Orozco v. Pane E Vino, Inc. et al
REPORT AND RECOMMENDATIONS re 57 Motion to Dismiss filed by Craig Plackis. (RECOMMENDS that the District Court DENY Defendant Craig Plackis'Motion to Dismiss Plaintiff's Second Amended Complaint, filed May 31, 2012 (Clerk's Dkt. #57).). Signed by Judge Andrew W. Austin. (jk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are Defendant Craig Plackis’s Motion to Dismiss Plaintiff’s Second
Amended Complaint, filed May 31, 2012 (Clerk’s Dkt. #57); and Plaintiff’s Response to Defendant
Craig Plackis’s Motion to Dismiss Plaintiff’s Second Amended Complaint, filed June 11, 2012
(Clerk’s Dkt. #58). The motion was referred by United States District Judge Lee Yeakel for a Report
and Recommendation as to the merits pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules
of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District
Court for the Western District of Texas.
Plaintiffs Benjamin Orozco (“Orozco”) brings this action against defendant Craig Plackis
(“Plackis”). (Plf. 2nd Am. Compl. ¶¶ 2-3). Orozco alleges he was employed during the years 2008
through 2011 as a cook at Craig O’s Pizza and Pastaria (“Craig O’s”) in San Marcos, Texas. (Id.
¶ 7). According to Orozco, Plackis is the founder of Craig O’s, which runs six restaurants in Central
Texas. (Id. ¶ 9). He alleges Plackis owns a majority interest in some locations, while others,
Because the motion before the Court is made pursuant to Rule 12(b)(6), the Court takes the
plaintiff’s allegations as true in reviewing the motion. Consistent with this, the facts set out in this
section are based on the contents of the Second Amended Complaint.
including the San Marco location, are owned by other individuals or entities. (Id. ¶ 11). Orozco
further alleges Plackis was his employer within the meaning of the Fair Labor Standards Act
(“FLSA”) and the Texas Minimum Wage Act (“TMWA”). (Id. ¶ 8). In support of that allegation,
Orozco argues that at all times relevant to this lawsuit, the Craig O's chain has constituted an
enterprise within the meaning of the FLSA, 29 U.S.C. 203(r), because each of the Craig O's locations
alone, including the San Marcos location, and the amalgamated enterprise have had gross annual
sales in excess of $500,000. (Id. ¶ 10).
Orozco further argues Defendant Craig Plackis was an employer or joint employer of Orozco
within the meaning of the FLSA and the TMWA, and Defendant was subject to the requirements of
those Acts. In support of that argument, Orozco offers the following arguments:
Craig Plackis and the owners of the San Marcos location acted directly and
indirectly in the interest of one another in relation to their employees,
including the Plaintiff.
Craig Plackis and the owners of the San Marcos location were not completely
disassociated from one another with respect to the Plaintiff’s employment.
Craig Plackis exercised substantial operational control over and dominated
the administration of the enterprise comprised of the Craig O’s chain,
including the San Marcos location, and had the power to act on behalf of the
enterprise, including the San Marcos location, vis-à-vis its employees.
Craig Plackis, or an entity in which he is principal, currently has, or has had
in the past, a majority ownership interest in some of the six Craig O’s
locations, while other locations are owned by other individuals or entities.
Craig Plackis maintains an economic interest in each of the Craig O’s
locations in which he is not an owner, in that he, or an entity in which he is
principal, receives agreed, periodic royalties from the profits of each other
Craig Plackis regularly and consistently held meetings, approximately once
per month, attended in-person by the individual owners or managers of each
of the Craig O’s locations, including the San Marcos location. Between the
meetings, Craig Plackis provided constant guidance and oversight by email,
telephone, and by making announced and unannounced site visits and
inspections. In the meetings, correspondence, telephone calls, and visits,
Craig Plackis instructed each of the owners and managers on a variety of
matters of general business operations, exercised oversight of employees and
employee activities, and directed updates to the chain’s practices and
procedures, including the subjects described below.
Craig Plackis dictated all material aspects of general business operations at
each location in the Craig O’s chain, including the San Marcos location, such
as: all signage, menu items, recipes, cooking procedures, ingredients, and
vendors for all products. Craig Plackis negotiated contracts with vendors and
distributors on behalf of the entire Craig O’s chain and instructed the
individual store owners and managers precisely which products to purchase
from whom, with frequent updates and changes.
Craig Plackis regularly and consistently planned and coordinated joint
advertising and promotional campaigns between and for the benefit of each
of the Craig O’s locations, including the San Marcos location, and instructed
the individual store owners and managers on how, when, and where to
conduct additional advertisement and promotion of their businesses in
conformity with the rest of the Craig O’s chain.
Craig Plackis regularly and consistently instructed the individual store owners
and managers at all locations, including the San Marcos location, on a variety
of ways to minimize costs, including such measures as strictly controlling
food portions and carefully budgeting labor costs.
Craig Plackis possessed and exercised the authority to inspect, monitor, and
instruct, directly and indirectly, the work of the employees of all Craig O’s
location, including the San Marcos location. For example, Craig Plackis
made regular announced and unannounced visits, approximately once per
month, to the San Marcos location, in which he monitored the work of all
employees, often observing the restaurant’s operations for several hours at a
time. Then, Craig Plackis often met with and discussed in detail the
performance of the English-speaking customer-service employees, drivers
and assistant managers; he conveyed instructions to the Spanish-speaking
kitchen staff through Sandra Entjer, the owner of the San Marcos location;
and he met with Sandra Entjer and discussed at length all of the results of his
inspection and instructions for changes and improvements. On occasions
when Craig Plackis called and Sandra Entjer was on vacation or not present
at the San Marcos location, he complained that she was not diligently
managing the restaurant and should not delegate her responsibilities in such
a manner to the assistant managers.
Craig Plackis managed an online system for fielding customers’ comments
and complaints for all Craig O’s locations, including the San Marcos
location, and regularly discussed them with the individual owners and
managers, giving instructions for improvement.
Craig Plackis possessed and exercised the authority to select and hire
managers at other locations, including the San Marcos location, in order to
improve the location’s performance and ensure conformity with the rest of
the chain’s practices and procedures. For example, on one occasion Craig
Plackis sent one of his own employees to work as an assistant manager at the
San Marcos location, then visited the San Marcos location soon after to meet
privately with that assistant manager.
Craig Plackis possessed and exercised the authority to change directly or
indirectly the terms and conditions of the employment at other locations,
including the San Marcos location, such as firing employees and changing
work schedules and duties. For example, on one occasion, during a site visit
and inspection, Sandra Entjer followed Craig Plackis’s instruction to
rearrange the schedules and duties of the kitchen staff by terminating a dish
washer and assigning the Plaintiff to wash dishes during certain hours, in
addition to his other duties.
Craig Plackis possessed and exercised the authority to control directly or
indirectly the timekeeping and payroll practices of all Craig O’s locations,
including the San Marcos location. For example, Craig Plackis selected and
set up the timekeeping systems used at each Craig O’s location and trained
each individual store owner or manager to use them.
Craig Plackis possessed and exercised the authority to control directly or
indirectly the general rules and policies applicable to employees of all Craig
O’s locations, including the San Marcos location. Employees who were
trained at one of the locations owned by Craig Plackis needed little or no
additional training to work at another location and were paid the same rate.
Multiple Craig O’s locations, including the San Marcos location, from time
to time shared the services of the same employee. For example, multiple
employees have worked, for extended periods of time, one shift at one of the
locations owned by Craig Plackis and another shift at another location,
including the San Marcos location, totaling well over 40 hours per week
between the two locations without receiving overtime pay. Many other
employees have transferred from one Craig O’s location to another.
(Id. ¶ 11).
Orozco alleges he regularly worked more than forty hours per week in performing his duties
as an employee of the defendants, was not paid overtime pay for hours worked in excess of forty
hours and in many weeks was paid less than the minimum wage. (Id. ¶¶ 13-14). Orozco further
alleges the failure of the defendants to pay him the minimum wage and overtime compensation was
willful. (Id. ¶ 15). In his complaint, Orozco asserts violations of the FLSA for failure to pay him
overtime and the federal minimum wage. (Id. ¶¶ 17-18). He further alleges a claim for violating the
TWMA for failure to pay him the minimum wage mandated by state law. (Id. ¶ 19). Plackis
previously moved to dismiss Orozco’s First Amended Complaint (Clerk’s Dkt. #20), which the
undersigned recommended the District Court deny without prejudice to refiling, contingent on the
Plaintiff filing an amended complaint. (Clerk’s Dkt. #42). Orozco subsequently filed his Second
Amended Complaint. (Clerk’s Dkt. #44). Plackis now seeks dismissal of the Second Amended
II. STANDARD OF REVIEW
When evaluating a motion to dismiss under Rule 12(b)(6) the complaint must be liberally
construed in favor of the plaintiff and all facts pleaded therein must be taken as true. Leatherman
v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Although FED . R. CIV . P. 8 mandates only that a pleading
contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” this
standard demands more than unadorned accusations, “labels and conclusions,” “a formulaic
recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual
enhancement.” Bell Atlantic v. Twombly, 550 U.S. 544, 555-57 (2007). Rather, a complaint must
contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Id., 550 U.S. at 570, 127 S. Ct. at 1974.
The Supreme Court has recently made clear this plausibility standard is not simply a
“probability requirement,” but imposes a standard higher than “a sheer possibility that a defendant
has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard is properly guided
by "[t]wo working principles." Id. First, although "a court must accept as true all of the allegations
contained in a complaint," that "tenet" "is inapplicable to legal conclusions" and "[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice." Id. at 1949-50. Second, "[d]etermining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense." Id. at 1950. Thus, in considering a motion to dismiss the court
must initially identify pleadings that are no more than legal conclusions not entitled to the
assumption of truth, then assume the veracity of well-pleaded factual allegations and determine
whether those allegations plausibly give rise to an entitlement to relief. If not, “the complaint has
alleged-but it has not ‘show[n]’–‘that the pleader is entitled to relief.’” Id. at 1950. (quoting FED .
R. CIV . P. 8(a)(2)).
Plackis seeks dismissal of Orozco's claims under both the FLSA and the TWMA.
Specifically, Plackis maintains that (1) Orozco has insufficiently alleged that he was an employee
of an enterprise engaged in commerce or in the production of goods for commerce as required for
coverage by the FLSA; (2) Orozco has insufficiently alleged that Plackis was acting as his
“employer” or “joint employer” as required for liability under the FLSA; and (3) Orozco cannot
allege a violation of the TWMA while also alleging violations of the FLSA according to the
Enterprise Coverage under the FLSA
“The minimum wage and overtime provisions of the FLSA apply to employees of ‘an
enterprise engaged in commerce or in the production of goods for commerce.’” Donovan v. Grim
Hotel Co., 747 F.2d 966, 969 (5th Cir. 1984) (quoting 29 U.S.C. §§ 206, 207). In pertinent part, the
FLSA defines an “enterprise” as:
the related activities performed (either through unified operation or common control)
by any person or persons for a common business purpose, and includes all such
activities whether performed in one or more establishments or by one or more
corporate or other organizational units including departments of an establishment
operated through leasing arrangements . . .
29 U.S.C. § 203(r)(1). The three main elements to find existence of an “enterprise” are (1) related
activities, (2) unified operation or common control, and (3) common business purpose. Reich v. Bay,
Inc., 23 F.3d 110, 114 (5th Cir. 1994).
Noting the FLSA does not define these elements, the Fifth Circuit has looked to the Code of
Federal Regulations to further define them. In Reich, the court stated:
activities will be regarded as ‘related’ when they are the same or similar or when they
are auxiliary or service activities such as warehousing, bookkeeping, purchasing,
advertising, including, generally, all activities which are necessary to the operation
and maintenance of the particular business . . . . The Senate Report on the 1966
Plaintiff states in his Response that he seeks to incorporate the arguments from his
Objections to Report and Recommendation of the Magistrate Judge and Responses to Defendant’s
Objections (Clerk’s Dkt. #45) in his response, and the Court has therefore considered those
arguments in making this report and recommendation.
amendments makes it plain that related, even if somewhat different, business
activities can frequently be part of the same enterprise, and that activities having a
reasonable connection with the major purpose of an enterprise would be considered
Reich, 23 F.3d at 114 (quoting 29 C.F.R. § 779.206). Regarding “common control” the court stated:
The word “control” may be defined as the act of fact of controlling; power or
authority to control; directing or restraining domination. “Control” thus includes the
power or authority to control . . . [It] includes the power to direct, restrict, regulate,
govern, or administer the performance of the activities. “Common” control includes
the sharing of control and it is not limited to sole control or complete control by one
person or corporation. “Common” control therefore exists where the performance
of the described activities are controlled by one person or by a number of persons,
corporations, or other organizational units acting together.
Reich, 23 F.3d at 114-15 (quoting 29 C.F.R. § 779.221). A common business purpose exists if “the
separate corporations engaged in complementary businesses, and were to a significant degree
operationally interdependent.” Donovan v. Janitorial Servs., Inc., 672 F.2d 528, 530 (5th Cir. 1982).
Plackis argues Orozco’s Second Amended Complaint does not provide any factual allegation
that Plackis performed related activities for a common business purpose with any other entity, but
at most alleges only that Plackis exercised substantial operational control over the administration of
the enterprise. Plackis points out that he does not own the restaurant where Orozco alleges he
worked. He also argues that, even if Orozco alleged facts indicating that Plackis participated in an
enterprise that employed Orozco, Orozco’s complaint should still be dismissed because Plackis falls
under an exception to the definition of enterprise under the FLSA, which states in pertinent part:
a retail or service establishment which is under independent ownership shall not be
deemed to be so operated or controlled as to be other than a separate and distinct
enterprise by reason of any arrangement, which included, but is not necessarily
limited to, an agreement, (A) that it will sell, or sell only, certain goods specified by
a particular manufacturer, distributor, or advertiser, or (B) that it will join with other
such establishments in the same industry for the purpose of collective purchasing, or
(C) that it will have the exclusive right to sell the goods or use the brand name of a
manufacturer, distributor, or advertiser within a specified area, or by reason of the
fact that it occupies premises leased to it by a person who also leases premises to
other retail or service establishments.
29 U.S.C. § 203(r)(1).
The Court concludes that Orozco’s complaint contains sufficient factual allegations that
Orozco was an employee of an enterprise that included Plackis for the purposes of the FLSA.
Orozco has alleged that Plackis conducted the following activities for the San Marcos Craig O’s
location: held meetings attended by the owners or managers; dictated the signage, menu items,
recipes, cooking procedures, ingredients, and vendors for all products; negotiated contracts with
vendors and distributors; instructed the store owners and managers precisely which products to
purchase from whom; planned and coordinated joint advertising and promotional campaigns; made
monthly visits to monitor employees; met with and discussed in detail the performance of the
English-speaking customer-service employees, drivers and assistant managers; conveyed instructions
to the Spanish-speaking kitchen staff; managed an online system for fielding customers’ comments
and complaints; selected managers; sent one of his own employees to work as an assistant manager;
instructed owners and managers regarding firing employees and changing work schedules and duties,
including one incident in which Plackis instructed the San Marcos location to terminate a dish
washer and assign Orozco to wash dishes; selected and set up the timekeeping systems and trained
the store owners or managers to use them; shared the services of the employees between different
Craig O’s locations. (Plf. 2nd Am. Compl. ¶ 11).
Regarding related activities, Orozco sufficiently alleges that Plackis was engaged in related
activities as the allegations include “purchasing” and “advertising” among many other activities
“necessary to the operation and maintenance of the particular business.” Reich, 23 F.3d at 114.
Regarding unified operation or common control, Orozco sufficiently alleges Plackis had the “power
to direct, restrict, regulate, govern, or administer the performance of the activities” given the
allegations that Plackis directed advertising, purchasing, and personnel decisions. Id. Regarding
common business purpose, Orozco alleges that Plackis and the San Marcos Craig O’s jointly
engaged in advertising; purchasing; personnel evaluation, placement, hiring, and firing; and
personnel sharing—Orozco even alleges that on one occasion Plackis personally changed Orozco’s
work assignment. Thus, Orozco sufficiently alleges facts demonstrating Plackis and Orozco’s direct
employer “engaged in complementary businesses, and were to a significant degree operationally
interdependent” given the significant control Plackis is alleged to have had over so many aspects of
the activities of the San Marcos Craig O’s. Janitorial Servs., Inc., 672 F.2d at 530. Accordingly,
Orozco sufficiently alleges Plackis was part of an enterprise that employed Orozco for the purposes
of the FLSA.
Regarding whether Plackis should fall under the 29 U.S.C. § 203(r)(1) exception to enterprise
coverage under the FLSA, the part of the Code of Federal Regulations (“CFR”) governing the FLSA
as applied to retailers of goods and services states, “Congress recognized that some franchise, lease,
or other arrangements have the effect of creating a larger enterprise and whether they do or not
depends on the facts.” 29 C.F.R. § 779.230(a). The CFR continues:
While it is clear that in every franchise a businessman surrenders some rights, it
equally is clear that every franchise does not create a larger enterprise. In the ordinary
case a franchise may involve no more than an agreement to sell the particular product
of the one granting the franchise. It may also prohibit the sale of a competing product.
Such arrangements, standing alone, do not deprive the individual businessman of his
“control” so as to bring him into a larger enterprise with the one granting the
Where the franchise arrangement results in vesting control over the operations of the
dealer's business in the one granting the franchise, the result is to place the dealer in
a larger enterprise with the one granting the franchise. . . . [T]he following example
illustrates a franchising company and independently owned retail establishments
which would constitute a single enterprise:
(1) The franchisor had developed a system of retail food store operations,
built up a large volume of buying power, formulated rules and regulations for
the successful operation of stores together constituting a system which for
many years proved in practice to be of commercial value to the separate
(2) The franchisor desired to extend its business through the operation of
associated franchise stores, by responsible persons in various localities to act
as limited agents, and to be parts of the system, to the end that the advantages
of and the profits from the business could be enjoyed by those so associated
as well as by the franchisor; and
(3) The stores were operated under the franchise as part of the general system
and connected with the home office of the franchisor from which general
administrative jurisdiction was exercised over all franchised stores, wherever
(4) The stores operated under the franchise agreement were always subject to
the general administrative jurisdiction of the franchisor and agreed to comply
with it; and
(5) The stores operated under the franchise agreed to install appliances,
fixtures, signs, etc. according to plans and specifications provided by the
franchisor and to purchase their merchandise through the franchisor except
to the extent that the latter may authorize local purchase of certain items; and
(6) The stores operated under the franchise agreed to participate in special
promotions, sales and advertising as directed by the franchisor, to attend
meetings of franchise store operators and to pay a fee to the franchisor at the
rate of one-half of 1 percent of total gross sales each month for the privileges
to them and the advantages and profits derived from operating a local unit of
the franchisor's system; and
(7) The franchisor under the franchise agreement had the right to place on a
prohibited list any merchandise which it considered undesirable for sale in a
franchise store, and the stores operated pursuant to the franchise agreed to
immediately discontinue sale of any such blacklisted merchandise.
29 C.F.R. § 779.232.
Here, Orozco alleges Plackis developed a system of retail food store operations where the
stores were operated under a franchise as part of a general system whereby the stores agreed to install
appliances, fixtures, and signs according to plans and specifications provided by Plackis, who also
directed the purchasing of the stores’ merchandise. Orozco also alleges the stores participated in
special promotions, sales and advertising as directed by Plackis, who conducted meetings for the
stores’ operators. These allegations are substantially similar to the illustration in 29 C.F.R. §
779.232 of a franchising company and independently owned retail establishments which would
constitute a single enterprise. Thus, at least at the motion to dismiss level, Orozco has alleged
sufficient facts to demonstrate that Plackis does not fall under the 29 U.S.C. § 203(r)(1) exception
to enterprise coverage under the FLSA.
Employer Liability under FLSA
Regarding FLSA liability for employers, the Fifth Circuit has held:
The FLSA defines an “employer” as “any person acting directly or indirectly in the
interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The FLSA's
definition of employer must be liberally construed to effectuate Congress' remedial
intent. Sabine Irrigation, 695 F.2d at 194. . . . The FLSA's definition of employer is
“sufficiently broad to encompass an individual who, though lacking a possessory
interest in the ‘employer’ corporation, effectively dominates its administration or
otherwise acts, or has the power to act, on behalf of the corporation vis-a-vis its
employees.” Id. at 194-95; see also Donovan v. Grim Hotel Co., 747 F.2d 966, 972
(5th Cir. 1984) (observing that an individual qualifies as an employer if he
“independently exercised control over the work situation”).
Reich v. Circle C. Investments, Inc., 998 F.2d 324, 329 (5th Cir. 1993). In this case, Orozco has
alleged that Plackis acted directly in the interest of Craig O’s in relation to employees in general and
Orozco in particular. Though Plackis lacks a possessory interest in the San Marcos Craig O’s,
Orozco alleges Plackis acts on behalf of the corporation vis-a-vis its employees. Namely, Orozco
has alleged that Plackis evaluates personnel performance, directs firing and hiring decisions,
determines work assignments, and shares personnel with the San Marcos Craig O’s. Such behavior
would demonstrate that Plackis independently exercises control over the work situation at the San
Marcos Craig O’s. Thus, Orozco has pled sufficient facts to state a claim against Plackis under the
FLSA as Orozco’s “employer.”
Liability under TWMA
Plackis contends Orozco is not entitled to relief under the TWMA because that statute does
not apply to a person covered under the FLSA. See TEX . LAB. CODE ANN . § 62.151 (Vernon 2006)
(“This chapter . . . do[es] not apply to a person covered by the Fair Labor Standards Act of 1938").
Orozco does not disagree the TWMA contains such a restriction. Instead, he maintains his claim
under the TWMA is meant to be an alternative claim. A party is clearly entitled to assert alternative
claims. FED . R. CIV . P. 8(d) (party may state as many separate claims as it has, regardless of
consistency). Given that Plackis contends that he is not a proper defendant in a FLSA claim, it is
appropriate for Orozco to pursue this alternative claim. Plackis is thus not entitled to dismissal of
Orozco’s TWMA claim on this basis.
The undersigned RECOMMENDS that the District Court DENY Defendant Craig Plackis’
Motion to Dismiss Plaintiff’s Second Amended Complaint, filed May 31, 2012 (Clerk’s Dkt. #57).
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this 3rd day of July, 2012.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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