Thompson et al v. Capstone Logistics, LLC et al
Filing
54
OPINION AND ORDER. For the reasons stated in the Opinion and Order, the CourtORDERS that Defendants' motion to dismiss or to strike is DENIED. The Court further ORDERS that Plaintiffs' motions for leave to amend are DENIED without prejudice to being reurged as to Jarmon and Portis if and after they withdraw from the Tennessee case, but GRANTED as to Ross, James, and Norman.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
United States District Court
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARC THOMPSON, et al.,
§
§
Plaintiffs,
§
§
VS.
§
Civ. A. H-15-2464
§
CAPSTONE LOGISTICS, L.L.C., et §
al.,
§
§
Defendants.
§
Southern District of Texas
ENTERED
August 31, 2016
David J. Bradley, Clerk
OPINION AND ORDER
Pending
before
the
Court
in
the
above
referenced
putative collective action to recover unpaid overtime under 29
U.S.C. §207 at one and one half times their regular rate of pay
and minimum wages under 29 U.S.C. § 206 of the Fair Labor
Standards Act (“FLSA”), are (1) Defendants Capstone Logistics,
L.L.C. and LMS Intellibound, L.L.C.’s motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) or, in the alternative,
to strike damages allegations (instrument #26) under Rule 12(f)
because Plaintiffs seek a remedy that, based on the Complaint’s
allegations, they cannot recover under the law; (2) Plaintiffs
Marc Thompson, Brandon White, Jeffrey Grubbs, Desmond Pollard,
DeVon Barnes, Byron Collins, Robert Ross, Immanuel Edens, Alex
Davis, Cory Wells, Damien Mathis, and Charles Fortune’s motion for
leave to file second amended complaint (#34) to add Darius Portis
and Johnny Ross as new plaintiffs; and (3) Plaintiffs’ motion to
file third amended complaint and jury demand (#43) to add Lawrence
James, Ray Jarmon, and Brandon Norman as new plaintiffs.
I.
A.
Defendants’ Motion to Dismiss or to Strike (#26)
Parties’ Arguments
Defendants contend that Plaintiffs seek a remedy that
they are not entitled to under the law and therefore Count I
-1-
(violation of 29 U.S.C. § for overtime compensation) of the
governing pleading, the First Amended Complaint (#10), should be
dismissed for failure to state a claim upon which relief may be
granted
under
Rule
12(b)(6)
or,
alternatively,
its
damages
allegations should be stricken under Rule 12(f).
Plaintiffs allege that they are employees of Defendants
who work as non exempt “unloaders,” manually unloading trucks of
Defendants’ clients.
#10, ¶¶ 32-33.
For that work they are paid
on a commission basis, also known in the industry as “production
pay,” determined by the number and weight of the trucks unloaded,
or as the “piece rate” method of compensation.1
Id. ¶ 34.
They
claim that they typically worked more than forty hours in a
workweek and “were not compensated at a statutory minimum rate of
one and one-half times their regular rate of pay.” Id. ¶¶ 35, 41.
Furthermore they charge that Defendants “did not accurately track
and pay the Plaintiffs for this work on an hourly basis.”
¶ 36.
Id. at
For those hours Defendants did track, Defendants failed to
include time when Plaintiffs were on duty waiting to unload trucks
or perform other jobs for their employers even though Plaintiffs
had to remain on Defendants’ premises or close enough so that they
were quickly available.
Id. ¶¶ 37-38.
Plaintiffs were also not
paid for the hours they worked through what should have been their
lunch period.
Id. ¶ 39.
1
See U.S. Dep’t of Labor, FLSA Section 14() Advisor,
http://webapps.dol.gov/elaws/whd/flsa/14c/18e.htm (“A piece rate
is the amount of money paid per task performed.”). #27, at p.2.
-2-
In their motion to dismiss or to strike, Defendants
argue that they paid Plaintiffs’ wages on a production, or piece
rate, basis and that Plaintiffs’ complaint admits this fact.
Therefore, to the extent Plaintiffs are entitled to any overtime
pay, Defendants insist that Plaintiffs are entitled only to a one
half-time overtime premium for those hours that they worked over
forty per week.
29 C.F.R. § 778.111.
Defendants further highlight that instead of answering
Plaintiffs’ Original or First Amended Complaint, on October 25,
2015 they filed a timely Motion for More Definite Statement (#17)
in which they argued that Plaintiffs’ First Amended Complaint (1)
failed
to
state
whether
they
are
claiming
that
Defendants’
production pay model was unlawful and (2) failed to identify the
remedy they seek, i.e., a one and one half-time overtime premium
or a half-time premium for alleged unrecorded hours worked over 50
hours in a workweek.
Supporting memorandum, #18 at 2, 5-7.
In
that memorandum (#18 at 6-7), Defendants pointed out that if
Plaintiffs sought the former remedy, Defendants would have to file
a motion to dismiss or strike, not a motion for more definite
statement.
In their response (#19 at p. 7), Plaintiffs clarified
that they are seeking one and one half-times their regular rate of
pay as damages for the alleged unpaid overtime.
On November 17, 2015, the Court denied the Rule 12(e)
motion for more definite statement, but noted the correct rate:
“when workers are paid by ‘piece rate’ . . . [f]or each hour of
overtime piece work [t]hey are paid an additional one half of
-3-
their hourly rate.”
#23, at p.1, n. 1, citing 29 C.F.R. §
778.111.
Defendants
observe
that
the
question
of
damages,
including the overtime premium to which a worker is entitled under
the FLSA, is a question of law.2
They further maintain that a
court may properly dismiss claims where Plaintiffs ask for damages
that are not available as a matter of law, as is the case here.
Bennett v. Litton, Civ. A. No. 07-0616, 2008 WL 489319, at *1
(W.D. La. Feb. 20, 2008)(dismissing claim for punitive damages
where
such
damages
are
not
available).
Under
29
C.F.R.
§
778.111,3 the regular rate of employees paid the production or
2
See Black v. SettlePou, PC, 732 F.3d 492, 496 (5th Cir.
2013)(“In a misclassification case, once the fact finder has
established that the employee is due unpaid overtime, the proper
determination of the regular rate of pay and overtime premium to
which an employee is entitled is a question of law.”).
3
29 C.F.R. § 778.111 provides,
(a) Piece rates and supplements generally.
When an employee is employed on a piece-rate
basis, the regular hourly rate of pay is
computed by adding together total earnings
for the workweek from piece rates and all
other sources (such as production bonuses)
and any sums paid for waiting time or other
hours worked (except statutory exclusions).
This sum is then divided by the number of
hours worked in the week for which such
compensation
was
paid,
to
yield
the
pieceworker’s “regular rate” for that week.
For overtime work the pieceworker is entitled
to be paid, in addition to the total weekly
earnings at this regular rate for all hours
worked, a sum equivalent to one-half this
regular rate of pay multiplied by the number
of hours worked in excess of 40 in the week.
(For an alternative method of complying with
the overtime requirements of the Act as far
as
pieceworkers
are
concerned,
see
§
778.418.) Only additional half-time pay is
-4-
piece rate pay is equal to the employee’s earnings for the week
divided by the total number of hours that the employee worked, and
his hourly overtime premium rate is equal to one-half of the
required in such cases where the employee has
already received straight-time compensation
at piece rates or by supplementary payments
for all hours worked. Thus, for example, if
the employee has worked 50 hours and has
earned $491 at piece rates for 46 hours of
productive work and in addition has been
compensated at $8.00 per hour for 4 hours of
waiting
time,
the
total
compensation,
$523.00, must be divided by the total hours
of work, 50, to arrive at the regular hourly
rate of pay--$10.46.
For the 10 hours of
overtime
the
employee
is
entitled
to
additional compensation of $52.30 (10 hours
at $5.23). For the week’s work the employee
is thus entitled to a total of $575.30 (which
is equivalent to 40 hours at $10.46 plus 10
overtime hours at $15.69).
(b)
Piece
rates
with
minimum
hourly
guarantee.
In some cases an employee is
hired on a piece-rate basis coupled with a
minimum hourly guaranty.
Where the total
piece-rate earnings for the workweek fall
short of the amount that would be earned for
the total hours of work at the guaranteed
rate, the employee is paid the difference.
In such weeks the employee is in fact paid at
an hourly rate and the minimum hourly
guaranty is the regular rate in that week.
In the example just given, if the employee
was guaranteed $11 an hour for productive
working time, the employee would be paid $506
(46 hours at $11) for the 46 hours of
productive work (instead of the $491 earned
at piece rates).
In a week in which no
waiting time was involved, the employee would
be owed an additional $5.50 (half time) for
each of the 6 overtime hours worked, to bring
the total compensation up to $539 (46 hours
at $11 plus 6 hours at $4.40 or 40 hours at
$11 plus 6 hours at $16.50). If the employee
is paid at a different rate for waiting time,
the regular rate is the weighted average of
the 2 hourly rates, as discussed in §
778.115.
-5-
employer’s regular rate of pay.
Plaintiffs’ claim that they
should be paid one and one-half times their regular rate of pay of
alleged overtime hours fails as a matter of law and should be
dismissed.
See, e.g., Gunter v. Rudder Capital Corp., No. 09-CV-
3016, 2010 WL 4121859, at *1 (D. Minn. Oct. 14, 2010); Adami v.
Cardo Windows, Inc., Civ. A. No. 12-cv-2804, 2015 WL 1471844, at
*1, 7, 11 (D.N.J. Mar. 31, 2015).
B.
Plaintiffs’ Response (#30)
Plaintiffs contend that because Defendants previously
filed their Rule 12(e) motion for more definite statement, their
two new pre-answer motions to dismiss under Rule 12(b)(6) and to
strike under Rule 12(f), which simply rehash the arguments about
the applicable method for calculating damages that they previously
raised in their Rule 12(e) motion, are barred by Rule 12(g)(2).
Defendants’ new motions to dismiss and to strike are untimely
because these defenses were available to Defendants but omitted
from their earlier Rule 12 motion for more definite statement.
C.
Standards of Review
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, . . . a
plaintiff’s
obligation
‘entitle[ment]
to
to
relief’
provide
the
requires
more
‘grounds’
than
of
his
labels
and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do . . . .”
Bell Atlantic Corp. v. Twombly,
127 S. Ct. 1955, 1964-65 (2007)(citations omitted).
“Factual
allegations must be enough to raise a right to relief above the
speculative level.”
Id. at 1965, citing 5 C. Wright & A. Miller,
-6-
Federal Practice and Procedure
§ 1216, pp. 235-236 (3d ed.
2004)(“[T]he pleading must contain something more . . . than . .
.
a statement of facts that merely creates a suspicion [of] a
legally cognizable right of action”). “Twombly . . . require[s]
that a complaint allege enough facts to state a claim that is
plausible on its face.”
St. Germain v. Howard,556 F.3d 261, 263
n.2 (5th Cir. 2009), citing Twombly, 127 S. Ct. at 1974).
“‘A
claim has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’”
Montoya v.
FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.
2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The
plausibility standard is not akin to a “probability requirement,”
but asks for more than a “possibility that a defendant has acted
unlawfully.”
Twombly, 550 U.S. at 556.
Dismissal is appropriate
when the plaintiff fails to allege “‘enough facts to state a claim
to relief that is plausible on its face’” and therefore fails to
“‘raise a right to relief above the speculative level.’” Montoya,
614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570.
The Court
“accepts all well-pleaded facts as true, viewing them in the light
most favorable to plaintiff.”
In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007).
Federal Rule of Civil Procedure 12(f) states, “The court
may
strike
from
a
pleading
an
insufficient
defense
redundant, immaterial, impertinent or scandalous matter.”
of
any
“‘[I]t
is well established that the action of striking a pleading should
be sparingly used by courts.
It is a drastic remedy to be
-7-
resorted to only when required for the purposes of justice.
The
motion to strike should be granted only when the pleading to be
stricken has no possible relation to the controversy.”
Brown &
Williamson Tobacco Corp. v. U.S., 201 F.2d 819, 822 (6th Cir.
1953)(citations
omitted)(cited
by
Augustus
v.
Bd.
of
Pub.
Instruction of Excambia County, Fla., 306 F.2d 862, 868 (5th Cir.
1962)(“[W]hen there is no showing of prejudicial harm to the
moving party, courts generally are not willing to determine
disputed and substantial questions of law upon a motion to
strike.”). See also Chicca v. St. Luke’s Episcopal Health System,
Civ. A. No. H-10-2990, 2012 WL 651776, at *1 (S.D. Tex. Feb. 27,
2012)(If the motion addresses a disputed question of fact, the
court should deny the motion to strike; if it addresses a question
of law, a motion to strike should be denied unless the movant
shows “prejudicial harm.”). A motion to strike is “disfavored and
infrequently granted” also “because it often is sought by the
movant simply as a dilatory or harassing tactic.”
5C Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 1380
(3d ed. 2004).
The court has discretion whether to grant or deny
a motion to strike. Cambridge Toxicology Group, Inc. v. Exnicios,
495 F.3d 169, 178 (5th Cir. 2007).
Federal Rule of Civil Procedure 12(g)(2) provides,
“Except as provided in Rule 12(h)(2) or (3),4 a party that makes
a motion under this rule must not make another motion under this
4
Rule 12(h)(3) excepts from Rule 12(h)(2)’s limitation
a motion for lack of subject matter jurisdiction, which may be
raised at any time. Such a motion has not been asserted in this
action.
-8-
rule [Rule 12] raising a defense or objection that was available
to the party but omitted from its earlier [Rule 12] motion.” “The
filing of an amended complaint will not revive the right to
present by motion defenses that were available but were not
asserted
in
pleading.”
timely
fashion
Stoffels
ex.
prior
rel.
to
SBC
the
amendment
Concession
Plan
of
the
v.
SBC
Communications, Inc., 430 F. Supp. 2d 642, 647-48 (W.D. Tex.
2006), citing 5C Wright & Miller, Federal Practice & Procedure §
1388 (3d ed. updated April 2016)(“Rule 12(g) is written in broad
terms
and
requires
consolidation
objections
whenever
a
party
makes
of
a
Rule
motion
12
defenses
under”
and
it.).5
“Therefore, a litigant moving . . . for a more definite statement
should be barred from making a second preliminary [“pre-answer”]
motion based on any Rule 12 defense that he reasonably was capable
of asserting with the initial motion.”
5C Wright & Miller,
Federal Practice & Procedure § 1388 (3d ed. Apr. 2016 Update)
citing Broomfield v. Doolitle, 2 F.R.D. 517 (D.C.N.Y. 1942)(“in
which the defendant first moved under Rules 12(e) and 12(f) and
the motion was denied. Subsequently, the defendant filed a motion
to dismiss for failure to state a claim.
The district court held
that the Rule 12(b)(6) defense should have been consolidated with
the first motion.”).
5
A party is permitted to file a motion “based on a
defense of which he or she did not have reasonable notice at the
time that party first filed a motion to dismiss or on a defense
that became available only after a motion had been made under Rule
12.”
5C Wright & Miller, Federal Practice & Procedure § 1388.
-9-
Rule 12(h)(2) provides exceptions to Rule 12(g)(2)’s
limitations.
A Rule 12(b)(6) motion for failure to state a claim
upon which relief can be granted, or a motion to join a person
required under Rule 19(b), or a motion to state a legal defense to
a claim “may be raised:
(A) in any pleading allowed or ordered
under Rule 7(a); (B) by motion under Rule 12(c); or (C) at trial.”
Therefore
while
preserving
these
defenses,
Rule
12(h),
by
simultaneously barring successive Rule 12 motions, restricts when
during the litigation a party may raise them to pleadings allowed
under Rule 7(a), to motions for judgment on the pleadings under
Rule 12(c), or to trial.
Stoffels, 430 F. Supp. 2d at 647.
Wright and Miller, in 5 Federal Practice & Procedure §
1388, citing Grier v. Tri-State Transit Co., 36 F. Supp. 26, 28
(W.D. La. 1940), concede,
In an appropriate case, the district court
may exercise its discretion and permit a preanswer second Rule 12 motion even when the
defendant’s initial motion for a more
definite statement or to strike is denied.
After all, the denial of the motion does not
mean that the motion
was not reasonably
made, or lacked any basis, or that the
defendant did not legitimately believe it
could not respond to the complaint. But this
does not mean that the defendant has the
right to present by preliminary motion any
Rule 12 defense or objection that he should
have had notice of from the content of the
original complaint. Of course, little would
be gained by preventing a defense under Rules
12(b)(1), 12(b)(6), or 12(b)(7), or a
challenge to an insufficient defense from
being asserted by motion following a Rule
12(e) or 12(b)(7), inasmuch as they are
expressly preserved by Rule 12(h) and may be
presented at a later time.
-10-
See also Servicios Azucareros de Venezuela, C.A. v. John Deere
Thibodaux, Inc., 922 F. Supp. 2d 567, 576, 579 n.1 (E.D. La.
2013)(“Although John Deere’s second Rule 12(b)(6) motion raises
new and old entitlements for relief, any error is harmless where,
as here, these additional defenses could have been raised in a
Rule 12(c) motion for judgment on the pleadings, which is subject
to the same standard of review as a motion to dismiss under Rule
12(b)(6)); Cannon v. Sixth Dist. Pub. Defender Office, No. 092164, 2010 WL 5855912, *3 (W.D. La. Oct. 26, 2010)(holding that
the defendant did not waive his new defenses by failing to include
them in his original Rule 12(b)(6) motion to dismiss because the
arguments could have been raised in a Rule 12(c) motion, which is
evaluated under the same standard as a Rule 12(b)(6) motion),
adopting report and recommendation, 2011 WL 918736 (W.D. La. Feb.
26, 2011); Maryland Cas. Co. v. Shreejee Ni Pedhi’s, Inc., No.
3:12-cb-121-J-34MCR, 2012 WL 4009605, at *3 & n.2 (M.D. Fla. June
27, 2012)(striking second motion to dismiss as improper under Rule
12(g), but permitting plaintiff to pursue similar relief through
other mechanisms such as a Rule 12(c) motion for judgment on the
pleadings after it files its answer.), report and recommendation
adopted, 2012 WL 4009594 (M.D. Fla. Sept. 12, 2012).
D.
Court’s Ruling
In its Opinion and Order (#23) denying Defendants’
motion for more definite statement, the Court wrote,
A court should only grant a motion for more
definite statement when the complaint is “so
excessively vague and ambiguous to be
unintelligible and as to prejudice the
defendant seriously in attempting to answer
-11-
it.” Phillips v. ABB Combustion Eng’g, Inc.,
Civ. A. No. 13-594, 2012 WL 3155224, at *2
(E.D. La. June 19, 2013). A motion for more
definite statement should not be used as a
substitute for discovery; it should be used
as a remedy for unintelligible pleading, not
for correcting a lack of detail. Davenport
v. Rodriguez, 147 F. Supp. 2d 630, 639 (S.D.
Tex. 2001).
The court has considerable
discretion in deciding whether to grant such
a motion. Ditcharo v. United Parcel Service,
Inc., 376 Fed. Appx. 432, 440 n.9 (5th Cir.
2010), citing Old Time Enterprises, Inc. v.
International Coffee Corp., 862 F.2d 1213,
1217 (5th Cir. 1989).
The Court did not find that the complaint was “so
excessively vague and ambiguous to be unintelligible and as to
prejudice the defendant seriously in attempting to answer it.”
The Court thought that given the facts pleaded by Plaintiffs,
Defendants could file an answer and pursue any questions they had
through discovery.
Moreover, the Court pointed out the correct
rate calculation for workers doing piece work like Plaintiffs in
a footnote on the first page as a matter of law:
“The Court notes
that when workers are paid by ‘piece rate, as opposed to the more
common
40-hour
week,
their
‘regular
rate’
is
determined
by
dividing the total compensations earned during a work week by the
total hours worked.
29 U.S.C. § 207(g)(1).
For each hour of
overtime piece work they are paid an additional one half of their
hourly rate.
29 C.F.R. § 778.111.”
Nor does the First Amended Complaint reach the point of
excess required to grant the drastic remedy of a Rule 12(f) motion
to strike.
The pleading is clearly related to the controversy
over wages.
See United States v. Cushman & Wakefield, Inc., 275
-12-
F. Supp. 2d 763, 768 (N.D. 2002)(for a Rule 12(f) motion to
succeed,
“the
movant
must
show
what
the
allegations
being
challenged are so unrelated to plaintiff’s claims at to be
unworthy
of
any
consideration”).
There
is
no
showing
of
prejudicial harm to Defendants in denying the motion.
Auto Wax
Co.
Civ.
v.
Mothers
301CV1940G,
2002
Polishes
WL
Waxes
368526,
Cleaners,
n.1
(N.D.
Inc.,
Tex.
No.
Mar.
(“Conclusory statements about unfair prejudice . . .
5,
A.
2002)
are not
enough to justify its motion to strike; a stronger showing is
required under Fed. R. Civ. P. 12(f).”).
The Court agrees that the technical requirements of Rule
12(g) clearly bar Defendants’ subsequently filed Rule 12(b)(6) and
12(f) motions here.
As the court stated in an influential case,
Chen v. Cayman Arts, Inc.. No. 10-80236-CIV, 2011 WL 1085646, *2
(S.D. Fla. Mar. 21, 2011), “When the Federal Rules govern, it is
neither up to the parties nor up to this Court to determine what
makes the best procedural sense.
Rather this Court will follow
the Federal Rules and strike the Third-Party Defendants’ Second
Motion to Dismiss as improper under Rule 12(g).”
The Chen
court
further opined, id., “Under the plain language of Rule 12(g), the
limitation on further motions applies to ‘a motion under this
rule,’” and as motions to strike fall under Rule 12, they are
barred by Rule 12(g). Moreover, as the Court has indicated, there
is no showing of prejudicial harm to Defendants because after
Defendants have filed their answer, they can raise the same issues
in a Rule 12(c) motion for judgment on the pleadings, a Rule 56(c)
motion for summary judgment, or at trial.
-13-
See, e.g., Cannon v.
Sixth Dist. Pub. Defender Office, 09-2164, 2010 WL 5855912, *3
(W.D. La. Oct. 26, 2010)(holding that defendant did not waive his
new defenses by failing to include them in his original Rule
12(b)(6) motion to dismiss, because the arguments could be raised
in a Rule 12(c) motion).
For these reasons, the Court denies Defendants’ motion
to dismiss or to strike.
Plaintiffs’ Motions for Leave to Amend
A. Standard of Review
Federal
Rule
of
Civil
Procedure
15(a)
provides
in
relevant part,
(1) Amending as a Matter of Course. A party
may amend its pleading once as a matter of
course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a
responsive pleading is required, 21 days
after service of a responsive pleading
or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever
is earlier.
(2) Other Amendments. In all other cases a
party may amend its pleading only with the
opposing party’s written consent or the
court’s leave. The court should freely give
leave when justice so requires.
A court has discretion in deciding whether to grant
leave to amend.
Foman v. Davis, 371 U.S. 178, 181 (1962).
Since
the language of Federal Rule of Civil Procedure 15(a) “‘evinces a
bias in favor of granting leave to amend,” the court must find a
“substantial reason” to deny such a request.
Ambulatory Infusion
Therapy Specialists, Inc. v. Aetna Life Ins. Co., Civ. A. No. H05-4389, 2006 WL 2521411, *3 (S.D. Tex. Aug. 29, 2006), quoting
-14-
Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004), and Mayeaux
v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir.
2004).
Factors for the court to consider in determining whether
there is a substantial reason to deny a motion for leave to amend
include “undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party, and
futility of amendment.”
139 (5th Cir. 1993).
Wimm v. Jack Eckerd Corp., 3 F.3d 137,
The court should deny leave to amend if it
determines that “the proposed change clearly is frivolous or
advances a claim or defense that is legally insufficient on its
face . . . .”
6 Charles A. Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Proc. § 1487 (2d ed. 1990).
B.
Substance of the Motions
Plaintiffs’ motion for leave to file second amended
complaint (#34) seeks to add Darius Portis (“Portis”) and Johnny
Ross (“Ross”) as new plaintiffs, and Plaintiffs’ motion to file
third
amended
complaint
(#43)
seeks
to
add
Lawrence
James
(“James”), Ray Jarmon (“Jarmon”), and Brandon Norman (“Norman”) as
plaintiffs, in addition to Portis and Ross, as new plaintiffs. In
essence the latter motion supersedes the earlier.
Defendants object that before Plaintiffs filed the
instant motions,
Darius Portis and Ray Jarmon consented to join
a separate and currently pending collective action in Tennessee
against the same Defendants seeking the same unpaid wages under
the FLSA, the same relief sought here.
Michael Kutzback, et al.
v. LMS Intellibound, LLC, et al., Case No. 2:13-cv-02767-JTF-cgc,
-15-
pending in the Western District of Tennessee, Memphis Division
(the “Kutzback Action”).6
A district court has the authority to
dismiss a claim that is duplicative of an earlier claim filed by
the same plaintiff.
Friends of Earth v. Crown Central Petroleum
Corp., 95 F.3d 358, 362 (5th Cir. 1996). Allowing redundant claims
to go forward would be a misuse of judicial resources and might
result in a double recovery for Jarmon and Portis. Plaintiffs ask
the Court to deny leave as to these two potential Plaintiffs, at
least until Jarmon and Portis withdraw their consent in the
Kutzback Action.
The Court agrees with Defendants.
ORDER
Accordingly, for the reasons stated in this Opinion and
Order, the Court
ORDERS that Defendants’ motion to dismiss or to strike
is DENIED.
The Court further
ORDERS that Plaintiffs’ motions for leave to amend are
DENIED without prejudice to being reurged as to Jarmon and Portis
if and after they withdraw from the Tennessee case, but GRANTED as
to Ross, James, and Norman.
SIGNED at Houston, Texas, this
31st
day of
August ,
2016.
___________________________
MELINDA HARMON
6
This Court observes that a national Kutzback class has
been conditionally certified. Kutzback v. LMS Intellibound, LLC
and Capstone Logistics, LLC., No. 2:13cv2767-JTF-cgc, 2014 WL
71870006, (W.D. Tenn. Dec. 16, 2014), report and recommendation
adopted, 2015 WL 1393414 (W.D. Tenn. Mar. 25, 2015).
-16-
UNITED STATES DISTRICT JUDGE
-17-
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