Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ruiz v. Masse Contracting, Inc.

United States District Court, E.D. Louisiana

June 12, 2019

JOSE RUIZ, on behalf of himself and other persons similarly situated
v.
MASSE CONTRACTING, INC. AND BOLLINGER SHIPYARDS, L.L.C.

         SECTION M (2)

          ORDER & REASONS

          BARRY W. ASHE UNITED STATES DISTRICT JUDGE

         Before the Court is a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim, or alternatively, motion to dismiss under Rule 12(b)(7) for failure to join necessary parties, or motion for a more definite statement pursuant to Rule 12(e), filed by defendants Masse Contracting, Inc. (“Masse”) and Bollinger Shipyards, L.L.C. (“Bollinger”) (collectively, “Defendants”).[1] Plaintiff Jose Ruiz (“Ruiz”) filed a memorandum in opposition, [2] to which Defendants replied.[3] Having considered the parties' memoranda, the record, and the applicable law, the Court issues this Order & Reasons.

         I. BACKGROUND

         Ruiz brought this action, on behalf of himself and others similarly situated, raising claims under the Fair Labor Standards Act (“FLSA”) for unpaid overtime wages.[4] Ruiz, a resident of Morgan City, Louisiana, alleges that Masse hired him in 2015 to work as a pipefitter at Bollinger's shipyard in Amelia, Louisiana, and he held that job for approximately three years.[5]Ruiz alleges that Bollinger employed at its Amelia shipyard at least 200 workers whose services were obtained from labor subcontractors.[6] Masse was one of those labor subcontractors and supplied about 50 of the workers at Bollinger's Amelia shipyard.[7] Ruiz alleges that he was employed by both Masse and Bollinger, and that both entities supervised his activities, determined his work schedule, and kept an employment file on him.[8] However, Ruiz also alleges that Bollinger largely “supervise[d] and control[led] the workers as de facto employees, ” but that Masse paid him.[9]

         Ruiz alleges that he normally worked more than forty hours per week, and “[o]n average worked at least sixty-seven hours per week.”[10] Ruiz alleges that his regular rate of pay was $13.00 per hour, and he received overtime pay of $19.50 per hour and a $70.00 per diem for days he worked at least five hours.[11] He further alleges that he did not incur any expenses in furtherance of Defendants' interests that would qualify as reimbursable per diem payments under the FLSA, and thus the payments to him amounted to “disguised wages” that Defendants did not include in calculating Ruiz's overtime premium pay.[12]

         Ruiz seeks to represent two classes.[13] The first proposed class is the “Amelia Overtime Class, ” consisting of:

all current and former employees of Defendants at the Bollinger Shipyard in Amelia, Louisiana, who are or have been employed by Bollinger, either through Masse or another labor subcontractor, during the three years immediately preceding the filing of this suit as hourly employees and who, during that period, received daily per diem payments and worked in excess of forty hours in any work week and failed to receive the correct rate of premium pay, a rate of one-and-a-half times their regular rate of pay, for all hours worked in excess of forty in a workweek.[14]
The second proposed class is the “Masse Overtime Class, ” consisting of:
all current and former employees of Masse who are or have been employed by Masse during the three years immediately preceding the filing of this suit as hourly employees and who, during that period, received daily per diem payments and worked in excess of forty hours in any work week and failed to receive the correct rate of premium pay, a rate of one-and-a-half times their regular rate of pay, for all hours worked in excess of forty in a workweek.[15]

         II. PENDING MOTION

         Defendants filed the instant motion to dismiss arguing that Ruiz's complaint does not adequately allege FLSA claims against them and fails to include necessary parties.[16] In particular, Defendants argue that Ruiz does not allege facts demonstrating that the per diem payments were improper because he does not allege when he received such payments, whether he always received the same amount, whether he received the payments no matter his worksite, or whether he received the payments regardless of what expenses he incurred on his employer's behalf.[17] Defendants also argue that Ruiz did not allege the time periods at issue or the amount of overtime compensation due with sufficient factual specificity because he did not identify any workweek or workweeks in which he worked more than forty hours without receiving proper overtime pay.[18] Further, Defendants argue that Ruiz did not properly plead a collective action under the FLSA because the two proposed classes are too general and fail to demonstrate that other potential claimants are similarly situated in that (1) subcontractor employers other than Masse are implicated in the proposed Amelia Overtime Class, and (2) the geographic location and job duties potentially involved in the Masse Overtime Class are too divergent.[19] Finally, Defendants argue that Ruiz has not properly pleaded that Bollinger was his employer because he does not allege that Bollinger had the power to hire and fire him or set his rate of pay.[20] Rather, according to Defendants, the complaint points to Masse as Ruiz's employer, as it alleges he was hired and paid by Masse.[21]

         Defendants also argue that Ruiz's FLSA collective action claim against Bollinger should be dismissed because it implicates unnamed subcontractors.[22] Defendants argue that these other subcontractors are necessary parties “[i]f the Court is inclined to allow Plaintiff to seek overtime from entities who were not his employers.”[23]

         Alternatively, under Rule 12(e), Defendants argue that Ruiz should be required to file a more definite statement addressing the following items:

1. “how Defendants' alleged practice of paying per diem violates the FLSA or why the alleged per diem should have been factored into his regular rate of pay for the purposes of calculating his overtime pay including the time periods of when he received per diem, the conditions of his receipt of per diem, [and] the expenses he incurred or didn't incur.”[24]
2. “the approximate date ranges and number of hours worked for which he claims he was undercompensated and his job duties.”[25]
3. “how members of the two proposed putative classes are similarly situated including the identity of other alleged subcontractors, whether Plaintiff actually worked for those unidentified subcontractors, whether all putative class members were paid a per diem, what that per diem was, the conditions for paying per diem, and how the payment of per diem violated the FLSA, and descriptions or details about individuals at the various worksites.”[26]
4. “Bollinger's status as Plaintiff's employer and the putative class members including the factors under the economic realities test.”[27]

         Ruiz responds that his complaint should not be dismissed, and he should not be required to file a more definite statement, because his complaint adequately puts Defendants on notice of his claims.[28] He says he adequately alleged that Defendants violated the FLSA by improperly disguising wages as per diem payments so as to avoid including those amounts in the calculation of overtime premium wages.[29] Ruiz also argues that he put Defendants on notice of his dates of employment (2015 to 2018) and the amount of unpaid overtime, having alleged that he normally worked more than forty hours per week - on average, at least sixty-seven hours per week.[30]

         Further, Ruiz argues that his class allegations put Defendants on notice of the proposed classes and adequately explain that the “classes are limited to only those [individuals] who were paid an hourly rate, received a daily per diem, worked over 40 hours in a work week, did not receive the proper overtime rate of pay, and thus were subject to the same policy of regular wages characterized as per diems and improperly excluded from the calculation of their overtime rate of pay.”[31] Ruiz contends that Defendants' motion to dismiss is trying to short-circuit the class certification process, and that a proposed class can be narrowed, if found to be too broad, following discovery and briefing on class certification.[32]

         Finally, Ruiz argues that he has sufficiently alleged that Bollinger was his employer by alleging that Bollinger supervised his work, set his schedule, and had an employment file on him.[33] Ruiz says he is entitled to discovery to determine if Bollinger indeed meets the economic reality test so as to be considered his employer under the FLSA.[34]

         As to Defendants' alternative motions, Ruiz urges that the Amelia Overtime Class's potential implication of unnamed labor subcontractors does not justify dismissal.[35] Further, Ruiz argues that Defendants' arguments regarding a more definite statement are the same as their arguments in favor of dismissal, and thus that a more definite statement is not required because his complaint is adequate.[36]

         III. LAW & ANALYSIS

         A. Defendants' Motion to Dismiss for Failure to State a Claim

         1. Rule 12(b)(6) Standard

         The Federal Rules of Civil Procedure require a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The statement of the claim must “‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A pleading does not comply with Rule 8 if it offers “labels and conclusions, ” “a formulaic recitation of the elements of a cause of action, ” or “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-57).

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible on the face of the complaint “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). Plausibility does not equate to probability, but rather “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” Id. (quoting Twombly, 550 U.S. at 557). Thus, if the facts pleaded in the complaint “do not permit the court to infer more than a mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court employs the two-pronged approach utilized in Twombly. The court “can choose to begin by identifying pleadings that, because they are no more than conclusions [unsupported by factual allegations], are not entitled to the assumption of truth.” Id. However, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. Motions to dismiss are disfavored and rarely granted. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).

         A court's review of a Rule 12(b)(6) motion to dismiss “is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). A court may also take judicial notice of certain matters, including public records and government websites. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2007); see also Kitty Hawk Aircargo, Inc. v. Chao., 418 F.3d 453, 457 (5th Cir. 2005). Thus, in weighing a Rule 12(b)(6) motion, district courts primarily look to the allegations found in the complaint, but courts may also consider “documents incorporated into the complaint by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned.” Meyers v. Textron, Inc., 540 Fed.Appx. 408, 409 (5th Cir. 2013) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

         2. The FLSA

         The FLSA mandates that employers pay covered employees overtime wages for hours worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). If the employer fails to do so, it “shall be liable to the employee or employees affected in the amount of … their unpaid overtime compensation.” Id. § 216(b). 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 overtime periods claimed; (2) that the employee engaged in activities within the coverage of the FLSA; (3) that the employer violated the FLSA's overtime wage requirements; and (4) the amount of overtime compensation due.” Johnson v. Heckmann Water ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.