Herrera v. Utilimap Corporation et al
Filing
43
MEMORANDUM OPINION granting in part, denying in part 22 Opposed MOTION to Strike 17 Answer to Amended Complaint Defendant Utilimap Opposed MOTION to Strike 17 Answer to Amended Complaint Defendant Utilimap; denying 32 Request for Leave to Amend(Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sbutler, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDUARDO HERRERA AND ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs,
v.
UTILIMAP CORPORATION, et al,
Defendants.
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§
§
§
§
§
§
§
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§
Civil Action No. H-11-3851
MEMORANDUM OPINION
Pending before the court1 is Plaintiff’s Motion to Strike
Certain Affirmative Defenses in Defendant Utilimap Corporation’s
(“Defendant Utilimap’s”) Answer (Doc. 22).
The court has considered the motion, the responses, all
other relevant filings, and the applicable law.
For the reasons
set
DENIES
forth
below,
Plaintiff’s
Defendant
includes
the
Motion
Utilimap’s
a
request
court
to
GRANTS
Strike
Response
for
leave
IN
Certain
to
to
PART,
Affirmative
Plaintiff’s
amend.2
Motion
The
IN
PART
Defenses.
(Doc
court
32)
DENIES
Defendant Utilimap’s request, as explained herein.
I. Case Background
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Doc. 34.
2
See Doc. 32, Def. Utilimap’s Resp. in Opp’n to Pl.’s Mot. to Strike
Certain Affirmative Defenses in Def. Utilimap’s Answer (“Utilimap’s Resp.”),
p. 10.
Plaintiff Eduardo Herrera (“Plaintiff”), individually and
on behalf of all other similarly-situated current and former
employees
of
Defendants
Utilimap,
Quanta
Services
Management
Partnership, L.P. (“Defendant Quanta LP”), and Quanta Services,
Inc.
(“Defendant
filed
this
216(b)
of
Quanta
action
the
on
Fair
Inc.”)
November
Labor
(collectively,
1,
“Defendants”),
2011,
pursuant
to
Section
Act
(“FLSA”)3
to
recover
Standards
unpaid overtime compensation and compensation for work done “off
the clock” that was not recorded or paid.4
Plaintiff filed an Amended Complaint on January 13, 2012.5
Defendants
Complaint
have
and
timely
Plaintiff’s
filed
answers
Amended
to
both
Complaint.6
Plaintiff’s
In
Defendant
Utilimap’s Answer to the Amended Complaint, Defendant Utilimap
asserts a number of defenses and affirmative defenses, including
failure to state a claim, limitations, estoppel, laches, good
faith, and frivolousness.7
3
29 U.S.C. §§ 201-219.
4
Doc. 1, Compl.
5
The court entered a scheduling order
Doc. 8, Am. Compl.
6
See Doc. 4, Answer to Compl. by Def. Utilimap; Doc. 5, Answer to Compl.
by Defs. Quanta Inc. & Quanta LP; Doc. 17, Answer to Am. Compl. by Def.
Utilimap (“Utilimap’s Am. Answer”).
7
Doc. 17, Utilimap’s Am. Answer, pp. 1-3.
2
for
this
case
that
included
deadlines
for
amendments
to
pleadings and for dispositive motions.8
II. Standards
In
a
Rule
12(f)
motion,
the
court
may
strike
from
any
pleading “an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f).
“Although motions to strike a defense are generally disfavored,
a Rule 12(f) motion to dismiss a defense is proper when the
defense is insufficient as a matter of law.”
Kaiser Aluminum &
Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045,
1057 (5th Cir. 1982)
III. Analysis
Plaintiff
moves
to
strike
Defendant
Utilimap’s
second
defense and third, fourth, fifth, sixth, seventh and eleventh
affirmative defenses.
The court agrees with Plaintiff as to
Defendant Utilimap’s second defense, and Defendant Utilimap’s
fourth and eleventh affirmative defenses.
A. Defendant Utilimap’s Second Defense.
Courts are required to enter scheduling orders that “must
limit
the
time
to
join
other
parties,
complete discovery, and file motions.”
amend
the
pleadings,
Fed. R. Civ. P. 16(b).
Once set, “a schedule may be modified only for good cause and
with the judge’s consent.”
8
Rule 16’s “good cause standard
Id.
Doc. 20, Docket Control Order.
3
requires the ‘party seeking relief to show that the deadlines
cannot reasonably be met despite the diligence of the party
needing the extension.’ ”
S&W Enters., L.L.C. v. SouthTrust
Bank of Ala., 315 F.3d 533, 535 (5th Cir. 2003) (quoting 6A
Charles
Alan
Wright,
Arthur
R.
Miller
&
Edward
H.
Cooper,
Federal Practice and Procedure § 1522.1 (2d ed. 1990).
In their second defense, Defendant Utilimap alleges that
Plaintiff has failed to state a claim on which relief may be
granted.9
The deadline for dispositive motions has passed10, and
Defendant Utilimap has not filed a motion or filed a request for
extension of the deadline.
As such, any motion related to a
deficiency in Plaintiff’s pleadings that would lead to a ruling
under this defense is untimely.
Therefore, Defendant Utilimap’s
second defense is struck.
B. Defendant Utilimap’s Third, Fourth, Fifth, Sixth, Seventh,
and Eleventh Affirmative Defenses.
“An affirmative defense is subject to the same pleading
requirements as is the complaint.”
F.3d 354, 362 (5th
Cir. 1999).
Woodfield v. Bowman, 193
The standard articulated in
Woodfield for defenses is “fair notice,” which was the standard
for pleadings in the complaint at the time.
Gibson, 355 U.S. 41, 47 (1957).
9
See id.; Conley v.
After Woodfield, the Supreme
Doc. 17, Utilimap’s Am. Answer, p. 1.
10
Doc. 20, Docket Control Order (setting dispositive motion deadline of
July 20, 2012).
4
Court changed the pleading standard to require “enough facts to
state a claim for relief that is plausible on its face” in order
to “give the defendant fair notice of what the ... claim is and
the grounds upon which it rests.”
550 U.S. 544, 555, 570 (2007).
Bell Atl. Corp. v. Twombly,
This standard does not require
“detailed factual allegations,” but it must include sufficient
facts to indicate the plausibility of the claims asserted and to
raise the “right to relief above the speculative level.”
Id. at
555; see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).
After
notice”
Twombly,
standard
the
for
Fifth
Circuit
affirmative
reiterated
defenses.
See
the
“fair
Rogers
v.
McDorman, 521 F.3d 381, 385 (5th Cir. 2008) (citing Woodfield,
193 F.3d at 362).
However, a debate has surfaced post-Iqbal as
to whether the standard for defenses remains “fair notice” or is
now plausibility.
Compare Floridia v. DLT 3 Girls, Inc., 4:11-
CV-3624,
1565533,
2012
WL
at
*2
(S.D.
Tex.
May
2,
2012)
(unpublished) (employing the “fair notice” standard) with Vargas
v. HWC Gen. Maint., LLC, CIV.A. H-11-875, 2012 WL 948892, at *2
(S.D.
Tex.
plausibility
Mar.
20,
standard
2012)
applies
(unpublished)
to
affirmative
(finding
defenses).
the
A
majority of District Courts have applied the heightened Twombly
and Iqbal standard to affirmative defenses.
See Lane v. Page,
272 F.R.D. 581, 589-90 (D.N.M. 2011) (listing cases that have
applied the Twombly-Iqbal standard to affirmative defenses, as
5
well
as
agrees
cases
that
declining
the
to
apply
plausibility
the
standard).
standard
of
This
court
and
Iqbal
Twombly
applies to affirmative defenses.
In
their
third
affirmative
defense,
Defendant
Utilimap
claims that Plaintiff is “barred in whole or in part by the
applicable statute of limitations.”11
Defendant Utilimap does
not state which statute of limitations is applicable, or any
facts in support of this defense.
As Plaintiff’s only cause of
action is a violation of the FLSA, the court looks to the act’s
statute
of
limitations.
Under
the
FLSA’s
statute
of
limitations, a plaintiff is limited to claims arising less than
two years before the date of his complaint, with an extension to
three years if there was a willful violation.
29 U.S.C. § 255.
Plaintiff’s allegations fit within these time periods, but the
court has conditionally certified a class and cannot assess at
this point whether the claims of future plaintiffs may be barred
by
limitations.
Therefore,
Defendant
Utilimap’s
third
affirmative defense is not struck.
In
their
fourth
affirmative
defense,
Defendant
Utilimap
claims that Plaintiff is barred under doctrines of estoppel or
laches.12
Defendant Utilimap does not state any facts in support
of this defense.
“It is unclear whether the equitable defenses
11
Doc. 17, Utilimap’s Am. Answer, p. 1.
12
Id.
6
of waiver, estoppel, unclean hands, and laches are available
under
the
FLSA.”
Tran
v.
Thai,
CIV.A.
H-08-3650,
2010
5232944, at *7 (S.D. Tex. Dec. 16, 2010) (unpublished).
WL
When
the Fifth Circuit has allowed estoppel in FLSA actions, it has
been based on the specific facts of the case.
Quality
Without
Mills,
Inc.,
F.2d
facts
additional
462
to
1324,
(5th
1327
support
Brumbelow v.
these
Cir.
1972).
claims,
the
affirmative defenses of laches and estoppel cannot stand.
Defendant Utilimap’s fifth and sixth affirmative defenses
claim that it acted in conformity to established rulings and
interpretations of the FLSA, and acted in good faith and based
on a reasonable belief that its actions were not in violation of
the FLSA.13
These defenses are recitations of the requirements
of two sections of the FLSA.
See 29 U.S.C. §§ 259-60 (stating
that if the act was “in good faith in conformity with and in
reliance
ruling,
on
any
approval,
written
or
administrative
interpretation”
regulation,
from
the
order,
Department
of
Labor it is a bar to the action; if the act or omission was in
good
faith
and
reasonable,
the
court
may
deny
or
limit
liquidated damages).
Defendant
Utilimap’s
seventh
affirmative
defense
claims
that it did not intentionally or knowingly engage in conduct in
violation of the FLSA, and therefore did not make a willful
13
Id. at p. 2.
7
violation of the act.14
The claim repeats the standard for
willfulness in FLSA cases, “that the employer either knew or
showed reckless disregard for the matter of whether its conduct
was prohibited by the statute.”
McLaughlin v. Richland Shoe
Co., 486 U.S. 128, 133 (1988).
Defendant Utilimap’s fifth, sixth, and seventh affirmative
defenses
are
better
categorized
as
defenses.
They
describe
elements that the Plaintiff must prove; did Defendant Utilimap
ignore administrative rulings, did it violate the FLSA, and if
so did it act knowingly or intentionally.
clear
what
Therefore,
Plaintiff
Defendant
must
prove
Utilimap’s
to
These defenses make
meet
fifth,
each
sixth,
threshold.
and
seventh
defense
claims
defenses are not struck.
Defendant
that
Utilimap’s
Plaintiff’s
groundless,
and,
attorney’s fees.15
eleventh
Complaint
affirmative
is
frivolous,
accordingly,
unreasonable,
Defendant
is
and
entitled
to
Defendant Utilimap does not state any facts
in support of this defense.
For a defendant in a FLSA action to
receive an award of attorney’s fees, the defendant must show
that the complaint was made in bad faith.
See Flanagan v.
Havertys Furniture Cos, Inc., 484 F. Supp. 2d 580, 581 (W.D.
Tex.
2006)
(Comparing
14
Id.
15
Americans
Id. at p. 3.
8
with
Disabilities
Act’s
“prevailing party” provision, requiring the losing party to pay
the other party’s attorney’s fees, with FLSA’s “American Rule”
provision, requiring defendant to show claim was groundless to
receive attorney’s fees).
Defendant
Utilimap’s
eleventh
affirmative
defense
merely
recites the common law requirements, without facts in support.
Under
the
Twombly
standard,
“a
formulaic
elements of a cause of action will not do.”
678
(citing
Twombly,
550
U.S.
at
555).
recitation
of
the
Iqbal, 556 U.S. at
Without
facts
in
support, a bare recitations of the elements does not reach the
standard set in Twombly and must be struck.
C. Defendant Utilimap’s Request for Leave to Amend.
Defendant Utilimap, in their reply to Plaintiff’s Motion,
requests
leave
to
Plaintiff’s Motion.16
amend
its
Answer
if
the
court
grants
This request was filed with the court on
March 15, 2012, which is after the March 2, 2012 deadline for
amended
pleadings.17
When
a
scheduling
order
deadline
expired, Rule 16(b) governs amendment of the pleadings.
has
S&W
Enters., L.L.C., 315 F.3d at 536 (“We take this opportunity to
make clear that Rule 16(b) governs amendment of pleadings after
a
scheduling
order
deadline
has
16
Doc. 32, Utilimap’s Resp., p. 10.
17
Doc. 20, Docket Control Order.
9
expired.”).
As
previously
explained, the party requesting leave to amend under Rule 16
must show good cause and request leave of the court.
In
needs
deciding
to
whether
consider:
“(1)
the
amendment
is
the
explanation
proper,
for
the
the
court
failure
to
[timely move for leave to amend]; (2) the importance of the
[amendment];
(3)
the
potential
prejudice
in
allowing
the
[amendment]; and (4) the availability of a continuance to cure
such
prejudice.”
Id.
(alterations
in
original)
(quoting
Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253,
257 (5th Cir. 1997) (applying Rule 16(b) to the supplementation
of
an
expert
demonstrating
report)).
that
they
The
are
movants
entitled
to
bear
the
the
burden
of
opportunity
to
amend.
The reasoning provided by Defendant Utilimap in its reply
does
not
rise
to
this
standard.
Defendant
Utilimap
merely
states that it “requests leave to amend its Answer to plead the
affirmative
defenses
with
more
particularity.”18
Defendant
Utilimap does not provide any additional details that would lead
to a finding of good cause to allow amendment of their Answer.
Therefore, Defendant Utilimap’s request for leave to amend is
denied.
IV. Conclusion
18
Doc. 32, Utilimap’s Resp., p. 10.
10
Based on the foregoing, the court GRANTS IN PART, DENIES IN
PART
Plaintiff’s
Motion
to
Strike
(Doc
22).
The
court
additionally DENIES Defendant Utilimap’s request for leave to
amend (Doc 32).
SIGNED in Houston, Texas, this 14th
day of August, 2012.
____________________________________
Nancy K. Johnson
United States Magistrate Judge
11
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