Traub et al v. ECS Telecom Services LLC et al

Filing 8

ORDER DENYING 4 Motion to Dismiss. Signed by Judge Xavier Rodriguez. (rf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

GREGORY D. TRAUB, ET AL.,
Plaintiffs,
VS.
ECS TELECOM SERVICES LLC, ET
AL.,
Defendants.

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Civil Action No. SA-11-CA-0700-XR

ORDER
On this date, the Court considered Defendants’ Partial Motion to Dismiss Pursuant to Rule
12(b)(6) (docket no. 4), and the response thereto. After careful consideration, the Court will deny
the motion.
Background
Plaintiffs filed their original Complaint on August 24, 2011, asserting individual and
collective claims under the Fair Labor Standards Act. The Complaint alleges that Plaintiffs “did not
receive overtime compensation accumulated throughout their employment at ECS Telecom Services,
LLC.” Specifically, Plaintiffs allege that “Plaintiffs and all other similarly situated employees who
worked an average of sixteen (16) hours a day for five (5) to seven (7) days a week were only being
compensated for their base salary. Although Plaintiffs and all other similarly situated employees
were entitled to two (2) days off a week, Defendants still often instructed them to work on their
designated day-offs [sic]. However, overtime wages and accumulated day-offs [sic] were never fully
compensated by Defendants.” The Complaint further asserts that Defendants classify employees
such as Plaintiffs as exempt employees who are not eligible for overtime compensation and that
Defendants failed to accurately record employee’s time worked for business related activities.
Plaintiffs challenge Defendants’ “practice of failing to record all hours worked and failing to pay
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employees for all hours worked, including overtime compensation.”
Count I asserts an individual retaliation claim on behalf of Plaintiff Gregory Traub. Count
II asserts a violation of the FLSA’s overtime requirements. It asserts that Defendants “violated the
FLSA by failing to pay employees regular and overtime compensation in accordance with 29 U.S.C.
§ 206(1)(c), § 207(a)(1), and § 207(e)” and that Defendants willfully failed to keep accurate records
of all hours worked by their employees. Plaintiffs allege that “[n]one of the FLSA exemptions [to
overtime pay requirements] apply to Plaintiffs or other similarly situated employees.” Further,
Plaintiffs allege that Defendants’ “violations of the FLSA’s overtime requirements include (1) failing
to record and compensate all working time of non-exempt employees, including pre-shift and endshift time worked; and (2) failing to include and account for all compensation earned by employees
when calculating and paying non-exempt employees.”
Defendants’ motion is directed solely to Count II, claiming that “it does not provide specific
factual allegations regarding the overtime provisions claim alleged by all Plaintiffs and others
similarly situated” because it “fails to provide specific factual allegations concerning dates of
employment, specific job titles/positions, specific job duties, the common policy complained of, the
number of overtime hours alleged worked and/or owed, specific descriptions of willful actions or
specific descriptions of how each Plaintiff was compensated.” Defendants complain that the
Complaint does not contain sufficient factual allegations, but largely consists of legal conclusions
and conclusory factual allegations that mirror the statutory language.
Plaintiffs respond that ECS Telecom Services LLC is a family-owned business with
approximately fifteen employees and thus “it seems highly unlikely that Defendants are not already
fully aware of who the Plaintiffs are, the terms and conditions of their employment with ECS
Telecom Services LLC, their prior complaints regarding the failure by the Company to pay them
overtime wages as was the industry standard, and the factual substance of their current claims.”
Plaintiffs further assert that their Complaint repeatedly asserts that the alleged common policy was
to deny earned wages and overtime pay in violation of the FLSA. Plaintiffs contend that their
Complaint contains the required short and plain statement of their claims and identifies the relief
sought, meeting the requirements of the Rules.

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Legal Standard
Rule 8 of the Federal Rules of Civil Procedure requires that a pleading contain “a short and
plain statement of [each] claim showing that the pleader is entitled to relief.” FED . R. CIV . P. 8(a)(1).
The purpose of Rule 8 is to require parties to state their claims with sufficient clarity “to ‘give the
defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007).
If a complaint fails to state a claim upon which relief can be granted, a court is entitled to
dismiss the complaint as a matter of law. FED . R. CIV . P. 12(b)(6). In considering a motion to
dismiss under Rule 12(b)(6), all factual allegations from the complaint should be taken as true.
Fernandez-Montez v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993).
To survive a Rule 12(b)(6) motion, a complaint must contain “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U .S. at 555. The plaintiff must plead facts sufficient to “state a claim for relief that is plausible
on its face.” Id. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). The
plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id.
Analysis
The sufficiency of the Complaint cannot be measured by what the Defendants know, as
Plaintiffs seem to assert. Rather, the Court reviews the allegations in the Complaint to determine
whether the factual assertions therein, if proven, give rise to a plausible claim for relief. Count II
asserts that Defendants have violated the FLSA’s requirement to pay overtime compensation. The
Complaint alleges that Defendants classify Plaintiffs as employees who are exempt from the FLSA’s
overtime pay requirements (¶ 25), but that none of the exemptions apply to Plaintiffs and similarly
situated employees (¶ 39). The Complaint further alleges that Defendants failed to record and
compensate all working time of non-exempt employees, including pre-shift and end-shift time
worked (¶ 41), and that Plaintiffs who worked an average of sixteen-hour days for five to seven days
a week (i.e., in excess of 40 hours) were only being compensated for their base salary (i.e., were not
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paid overtime wages)(¶ 23). These factual allegations, if true, give rise to a plausible claim for relief.
See Hoffman v. Cemex, Inc., Civ. A. No. H-09-3144, 2009 WL 4825224 (S.D. Tex. Dec. 8, 2009)
(“The plaintiffs allege that they were classified as nonexempt, that they regularly worked more than
40 hours per workweek, and that they were not paid time-and-a half for those overtime hours. Those
are all factual allegation-not legal conclusions-and, if proven, they give rise to a plausible claim for
relief. See Qureshi v. Panjwani, 2009 WL 1631798, at *3 (S.D. Tex. June 9, 2009) (finding that
plaintiffs had pleaded sufficiently to state a claim where they alleged that they were employed by the
defendants, that they did the work ordinarily performed by nonexempt workers and that ‘they were
required to work in excess of a forty-hour work week without overtime compensation.’).”). As in
Hoffman, the “complaint is not replete with detailed factual allegations, but such details are not
required to meet Rule 8(a) in the specific context of FLSA overtime claims.” Hoffman, 2009 WL
4825224 at * 3. Though the additional information sought by Defendants might be beneficial, it is
not required to survive a motion to dismiss.
However, the Court notes that Plaintiffs’ Complaint contains at least two errors and is
ambiguous whether Plaintiffs are asserting a minimum-wage claim in addition to their overtime
claim. As pointed out by Defendants, paragraph 22 lists Moses Roozco as a plaintiff even though
he is not named elsewhere in the complaint. Clarification is needed as to whether Roozco is
intended to be a plaintiff. Further, paragraph 29 refers to Count I as the collective claim, even
though that is an individual retaliation claim, and thus should be corrected to refer to Count II.
With regard to the ambiguity concerning a possible minimum-wage claim, Count II is entitled
“Violation of the FLSA’s Overtime Requirements” but asserts that Defendants violated both 29
U.S.C. § 206(1)(c) (minimum wage requirements) and § 207(a)(1) (overtime requirements). Further,
Plaintiffs assert that Defendants violated the “regular” pay provisions (e.g., ¶ 44) and seek “regular
wages” in addition to “overtime wages” as compensatory damages.
Given these issues, the Court finds that Plaintiffs should file an Amended Complaint that
corrects the noted errors and specifies the extent to which Plaintiffs are asserting claims based on
minimum-wage violations (if any). In addition, for the sake of completeness, the Amended
Complaint should include the job title and/or job descriptions for the named Plaintiffs.

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Conclusion
Defendants’ Partial Motion to Dismiss (docket no. 4) is DENIED. However, Plaintiffs are
ORDERED to file an Amended Complaint as described herein, no later than November 23, 2011.
The Court’s previous text order dated October 3, 2011 is modified such that the answer shall be due
within fourteen days of the filing of the Amended Complaint.
It is so ORDERED.
SIGNED this 15th day of November, 2011.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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