UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION DOUGLAS PEARSON, JAMES ADKINS,) And all others similarly situated,) PLAINTIFF,)) V.) CIVIL ACTION: 5:18-CV-01029) COLT OILFIELD SERVICES, LLC,) TOTAL TANK SYSTEMS, LLC,) AND ROY E. (EDDIE) AGUILAR,) DEFENDANTS. DEFENDANT TOTAL TANK'S MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) TO THE HONORABLE CHIEF JUDGE ORLANDO GARCIA: COMES NOW Total Tank Systems, LLC ("Total Tank"), Defendant in the above-styled and numbered cause, and files this Motion to Dismiss Plaintiffs' Complaint Pursuant to Rule 12(b)6, for failure to state a claim upon which relief may be granted against Total Tank, and respectfully shows the Court the following: I. INTRODUCTION 1.1 Plaintiffs Douglas Pearson and James Adkins ("Plaintiffs") were employees of Colt Oilfield Services, LLC ("Colt"). Despite this undisputed fact, Plaintiffs filed suit against three Defendants to recover alleged unpaid overtime wages.1 In their First Amended Class and Collective Action Complaint, Plaintiffs allege that they are entitled to recover overtime wages from 1 Ex. A., Pearson's 2017 W-2; Ex. B., Adkins' 2017 W-2. 1 Total Tank's 12(b)(6) Motion to Dismiss Pearson, et al. v. Colt Oilfield Services, et al. Defendants Colt, Total Tank, and Roy (Eddie) Aguilar, pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Â§201, et. seq., and the New Mexico Minimum Wage Act, N.M. Stat. Ann. Â§50-4-22(D) ("NMWA"). 1.2 Plaintiffs' claims fail against Total Tank. Neither Pearson nor Adkins have pled any of the elements necessary to establish that they were employees of Total Tank. Rather, Plaintiffs make the conclusory assertion that because Total Tank and Colt were in the same field of industry and managed by the same managing officer, Roy (Eddie) Aguilar, Total Tank is, therefore, a joint-employer of Plaintiffs. While it is true that Total Tank and Colt are both entities that service the oilfield industry, the entities are separate and distinct, with separate and independent operations and employees. 1.3 For Total Tank to be regarded as a joint-employer of Plaintiffs, Plaintiffs must show that the employer meaningfully affects matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction." Laerco Transp., 269 N.L.R.B. 324, 325 (1984). Here, Plaintiffs have not pled any facts to show that Total Tank had any effect on matters relating to the employment relationship, much less meaningfully. Instead, Plaintiffs rely on Total Tank's sharing a managing officer with Colt, that Total Tank and Colt are in the same field of industry, and that Total Tank and Colt share a mailing address. The facts pled by Plaintiffs are insufficient to show that Total Tank mutually determined matters governing essential terms and conditions of Plaintiffs' employment. Tex. World Serv. Co., Inc. v. N.L.R.B., 928 F.2d 1426, 1432 (5th Cir. 1991). 2 Total Tank's 12(b)(6) Motion to Dismiss Pearson, et al. v. Colt Oilfield Services, et al. II. LEGAL STANDARDS A. Standard for Dismissal For Failure to State a Claim Upon Which Relief Can Be Granted 2.1 Under the Federal Rule of Civil Procedure 12(b)6, a purported cause of action may be dismissed when the complaint fails to state a claim upon which relief can be granted. To survive a motion to dismiss under Rule 12(b)6, the complaint must meet two criteria: 1. It must assert a plausible claim; and 2. It must set forth sufficient factual allegations to support the claim. Bell Ati. Corp. v. Twombly, 550 US 544, 554 (2007); see also Frith v. Guardian Life Ins. Co. of Am., 9 F. Supp. 2d 734, 737-38 (S.D. Tex. 1998) (explaining that dismissal can be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory). 2.2 In Twombly, the Supreme Court rejected the Rule 12(b)(6) standard set forth under Conley v. Gibson 355, U.S. 41, 45-46(1957). The old standard under Conley was "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." Id. Now, neither a "formulaic recitation of the elements of a cause of action nor naked assertions of fact devoid of further factual enhancement" is sufficient to withstand dismissal. Twombly, 550 U.S. at 560-561. 2.3 To satisfy the new standard under Twombly, 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. A claim has facial plausibility when the plaintiff pleads enough factual content that allows the 3 Total Tank's 12(b)(6) Motion to Dismiss Pearson, et al. v. Colt Oilfield Services, et al. court to draw the reasonable inference that the defendant is liable under the alleged claim. Id. at 556. "A court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009). III. ARGUMENTS AND AUTHORITIES A. Plaintiffs Have Not Adequately Pled Joint Employer Status For Total Tank 3.1 Plaintiffs' FLSA complaint fails to meet the pleading requirements of Twombly and Iqbal. As a threshold matter, they have not pled that Total Tank was a direct or joint-employer of Plaintiffs because they have not pled that Total Tank meaningfully affected matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction." Laerco Transp., 269 N.L.R.B. 324, 325 (1984). Their claim fails for this reason alone. See Iqbal, 129 S.Ct. at 1949 (noting that a mere formulaic recitation of the elements of a cause of action" â which Plaintiffs have failed to do â is not enough to survive a motion to dismiss) (citing Twombly, 550 U.S. at 555). 3.2 Plaintiffs also fail to meet the second burden under Twombly and Iqbal. That is, Plaintiffs do not provide any factual support for their conclusory allegation that Total Tank did not compensate them for their overtime wages, or that Total Tank had some decision-making authority in Plaintiffs' compensation. Under IqbalI, mere conclusory statements are not entitled to an assumption of truth: "A court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. When there are well-pleaded factual allegations, a court should assume their varacity and then determine whether they plausibly give rise to an entitlement of relief." 129 S. Ct. at 1950 4 Total Tank's 12(b)(6) Motion to Dismiss Pearson, et al. v. Colt Oilfield Services, et al. (emphasis added). Therefore, if allegations are merely conclusory, they are not entitled to be assumed true." Id. B. Plaintiffs' FLSA Claim Against Total Tank Fails As A Matter Of Law 3.3 Plaintiffs allege a claim under the FLSA for unpaid overtime compensation against Total Tank.2 An employee who brings an action under the FLSA for unpaid overtime compensation must demonstrate, by a preponderance of the evidence that: 1. There existed an employer-employee relationship during the unpaid overtime periods claimed; 2. The employee engaged in activities within the coverage of the FLSA; 3. The employer violated the FLSA's overtime wage requirements; and 4. The amount of overtime compensation due. Johnson v. Heckmann Water Resources (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014). 3.4 After examining the Complaint, Plaintiffs have failed to demonstrate any existence of an employer-employee relationship with Total Tank during the unpaid overtime periods claimed. For this reason alone, Plaintiffs' claim for relief against Total Tank should fail as a matter of law. Without establishing the employer-employee relationship, the three other elements of the claim under the FLSA are irrelevant. It should be noted, however, that Plaintiffs have also failed to include the alleged amount of overtime compensation due. III. CONCLUSION In conclusion, Plaintiffs' FLSA claims against Total Tank are fundamentally defective and meritless. The FLSA claims against Total Tank are not adequately pled to satisfy the standards 2 See Ex. C. Plaintiffs' First Amended Class And Collective Action Complaint. 5 Total Tank's 12(b)(6) Motion to Dismiss Pearson, et al. v. Colt Oilfield Services, et al. under Iqbal or Twombly. The FLSA claims against Total Tank should be dismissed because Total Tank has never employed these Plaintiffs, nor have they exercised any form of decision-making authority that would materially affect the Plaintiffs' employment. Simply put, Total Tank has no relationship with these Plaintiffs, or there claims for unpaid overtime wages. VI. PRAYER Defendant Total Tank respectfully prays that this Court grant its motion for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant Total Tank further prays that this Court order Plaintiffs Douglas Pearson and James Adkins take nothing by way of these claims against Defendant Total Tank and that this Court order Plaintiffs Douglas Pearson and James Adkins to reimburse Defendant Total Tank for all costs and attorneys' fees, and for all other relief to which Defendant Total Tank is justly entitled. Respectfully submitted, GOODE CASSEB JONES RIKLIN CHOATE & WATSON, P.C. 2122 North Main Avenue San Antonio, Texas 78212 Tel: (210) 733-6030 Fax: (210) 733-0330 By: /s/ Kyle C. Watson_________________ Kyle C. Watson State Bar No. 20971100 Email: email@example.com Jenna C. Castleman State Bar No. 24105583 Email: firstname.lastname@example.org ATTORNEYS FOR TOTAL TANK, MOVANT. 6 Total Tank's 12(b)(6) Motion to Dismiss Pearson, et al. v. Colt Oilfield Services, et al. CERTIFICATE OF SERVICE I hereby certify that on November 28, 2018, a true and correct copy of the foregoing document was sent via electronic mail to all counsel listed below and to all parties listed on the Court's ECF filing system. Jack Siegel email@example.com Siegel Law Group PLLC 2820 McKinnon, Suite 5009 Dallas, Texas 75201 Tel: (214) 790-4454 ATTORNEY FOR PLAINTIFFS _/s/ Jenna C. Castleman ________ Jenna C. Castleman 7 Total Tank's 12(b)(6) Motion to Dismiss Pearson, et al. v. Colt Oilfield Services, et al.