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Thomas v. Wallace, Rush, Schmidt, Inc.

United States District Court, M.D. Louisiana

June 25, 2019

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

          RULING AND ORDER

          BRIAN A. JACKSON JUDGE.

         Before 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.

         I. BACKGROUND

         This dispute arises from a company's alleged failure to pay laborers for work they performed following the August 2016 flooding in Baton Rouge, Louisiana.

         De'Marcus 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.).

         A. Procedural History

         Before 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).

         After 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.[1] (Id.). He amended-for the fourth time. (Doc. 105).

         B. Fourth Amended Complaint

         The 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. (Doc. 105).

         1. Factual Allegations

         The factual allegations of Thomas's latest complaint resemble those of his prior complaints. (Docs. 1, 15, 20, 51, 105).

         Consider 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 16).

         Consider 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).

         Consider 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 ¶ 73).

         2. Class Definition

         Thomas's class definition has changed.[2] (Docs. 51, 105). He proposes a Rule 23 class and a collective-action class defined as follows:

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).

         3. Collective-Action Allegations

         Thomas 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[3] 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.).

         4. Class-Action Allegations

         Thomas 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.[4] (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 ¶¶ 78-85).

         Thomas 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).

         Contending 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 his ...


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