United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON JUDGE.
the Court in this wage-and-hour dispute are the
Motions (Docs. 112, 113, 114, 115) of
Wallace, Rush, Schmidt and D&A Enterprises to dismiss, in
part, Plaintiff De'Marcus Thomas's claims and to
strike the class-action allegations of his fourth amended
complaint. For the reasons that follow, the Motions
for Partial Dismissal (Docs. 112, 115) are
GRANTED IN PART and DENIED IN
PART and the Motions to Strike (Docs. 113,
114) are GRANTED.
dispute arises from a company's alleged failure to pay
laborers for work they performed following the August 2016
flooding in Baton Rouge, Louisiana.
Thomas sued Wallace, Rush, Schmidt and D&A Enterprises
for violating the Fair Labor Standards Act (FLSA), 29 U.S.C.
§§ 201-219, defrauding him, breaching an employment
contract, and negligently failing to keep payroll records.
(Doc. 105). He purports to allege collective-action claims
under § 216(b) of the FLSA, and he seeks to certify a
Federal Rule of Civil Procedure 23 class under an unspecified
Rule 23(b) subpart. (Id.).
turning to the allegations of Thomas's latest complaint,
the Court addresses the history of this case, one of the
oldest on its docket. Thomas filed this suit in August
2016-over 2 years and 9 months ago. (Doc. 1). The case
proceeded without issue until March 2017, when Wallace, Rush,
Schmidt notified the Court that it had filed for bankruptcy
protection. (Doc. 40). The Court responded by staying the
case. (Doc. 42). The Court lifted the stay in October 2018,
on Thomas's motion and following the bankruptcy
court's entry of an order lifting the stay to allow the
case to "immediately proceed ... in the Middle District
of Louisiana." (Doc. 45).
the Court lifted the stay, Wallace, Rush, Schmidt moved to
dismiss Thomas's claims and to strike his class-action
allegations. (Docs. 53, 54). The Court granted the motion to
dismiss, in part, and granted the motion to strike, in full.
(Doc. 104). The Court explained how Thomas's complaint
was deficiently pleaded and granted him leave to amend
certain claims. (Id.). He amended-for the fourth
time. (Doc. 105).
Fourth Amended Complaint
claims Thomas attempts to allege in his latest complaint
resemble those he attempted to allege in his last one. (Docs.
51, 105). His fourth amended complaint attempts to allege (1)
individual and collective-action claims for violations of the
FLSA; (2) individual and class-action claims for violations
of the Louisiana Wage Payment Law, La. R.S. 23:631; (3)
individual and class-action claims for breach of contract;
(4) individual and class-action claims for detrimental
reliance; (5) individual and class-action claims for fraud;
and (6) individual and class-action claims for negligence.
factual allegations of Thomas's latest complaint resemble
those of his prior complaints. (Docs. 1, 15, 20, 51, 105).
his "employers." Thomas alleges that Wallace, Rush,
Schmidt is a "[n]atural [d]isaster [c]leanup and
[r]ecovery personnel resource management company specializing
in job management and labor services for disaster restoration
companies." (Doc. 105 at ¶ 12). D&A
Enterprises, Thomas alleges, is a Servpro Industries, Inc.
franchise that "used [Wallace, Rush, Schmidt's]
services to recruit laborers to perform work related to the
flooding event that occurred in [s]outheast Louisiana in
August of 2016." (Id. at ¶ 15). Thomas
alleges that D&A Enterprises agreed to pay Wallace, Rush,
Schmidt to "hire and recruit" more than "1,
500 employees to perform disaster restoration for the Baton
Rouge flood project." (Id. at II
the "disaster restoration" project. Thomas alleges
that he worked as a laborer for "Defendants" on two
job sites-the Baker Dialysis Center and the A mite High
School-for a two-week period in August 2016. (Id. at
¶¶44-45, 56). He alleges that
"Defendants" hired him "to do work that is
largely physical in nature" in 12-hour shifts at $12 per
hour. (Id. at ¶¶ 45-46).
the "nonpayment." Thomas alleges that
"Defendants" told him that he would be paid regular
and overtime wages "every Friday." (Id. at
¶ 105). He alleges that "Defendants" told him
to visit a "check-in site" to receive payment on
three mornings, but "Defendants" never paid him.
(Id. at ¶¶ 65-77). And he alleges,
"[u]pon information and belief/' that
"Defendants" have "a pattern and practice of
refusing to pay their employees." (Id. at
¶ 39). He alleges that this nonpayment caused him to
quit working for "Defendants" on August 27,
2016-two days before he filed this suit. (Id. at
class definition has changed. (Docs. 51, 105). He proposes a
Rule 23 class and a collective-action class defined as
All persons who were or are currently employed by WRS and/or
Servpro of Fort Collins in the State of Louisiana from July
of 2016 to July of 2017 who were hired to perform Manual
Labor in connection with the flooding event that occurred on
or about August of 2016 in the greater Baton Rouge, Louisiana
region/area. Manual Labor is defined as any labor related
work pertaining to physical labor tasks such as site
demolition, removing drywall, removing insulation, removing
and/or remediating flooring, removing and/or disposing of
trash, and/or any other flood related remediation and
demolition activities which involve manual labor. These class
members may have had additional duties that were not Manual
Labor in nature, but Manual Labor was the primary job
function in their duties. Plaintiffs and the members of the
Plaintiff Class are similarly situated in that they were
hired to perform Manual Labor, as defined above, following
the flooding event that occurred on or about [sic]
in August of 2016 in the greater Baton Rouge, Louisiana
region/area on an hourly basis for the same rate of pay for
the Defendants in the above specified time period. To be
eligible to be class members, said workers must have not been
compensated for regular wages and/or have not been
compensated the overtime rate of one and one-half
(11/2) times the regular rate of pay for all work
performed in excess of forty (40) hours per work week, and
for any worker 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.
(Doc. 105 at ¶¶ 79, 87).
purports to allege FLSA collective-action claims on behalf of
the class described above. (Doc. 105 at ¶¶ 78-85).
He alleges that he and the members of his proposed class
"were together the victims of
Defendant's improper policies and practices of failing
to keep accurate payroll records and failing to pay regular
wages and overtime." (Id. at ¶ 81). He
alleges that members of the proposed class are situated
similarly to him because (1) "they were recruited by
[Wallace, Rush, Schdmit] to provide disaster restorative
services" in Louisiana (Id. at ¶ 82); (2)
"they were given job assignments by [Wallace, Rush,
Schmidt], directed by job site supervisors from [Wallace,
Rush Schmidt] and [D&A Enterprises] as to the specific
service to be performed"; and (3) "they all advance
similar claims of not being compensated for regular wages
and/or overtime wages[.]" (Id. at ¶ 83).
He also alleges that he spoke with "numerous"
laborers who said that "Defendant" failed to pay
them for "similar work." (Id.).
purports to allege class-action claims on behalf of the class
described above. (Doc. 105 at ¶¶ 78-85). He fails,
however, to specify the type of class. (Id.). He
cites Rule 23(b)(2), the provision governing
equitable-relief classes, in a single paragraph.
(Id. at ¶ 99). But that provision cannot apply:
Thomas predominantly requests money damages-not equitable
relief. (Id. at pp. 24-25). Accordingly,
his fourth amended complaint requires the Court to guess the
type of class he intends to certify. (Id. at
gestures toward the Rule 23(a) requirements. (Id.,
). He alleges that the numerosity requirement is met
because "there are at least 1, 500 members of the
putative class." (Id. at ¶ 90). That
figure, though, represents the workers "Defendants"
allegedly employed; it does not represent the number
of workers "Defendants" allegedly failed to
pay. (Id.). So the allegation does not speak to
numerosity. (Id.). Thomas also alleges that
"putative class members were hired to perform work
across the State of Louisiana-not just one defined
area." (Id. at ¶ 90). That allegation is
perplexing considering the geographic scope of the class
Thomas has defined-a class comprising persons hired to
perform "manual labor" in "the greater Baton
Rouge, Louisiana region/area." (Id. at
¶¶ 79, 87). Moving to the other Rule 23(a)
requirements, Thomas alleges that he "will fairly and
adequately represent and protect the interests" of
putative class members (Id. at ¶ 95) and that
"[t]here are questions of law or fact common" to
the proposed class. (Id. at ¶ 93).
that these allegations do not suffice, Wallace, Rush, Schmidt
and D&A Enterprises move to (1) dismiss Thomas's
collective-action, detrimental-reliance, fraud, and
negligence claims for failure to state a claim and (2) strike