Underwood v. KC Transport, Inc. et al
MEMORANDUM OPINION AND ORDER denying 10 MOTION by KC Transport, Inc. to Dismiss re: 1 Complaint. Signed by Judge John T. Copenhaver, Jr. on 10/4/2017. (cc: counsel of record) (kp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
ANGELA UNDERWOOD, individually and
on behalf of others similarly situated,
Civil Action No. 2:17-02522
KC TRANSPORT, INC.,
d/b/a KC TRANSPORT OF WEST VIRGINIA, INC.,
a West Virginia Corporation,
and KENNY COMPTON,
a West Virginia resident,
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant KC Transport,
Inc.’s motion to dismiss for failure to state a claim, filed on
May 22, 2017.
KC Transport submitted a supporting memorandum, and
plaintiff responded in opposition.
On April 16, 2017, plaintiff filed her complaint
asserting a claim under the Fair Labor Standards Act, 29 U.S.C. §
201 et seq. (“FLSA”) for unpaid overtime wages, arising from her
past employment as a truck driver with KC Transport.
On behalf of
herself and fifty similarly situated employees, plaintiff also
requested certification of a collective action.
Taking the allegations in the complaint as true, as the
court must at this stage, Ms. Underwood often worked more than
sixty hours per week and was not informed whether she was exempt
from overtime wages under the FLSA.
Even though she was not
exempt from the overtime-pay requirement, she was treated as an
exempt employee and paid a salary.
Thus, she was not paid
overtime pay that she was due for work in excess of forty hours
In the course of her employment, Ms. Underwood did not
drive across state lines, nor did her job duties incorporate an
expectation for her to do so.
Standard of Review
Federal Rule of Civil Procedure 8(a)(2) requires that a
pleader provide “a short and plain statement of the claim showing
... entitle[ment] to relief.”
Rule 12(b)(6) permits a defendant
to challenge a complaint when it “fail[s] to state a claim upon
which relief can be granted.”
In order to survive a motion to
dismiss, a complaint “must contain enough facts to state a claim
to relief that is plausible on its face.”
Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”
Twombly, 127 S. Ct. 1955, 1964 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled on other
grounds, Twombly, 127 S. Ct. at 1969); see also Anderson v. Sara
Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007).
showing of an “entitlement to relief” amounts to “more than labels
and conclusions . . . .”
Twombly, 127 S. Ct. at 1965.
It is now
settled that “a formulaic recitation of the elements of a cause of
action will not do.”
Id.; Giarratano v. Johnson, 521 F.3d 298,
304 (4th Cir. 2008).
KC Transport’s affirmative defense is not a suitable
ground for dismissal at this stage
KC Transport argues that the complaint should be
dismissed because it, and the work performed by plaintiff, are
exempt from the overtime-pay provisions of the FLSA pursuant to
the motor carrier exemption, 29 U.S.C. § 213(b)(1).
The exemption covers employees whose activities “affect
safety of operation” and who work for a private motor carrier
engaged in interstate commerce.
See Truitt v. Stavola Bros.,
Inc., 107 F.3d 1104, 1106-07 (4th Cir. 1997).
disagree on whether Ms. Underwood satisfies the interstatecommerce prong of the analysis and, therefore, whether the
exemption applies to her, barring a FLSA claim.
As Ms. Underwood notes, if the court were to consider
the affidavit attached to the motion to dismiss, it would have to
convert it to a motion for summary judgment.
Given the early
stage of the litigation and the probability that discovery will
bring out further relevant information, this the court will not
Accordingly, the court declines to consider the affidavits
attached by both parties to their briefs.
It is plain that defendant’s argument for dismissal
rests on an affirmative defense, namely, the motor carrier
exemption from the FLSA.
As is well established, the court can
only dismiss a complaint for failure to state a claim on an
affirmative defense if “facts sufficient to rule on an affirmative
defense are alleged in the complaint.”
494 F.3d 458, 464 (4th Cir. 2007).
Goodman v. Praxair, Inc.,
In this case, the complaint
specifically alleges that Ms. Underwood is not covered by the
motor carrier exemption.
And the facts alleged do not allow the
court to rule on the affirmative defense.
In particular, while KC
Transport maintains that “[d]rivers, including Ms. Underwood,
frequently haul coal to railroad cars which then proceed to
transport the goods interstate,” ECF No. 10, at 6, it relies on an
affidavit that cannot be considered at this juncture.
complaint itself naturally makes no such allegation.
Inasmuch as discovery is needed for further factual
development of the case, dismissal is unwarranted.
notes that other courts both in this circuit and beyond, when
confronted with similar situations, deny the motion to dismiss.
In one instance, the court denied dismissal when the application
of a de minimis exception to the motor carrier exemption was
Seagram v. David’s Towing & Recovery, Inc., 62 F. Supp.
3d 467, 476 (E.D. Va. 2014).
In another, where the posture looked
strikingly similar to this case, the court summarized several
legal authorities before concluding that “the determination
whether the MCA exemption applies to route drivers who operate
wholly within one state is a case-specific and highly factintensive inquiry” which depends on “fine distinctions.”
v. Eldorado Coffee Roasters Ltd., 15-CV-6442 (WFK) (JO), 2017 WL
1403340, at *4 (E.D.N.Y. Mar. 29, 2017).
The court agrees and
denies the motion to dismiss based on the motor carrier exemption.
Other arguments KC Transport makes rely on the dismissal
of plaintiff’s individual claim and are premature
KC Transport also moves to dismiss the “class action”
for lack of standing and failure to allege essential elements but
it is premature to do so before discovery can bring out the
information necessary to establish them.
Moreover, KC Transport
makes its argument in support of such request explicitly
contingent on the dismissal of plaintiff’s individual claims.
In her complaint, Ms. Underwood requested an opt-in FLSA
collective action, not a Rule 23 class action.
following dates are hereby fixed as the time by or on which
certain events must occur:
Motions under F.R. Civ. P. 12(b), together with
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
individual claims are not dismissed, there is no reason now to
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
dismiss the collective claims. In addition, Rule 23 requirements
Last day for Rule 26(f) meeting.
do not apply to the certification of such a collective action.
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United States Courthouse in Charleston, before
the undersigned, unless court ORDERS that the
For the foregoing reasons, the canceled. Lead counsel
directed to appear.
motion to dismiss be, and scheduling is, denied.
Entry of it hereby order.
03/08/2016 Clerk is directed to F.R. Civ. copies of this order
Last day to serve transmit P 26(a)(1) disclosures.
to all counsel of record. requested to transmit this Order and
The Clerk is
Notice to all counsel of record and to any unrepresented
ENTER: October 4, 2017
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge
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