (9) whether the worker accumulates
retirement benefits; (10 whether the "employer" pays
social security taxes; and (11) the intention of the
parties.
Juino, 717 F.3d at 434-35 (citation omitted).

The determination of

employee status is a fact-intensive one because in most cases there
are facts pointing in both directions.

Herman v. Express Sixty-

Minutes Delivery Service, Inc., 161 F.3d 299, 305 (5th Cir. 1998).
In this case, since Plaintiff cannot point to any specific job
for which

he was an unsuccessful applicant, he cannot allege any

facts to support a claim that the position for which he was not
selected

was

an

employee

contractor position.

position

instead

of

an

independent

Plaintiff's speculations and opinions about

a position he did not attain based on his prior job experiences are
not sufficient to sustain a plausible claim under the ADEA that
meets the Twombly and Iqbal pleading standards. 5
Because Plaintiff has already amended his complaint and his
proposed complaint is deficient,

Plaintiff's Opposed Motion for

Leave to File Second Amended Complaint

(Docket Entry No.

40)

is

DENIED.

5Bell Atlantic Corp. v. Twombly, 550 U.S.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
-5-

544,

555

(2007);

Plaintiff's

objections

are

OVERRULED.

The

Memorandum

and

Recommendation is hereby ADOPTED by this court.
SIGNED at Houston, Texas, on this 27th day of March, 2015 .

./
SIM LAKE
UNITED STATES DISTRICT JUDGE

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