Gregory v. FedEx Corporation et al

Filing 314

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; adopting Report and Recommendations re 312 Report and Recommendations; it is ORDERED that Defendant's Motion to Strike Plaintiffs' FLSA claims is DENIED; IT IS FURTHER ORDERED that Defendant 9;s 12(b)(6) Motion to Dismiss, ECF No. 290, is GRANTED IN PART as to Plaintiffs' DJA claims and FLSA minimum wage claims, and DENIED IN PART as to Plaintiffs' fraud, rescission, and FLSA overtime claims. Plaintiffs' DJA claims and FLS A minimum wage claims are hereby DISMISSED without prejudice 290 Motion to Dismiss.; IT IS FURTHER ORDERED that Defendant's Motion to Dismiss or Sever and Transfer, ECF No. 294, is GRANTED IN PART as to the Motion to Sever and DENIED IN PART a s to the Motions to Dismiss and to Transfer. Accordingly, the Non-Norfolk Plaintiffs' claims are hereby SEVERED, pursuant to Federal Rule of Civil Procedure 21, and CONSOLIDATED, pursuant to Federal Rule of Civil Procedure 42 294 Motion to Dis miss; IT IS FURTHER ORDERED that Plaintiffs shall file their amended complaints in accordance with Federal Rule of Civil Procedure 9(b) within thirty (30) days of the date of this Order; IT IS FURTHER ORDERED that Defendant shall file its responsive pleadings to Plaintiffs' amended complaints within thirty (30) days of the date that Plaintiffs file their complaints. Signed by District Judge Raymond A. Jackson and filed on 6/22/2012. (bnew, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

[
BRADLEY D. GREGORY, et al.,

JUN

2 2 2012

Plaintiffs,

v.

CIVIL ACTION NO. 2:10cv630

FEDEX GROUND PACKAGING SYSTEM INC.,
Defendant.

ORDER

Before the Court are Defendant's Motions to Dismiss Plaintiffs' Sixth Amended

Complaint ("12(b)(6) Motion to Dismiss"), ECF No. 290, and Defendant's Motion to Dismiss
the Non-Norfolk Plaintiffs' Claims for Misjoinder, or, in the Alternative, to Sever and Transfer
Those Claims ("Motion to Dismiss or Sever and Transfer"), ECF No. 294. The 12(b)(6) Motion
to Dismiss also requests that the Court strike Plaintiffs' claims under the Fair Labor Standards

Act ("FLSA"), pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. On February 17,
2012 and February 23, 2012, these motions was referred to the Honorable United States

Magistrate Judge F. Bradford Stillman ("Judge Stillman"), pursuant to the provisions of 28
U.S.C. Section 636(b)(l)(B) and Rule 72(b) of the Federal Rules of Civil Procedure for a report
and recommendation.

This matter has been pending in various courts since 2003; thus, the Court reviews herein
only the procedural history most relevant to the instant motions. In accordance with an order
Judge Stillman issued on November 21, 2011, Plaintiffs filed a Sixth Amended Complaint on
December 13, 2011. The Complaint asserts claims for fraud, rescission, and violations of the

Fair Labor Standards Act's ("FLSA") minimum wage and overtime provisions, and it seeks a
declaratory judgment. Defendant filed the 12(b)(6) Motion to Dismiss on January 12,2012 and
the Motion to Dismiss or Sever and Transfer on January 24, 2012. After the motions were fully

briefed, Judge Stillman held a hearing on both motions on April 10, 2012. Following the
hearing, Judge Stillman issued the United States Magistrate Judge's Report and
Recommendation ("Report") on May 9, 2012. The Report made the following recommendations
to the Court: (1) GRANT IN PART the 12(b)(6) Motion to Dismiss as to Plaintiffs' claims
under the Declaratory Judgment Act ("DJA") and Plaintiffs' FLSA minimum wage claims; (2)
DENY IN PART the 12(b)(6) Motion to Dismiss as to Plaintiffs' fraud, rescission, and FLSA
overtime claims; (3) DENY Defendant's Motion to Strike Plaintiffs' FLSA claims; and (4)

GRANT IN PART the Motion to Dismiss or Sever and Transfer by severing and consolidating

the Non-Norfolk Plaintiffs' claims; and (5) DENY IN PART the Motion to Dismiss or Sever and
Transfer by declining to dismiss the Non-Norfolk Plaintiffs' claims.

See Report at 41 -42.

By copy of the Report, each party was advised of their right to file written objections to

Judge Stillman's findings and recommendations within fourteen (14) days from the date of the
mailing of the Report. On May 30,2012, the parties filed a "Joint Stipulation" indicating that

they did not intend to file objections to the Report. ECF No. 313. In the Joint Stipulation, the
parties further agreed that, with the Court's approval, Plaintiffs would have thirty (30) days from

the date the Court enters its order as to the Report to file their amended complaints, and that
Defendant would have thirty (30) days from the filing of the amended complaints to file its
responsive pleadings, including motions to dismiss.

Having reviewed the record, the Court does hereby accept the findings and
recommendations set forth in Judge Stillman's Report.

Accordingly, it is ORDERED that Defendant's Motion to Strike Plaintiffs' FLSA claims
is DENIED.
IT IS FURTHER ORDERED that Defendant's 12(b)(6) Motion to Dismiss, ECF No.
290, is GRANTED IN PART as to Plaintiffs' DJA claims and FLSA minimum wage claims,

and DENIED IN PART as to Plaintiffs' fraud, rescission, and FLSA overtime claims.
Plaintiffs' DJA claims and FLSA minimum wage claims are hereby DISMISSED without
prejudice.
IT IS FURTHER ORDERED that Defendant's Motion to Dismiss or Sever and

Transfer, ECF No. 294, is GRANTED IN PART as to the Motion to Sever and DENIED IN
PART as to the Motions to Dismiss and to Transfer. Accordingly, the Non-Norfolk Plaintiffs'
claims are hereby SEVERED, pursuant to Federal Rule of Civil Procedure 21, and

CONSOLIDATED, pursuant to Federal Rule of Civil Procedure 42.
IT IS FURTHER ORDERED that Plaintiffs shall file their amended complaints in
accordance with Federal Rule of Civil Procedure 9(b) within thirty (30) days of the date of this
Order.

IT IS FURTHER ORDERED that Defendant shall file its responsive pleadings to

Plaintiffs' amended complaints within thirty (30) days of the date that Plaintiffs file their
complaints.

The Clerk shall mail a copy of this Order to counsel for all parties.
IT IS SO ORDERED.

Raymond A. Jackson

Norfolk, Virginia
June ^,2012

United States District Judge