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Murillo v. Berry Bros General Contractors Inc.

United States District Court, W.D. Louisiana, Lafayette Division

January 17, 2019

Murillo, individually and on behalf of all other similarly situation
v.
Berry Bros General Contractors Inc

          Michael J Juneau Judge

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE

         Before the Court, on referral from the district judge, is a Rule 12(b)(6) Motion To Dismiss Or, In The Alternative, For More Definite Statement, filed by Defendant Berry Brothers General Contractors, Inc. (ABerry Bros") [Rec. Doc. 4], Plaintiffs' Memorandum In Opposition [Rec. Doc. 11] and Berry Bros' Reply thereto [Rec. Doc. 12]. For the following reasons, the Court recommends that Berry Bros' Motion be denied.

         I. Background

         Plaintiff Sergio Murillo (“Plaintiff or “Murillo”), filed this action under the Fair Labor Standards Act (the “FLSA”), alleging that Berry Bros failed to pay him and other similarly situated workers “overtime compensation”. Id. at ¶ 1. Murillo alleges he was employed by Berry Bros as a mechanic at its Pecos, Texas fabrication facility from approximately September 2017 to February 2018. Id. at ¶¶ 22, 32. Murillo brings this suit on his own behalf and also on behalf of a proposed class consisting of “his similarly situated co-workers-mechanics, welders, electricians, and other laborers (collectively ‘Non-Exempt Laborers')-who work or have worked for [Berry Bros] . . ., throughout the United States.”[1] Id. at ¶ 1. Murillo alleges that Berry Bros paid him “in part on an hourly basis” of $21.00 per hour. Id. at ¶ 34. He further alleges that he regularly worked over 40 hours per week- generally 12 hours per day, 6:00 a.m. to 6:00 p.m., Monday-Saturday, and Sunday, 6:00 a.m. to 12:00 or 1:00 p.m. Id. at ¶ 33. He sometimes worked up to 82.5 hours/week. Id. He alleges that while Berry Bros paid him $21.00 per hour for the work “labeled as hourly rates of pay, ” the company failed to pay him 1.5 times his hourly wage for all hours he worked over 40 per week. Id. at ¶ 34. He alleges these additional wages were subject to applicable payroll taxes and were included in his year-end wage amounts on the pay stubs. Id. at ¶¶ 12, 34. He further alleges that Berry Bros did not factor in “all compensation it paid” for purposes of calculation and paying over time. Id. at ¶¶ 15, 35. As a result, he alleges, Berry Bros has significantly underpaid Plaintiff and its Non-Exempt Laborers for overtime hours worked. Id. at ¶¶ 16, 35.

         Berry Bros moves to dismiss under Rule 12(b)(6), arguing that Plaintiff has not pleaded sufficient facts to establish a claim under the FLSA. In the alternative, Berry Bros moves the Court to require Plaintiff to amend his complaint to provide a more definite statement as to the overtime allegedly owed or the membership of the alleged class.

         II. Law and Analysis

         A. Legal Standard

         A court may dismiss a complaint for a “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,' but must provide the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.'” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. 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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The plausibility standard “is not akin to a ‘probability requirement, '” though it does require more than simply a “sheer possibility” that a defendant has acted unlawfully. Id. at 678. Thus, a pleading need not contain detailed factual allegations, but must set forth 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.

         B. Analysis

         An employer violates the FLSA if it fails to pay covered employees at least one and one-half times their normal rate for hours worked in excess of 40 hours per week or fails to pay covered employees a minimum wage. 29 U.S.C. §§ 206, 207. Thus, in order to state a claim for unpaid overtime or minimum wages under FLSA, a plaintiff must plead: (1) that there existed an employer-employee relationship during the pay periods claimed; (2) that the employee engaged in activities within the coverage of FLSA; (3) that the employer violated FLSA's overtime or minimum wage requirements; and (4) the amount of compensation due. Johnson v. Heckmann Water Resources, Inc., 758 F.3d 627, 630 (5th Cir. 2014)).

         1. FLSA Violations

         Berry Bros takes issue with the third and fourth factors. Specifically, Berry Bros contends that Murillo fails to allege sufficient facts to state a clam under the FLSA because his complaint is “intentionally vague” by alleging he is owed overtime on “additional compensation” that was included “on the same or separate paystub.” Defendant asserts that Plaintiff has not alleged the “nature or amount” of the “additional compensation” or why Berry Bros owes overtime on it. Berry Bros refers to Murillo's use of the term “additional wages” used in paragraphs 11 and 12 of the Complaint.

         Berry Bros represents that Murillo states on page nine of his opposition that “[a] plaintiff alleges a viable FLSA claim where they allege an employer did not factor in all remuneration into the regular rate of pay for the purposes of calculating and paying overtime.” R. 14, p. 1. The Court does not disagree with this statement. Berry Bros contends, however, that under the FLSA a plaintiff must specifically allege the nature of the compensation on which the employer allegedly owes overtime or why the compensation should have been included in the employee's regular rate. It cites Atkins v. Primoris ...


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