Saucedo v. MSF Electric, Inc.
ORDER Denying 10 Motion to Dismiss for Failure to State a Claim.(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MSF ELECTRIC, INC.,
December 04, 2017
David J. Bradley, Clerk
CIVIL ACTION H-17-1943
Pending before the court is a motion to dismiss filed by defendant MSF Electric, Inc.
(“MSF”). Dkt. 10. Plaintiff Faustino Saucedo responded. Dkt. 11. MSF did not file a reply.
Having considered the motion, response, and applicable law, the court is of the opinion that the
motion to dismiss should be DENIED.
This is a Fair Labor Standards Act (FLSA) case. Dkt. 1. Saucedo filed this FLSA suit
against his former employer, MSF, to recover unpaid overtime for himself and for other similarly
situated employees.1 Id. at 1. MSF moves to dismiss under 12(b)(6) of the Federal Rules of Civil
Procedure. Dkt. 10 at 1.
Saucedo alleges he worked for MSF as an electrician and foreman from November 2016 until
June 2017. Dkt. 1 at 2. There, he performed electrical work, supervised other electricians,
supervised projects at job sites, ordered work materials, and organized those materials. Id.
For the purposes of a motion to dismiss, the court accepts all well-pled facts contained in
Saucedo’s complaint as true. Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc.,
677 F.2d 1045, 1050 (5th Cir. 1982).
It is undisputed that Saucedo was a non-exempt employee. Dkts. 1 at 2, 10 at 3. MSF paid
him on an hourly basis and the same hourly rate for all hours worked. Dkt. 1 at 2. However, he was
“not paid at all for the hours he worked over forty in a workweek (‘off-the-clock.’)” Id. In
particular, MSF “failed to pay [Saucedo] the required overtime premium in every workweek that
[Saucedo] was employed by [MSF] in which [Saucedo] worked in excess of 40 hours.” Id. at 3.
Saucedo alleges that MSF is not exempt from paying him for that time. Id. Saucedo alleges that
MSF paid similarly situated employees in the same way. Id. at 2–3. He also alleges that MSF “has
not made a good faith effort to comply with the FLSA.” Id. As a result, MSF “knowingly, willfully,
or with reckless disregard carried out its illegal pattern or practice regarding overtime compensation”
as to Saucedo. Id.
II. Legal Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that the pleading contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). A party against whom claims are asserted may move to dismiss those claims when the
nonmovant has failed “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “‘enough facts to state
a claim to relief that is plausible on its face.’” In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)).
“Factual allegations must be enough to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,
550 U.S. at 555 (citations omitted). While the allegations need not be overly detailed, a plaintiff’s
pleading must still provide the grounds of his entitlement to relief, which “requires more than labels
and conclusions,” and “a formulaic recitation of the elements of a cause of action will not do.” Id.;
see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937 (2009). “[C]onclusory allegations or
legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.” Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). Instead, “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Evaluating a motion to dismiss is a “context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Id. at 679. “Ultimately, the question for a court to
decide is whether the complaint states a valid claim when viewed in the light most favorable to the
plaintiff.” NuVasive, Inc. v. Renaissance Surgical Ctr., 853 F. Supp. 2d 654, 658 (S.D. Tex. 2012).
Under the FLSA, employers must pay overtime compensation to non-exempt employees for
each hour worked beyond forty hours per week. 29 U.S.C. § 207(a)(1) (“[N]o employer shall
employ any of his employees . . . for a workweek longer than forty hours unless such employee
receives compensation for his employment in excess of [forty hours] at a rate not less than one and
one-half times the regular rate at which he is employed”). “To show a violation of the FLSA’s
overtime requirements, a plaintiff must allege (1) that he was employed by the defendant; (2) that
his work involved interstate activity; and (3) that he performed work for which he was
undercompensated.” Coleman v. John Moore Servs., Inc., Civil Action No. H-13-2090, 2014 WL
51290, *1, *3 (S.D. Tex. Jan. 7, 2014) (Rosenthal, J.).
In Coleman, an electrician sued his former employer for failing to pay overtime. Id. at *1.
Coleman analyzed First and Second Circuit authority to grant the employer’s motion to dismiss
without prejudice and with leave to amend after finding the electrician’s allegation’s inadequate.
Id. (analyzing DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 89 (2d Cir. 2013) and Pruell v.
Caritas Christi, 678 F.3d 10, 13 (1st Cir. 2012). There, the court noted that “[t]he complaint merely
allege[d] that during one or more weeks of Plaintiff’s employment, Plaintiff worked in excess of
forty (40) hours and that during one or more weeks Defendant failed to pay Plaintiff the overtime
rate.” Id. at *4. And, Coleman distinguished its outcome from Hoffman because the latter provided
“some additional factual context for their claim” Id. (citing Hoffman v. Cemex, Inc., Civil Action
No. H-09-3144, 2009 WL 4825224, at *1 (S.D. Tex. Dec. 8, 2009) (Rosenthal, J.)).
In Hoffman, the district court denied an employer’s 12(b)(6) motion to dismiss FLSA claims
made by two technicians to recover unpaid overtime. Hoffman, 2009 WL 485224, at *3. There, the
technicians alleged that they “were classified as nonexempt, that they regularly worked more than
40 hours per workweek, and that they wer not paid time-and-a half for those overtime hours.” Id.
Hoffman held that “those are all factual allegation[s]–not legal conclusions–and, if proven, they give
rise to a plausible claim for relief.” Id.
In support of that finding, Hoffman cited Qureshi v. Panjwani, Civil Action No. H-08-3154,
2009 WL 1631798, at *3 (S.D. Tex. June 29, 2009) (Rosenthal, J.) (granting store clerks leave to
amend their complaint). Qureshi held that a store clerks plead sufficient allegations to state a claim
to recover overtime pay when they alleged the defendants employed them, that they did work
ordinarily performed by nonexempt workers, and that they had to work over forty hours per week
without overtime pay. 2009 WL 1631798, at *3.
MSF relies on Coleman to argue that Saucedo failed to state a plausible claim that MSF
violated the FLSA’s overtime provisions.2 Dkt. 10 at 2. Specifically, MSF argues that Saucedo’s
MSF states that “[in Coleman . . . the Fifth Circuit found the follow allegations insufficient
under Twombly and Iqbal . . . .” Dkt. 10 at 2. Coleman is an unpublished district court case. See
2014 WL 51290, at *1.
allegations “are even more threadbare and conclusory than the complaint dismissed in Coleman.”
Id. at 3. MSF argues that Saucedo’s allegations “merely repeat the language of the FLSA,” that it
“fails to allege that he actually worked any hours in excess of forty,” and that “MSF is left to
speculate as to whether Saucedo actually worked any overtime and when overtime violations, if any,
may have occurred.” Id.
Saucedo argues that “it is enough for a plaintiff to allege that he regularly worked more than
40 hours a workweek, and that he was not paid overtime for those additional hours . . . .” Dkt. 11
at 2. Saucedo relies on Qureshi and Hoffman. Id. at 2–3.
Here, Saucedo has alleged he was a nonexempt employee, that he regularly worked more than
forty hours per work week, and that he was not paid at the overtime rate for those hours. Dkt.
Saucedo’s allegations track those in Hoffman. Compare 2009 WL 4825224, at *3 with Dkt. 1 at 2–3.
Because almost identical allegations were sufficient in Hoffman, they are here, too. Id. Accordingly,
Saucedo has alleged sufficient facts to state a claim for relief under 12(b)(6). Therefore, MSF’s
motion to dismiss is DENIED.
MSF’s motion to dismiss (Dkt. 10) is DENIED.
Signed at Houston, Texas on December 4, 2017.
Gray H. Miller
United States District Judge
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