Hernandez v. Global Prisoner Services, LLC D/b/a Texas Prisoner Transportation Services

Western District of Texas, txwd-5:2019-cv-00374

Motion to Dismiss for Failure to State a Claim and Incorporated Memorandum of Law by Ryan Whitten. Motions referred to Judge Richard B. Farrer.

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2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DISTRICT AMANDA HERNANDEZ, individually and) on behalf of All Others Similarly Situated,))) Plaintiff,)) No.: 5:19-cv-00374-FB v.)) GLOBAL PRISONER SERVICES, LLC) d/b/a TEXAS PRISONER) TRANSPORTATION SERVICES, PTS OF)) AMERICA, LLC, and RYAN WHITTEN,)) Defendants.)) RYAN WHITTEN'S MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW IN SUPPORT THEREOF Pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(3), Ryan Whitten moves this Court to dismiss all claims brought against him in Plaintiff's Amended Complaint. As grounds, Mr. Whitten states the following: 1. The Amended Complaint is a shotgun pleading which groups all Defendants together as if they were a single actor, and thereby fails to comply with Fed. R. Civ. P. 8. 2. The Amended Complaint fails to allege facts which would show that Plaintiff is an employee of Mr. Whitten under the FLSA and similarly fails to allege facts which, if true, would establish a basis for personal liability against Mr. Whitten. 3. The Amended Complaint fails to allege facts which establish FLSA coverage for Plaintiff, in that the Complaint only makes conclusory allegations of Plaintiff being involved in "commerce" but fails to state facts showing that she was in fact involved in interstate commerce. 4. To the extent the Court rejects any of the prior grounds, Mr. Whitten relies upon the grounds cited in PTS of America, LLC's Motion to Dismiss, including the following: a. That, if Plaintiff has sufficiently alleged engaging in interstate commerce, then the Motor Carrier Exemption and Jeanna's Act bar her claims; 1 2 b. That there is no private cause of action for record keeping; c. That the proposed collective action claims fail to give notice of a cohesive class, and thus must be dismissed; and d. That venue is improper in this district. Accordingly, Mr. Whitten requests that he be dismissed from this case, with prejudice. STANDARD OF REVIEW Because this motion is filed under Fed. R. Civ. P. 12(b)(6), the Court must review the Amended Complaint through the well-known lens of Twombly and Iqbal, which have previously been summarized by the Austin Division of this Court: When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6), "[t]he 'court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief," this standard demands more than unadorned accusations, "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Rather, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. at 570. The court must initially identify allegations in the complaint that are no more than legal conclusions or "[t]hreadbare recitals of a cause of action's elements," then assume the veracity of well-pleaded factual allegations and "determine whether they plausibly give rise to an entitlement to relief." "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.' " Lozano v. W. Concrete Pumping, Inc., 2016 WL 4444907, at *3 (W.D. Tex. Aug. 23, 2016) (underline and bold added) (internal citations omitted). Applying this standard here compels the conclusion that all claims against Mr. Whitten must be dismissed. 2 2 LAW AND ARGUMENT I. Plaintiff's Complaint is a shotgun pleading which fails to comply with Fed. R. Civ. P. 8 because it does not identify which parties took which actions. Plaintiff's Amended Complaint begins by identifying the parties, but then immediately proceeds to lump Ryan Whitten, Global Prisoner Services, LLC ("GPS"), and PTS of America, LLC, together as if they were one. (Amend. Compl. Preamble). From there, the Amended Complaint goes on to make a number of conclusory allegations about the "Defendants," without specifying which party actually took which set of actions. See, e.g. Id. at ¶¶ 3, 4, 5, 9, 13, 42, 43, 44, 45, 46, 47, 48, etc.). Plaintiff then repeatedly incorporates all facts set forth previously into each and every count of her pleading—making it further impossible to tell which allegations are aimed at which party. (Id. at ¶¶ 41, 49, and 52). This style of pleading is colloquially known as a "Shotgun Pleading," and it fails to comply with Fed. R. Civ. P. 8. See, Bell v. Wells Fargo Bank, N.A., 2017 WL 6761770, at FN. 3 (N.D. Tex. Oct. 13, 2017) (citing Hinojosa v. Livingston, 807 F.3d 657, 684 (5th Cir. 2015) ("A "shotgun pleading" uses blanket terms covering all defendants collectively or asserts multiple claims against multiple defendants without specifying which defendants are responsible for which acts."). The law of this Circuit—as summarized by the Southern District of Mississippi—is that a complaint such as the one filed by Plaintiff is subject to dismissal under Rule 12 for failure to comply with Rule 8: As opposed to the "short and plain statement" requirement contemplated by Rule 8, shotgun pleadings contain several counts within a complaint with each count 'incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions.' Griffin v. HSBC Mortg. Servs., Inc., No. 4:14cv132-DMB-JMV, 2015 WL 4041657, at *5 (N.D. Miss. July 1, 2015) (quoting Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellog Corp., 305 F.3d 1293, 1295 (11th Cir. 2002)). Another characteristic of shotgun pleadings is that they fail to distinguish between the actions of named defendants. 3 2 Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001) (cited by Griffin, 2015 WL 4041657, at *5); Sahlein v. Red Oak Capital, Inc., No. 3:13cv67-DMB-JMV, 2014 WL 3046477, at *4 (N.D. Miss. July 3, 2014) (dismissing a "shotgun pleading" when "numerous paragraphs in the complaint attribute discrete actions, such as the sending of a letter, or the public recording of a document, to all or multiple defendants without explaining the basis for such grouping or distinguishing between the relevant conduct of the named Defendants"). The Fifth Circuit specifically discourages shotgun pleading "where the pleader heedlessly throws a little bit of everything into his complaint in the hopes that something will stick." S. Leasing Partners, Ltd. v. McMullan, 801 F.2d 783, 788 (5th Cir. 1986). Shotgun pleadings are considered so objectionable, that they can even give rise to Rule 11 sanctions. See id. ("If Rule 11 is to mean anything and we think it does, it must mean an end to such expeditionary pleadings."); see also Pardue v. Jackson Cty., Miss., No. 1:14cv290-KS-MTP, 2016 WL 3024153 (S.D. Miss. May 25, 2016) (explaining why shotgun pleadings are objectionable); Payne v. Univ. of S. Miss., No. 1:12cv41-KS-MTP, 2015 WL 1482636, at *4 (S.D. Miss. Mar. 31, 2015) ("[S]anctions are an appropriate punishment for Plaintiff's counsel's 'shotgun approach to pleadings.'"). Shotgun complaints are subject to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). See Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1126–27 (11th Cir. 2014) ("A defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to Rule 12(b)(6) or for a more definite statement pursuant to Rule 12(e) on the ground that the complaint provides it with insufficient notice to enable it to file an answer."). If a plaintiff is given leave to amend following such a dismissal, the plaintiff "should avoid lumping the defendants together and should instead separately allege the scope of any duties owed and conduct alleged to have breached those duties as to each defendant." Ware v. U.S. Bank Nat. Ass'n, No. 3:13cv387-DPJ-FKB, 2013 WL 6805153, at *4 (S.D. Miss. Dec. 20, 2013). Copeland v. Axion Mortg. Grp. LLC, 2016 WL 4250431, at *4 (S.D. Miss. Aug. 11, 2016) (bold added);See also, Roe v. Johnson Cty., Texas, 2019 WL 5031357, at *5 (N.D. Tex. July 29, 2019), Report and Recommendation adopted, No. 3:18-CV-2497-B-BN, 2019 WL 3980737 (N.D. Tex. Aug. 22, 2019) ("Shotgun pleadings are subject to dismissal under Rule 12(b)(6)"). Applied here, Plaintiff's Amended Complaint groups all parties together as if they were one, uses a litany of conclusory allegations, and incorporates all allegations by reference in a manner which prevents any Defendant from knowing what it is accused of (and what it is not), 4 2 and is therefore "subject to dismissal." Id. Moreover, while Copeland makes reference to the possibility of an amendment, it is important to note that Plaintiff has already amended her complaint once and failed to remedy these deficiencies. Indeed, she made them worse by adding PTS to her collective and conclusory allegations. Thus, dismissal is appropriate here. Given that the Amended Complaint is a shotgun pleading and therefore does not comply with Fed. R. Civ. P. 8, all claims brought in it against Mr. Whitten must be dismissed at this point for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). II. The Amended Complaint fails to allege facts sufficient to show that Mr. Whitten could be personally liable to Plaintiff. In order for Plaintiff to proceed on any claim against Mr. Whitten, her Amended Complaint must supply sufficient factual allegations which, if taken as true, would entitle her to relief. Here, Plaintiff has not done so because she has not pled sufficient facts to show that Mr. Whitten was her employer under the FLSA. Thus, all claims against him must be dismissed. The FLSA applies to covered employers, and provides a right of action for employees against employers who violate the requirements contained therein. 29 U.S.C. §§ 207, 216. In determining whether someone is an employer under the FLSA, the Fifth Circuit applies the "economic reality" test, which is as follows: To determine whether an individual or entity is an employer, the court considers whether the alleged employer: "(1) possessed the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records. In cases where there may be more than one employer, this court "must apply the economic realities test to each individual or entity alleged to be an employer and each must satisfy the four part test." 5 2 Gray v. Powers, 673 F.3d 352, 355 (5th Cir. 2012) (internal citations omitted). In the absence of Plaintiff having alleged facts sufficient to meet these elements, Plaintiff has failed to state a claim under the FLSA against Mr. Whitten. As an initial matter, it is worth noting that paragraph fifteen of the Amended Complaint is the only time where Plaintiff, by name, identifies who her employer was. There, she identified GPS, and no one else. (Amend. Compl. ¶ 15). That alone should suffice to show that she failed to state a claim as to Mr. Whitten. Considering the actual allegations made toward Mr. Whitten only reinforces that conclusion. The only specific facts alleged in the Amended Complaint regarding Mr. Whitten are as follows: (1) That Mr. Whitten is an individual; (2) That Mr. Whitten was the CEO of GPS, (3) That Mr. Whitten publicly stated that GPS was ceasing operations; (4) That Mr. Whitten is, upon "information and belief," the CEO of PTS; and (5) that—again on "information and belief"—Mr. Whitten transferred the assets of GPS to PTS. (Amend. Compl. ¶¶ 12, 15, 20, 21). Those last two allegations are hotly contested, but that is of no consequence here because these allegations fail to make out any single element of the economic reality test—let alone all of them. Indeed, no factual allegations as to Mr. Whitten are made in the Amended Complaint which would support any of the factors cited in Gray. Thus, Plaintiff's claims are subject to dismissal under Rule 12(b)(6). Plaintiff's allegation that Mr. Whitten was GPS's CEO (and, supposedly, PTS's CEO) is insufficient to save her claim from dismissal. The Fifth Circuit has refused to hold that individuals are per se liable under the FLSA merely by holding such a position, and therefore, in the absence of facts sufficient to make out the elements of the economic reality test, the elements of Plaintiff's claim have not been adequately pled as to Mr. Whitten. Gray v. Powers, 673 F.3d 6 2 352, 357 (5th Cir. 2012) ("We decline to adopt a rule that would potentially impose individual liability on all shareholders, members, and officers of entities that are employers under the FLSA based on their position rather than the economic reality of their involvement in the company"). In order to survive this motion, Plaintiff needed to allege facts which would show that Mr. Whitten was her employer. She has not done so, or even attempted to do so—raising questions as to why she named him as a Defendant in this lawsuit. Nevertheless, in the absence of such facts, all claims against Mr. Whitten must be dismissed. III. The Amended Complaint fails to plead facts showing that Plaintiff was involved in interstate commerce at the behest of Mr. Whitten. In order to proceed on a claim under the FLSA, a plaintiff must—as a threshold matter— also plead facts establishing either enterprise or individual coverage by the FLSA. The Plaintiff did not do so with regard to her claims against Mr. Whitten, and thus her claims are subject to dismissal. As a general matter, "[e]ither individual or enterprise coverage is enough to invoke FLSA protection." Lindgren v. Spears, 2010 WL 5437270, at *1 (S.D. Tex. Dec. 27, 2010). However, merely claiming that one or the other applies—in the absence of sufficient factual allegations to show the same—is insufficient to pass Rule 8 muster. For example, in a case where it dismissed the plaintiff's complaint for making only conclusory allegations of FLSA coverage, the Southern District of Texas explained this principle as follows: Courts have held that this coverage provision is an element of the cause of action, not a jurisdictional requirement. Brown v. Constant Care, Inc., No. Civ. A. 5:04– CV–165, 2004 WL 1836732, at *2 (N.D.Tex. Aug.17, 2004) (applying rule in FLSA case to a challenge based on failure to meet the $500,000 amount and finding subject matter jurisdiction to consider the challenge) (citing Clark, 798 F.2d at 741–42 (where the basis of federal jurisdiction is also an element of subject matter jurisdiction and the factual findings about subject matter jurisdiction are intertwined with the merits, the case should not be dismissed for lack of subject matter jurisdiction unless the alleged claim is immaterial or wholly 7 2 insubstantial and frivolous; instead, the challenge should be treated as an attack on the merits)). The proper analysis is not under Rule 12(b)(1) but rather under Rule 12(b)(6). In conducting this analysis, this court confines itself to the complaint and does not include the Lindgren's affidavit or the Spears's tax return. The complaint alleges: At all times pertinent to this Complaint, Defendant was an enterprise engaged in interstate commerce. At all times pertinent to this Complaint, Defendant regularly owned and operated businesses engaged in commerce or in the production of goods for commerce as defined by § 3(r) and 3(s) of the Act, § 203(4) and 203(s). Additionally, Plaintiff was individually engaged in commerce and her work was essential to Defendant's business. (Docket Entry No. 1). The allegations of FLSA coverage are conclusory; they merely repeat the statutory elements of coverage, which is an element of the claim. Conclusory allegations that do no more than repeat the elements of the claim are insufficient under Rule 8 of the Federal Rules of Civil Procedure. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court confirmed that Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Twombly abrogated the Supreme Court's prior statement in Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Twombly, 550 U.S. at 562–63 ("Conley 's 'no set of facts' language ... is best forgotten as an incomplete, negative gloss on an accepted pleading standard ...."). To withstand a Rule 12(b)(6) motion, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; see also Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 372 (5th Cir.2008) (quoting Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929). The Court explained that "the pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). The present complaint contains no factual allegations that would permit this court to find that the elements of FLSA coverage are properly pleaded. Lindgren v. Spears, 2010 WL 5437270, at *2–3 (S.D. Tex. Dec. 27, 2010). Thus, applying the law as summarized in Lindgren, the question before this Court is whether Plaintiff pled facts 8 2 which could establish individual or enterprise coverage over her based upon any work she allegedly did for Mr. Whitten. At the outset, it is obvious that if Plaintiff was not Mr. Whitten's employee, she did nothing in interstate commerce for him which could result in individual or enterprise coverage. But, setting that aside, and looking solely to the allegations made by the Plaintiff in the Amended Complaint, it is readily apparent that Plaintiff has provided only conclusory allegations of coverage which are insufficient to state a claim upon which relief can be granted. Indeed, her only allegations which relate to either enterprise or individual coverage under the FLSA are as follows: 23. During Hernandez's employment with Defendants, she was engaged in the commerce or the production of goods for commerce. 24. During Hernandez's employment with Defendants, the company had employees engage in commerce or in the production of good for commerce or had employees handling, selling, or otherwise working on good or materials that had been moved in or produced for commerce by others. 25. During Hernandez's employment with Defendants, the company had an annual gross volume of sale made or business done of at least $500,000. (Amend. Compl. ¶¶ 23-25). Applying the rationale of Lindgren, and the case cited therein, to the case at bar compels only one conclusion: Plaintiff's allegations (made, at times, towards "the company", as opposed to Mr. Whitten) are solely conclusory, and are therefore insufficient to state a claim upon which relief can be granted. Accordingly, all claims against Mr. Whitten under the FLSA must be dismissed based upon the Plaintiff's failure to plead facts sufficient to show that the FLSA applies. 9 2 IV. Mr. Whitten adopts by reference certain grounds and relief requested in PTS's recently filed motion to dismiss. Mr. Whitten is aware that PTS has filed a motion to dismiss and to transfer venue as Docket Entry No. 40. Several of the points raised in that motion are equally applicable to Mr. Whitten as to PTS, and thus Mr. Whitten adopts the following positions laid out by PTS, with additional clarification and commentary identified below as needed: A. The FMCSA and Jeanna's Act. Mr. Whitten denies being Plaintiff's employer, accordingly denies conducting business in interstate commerce, and thus denies any allegation that the FLSA applies to him with regard to Plaintiff. However, should the Court find that Plaintiff has stated a claim against Mr. Whitten under the FLSA due to his alleged involvement with GPS and PTS, and that there are sufficient facts alleged to show FLSA coverage and employer status as to Mr. Whitten, then Mr. Whitten would rely upon the argument laid out by PTS regarding the FLSA exemptions contained in the Motor Carrier Act and Jeanna's Act. Specifically, if Plaintiff is claiming to have driven across state lines with prisoners as part of a business operation (though those are not the facts set out in the Amended Complaint), then both the FMCSA and Jeanna's Act would mandate dismissal of her claims for the reasons set out by PTS, which are joined by Mr. Whitten herein. B. Dismissal of all claims for "recordkeeping." As pointed out in PTS's motion to dismiss at pages sixteen and seventeen of that filing, there is no private right of action for recordkeeping violations and—even if there were—the Plaintiff's Amended Complaint fails to contain anything more than conclusory allegations related to a supposed failure to keep employment records. That logic is equally applicable to the claims against Mr. Whitten, and he accordingly relies upon the same as grounds for the dismissal of Count Two of the Amended Complaint as to him. 10 2 C. Dismissal of all Putative Collective Action Claims. As discussed in PTS's motion to dismiss at pages seventeen through nineteen, and as adopted herein, the proposed collective action claims contained in the Amended Complaint are subject to dismissal, to the extent they are currently in existence, because the proposed class gives a complete lack of notice to any Defendant—including Mr. Whitten—as to who the potential claimants are. Thus, any such extant claims must be dismissed based upon the logic espoused by PTS in its motion. D. Dismissal under Fed. R. Civ. P. 12(b)(3) for Improper Venue. As indicated in PTS's motion to dismiss, venue is improper in this Court due to GPS's then-location in Williamson County, Texas. Mr. Whitten agrees, and notes that—as alleged in paragraph twelve of the Amended Complaint—he is located in Tennessee, completely outside of this judicial district or any division thereof. Accordingly, Mr. Whitten adopts PTS's position that this case should be dismissed for improper venue, and relies upon the same. CONCLUSION For the reasons described herein, Mr. Whitten should be dismissed from this case under Fed. R. Civ. P. 12(b)(6) and 12(b)(3). /S/ Sean C. Wlodarczyk__________ Sean C. Wlodarczyk (TN Bar No. 30410) Admitted Pro Hac Vice for this Matter. CORNELIUS & COLLINS, LLP Suite 1500, Nashville City Center 511 Union Street P. O. Box 190695 Nashville, Tennessee 37219 (615) 244-1440 11 2 CERTIFICATE OF SERVICE I do hereby certify that a true and exact copy of the foregoing has been served by the PACER/ECF system on this 5th day of November, 2019 upon the following: Melissa Moore (24013189) Mary E. Buckley (24101571) Curt Hesse (24065414) Gregory J. Northen, (Ark Bar #20111891) Moore & Associates Cross, Gunter, Witherspoon & Galchus, PC Lyric Centre 500 President Clinton Avenue, Suite 200 440 Louisiana Street, Suite 675 Little Rock, AR 72201 Houston, TX 77002 /S/ Sean C. Wlodarczyk__________ Sean C. Wlodarczyk 12