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Brand Energy Solutions LLC v. Gilley

United States District Court, W.D. Louisiana, Lake Charles Division

February 22, 2017


          KAY MAG. JUDGE



         Before the court is "Brand Energy Solutions, LLC's Rule 12(b)(6) Motion to Dismiss Defendant/Counter-Plaintiff Cody Gilley's First Amended Counterclaim" (R. #30) wherein counter-claim defendant, Brand Energy Solutions, LLC ("Brand") seeks dismissal of Cody Gilley's counter-claims against Brand for alleged violations of the Fair Labor Standards Act ("FLSA")[1], the Louisiana Wage Payment Act ("LWPA"), [2] the Louisiana Unfair Trade Practices Act ("LUTPA"), [3] and for fraud and breach of contract.


         On July 12, 2016, Brand filed the instant lawsuit against Mr. Gilley wherein Brand alleged that upon termination of his employment with Brand, Mr. Gilley began working for Apache Industrial Services, ("Apache"), a direct competitor of Brand. Brand alleged that Mr. Gilley solicited and obtained work from Brand's customers on behalf of Apache in violation of the Confidentiality, Non-Competition, Non-Solicitation and Invention Assignment Agreement ("Agreement"). After amending their complaint, Mr. Gilley answered and filed a counter-claim against Brand asserting the claims mentioned hereinabove.[4]

         On January 18th, 2017, pursuant to a motion for judgment on the pleadings filed by Mr. Gilley, the undersign dismissed Brand claims against Mr. Gilley finding that because the Agreement at issue in the lawsuit failed to meet the requirements of Louisiana Revised Statute 9:23:921(C), it was unenforceable.[5]

         RULE 12(b)(6) STANDARD

         Fed. R. Civ. P. 8(a)(2) requires that pleadings which state one or more claims for relief must contain "...a short and plain statement of the claim showing that the pleader is entitled to relief..." This "notice pleading" requirement is balanced against Fed.R.Civ.P. 12(b)(6), which provides that a court may dismiss one or more claims when the pleader fails to state a claim upon which relief may be granted.

         For the purpose of considering a motion to dismiss pursuant to Rule 12(b)(6), the court must take all well-pled factual allegations as true and must view them in the light most favorable to the plaintiff.[6] The pleading must allege facts which, when taken as true, raise the pleader's claim. A motion to dismiss for failure to state a claim should be denied unless "it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts" alleged in the petition.[7]

         Only those facts which are well-pleaded and state a "plausible claim for relief" must be accepted.[8] A claim is plausible when the court can reasonably infer from the facts that the defendant is liable to the plaintiff; a claim is not plausible when it only states conclusions of a "formulaic recitation of the elements of a cause of action."[9] However, even those facts which are extremely doubtful are to be assumed correct.[10]


         In the instant motion, Brand seeks to dismiss the claims Mr. Gilley has asserted against it which include claims under the FLSA, both individually and collectively, LWPA, LUTPA, fraud and the breach of contract.


         Brand asserts that Mr. Gilley has failed to allege any facts to establish individual coverage under the FLSA or indicate how Mr. Gilley's activities constituted engagement in interstate commerce. In order to state a claim for unpaid overtime or minimum wages under the FLSA, a plaintiff must plead: "(1) that there existed an employer-employee relationship during the unpaid ... periods claimed; (2) that the employee engaged in activities within the coverage of the FLSA; (3) that the employer violated the FLSA's overtime [or minimum wages] requirements; and (4) the amount of overtime [or minimum wage] compensation due."[11] Mr. Gilley bears the burden of establishing either individual or enterprise coverage under the FLSA.[12] Thus, Mr. Gilley must plead facts which, taken as true, plausibly establish coverage under the FLSA.[13]

         Congress regulates activities constituting interstate commerce.[14] For an employee to be "engaged in commerce" underthe FLSA, he must be directly participating in the actual movement of persons or things in interstate commerce by (i) working for an instrumentality of interstate commerce, e.g., transportation or communication industry employees, or (ii) by regularly using the instrumentalities of interstate commerce in his work, e.g., regular and recurrent use of interstate telephone, telegraph, mails, or travel.[15]

         Mr. Gilley has failed to address this issue or make any argument to establish whether or not this employer is covered under the FLSA and the court has reviewed the counterclaim and notes that there are not sufficient facts alleged for this court to determine if interstate activity is involved which would invoke coverage under the FLSA, individually and/or collectively. Louisiana Wage Payment Act Violations.

         Mr. Gilley alleges that Brand's refusal to pay him for overtime work performed constitutes a violation of the Louisiana Wage Payment Act ("LWPA").[16] Brand asserts that Mr. Gilley's LWPA claims must fail because the LWPA does not provide for the recovery of overtime wages and he has not alleged facts to establish that overtime pay was an amount due to him under the terms of his employment with Brand. As noted by Brand, the LWPA requires that "[u]pon the resignation of any laborer or other employee ... it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment.. ..[17]Absent a contract, payment of overtime wages is governed exclusively by the FLSA.[18] Hence, because we have concluded that Mr. Gilley has failed to allege facts to assert coverage under the FLSA, and noting the absence of a contract that requires Brand to pay overtime, the counterclaim fails to plausibly establish a viable claim for alleged unpaid overtime under the LWPA. Furthermore, there can be no entitlement to penalty wages under the LWPA.


         In his counterclaim, Mr. Gilley alleges that "Brand represented to Gilley that he was a salaried employee as opposed to an hourly employee and was not entitled to overtime pay. At the time Brand made these representations, Brand knew them to be false, and these representations were made by Counterclaim Defendant Brand with the intent to defraud and deceive Gilley with respect to the overtime benefits that he was entitled."[19] Brand asserts that Mr. Gilley's fraud claim is preempted by the FLSA.[20]

         Mr. Gilley's fraud claim is based on Brand's alleged statement to him that upon his December 2014 promotion, as a salaried employee, he was not entitled to overtime pay and that Brand allegedly knew this statement to be false and made with the intent to defraud Mr. Gilley. The court finds that ...

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