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Thomas v. Wallace, Rush, Schmidt, Inc.

United States District Court, M.D. Louisiana

April 22, 2019

DE'MARCUS THOMAS
v.
WALLACE, RUSH, SCHMIDT, INC.

          RULING AND ORDER

          BRIAN A. JACKSON UNITED STATES DISTRICT JUDGE.

         Before the Court are two motions: Wallace, Rush, Schmidt, Inc.'s Motion for Partial Dismissal (Doc. 53) of De'Marcus Thomas's third amended complaint and Wallace, Rush, Schmidt, Inc.'s Motion to Strike (Doc. 54) the class-action allegations of Thomas's third amended complaint. For the reasons that follow, the Motion for Partial Dismissal (Doc. 53) is GRANTED IN PART and DENIED IN PART and the Motion to Strike (Doc. 54) is GRANTED.

         I. BACKGROUND

         This is a wage-and-hour dispute. It arises from a company's alleged failure to pay laborers for disaster-restoration work they performed during the August 2016 flooding in southeast Louisiana. De'Marcus Thomas sued Wallace, Rush, Schmidt, Inc. for violating the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, defrauding him, breaching an oral employment contract, and negligently failing to keep payroll records.[1] (Doc. 51). His third amended complaint, though inartfully drafted, suggests that he seeks to certify a collective-action class under § 216(b) of the FLSA and a Federal Rule of Civil Procedure 23(b)(3) damages class.[2] (Id.).

         In his third amended complaint, Thomas alleges that Wallace, Rush, Schmidt, Inc. (WRS) is a "natural disaster cleanup and recovery personnel resource management company" that hired him to "perform disaster restoration" services. (Id. at ¶ 12). He alleges that WRS "fail[ed] to keep accurate payroll records and fail[ed] to pay regular wages and overtime." (Id. at ¶ 78). And he seeks to certify a class consisting of

[a]ll persons who were or are currently employed by WRS in the State of Louisiana and who have not been compensated for regular wages and/or have not been compensated the overtime rate of one and one-half times the regular rate of pay for all work performed in excess of forty hours per work week, and . . . any employee for which Defendants WRS and Servpro failed to maintain and preserve payroll records or other records, containing, without limitation, the total hours worked by each class member each workday and total hours worked by each class member each workweek.

(Id. at ¶ 75). His third amended complaint does not distinguish between a proposed collective-action class and a proposed Rule 23(b)(3) class. (Id.). So the Court assumes that Thomas intends the same definition to apply to each.

         WRS moves to dismiss under Rule 12(b)(6). (Doc. 53). It argues that Thomas fails to plead plausible claims for (1) a collective action under § 216(b) of the FLSA, (2) detrimental reliance, (3) unjust enrichment, and (4) fraud. (Doc. 53-1). Thomas disagrees. (Doc. 79). He responds that his allegations provide WRS fair notice, that his quasi-contract claims should stand, and that his allegations of fraud meet Rule 9(b)'s particularity standard. (Id.).

         Separately, WRS moves to strike the class-action allegations of Thomas's third amended complaint.[3] (Doc. 54). It argues that Thomas fails to plead facts showing that the requirements of Rules 23(a) and 23(b)(3) are met. (Id.). Thomas opposes and casts the motion as "premature." (Doc. 81).

         II. MOTION TO DISMISS

         A. Standard

         To overcome WRS's motion to dismiss, Thomas must plead a plausible claim for relief. See Romero v. City of Grapevine, Tex., 888 F.3d 170, 176 (5th Cir. 2018) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is plausible if it is pleaded with factual content that allows the Court to reasonably infer that WRS is liable for the misconduct alleged. See Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017) (citing Iqbal, 556 U.S. at 678). The Court accepts as true the well-pleaded facts of Thomas's third amended complaint and views those facts in the light most favorable to him. See Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507, 513 (5th Cir. 2018).

         B. Analysis

         1. FLSA Collective Action

         The FLSA sets wage, hour, and overtime standards employers must generally follow. See 29 U.S.C. §§ 206 (minimum wage), 207(a) (overtime). If an employer violates these standards, an employee may sue on behalf of himself and "other employees similarly situated." 29 U.S.C. § 216(b). Such a suit is called a collective action. See Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 69 (2013).

         Some courts have held that it is improper to challenge a collective action by Rule 12 motion. See, e.g., Robinson v. R&L Carriers Payroll, LLC, No. H-17-1762, 2018 WL 1033256, at *2 (S.D. Tex. Feb. 20, 2018). This Court has held otherwise. See Creech v. Holiday CVS, LLC, No. 11-CV-46-BAJ-DLD, 2012 WL 4483384, at *3 (M.D. La. Sept. 28, 2012).

         To plead a plausible collective-action claim, Thomas must allege facts sufficient to provide WRS "fair notice of the putative class." Flores v. Act Event Servs., Inc., 55 F.Supp.3d 928, 940 (N.D. Tex. 2014). WRS argues that it lacks fair notice because Thomas's collective-action allegations are conclusory and his class definition is too broad. (Doc. 53-1). Thomas rejoins that his allegations outline the "job duties" and "scope" of the putative class and so provide fair notice. (Doc. 79). The Court disagrees.

         Thomas's collective-action allegations fail to provide WRS fair notice of the putative class. See Flores, 55 F.Supp.3d at 940. His class definition is too broad; it appears to include any person of any position for whom WRS at any point "failed to maintain and preserve payroll records." (Doc. 51 at ¶ 75). That alone defeats fair notice.

         Beyond its breadth, the class is ill-defined. (Doc. 51 at ¶ 75). The collective-action allegations that follow paragraph 75's class definition suggest that Thomas proposes a narrower class-one limited to persons "hired to perform disaster restoration work on an hourly basis." (Doc. 51 at ¶¶ 74, 76-82). But even that definition falls short: "disaster restoration work" could describe the duties of a day laborer, a structural engineer, or a legal-aid attorney. (Id. at ¶ 76).

         If Thomas intends to plead a plausible collective-action claim, he must craft a coherent class definition. SeeFlores, 55 F.Supp.3d at 940. He could, for example, use the specific duties outlined in paragraph 79 to define a narrower class in paragraph 75. (Doc. 51 at ¶¶ 75, 79). It is not WRS's responsibility to "define the putative class by piecing together factual allegations strewn throughout" Thomas's third amended complaint. Flores, 55 ...


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