Peery v. Nixon Engineering,llc

Western District of Texas, txwd-6:2018-cv-00358

Exhibit Order on MCC

Interested in this case?

Current View

Full Text

4 Exhibit A Case 6:18-cv-00358-ADA-JCM Case 2:17-cv-00100 Document Document 76 Filed in TXSD 11-1 on 12/04/17 Filed 02/19/19 Page Page 12 of of 13 14 United States District Court Southern District of Texas ENTERED December 04, 2017 IN THE UNITED STATES DISTRICT COURT David J. Bradley, Clerk FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION MAURO SERRANO, III, et al, § § Plaintiffs, § VS. § CIVIL NO. 2:17-CV-00100 § PROGRESSIVE WASTE SOLUTIONS § OF TEXAS, INC., et al, § § Defendants. § ORDER Before the Court are Defendants Progressive Waste Solutions of TX, Inc.; Waste Connections US, Inc.; and IESI Corporation's (collectively, "Waste Solutions") May 22, 2017, Motion to Dismiss Plaintiffs' First Amended Complaint Under Rule 12(b)(6), and Defendant Waste Connections, Inc.'s ("Waste Connections") September 6, 2017, Motion to Dismiss Plaintiffs' First Amended Complaint Under Rule 12(b)(6). Dkt. Nos. 36, 64. Because the motions make the same arguments, the Court considers the motions together. The Court GRANTS Defendants' motions to dismiss as to Plaintiffs' "gap time" claim1 and DENIES the motions to dismiss in all other respects. I. Background On March 15, 2017, Plaintiffs Mauro Serrano III ("Serrano"), Marqueeta Daniels ("Daniels"), and Allen R. Kelly III ("Kelly") filed this Fair Labor Standards Act ("FLSA") putative collective action lawsuit against Waste Solutions and Waste Connections. Dkt. No. 1. On May 8, 2017, Plaintiffs filed their first amended complaint on behalf of themselves and all other similarly situated individuals to recover the "hourly rate for all straight time hours up to forty (40) hours, and overtime wages for all hours worked in excess of forty (40) hours per workweek pursuant to the FLSA in an amount equal to one-and-a-half times their regular rate 1Parties use "gap time" and "straight time" interchangeably to refer to unpaid wages for on-the-clock work completed within a forty (40) hour workweek. See Dkt. Nos. 36, 49, 55, 64, 68, 70. 1 / 13 Case 6:18-cv-00358-ADA-JCM Case 2:17-cv-00100 Document Document 76 Filed in TXSD 11-1 on 12/04/17 Filed 02/19/19 Page Page 23 of of 13 14 of pay, plus liquidated damages, attorneys' fees, and costs." Dkt. No. 32 ¶ 7.7. Plaintiffs additionally seek to recover "post-judgment interest at the highest rates allowed by law. . ." and "the accounting of the books and records of Defendants (in the event traditional discovery means prove inadequate) . . . ." Id. ¶¶ 8.1(g)–(h). Serrano, Daniels, and Kelly allege that they were employed as waste disposal drivers for Defendants at their Corpus Christi, Texas, facility from prior to June 1, 2016–October 2016; Opelousas and Duson, Louisiana, facilities from November 2012–December 2016; and Monroe, Louisiana, facility, from January 2014–May 2015, respectively. Dkt. No. 32 ¶¶ 6.1, 6.10, 6.11, 6.13. Plaintiffs claim that Defendants violated the FLSA by instituting "a corporate policy and practice of automatically deducting thirty minutes a day for a meal-period break from the on- the-clock hours of its waste disposal drivers" even though Plaintiffs and putative collective action members did not take a meal-period break. Id. ¶¶ 6.20, 6.21. Plaintiffs further claim that they and putative collective action members "often performed their pre- and post-trip vehicle inspections while 'off-the-clock' " and that this practice was not only known to Defendants, but also the result of Defendants' policies in violation of the FLSA. Id. ¶¶ 6.25, 6.26. Plaintiffs define the class of similarly situated individuals as "all waste disposal drivers who worked for [Defendants] Waste Connections, Inc.; Progressive Waste Solutions of Texas, Ltd., IESI Corporation; Waste Connections US, Inc.; and/or Progressive Waste Solutions of TX, Inc., at any time in the last three years and had a thirty-minute meal-period break automatically deducted from their daily hours and/or performed their pre-trip and post-trip inspections off-the-clock." Dkt. No. 32 ¶ 5.9; see also 29 U.S.C. § 255(a) (setting a three-year statute of limitations for FLSA lawsuits arising out of a willful FLSA violation, and a two-year statute of limitations for all other FLSA lawsuits). On May 22, 2017, pursuant to Federal Rule of Civil Procedure 12(b)(6), Waste Solutions filed a motion to dismiss which argues that Plaintiffs' complaint (1) lacks sufficient specificity and (2) seeks relief that is unavailable under the FLSA. Dkt. No. 36 at 1. In particular, Waste Solutions argues: 2 / 13 Case 6:18-cv-00358-ADA-JCM Case 2:17-cv-00100 Document Document 76 Filed in TXSD 11-1 on 12/04/17 Filed 02/19/19 Page Page 34 of of 13 14 Plaintiffs allege they worked "off the clock" before shifts, after shifts, and during meal breaks but provide no specific examples of unpaid work that led to Plaintiffs working more than forty [(40)] hours in a week, leaving the Court to infer if, when, and to what extent this alleged work resulted in a statutory violation. Id. at 2. The motion continues, "Plaintiffs generally allege they (and people that may or may not join this lawsuit) worked off the clock 'often' or in the 'majority of their workweeks' " and that Waste Solutions knew that Plaintiffs were working off- the-clock; however, Waste Solutions argues that "it is unclear who (if anyone)" at [Waste Solutions] allegedly knew—or when they allegedly knew—any of the Plaintiffs were allegedly working off-the-clock." Id. at 3. Waste Solutions argues that Plaintiffs fail the plausibility standard as set forth in Ashcroft v. Iqbal, 566 U.S. 622, 678 (2009), because the complaint "(a) shows only a sheer possibility that (any one of the) Defendants acted unlawfully and (b) does not permit the Court to infer more than a mere possibility of misconduct." Id. at 4. Waste Solutions further argues that Plaintiffs' requests for "straight time hours up to forty (40) hours (a/k/a 'gap time'), post-judgment interest, and 'accounting of the books and records of Defendants,' " are unavailable through the FLSA. Id. (citations omitted). Plaintiffs' June 19, 2017, response argues that their complaint avers sufficient facts to state a plausible claim for relief against Defendants. Dkt. No. 49 at 6. Specifically, Plaintiffs argue that a complaint "need not aver specific instances of unpaid overtime to state a plausible overtime violation;" instead, a complaint "need only contain factual averments that permit the inference that the plaintiff worked over 40 hours per week for which he was not paid time-and-a-half. . . ." Id. at 8 (citations omitted). Plaintiffs claim that their complaint meets this standard. Id. at 9–10. Plaintiffs further argue that although "Defendants question the particularity of the Complaint's averments regarding Defendants' knowledge of their overtime violations," "knowledge is not an issue that must be pled with particularity." Id. at 11 (citing FED. R. CIV. P. 9(b)). Moreover, Plaintiffs represent that the complaint avers facts that allow the Court to "draw a reasonable inference 3 / 13 Case 6:18-cv-00358-ADA-JCM Case 2:17-cv-00100 Document Document 76 Filed in TXSD 11-1 on 12/04/17 Filed 02/19/19 Page Page 45 of of 13 14 that Defendants knew that they had not properly compensated Plaintiffs under the FLSA. . . . [,]" including that Defendants are "sophisticated parties and employers." Id. (citation omitted). Plaintiffs alternatively argue that Plaintiffs are entitled to cure any deficiencies found by the Court pursuant to Federal Rule of Civil Procedure 15(a)(2). Id. at 6–7. Plaintiffs' response further argues that the complaint seeks relief to which Plaintiffs are entitled. Dkt. No. 49 at 12. Specifically, Plaintiffs argue that the viability of "gap time" claims is "an unanswered question within the Fifth Circuit, but most district courts here [(i.e., within the Fifth Circuit)] permit them for weeks in which an employee has worked more than 40 hours." Id. at 13. Plaintiffs claim that "all of their off-the-clock (but working) meal periods and pre/post-trip time represents overtime hours for which they were not paid." Id. at 14. Consequently, Plaintiffs argue that their complaint does not bring a "gap time" claim. Id. Plaintiffs additionally respond that the Fifth Circuit has "squarely held that FLSA claimants are entitled to post-judgment interest on damages awarded under the FLSA" and that Defendants have not cited controverting authority. Id. at 15. Finally, Plaintiffs argue that an accounting is a remedy and that the Court "may refuse to address a motion to dismiss a request for an accounting when pleaded as a remedy rather than as a separate claim for relief." Id. (citations omitted). On June 30, 2017, Waste Solutions filed a reply which argues that Plaintiffs' response ignores this Court's standards for pleadings. Dkt. No. 55 at 1. Waste Solutions further represents that Plaintiffs' argument that they are not bringing a "gap time" claim contradicts the complaint, which alleges that Plaintiffs are "entitled to be paid their hourly rate for all straight time hours up to forty (40) hours. . . ." Id. at 4 (citation and internal quotation marks omitted). Waste Solutions additionally argues that Plaintiffs are not entitled to an accounting because the FLSA does not expressly provide for an accounting. Id. at 6. On September 6, 2017, Waste Connections filed a motion to dismiss; on September 26, 2017, Plaintiffs filed a response; and, on October 9, 2017, Waste Connections filed a reply. Dkt. Nos. 64, 68, 70. These documents are nearly identical 4 / 13 Case 6:18-cv-00358-ADA-JCM Case 2:17-cv-00100 Document Document 76 Filed in TXSD 11-1 on 12/04/17 Filed 02/19/19 Page Page 56 of of 13 14 to and make the same arguments as the Waste Solutions motion to dismiss and related response and reply. Compare Dkt. Nos. 36, 49, 55 with Dkt. Nos. 64, 68, 70. In fact, Plaintiffs' September 26, 2017, response alleges, "The Motion—filed by Defendant Waste Connections, Inc.—is nearly identical to the Rule 12(b)(6) motion previously filed by the other Defendants. . . . Thus, this response will be nearly identical to the response filed to the earlier motion[.]" Dkt. No. 68 at 1. Because the Court finds no material difference between the two motions and their related responses and replies, the Court considers the motions together. The Court grants the motions in part and denies the motions in part. II. Legal Standard A. Sufficiency of Pleadings Federal Rule of Civil Procedure 12(b)(6) authorizes a defendant to move to dismiss for "failure to state a claim upon which relief may be granted." FED. R. CIV. P. 12(b)(6). When performing a Rule 12(b)(6) analysis, all well-pleaded facts in the complaint must be accepted as true, and the complaint must be construed in a light most favorable to the plaintiff. SEC v. Cuban, 620 F.3d 551, 553 (5th Cir. 2010). To prevail past a motion to dismiss, "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief ' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). In Ashcroft v. Iqbal, the Supreme Court expounded upon the Twombly standard, holding that "[t]o 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.' " 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). "But where the 5 / 13 Case 6:18-cv-00358-ADA-JCM Case 2:17-cv-00100 Document Document 76 Filed in TXSD 11-1 on 12/04/17 Filed 02/19/19 Page Page 67 of of 13 14 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.' " Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)) (alterations in original); see also Johnson v. City of Shelby, Mississippi, 135 S. Ct. 346, 346 (2014) (holding that a plaintiff "must plead facts sufficient to show that her claim has substantive plausibility"). Later, in Skinner v. Switzer, the U.S. Supreme Court clarified that a plaintiff may state a plausible claim for relief without identifying any particular legal theory. 562 U.S. 521, 530–31 (2011) ("[Petitioner's] complaint is not a model of the careful drafter's art, but under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff's claim for relief to a precise legal theory."); United States v. Bollinger Shipyards, Inc., 775 F.3d 255, 263 (5th Cir. 2014) (holding that Rule 12(b)(6) does not require a plaintiff "to present its best case or even a particularly good case, only to state a plausible case"). Ultimately, the U.S. Supreme Court has suggested a two-step analytical process for determining the sufficiency of pleadings. In step one, the Court determines which allegations are merely "labels and conclusions," "formulaic recitations," or "naked assertions." Id. at 678. The Court does not need to accept the truth of these types of allegations. In step two, having winnowed down the allegations that the Court must accept as true, the Court then determines whether those allegations "plausibly give rise to an entitlement to relief." Id.; see also Gensler, Rule 8, Federal Rules of Civil Procedure, Rules and Commentary. B. FLSA The FLSA, by its plain terms, only provides a private right of action "when an employee's hourly wage is below the statutory minimum, when the employer has failed to pay an employee time and a half wages for a workweek longer than forty hours, or when an employer retaliates against an employee for participating in an 6 / 13 Case 6:18-cv-00358-ADA-JCM Case 2:17-cv-00100 Document Document 76 Filed in TXSD 11-1 on 12/04/17 Filed 02/19/19 Page Page 78 of of 13 14 action brought under the Act."2 Carmen v. Meritage Homes Corp., 37 F. Supp. 3d 860, 865 (S.D. Tex. 2014); 29 U.S.C. § 216(b). To establish a violation of the FLSA's overtime requirements, Plaintiffs must show 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) that the employer violated the FLSA's overtime wage requirements; and (4) the amount of overtime compensation due. See Coleman v. John Moore Services, Inc., H-13-2090, 2014 WL 51290, at *2 (S.D. Tex. Jan. 7, 2014). 1. "Gap time" "A gap-time claim," also referred to as a straight time claim, "is one in which an employee has not worked 40 hours in a given week but seeks recovery of unpaid time worked, or in which an employee has worked over 40 hours in a given week but seeks recovery for unpaid work under 40 hours." Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 115 (2d Cir. 2013). The Fifth Circuit has not addressed the viability of gap time claims, but multiple district courts in this circuit have held that "[c]laims for unpaid straight-time wages that do not implicate the minimum wage or overtime pay requirements are generally not cognizable under the FLSA." Carman v. Meritage Homes Corp., 37 F. Supp. 3d 860, 865–66 (S.D. Tex. 2014) (collecting cases) (citation and internal quotation marks omitted); see also Banks v. First Student Management LLC, 237 F. Supp. 3d 397, 403–404 (E.D. La. 2017) (same). Initially, pre-Carman district courts in the Fifth Circuit relied on the Fourth Circuit's opinion in Monahan v. County of Chesterfield, Va., 95 F.3d 1263, 1284 (4th Cir. 1996), which held that as long as an employee has been paid at least the minimum wage, recovery for gap time hours is only available for weeks in which the 229 U.S.C. § 216(b) establishes an opt-in scheme under which plaintiffs must affirmatively notify the Court of their intention to become parties to the suit. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1212 (5th Cir. 1995). Courts routinely refer to FLSA actions brought by an employee for and on behalf of other employees under this provision as "collective actions." Genesis Healthcare, 569 U.S. at 69 (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169–70 (1989)). 7 / 13 Case 6:18-cv-00358-ADA-JCM Case 2:17-cv-00100 Document Document 76 Filed in TXSD 11-1 on 12/04/17 Filed 02/19/19 Page Page 89 of of 13 14 employee worked overtime. See, e.g., Valcho v. Dallas County Hosp. Dist. 658 F. Supp. 2d 802, 811 (N.D. Tex. 2009) ("As is suggested in the definition of 'gap time' claims, courts generally recognize claims for unpaid straight-time pay when the employee has worked overtime qualifying hours during that pay period."). The Fourth Circuit relied primarily on three Department of Labor interpretations of the FLSA—29 C.F.R. §§ 778.315, 778.317, and 778.322—to come to its conclusion. Id. The Second Circuit went even further and held that "so long as an employee is being paid the minimum wage or more, FLSA does not provide recourse for unpaid hours below the 40–hour threshold, even if the employee also works overtime hours the same week." Lundy, 711 F.3d at 116. The Lundy court dismissed as unpersuasive the interpretative guidance upon which the Monahan court relied. Id. at 116–17 ("[T]he Department of Labor provides no statutory support or reasoned explanation for [its] interpretation [of the FLSA]."); see also Espenscheid v. DirectSat USA, LLC, 2011 WL 10069108, at *13 (W.D. Wisc. Apr. 11, 2011) ("[A]lthough the [Department of Labor] regulations provide interpretation for applying the overtime and minimum wage requirements, they cannot create new causes of action for uncompensated straight-time."). The Second Circuit observed that the text of the FLSA requires employers to pay minimum and overtime wages but does not provide a recovery for gap time hours. Id. at 116. As the Espenscheid court noted, an employer's failure to pay an employee for some non- overtime hours does not have " 'the effect of diminishing the employee's total overtime compensation,' " but rather "diminishes the employee's overall compensation." 2011 WL 10069108, at *12 (quoting 29 C.F.R. § 778.317). "There is no language in the FLSA creating a cause of action for diminished overall compensation." Id. Following the Lundy decision, the U.S. District Court for the Southern District of Texas held that "an employee may not recover for straight time claims under the FLSA." Carman, 37 F. Supp. at 867. This is so even when the employee has worked overtime. Id. Post-Carman district courts in the Fifth Circuit have followed suit. See Banks, 237 F. Supp. 3d at 404; Karna v. BP Corp. North America, 8 / 13 Case6:18-cv-00358-ADA-JCM Case 2:17-cv-00100 DocumentDocument 76 Filed 11-1 in TXSD on 02/19/19 Filed 12/04/17 Page Page 10 9 ofof13 14 Inc., 11 F. Supp. 3d 809, 817 (S.D. Tex. 2014) ("[J]ust as a 'gap time' claim is not cognizable under the FLSA, neither is [Plaintiff's] overtime 'gap time' analogue. What [Plaintiff] brings is 'a claim separate and distinct from one brought under the FLSA for failure to pay adequate overtime compensation. . . .'") (quoting Doan v. Portable Prod. Servs., LP, No. H-11-0261, 2011 WL 2038580, at *4 (S.D. Tex. May 19, 2011)); but see Carmichael v. Monarch Dental Corp., 2014 WL 1622709, at *2 (N.D. Tex. Mar. 31, 2014) ("[G]ap time claims are only cognizable where an employer's failing to pay straight time resulted in its failing to pay overtime or in its failing to pay minimum wage over a given workweek."). This Court follows Carman and its progeny. Thus, FLSA "gap time" claims are unavailable under the FLSA. 2. Post-judgment interest The Fifth Circuit held in Reeves v. International Telephone and Telegraph Corporation that post-judgment interest is available under the FLSA. 705 F.2d 750, 751–52 (5th Cir. 1983). The Reeves court determined that although pre-judgment interest does not accrue under the FLSA, "once the total liability, including damages, is fixed by judgment, there is no reason to distinguish FLSA judgments from other claims." Id. Accordingly, "[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court." Id. at 752 (quoting 28 U.S.C. § 1961) (internal quotation marks omitted). 3. Accounting of books and records An accounting is "simply a tool by which a plaintiff may shift the plaintiff's normal burden of discovery to the defendants." Garcia v. Koch Oil Company of Texas, Inc., 351 F.3d 636, 641 (5th Cir. 2003). Specifically: An accounting is a species of compulsory disclosure, predicated upon the assumption that the party seeking relief does not have the means to determine how much—or, in fact, whether—any money properly his is being held by another. The appropriate remedy, particularly where the determinations may be detailed and complex, is an order to account in a proceeding in which the burden of establishing the non-existence of money due to the plaintiff rests upon the defendant. Because of the very nature of the remedy, that burden cannot rest upon plaintiff, but must shift to the 9 / 13 Case 6:18-cv-00358-ADA-JCM Case 2:17-cv-00100 Document Document 76 Filed in TXSD 11-1 on 12/04/17 Filed 02/19/19 Page Page 10 11 of of 13 14 defendant once facts giving rise to a duty to account have been alleged and admitted. Id. (quoting Rosenak v. Poller, 290 F.2d 748, 750 (D.C. Cir. 1961)). An accounting is "a remedy, not a cause of action, and cannot stand as an independent claim." Barcenas v. Federal Home Loan Mortg. Corp., H-12-2466, 2013 WL 286250, *9 (S.D. Tex. Jan. 24, 2013) (citing Henry v. CitiMortgage, Inc., 4:11-cv- 83, 2011 WL 2261166, *8 (E.D. Tex. May 20, 2011)). III. Analysis A. Sufficiency of Pleadings 1. Overtime Compensation Defendants argue that Plaintiffs fail to assert more than conclusory statements as to their FLSA overtime compensation claim. Dkt. Nos. 36, 64. The Court finds this argument unavailing. Plaintiffs have pled their claim with adequate specificity. To overcome the motions to dismiss, the complaint need not contain detailed factual allegations as long as it puts Defendants on notice of Plaintiffs' claim. Rodriquez v. Gold & Silver Buyers, Inc., 2013 WL 5372529 at *3 (S.D. Tex. Sept. 24, 2013); see also Hoffman v. Cemex, Inc., 2009 WL 4825224 at *3–4 (S.D. Tex. Dec. 8, 2009). In a similar case, the U.S. District Court for the Southern District of Texas in Coleman concluded that "plaintiffs are not required to provide an approximation of uncompensated overtime hours to survive a motion to dismiss FLSA overtime claims." Coleman, 2014 WL 51290, at *3. Instead, Plaintiffs are required to allege forty (40) hours of work in a given workweek as well as some uncompensated time in excess of the forty (40) hours. Id. (citing DeJesus v. HF Management Services, LLC, 726 F.3d 85, 88 (2nd Cir. 2013)). In fact, while "an approximation of hours may help draw a plaintiff's claim closer to plausibility," "such an approximation [is] not required." Id. (citations and internal quotation marks omitted). While courts grant motions to dismiss FLSA claims where plaintiffs generally aver legal conclusions such as that they "regularly worked 40 hours a week and were not compensated for such time," "some latitude has to be allowed where a 10 / 13 Case 6:18-cv-00358-ADA-JCM Case 2:17-cv-00100 Document Document 76 Filed in TXSD 11-1 on 12/04/17 Filed 02/19/19 Page Page 11 12 of of 13 14 claim looks plausible based on what is known." Coleman, 2014 WL 51290, at *3 (citations and internal quotation marks omitted). "[I]t cannot be the case that a plaintiff must plead specific instances of unpaid overtime before being allowed to proceed to discovery to access the employer's records." Kidwell v. Digital Intelligence Systems, LLC, 3:13-cv-4064-B, 2014 WL 4722706, at *4 (N.D. Tex. Sept. 22, 2014). In Kidwell, the U.S. District Court for the Northern District of Texas determined that the plaintiff "specified the name of the employee asserting the statutory violation, the employee's job title while working for [the defendant], and the six- month period during which he allegedly worked over forty hours without being paid time-and-a-half." Id. The Kidwell court concluded, "Those are all factual allegation[s]—not legal conclusions—and, if proven, they give rise to a plausible claim for relief." Id. (quoting Hoffman v. Cemex, Inc., H-09-3144, 2009 WL 4825224, at *3 (S.D. Tex. Dec. 8, 2009) (internal quotation marks omitted). Similarly, here, Plaintiffs have specified their names, the nature of their work, and the period of time during which they allegedly worked over forty hours without being paid time- and-a-half. Dkt. No. 32 ¶¶ 6.1, 6.10, 6.11, 6.13. For the reasons above, the Court CONCLUDES that Plaintiffs averred sufficient factual allegations from which a reasonable inference can be drawn that Defendants are liable under the FLSA overtime compensation provision. 2. Statute of Limitations A three-year statute of limitations exists for FLSA lawsuits arising out of a willful FLSA violation, and a two-year statute of limitations exists for all other FLSA lawsuits. 29 U.S.C. § 255(a). To establish that Defendants willfully violated the FLSA, Plaintiffs allege that their working overtime without compensation was not only known to Defendants, but was also the result of Defendants' policies in violation of the FLSA. Id. at ¶¶ 6.25, 6.26. Contrary to Defendants' argument, Plaintiffs need not plead with particularity that Defendants knew of their overtime violations. Dkt. Nos. 36, 64. In alleging fraud or mistake, "a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a 11 / 13 Case 6:18-cv-00358-ADA-JCM Case 2:17-cv-00100 Document Document 76 Filed in TXSD 11-1 on 12/04/17 Filed 02/19/19 Page Page 12 13 of of 13 14 person's mind may be alleged generally." FED. R. CIV. P. 9(b) (emphasis added). Here, Plaintiffs pled the circumstances constituting fraud with particularity, even though they alleged Defendants' knowledge generally. Dkt. No. 32 at ¶¶ 6.25–6.29 (alleging factual circumstances from which the Court could draw a reasonable inference that Defendants knowingly violated the FLSA, including that Plaintiffs often performed their required pre- and post-trip vehicle inspections while "off-the- clock"). For the foregoing reasons, the Court DENIES Defendants' motions to dismiss as to the sufficiency of Plaintiffs' overtime compensation and statute of limitations claims. B. FLSA 1. "Gap Time" Plaintiffs' claim for "on-the-clock" compensation falls within the definition of a "gap time" claim. Carman, 37 F. Supp. 3d at 866–67. Plaintiffs allege that "Defendant had a corporate policy and practice of automatically deducting thirty minutes a day for a meal-period break from the on-the-clock hours of its waste disposal drivers." Dkt. No. 32 at ¶ 6.20. Accordingly, Plaintiffs claim that they are entitled "to be paid their hourly rate for all straight time hours up to forty (40) hours." Dkt. No. 32 at ¶ 7.7. Thus, Plaintiffs' argument that they have not alleged a "gap time" claim is unavailing. Dkt. Nos. 49 at 14, 68 at 14. The FLSA provides a private right of action for violations of the minimum wage and overtime pay provisions, not "gap time" claims. Id. For this reason, the Carman court determined, "If the plaintiffs wish to recover for allegedly unpaid straight time wages, they must look to state employment and contract law." Id. at 867. Here, Plaintiffs must do the same. The Court GRANTS Defendants' motions to dismiss as to Plaintiffs' "gap time" claim. 2. Post-Judgment Interest Defendants make no reply to Plaintiffs' response that "[t]he Fifth Circuit [in Reeves] has squarely held that FLSA claimants are entitled to post-judgment interest on damages awarded under the FLSA." Compare Dkt. Nos. 49 at 15, 68 at 12 / 13 Case 6:18-cv-00358-ADA-JCM Case 2:17-cv-00100 Document Document 76 Filed in TXSD 11-1 on 12/04/17 Filed 02/19/19 Page Page 13 14 of of 13 14 14 (Plaintiffs' responses) with Dkt. Nos. 55, 70 (Waste Solutions and Waste Connections respective replies); see Reeves, 705 F.2d at 751–52. The Court CONCLUDES that Reeves controls here and that Plaintiffs may seek post- judgment interest on damages awarded under the FLSA. Accordingly, the Court DENIES the motions to dismiss as to the availability of post-judgment interest. 3. Accounting of Books and Records Defendants argue that an accounting is a remedy that is unavailable to Plaintiffs because the FLSA does not specifically provide for an accounting. Dkt. Nos. 55 at 6, 70 at 6. This argument is unavailing. In Reeves, the Fifth Circuit determined that a plaintiff is entitled to post-judgment interest in an FLSA case because "there is no reason to distinguish FLSA judgments from other claims." Reeves, 705 F.2d at 752. This is so even though the FLSA does not specifically provide for post-judgment interest. Id. at 751–52; 29 U.S.C. § 216 (dictating penalties available under the FLSA). The same is true here: an accounting is a remedy rather than a claim for which the FLSA must specifically provide. Moreover, Plaintiffs merely allege that they may require an accounting if the normal method of discovery proves unavailing. Dkt. No. 32 at ¶ 8.1(h) (requesting that the Court compel "the accounting of the books and records of Defendants (in the event traditional discovery means prove inadequate)"). Ultimately, Plaintiffs may move for an accounting at a later time. Accordingly, the Court DENIES the motions to dismiss as to the availability of an accounting. IV. Conclusion In sum, the Court GRANTS Defendants' motions to dismiss as to Plaintiffs' "gap time" claim and DENIES the motions to dismiss in all other respects. Dkt. Nos. 36, 64. SIGNED this 4th day of December, 2017. ___________________________________ Hilda Tagle Senior United States District Judge 13 / 13