United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON UNITED STATES DISTRICT JUDGE.
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.
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. (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
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.
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.
WRS moves to strike the class-action allegations of
Thomas's third amended complaint. (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.
MOTION TO DISMISS
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).
FLSA Collective Action
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).
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,
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.
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.
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).
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 ...