Peery v. Nixon Engineering,llc

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

Motion to Dismiss for Failure to State a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6) and Brief in Support by Nixon Engineering, LLC. Motions referred to Judge Jeffrey C. Manske.

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0 IN UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION JAYME PEERY, § Individually and on behalf of all others § CIVIL ACTION NO. 6:18-cv-00358 similarly situated § § JURY TRIAL DEMANDED Plaintiff, § § COLLECTIVE ACTION v. § PURSUANT TO 29 U.S.C. §216(b) § NIXON ENGINEERING, LLC, § § CLASS ACTION PURSUANT TO Defendant. § FED. R. CIV. P. 23(b) DEFENDANT'S MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) AND BRIEF IN SUPPORT Defendant Nixon Engineering, LLC ("Nixon" or "Defendant") hereby moves for dismissal of Plaintiff Jayme Peery's ("Plaintiff") Complaint against Nixon Engineering, LLC pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure as described below. I. STATEMENT OF THE ISSUES TO BE RULED ON BY THE COURT There are four issues to be ruled on by the Court: (1) Whether Plaintiff's claim under the Fair Labor Standards Act ("FLSA") must be dismissed for failure to state a claim under Rule 12(b)(6) where the Complaint offers nothing more than "unadorned, the defendant-harmed-me accusation[s]," which are insufficient to satisfy the federal pleading standard articulated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). (2) Whether Plaintiff's opt-out Rule 23 quantum meruit claim must be dismissed for failure to state a claim under Rule 12(b)(6) because it is "fundamentally incompatible" with the opt-in collective action claim under the FLSA, particularly where the common-law claims will 1 4832-8377-8437.4 0 require individualized inquiry. McKnight v. D. Houston, Inc., 756 F. Supp. 2d 794, 808 (S.D. Tex. 2010). (3) Whether supplemental jurisdiction over Plaintiff's opt-out Rule 23 claim should be declined when the state law claim will predominate over the smaller opt-in FLSA class, raise novel issues and exponentially complicate the proceedings by requiring different proof standards, different factual issues and inherently individual inquiries. 28 U.S.C. §1367(c); Ridley v. Regency Vill., Inc., No. H-17-974, 2018 U.S. Dist. LEXIS 42451, at *8-13 (S.D. Tex. Mar. 15, 2018). (4) Whether Plaintiff's Texas common-law claim is preempted by the FLSA and must be dismissed. See, e.g., Lilani v. Noorali, No. H-09-2617, 2011 U.S. Dist. LEXIS 440, at *40-41, 53 (S.D. Tex. Jan. 3, 2011) (holding plaintiff's quantum meruit cause of action seeking recovery payment for employment services rendered was preempted by the FLSA). II. NATURE AND STAGE OF THE PROCEEDING On December 10, 2018, Plaintiff filed his Original Collective/Class Action Complaint against Nixon Engineering, LLC ("Complaint"), alleging claims arising from Plaintiff's employment with Nixon. Pl.'s Complaint, ECF No. 1. Nixon was served on December 14, 2018. See ECF No. 3. Plaintiff alleges that Nixon failed to pay Plaintiff and other similarly situated employees the correct amount of overtime compensation and for all hours worked. Pl.'s Complaint at ¶¶ 1-8. More specifically, Plaintiff asserts a cause of action through the FLSA's collective action procedure for unpaid overtime under the FLSA. Id. at ¶¶ 50-74. Plaintiff further asserts a Rule 23 claim for quantum meruit under Texas state common law to recover unpaid "straight time" or "gap time" wages. Id. at ¶¶ 76-89. 2 4832-8377-8437.4 0 III. SUMMARY OF THE ARGUMENT The Court must dismiss Plaintiff's Complaint in accordance with Rule 12(b)(6), as Plaintiff fails to plead sufficient facts to allow the Court to reasonably conclude Plaintiff's allegations are more than a sheer possibility. Plaintiff merely recites the elements of each of his causes of action and makes conclusory, threadbare allegations that are insufficient as a matter of law. Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.") (citing Twombly, 550 U.S. at 555). Plaintiff cannot forego the opt-in procedures of the FLSA through artful pleading. First, even if Plaintiff's factual allegations were true — which the Court must assume solely for the purposes of this Motion to Dismiss — Plaintiff's cause of action under Rule 23 does not state a claim for relief because of the "irreconcilable conflict" between the FLSA's opt-in procedure and Rule 23's opt-out procedure. McKnight, 756 F. Supp. 2d at 800; Williams v. Trendwest Resorts, Inc., No. 2:05-CV-0604-RCJ-LRL, 2007 U.S. Dist. LEXIS 62396, at *7-11 (D. Nev. Aug. 20, 2007). As a result, this Court should dismiss Plaintiff's Rule 23 class claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Second, Plaintiff's Rule 23 claim requires inherently individualized inquiries regarding individual class members, which, as other courts have recognized, renders class certification impossible and requires dismissal. Plaintiff bases his common-law quantum meruit claim on an allegation that Nixon failed to pay him wages, i.e., straight time, for hours worked – the same allegation that forms the basis of his FLSA claim. Plaintiff's FLSA-based claim, disguised as a common-law cause of action, is preempted by the FLSA and must be dismissed as a matter of law. Finally, supplemental jurisdiction of Plaintiff's state common-law claim is not warranted. Under 28 U.S.C. Section 1367(c), this Court has discretion to decline supplemental 3 4832-8377-8437.4 0 jurisdiction if the state law claims "substantially predominate" over the federal claims, if the state law claims raise "novel or complex issues of State law," or for any "other compelling reasons," such as confusion or unacceptable complexities. Because all of these are present here, this Court should decline to hear Plaintiff's state law claim, and it should be dismissed. IV. LEGAL STANDARD Rule 12(b)(6) requires dismissal when the plaintiff "fail[s] to state a claim upon which relief can be granted." Although Federal Rule of Civil Procedure 8(a)(2) only requires that Plaintiff provide a "short and plain statement of the claim showing that the pleader is entitled to relief," to survive a motion to dismiss, Plaintiff's statement "must contain sufficient factual matter. . . to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). To be plausible on its face, "a formulaic recitation of the elements of a cause of action" or "naked assertions" without supporting facts are inadequate. Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 555, 557 ("[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions."). While the Court should assume the truth of well-pleaded factual allegations, it should disregard legal conclusions, even when cast or phrased as factual assertions. Iqbal, 556 U.S. at 679, 681. "Rule 8(a)(2) . . . requires a [factual] 'showing,' rather than a blanket assertion of entitlement to relief." Twombly, 550 U.S. at 555 n.3. To survive a motion to dismiss, plaintiffs must allege actual facts that "nudge[] their claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570. "[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 shown—that the pleader is entitled to relief," and the complaint should be dismissed. Id. 4 4832-8377-8437.4 0 Moreover, when a complaint purports to be filed on behalf of a putative class, the pleading standard articulated in Twombly and Iqbal, likewise, applies to class allegations. See Doe v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009) (applying Twombly and Iqbal standards to Plaintiff's class allegations). In a class action context, a named plaintiff who purports to represent a class "must allege and show that [he] personally [has] been injured, not that injury has been suffered by other, unidentified members of the class to which [he] belong[s] and which [he] purport[s] to represent." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 n.6 (2016) (citations omitted). V. ARGUMENT & AUTHORITIES A. Plaintiff's FLSA Overtime Claim Must Be Dismissed. Under the Twombly/Iqbal standard and recent FLSA decisions, "more is required of a plaintiff than an 'all purpose pleading template' with allegations providing no factual context and no way for the court to determine that the plaintiff has stated a claim as opposed to repeating the statutory elements of the cause of action." Coleman v. John Moore Servs., No. H-13-2090, 2014 U.S. Dist. LEXIS 1501, at *10 (S.D. Tex. Jan. 7, 2014) (discussing DeJesus v. HF Mgmt. Servs., 726 F.3d 85 (2d Cir. 2013) and Pruell v. Caritas Christi, 678 F.3d 10 (1st Cir. 2012)). The FLSA provides that "no employer shall employ any of his employees. . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). To succeed on a FLSA overtime claim, a plaintiff must show: "(1) that there existed an employer-employee relationship during the unpaid overtime periods claimed; (2) that 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." Johnson v. Heckmann Water 5 4832-8377-8437.4 0 Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014) (citations omitted). Plaintiff fails to allege facts sufficient to support a FLSA claim. 1. Plaintiff Fails to State Sufficient Facts to Support FLSA Coverage. The FLSA guarantees overtime pay to employees who are "engaged in the production of goods for commerce ("individual coverage") or employed in an enterprise engaged in commerce or in the production of goods for commerce ("enterprise coverage")." Martin v. Bedell, 955 F.2d 1029, 1032 (5th Cir. 1992). To state a claim for failure to pay overtime under the FLSA, "a plaintiff must either allege facts that, if proved, would establish individual or enterprise coverage under the FLSA." Teaney v. Kenneth & Co. Honey Do Servs., LLC, No. 3:13-CV-4211-L, 2014 U.S. Dist. LEXIS 95708, at *8 (N.D. Tex. July 15, 2014). Here, Plaintiff fails to demonstrate either individual or enterprise coverage under the FLSA. Plaintiff simply asserts that: "At all material times, Nixon has been an enterprise in commerce or in the production of goods for commerce within the meaning of section 203(s)(1) of the FLSA because Nixon has had and continues to have employees engaged in interstate commerce. Specifically, Nixon operates on interstate highways, purchases materials through commerce, transports materials through commerce and on the interstate highways, and conducts transactions through commerce, including the use of credit cards, phones and/or cell phones, electronic mail and the Internet. At all material times, Plaintiff and the FLSA Collective Members are (or were) employees who engaged in commerce or in the production of goods for commerce as required by sections 206 and 207 of the FLSA." Pl.'s Complaint at ¶¶ 52-54 (citations omitted). These recitations do not satisfy the pleading requirements established under Twombly. 6 4832-8377-8437.4 0 In Teaney, the Northern District found the following allegations to be insufficient to state a claim and granted dismissal: "Plaintiff was individually engaged in commerce and the handling of goods that have been produced and moved in such commerce, doing work essential to Defendant's business." Teaney, 2014 U.S. Dist. LEXIS 95708 at *11-13. The Northern District agreed with the defendant's position that plaintiff failed to "allege any facts whatsoever to support individual coverage. . . [and that] [h]e merely states in conclusory fashion that he 'was individually engaged in commerce.'" Id. at *12; see also Whitlock v. That Toe Co., LLC, No. 3:14-CV-2298-L, 2015 U.S. Dist. LEXIS 55215, at *7 (N.D. Tex. Apr. 28, 2015) (finding plaintiff's allegations that the defendant "was an enterprise engaged in interstate commerce. . . [and] Defendants regularly owned and operated a business engaged in commerce or in the production of goods for commerce. . . [and] Plaintiff was individually engaged in commerce and his work was essential to Defendants' business" was threadbare and conclusory); Rodriguez v. Shan Namkeen, Inc., No. 3:15-CV-3370-BK, 2017 U.S. Dist. LEXIS 2938, at *5-6 (N.D. Tex. Jan. 9, 2017) (dismissing complaint finding plaintiff's allegations that "Plaintiff's work for the Defendants affected interstate commerce. . . because the materials and goods that Plaintiff handles and/or used on a constant and/or continual basis and/or that were supplied to Plaintiff by the Defendants to use on the job moved through interstate commerce prior to and/or subsequent to Plaintiff's use of the same" amounted to a threadbare recitation of the elements of individual coverage under the FLSA); Coleman, 2014 U.S. Dist. LEXIS 1501 at *10-12 (dismissing FLSA claims finding mere recitation of FLSA coverage and generalized facts do not satisfy the pleading requirements necessary to survive a motion to dismiss). 7 4832-8377-8437.4 0 Like the plaintiffs in Teaney, Whitlock, and Rodriguez, Plaintiff's failure to plead sufficient facts to establish coverage under the FLSA is fatal to his claims. Accordingly, Nixon respectfully requests the Court dismiss Plaintiff's First Cause of Action. 2. Plaintiff Fails to State Sufficient Facts to Support His Claim for Failure to Pay Overtime Under the FLSA. Plaintiff alleges Nixon violated the FLSA by failing to pay him overtime. Pl.'s Complaint, at ¶¶ 2, 4-6, 25, 32, 37, 39, 56. Federal law is clear: to survive a motion to dismiss, a plaintiff must make specific allegations and provide a factual context regarding the hours he worked without adequate compensation. Landers v. Quality Commc'ns., Inc., 771 F.3d 638, 644-45 (9th Cir. 2014). A plaintiff "must allege that she worked more than forty hours in a given workweek without being compensated for the overtime hours worked during that workweek." Id. (citing Pruell, 678 F.3d at 13); see also Robinson v. RWLS, LLC, No. SA-16-CA-00201- OLG, 2016 U.S. Dist. LEXIS 189893, at*5 (W.D. Tex. Aug. 11, 2016) (noting that a plaintiff pleading "approximate date ranges, as well as the approximate number of hours worked, for which the plaintiff claims he was under compensated" may survive a motion to dismiss). For example, a plaintiff "may establish a plausible claim by estimating the length of her average workweek during the applicable period and the average rate at which she was paid, the amount of overtime wages she believes she is owed, or any other facts that will permit the court to find plausibility." Landers, 771 F.3d at 645. But, at minimum, a plaintiff "should be able to specify at least one workweek in which they worked in excess of forty hours and were not paid overtime wages." Id. at 646. Mere statements that a plaintiff "regularly" or "consistently" worked more than forty hours but was not paid overtime do not satisfy the pleading requirements of Rule 8 of the Federal rules of Civil Procedure. Id.; Pruell, 678 F.3d at 12 (dismissing claims that simply alleged that 8 4832-8377-8437.4 0 "putative class members 'regularly worked' over 40 hours a week and were not compensated for such time); DeJesus, 726 F.3d 85 at 89 (dismissing claims where plaintiff "alleged only that in 'some or all weeks' she worked more than 'forty hours' a week without being paid '1.5' times her rate of compensation). District courts of Texas are in accord. See, e.g., Hernandez v. Praxair Distribution, No. 4:14-CV-01535, 2015 U.S. Dist. LEXIS 127782, at *4-5 (S.D. Tex. Sept. 23, 2015) (dismissing FLSA claims when the plaintiff failed to allege details regarding his overtime claim, such as the dates, hours, or frequency of his overtime work); Coleman, 2014 U.S. Dist. LEXIS 1501 at *10- 12 (dismissing FLSA claims when the plaintiff's allegations amounted to a repetition of the statute). Contrary to this standard, Plaintiff alleges no specific facts or context for his overtime allegations. Instead, Plaintiff makes the following threadbare allegations:  "In addition to their forty 'on-the-clock' hours, Plaintiff and the Putative Class Members worked up to ten hours 'off-the-clock' per week and have not been compensated for that time." Pl.'s Complaint, at ¶ 25.  "Plaintiff and the Putative Class Members performed (and continue to perform) their pre- and post-shift responsibilities 'off the clock' and without pay. . . . As a result of Nixon's failure to compensate Plaintiff and the Putative Class Members for performing their pre- and post-shift responsibilities 'off-the-clock,' Plaintiff and the Putative Class Members worked overtime hours for which they were not compensated." Id. at ¶¶ 29, 32.  "[P]rior to clocking in, Plaintiff and the Putative Class Members are required to drive their personal vehicles to a meeting location selected by Nixon, check in, ensure that Nixon's truck is ready for use, drive Nixon's truck to the TXDOT offices (where they clock in) and then to the location of Nixon's traffic control project. After clocking out, Plaintiff and the Putative Class Members are required to collect the traffic cones from the highway, load them onto Nixon's truck and return Nixon's truck to the meeting location selection by Nixon. . . . These trips add an additional ten (10) hours to Plaintiff and the Putative Class Members' weekly time which was (and remains) unpaid." Id. at ¶¶ 34-35, 37. 9 4832-8377-8437.4 0  "In addition, Nixon did not (and does not) compensate Plaintiff and the Putative Class Members for mandatory meetings and trainings they are regularly required to attend." Id. at ¶ 38. Without supporting factual allegations, these conclusory allegations are insufficient as a matter of law under the Twombly/Iqbal standard. See, e.g., Pruell, 678 F.3d at 12; Hernandez, 2015 U.S. Dist. LEXIS 127782 at *4-5. Like the claims dismissed by other courts, Plaintiff's allegations do not provide enough detail to satisfy the pleading requirements set forth by the Supreme Court in Twombly and Iqbal. Plaintiffs' claim for overtime under the FLSA should be dismissed. 3. Plaintiff Fails to State Sufficient Facts to Support his Collective Action Claims for Failure to Pay Overtime. Plaintiff's allegations are incorporated into Plaintiff's collective allegations and are likewise insufficient to state a claim under Twombly and Iqbal. Aside from bare allegations, Plaintiff asserts nothing more than formulaic recitations of elements of a claim for failure to pay overtime under the FLSA and conclusory allegations that Nixon violated the law. Plaintiff's allegations do not meet his burden of providing the grounds of his entitlement to relief and do not "nudge [his] claim[] across the line from conceivable to plausible." Twombly, 550 U.S. at 570. Accordingly, Nixon respectfully requests the Court dismiss Plaintiff's First Cause of Action for failure to state a claim upon which relief may be granted. B. Plaintiff's Rule 23 Claim Should Be Dismissed Because Rule 23 Claims Are Inherently Incompatible with Plaintiff's FLSA Claim and Are Not Amenable to Class Certification. 1. Plaintiff's Rule 23 Claim is Incompatible with Plaintiff's Opt-In FLSA Claim. There is a "fundamental, irreconcilable difference" between a Rule 23 class action and a FLSA collective action. LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975); 10 4832-8377-8437.4 0 McKnight, 756 F. Supp. 2d at 800. Under the FLSA, an individual only becomes a party to a collective action if he or she affirmatively requests to be made a party; therefore, an individual's rights are not adjudicated unless and until he or she agrees and advises the court that he or she wants them to be adjudicated. See 29 U.S.C. § 216(b) ("No employee shall be a party plaintiff to any [FLSA] action unless he gives consent in writing to become a party and such consent is filed in the court in which such action is brought.") (emphasis added). Rule 23 operates in a directly contrary manner. Under Rule 23, unless a putative plaintiff affirmatively takes action to exclude himself from a proposed suit, he becomes a plaintiff and a party to the certified class action. As a result, under Rule 23, any judgment on the underlying issues binds a putative plaintiff who does not take the actions necessary to advise the court that he does not wish his rights to be adjudicated in the proposed action. As the Fifth Circuit has stated: In a Rule 23 proceeding, a class action is described; if the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he has opted out of the suit. Under § [216(b)] of [the] FLSA, on the other hand, no person will be bound by or may benefit from judgment unless he has affirmatively opted into the class; that is, given his written, filed consent. It is crystal clear that [§ 216(b)] precludes pure Rule 23 class actions in FLSA suits. (citations omitted). LaChapelle, 513 F.2d at 288.1 Consequently, a plaintiff in an FLSA action "has no procedural right to represent other plaintiffs" who have not joined the action. Vogel v. Am. Kiosk Mgmt, 371 F. Supp. 2d 122, 127 (D. Conn. 2005). 1 LaChapelle involved a plaintiff's attempt to bring a Rule 23 class action for violation of the Age Discrimination in Employment Act ("ADEA"). Because the ADEA incorporates Section 216(b)'s procedures, the LaChapelle court held that "Rule 23 [could] not be invoked to circumvent the consent requirement of the third sentence of FLSA § 16(b) which has unambiguously been incorporated into ADEA" because the "two types of class actions are mutually exclusive and irreconcilable." LaChapelle, 513 F.2d at 289 (footnote omitted). 11 4832-8377-8437.4 0 As the court stated in Leuthold v. Destination America, Inc., an "FLSA suit provides a means of participation for individuals who truly wish to join the suit, while requiring no action from those who do not wish to join. By contrast, a Rule 23 class requires that a potential class member take affirmative action not to be bound by the judgment." 224 F.R.D. 462, 469-70 (N.D. Cal. Aug. 16, 2004). The two actions, at their very core, are therefore incompatible. When, as here, Plaintiff seeks to pursue wage claims under both Rule 23 and FLSA Section 216(b), the two cannot coexist. What LaChapelle emphatically declared decades ago, as a procedural caution, still stands as black-letter law in this Circuit: "It is crystal clear that § 16(b) precludes pure Rule 23 class actions in FLSA suits." LaChapelle, 513 F.2d at 288. Indeed, as the court in Jackson v. City of San Antonio recognized, "the simultaneous management of the two 'irreconcilable' procedures for class formation is unwieldy, would detract from the efficient resolution of the substantive dispute and, most importantly, is frowned upon by the Fifth Circuit." 220 F.R.D. 55, 59-60 (W.D. Tex. 2003) (citing La Chapelle, 513 F.2d at 288-89 (finding that the Rule 23 class action and the section 216(b) representative action are "mutually exclusive and irreconcilable")). Courts recognize this fundamental incompatibility as sufficient to raise a procedural bar to permitting both types of class schemes from proceeding in tandem. See Williams, 2007 U.S. Dist. LEXIS 62396 at *10-11 (dismissing the plaintiff's state-law claims and allowing the FLSA claim because allowing both claims would permit the plaintiff to "circumvent the restrictive 'opt- in' requirements of the FLSA"); Leuthold, 224 F.R.D. at 469-70 (declining supplemental jurisdiction over state claims brought under Rule 23); Herring v. Hewitt Assocs., Inc., No. 06- 267, 2006 U.S. Dist. LEXIS 56189, *5-7 (D.N.J. Aug. 11, 2006) (striking Rule 23 class claims as fundamentally incompatible with the plaintiff's FLSA claims relying upon La Chapelle v. 12 4832-8377-8437.4 0 Owens-Illinois, Inc.); Ramsey v. Ryan Beck & Co., Inc., No. 07-635, 2007 U.S. Dist. LEXIS 56129, at *6 (E.D. Pa. Aug. 1, 2007) ("permitting a FLSA collective action to be litigated with a Rule 23 state-law class action would 'nullify Congress's intent in crafting. . . § 216(b) and eviscerate the purpose of § 216(b)'s opt-in requirement.'").2 The United States Supreme Court recognized that § 216(b) was specifically enacted to foreclose the possibility of plaintiffs alleging wage violations via traditional Rule 23 class actions. Hoffmann-LaRoche, Inc. v. Sperling, 493 U.S. 165, 173 (1989) (noting the FLSA was drafted with the aim of "limiting private FLSA plaintiffs to employees who asserted claims in their own right and freeing employers from the burden of representative actions"). To hold otherwise would unequivocally defeat the underlying purpose of 216(b)'s affirmative opt-in requirement. Williams, 2007 U.S. Dist. LEXIS 62396 at *10-11 (dismissing the plaintiff's state law claims and allowing the FLSA claim because allowing both claims would allow the plaintiff to "circumvent the restrictive opt-in requirements of the FLSA"); Leuthold, 224 F.R.D. at 470. Importantly, dismissal of Plaintiff's Rule 23 class allegations would not preclude either the individual Plaintiff, or any other Plaintiffs who do opt-in, from pursuing any individualized Texas state law claims as part of this FLSA action. However, the legislative history of § 216(b) and the inherent conflict in simultaneous opt-out and opt-in claims compel a finding that the Plaintiff may not pursue his state law remedies under Rule 23 as part of this action. Because 2 In Otto v. Pocono Health System, the district court dismissed plaintiff's state law class action claim in favor of a FLSA collective action claim, noting "[t]o allow a Section 216(b) opt-in action to proceed accompanied by a Rule 23 opt-out state law class action claim would essentially nullify Congress's intent in crafting Section 216(b) and eviscerate the purpose of Section 216(b)'s opt-in requirement." 457 F. Supp. 2d 522, 524 (M.D. Pa. 2006). See also, Moeck v. Gray Supply Corp., No. 03-1950, 2006 U.S. Dist. LEXIS 511, at *15-16 (D.N.J. Jan. 6, 2006); Leuthold, 224 F.R.D. at 470 ("[m]aintaining the suit exclusively as a FLSA conditional class action is superior to certifying an additional state law class under Rule 23(b)(3)"); McClain v. Leona's Pizzeria, Inc., 222 F.R.D. 574, 578 (N.D. Ill. 2004) ("certifying a class for McClain's state-law claims is not the superior manner in which to proceed under Rule 23(b)" because to hold otherwise "would undermine Congress's directive that FLSA collective actions are limited to those parties who opt in to the action"). 13 4832-8377-8437.4 0 Plaintiff seeks to bring class claims under both § 216(b) and Rule 23, the Court should bar the simultaneous prosecution of those claims in this matter and dismiss Plaintiff's Rule 23 state-law claims and allow the FLSA claims to proceed to prohibit the circumvention of the restrictive opt- in requirements of the FLSA. 2. Plaintiff's State Law Claim Requires Individual Inquiry and Therefore Cannot Be Maintained as a Class Action. Among other requirements, a class may be certified under Rule 23(b)(3) only if "the court finds that the questions of law and fact common to class members predominate over any questions affecting only individual members." FED. R. CIV. P. 23(b)(3). The predominance inquiry requires courts "to consider how a trial on the merits would be conducted if a class were certified." Funeral Consumers All., Inc. v. Serv. Corp. Int'l, 695 F.3d 330, 348 (5th Cir. 2012). Thus, it "'entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class,' a process that ultimately 'prevents the class from degenerating into a series of individual trials.'" Madison v. Chalmette Ref., L.L.C., 637 F.3d 551, 555 (5th Cir. 2011) (quoting O'Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 738 (5th Cir. 2003)). The inquiry must probe beyond the pleadings, for the Court to "understand the claims, defenses, relevant facts, and applicable substantive law." Madison, 637 F.3d at 555; O'Sullivan, 319 F.3d at 738. Rule 23(a)(2) requires a specific kind of commonality: Each class member's claim "must depend upon a common contention" and this "common contention, moreover, must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). 14 4832-8377-8437.4 0 Plaintiff cannot meet this burden with respect to predominance. Plaintiff's state-law claim presents inquiries that are overwhelmingly individualized, such that they could not possibly generate a common answer "in one stroke." Instead, the proceedings will be swamped by the overwhelming number of individual factual inquiries inherent in litigating the quantum meruit claim. For example, individual inquiries will be necessary for class members to determine under quantum meruit, for instance, the specific amount of time for which a class member failed to receive compensation and whether that class member reasonably notified Nixon that he was performing compensable duties. These inherently individualized inquiries are amplified by the factual setting of this case, which involves various allegations of 'off-the-clock' work. This means that there will be additional inquiry into the circumstances surrounding the unreported work, including each class member's specific job responsibilities and work performed 'off-the-clock,' and whether a class member was, in fact, required to perform such work without recording it or otherwise reporting it to Nixon. These individualized questions will predominate. C. Plaintiff's Rule 23 Claims Should Be Dismissed Because Supplemental Jurisdiction Over the State Law Claims Is Unwarranted. 28 U.S.C. § 1367(c) provides additional, independent grounds for dismissing Plaintiff's state law claims. It is appropriate to decline supplemental jurisdiction under § 1367(c)(2) if the pendent claims "substantially predominate" over the federal claims. Ridley, 2018 U.S. Dist. LEXIS 42451 at *8-13 (declining to exercise supplemental jurisdiction over plaintiffs' Rule 23 class claims for quantum meruit, breach of contract and unjust enrichment); Higgins v. White Servs. Group, 2014 U.S. Dist. LEXIS 61859, *8-10 (M.D. Fla. Apr. 17, 2014) (declining supplemental jurisdiction under 28 U.S.C. § 1367(c)(2) where plaintiff's state law claims would substantially predominate over his FLSA overtime claims); Leuthold, 224 F.R.D. at 470. 15 4832-8377-8437.4 0 "Predomination" as the term is used in § 1367(c)(2) generally concerns the types of claims at issue, not necessarily the number of parties involved. DeAsencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003) (refusing to find supplemental jurisdiction, in part, due to the size disparity between two prospective classes of 447 "opt-in" FLSA plaintiffs and 4,100 "opt- out" Rule 23 plaintiffs); see also Joseph v. Caesar's Entm't Corp., No. 10-6293, 2011 U.S. Dist. LEXIS 79478, at *23-25 (D.N.J. July 21, 2011) (refusing to exercise pendent jurisdiction over plaintiff's state-law claims where doing so would undermine the FLSA's opt-in mechanism for bringing collective action employee wage and hour disputes). Texas courts, however, recognize that exponential quantitative disparities between the "opt-in" FLSA plaintiffs and the "opt-out" state-law class members will cause a qualitative difference that warrants refusal of supplemental jurisdiction on the basis of numbers alone. See Jackson, 220 F.R.D. at 59-61 (remanding the state-law Rule 23 class claims where those claims vastly outnumbered the federal claims brought under the FLSA). By their very "opt-out" nature, the Texas claims will predominate over the FLSA claims, creating a legal disparity that will subsume the FLSA suit. Plaintiff's claim for quantum meruit under Rule 23 seeks to recover payment on behalf of "All current and former flaggers who were employed by Nixon Engineering, LLC in the State of Texas, at any time from December 10, 2014 through the final disposition of this matter." Pl.'s Complaint, at ¶ 77. As discussed above, these claims are not amenable to resolution by common proof, and the inquiries will largely be both individual and in addition to the inquiries required to resolve the FLSA claim. Discovery and trial proof will focus on the individual circumstances of each class member's "straight-time" hours worked without pay and for how long, whether Nixon was reasonably notified that the "straight-time" class claimant was working 'off-the-clock,' whether the claimant should have accounted for such time, and whether the "straight-time" class 16 4832-8377-8437.4 0 claimant had an expectation to be paid for the 'off-the-clock' time claimed, which is not relevant to any claim each plaintiff may or may not have for overtime hours under the FLSA. The scope of relief offered, and necessary proof, will vary widely among the class members. The necessarily employee-specific inquiries, and the necessarily employer-specific answers, needed for the state-law class claim of quantum meruit belie Plaintiff's allegations that common issues could possibly predominate in this quasi-contract claim. Courts recognize that it is appropriate to deny supplemental jurisdiction pursuant to § 1367(c)(2) where discrete groups of plaintiffs assert state-law claims which may or may not trigger liability under the FLSA. In DeAsencio, the court declined supplemental jurisdiction over a Pennsylvania state wage claim in part because of concerns that, as a practical matter, the claim would predominate over the companion federal claims under the FLSA. Focusing on the "terms of proof and scope of the issues" raised under the two laws, the court found that the state-law claim, "will require additional testimony and proof to substantiate beyond that required for the FLSA action." 342 F.3d at 309. The court also noted significant differences in the remedial scheme between Pennsylvania's wage law and the FLSA, and noted "the scope of the state issues may substantially predominate over the more straightforward federal scheme." Id. & n.13; see also United Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966) (If "state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals."); Ponticello v. Zurich Am. Ins. Grp., 16 F. Supp. 2d 414, 440 (S.D.N.Y. 1998) (declining to exercise supplemental jurisdiction where confusion likely as to appropriate remedy under state versus federal law). Courts will generally find substantial predomination "where a state claim constitutes the real body of a case, to which the 17 4832-8377-8437.4 0 federal claim is only an appendage--only where permitting litigation of all claims in the district court can accurately be described as allowing a federal tail to wag what is in substance a state dog." Gibbs, 383 U.S. at 725. These concerns are amplified even more where the state law claim is premised on common law, rather than wage and hour statutes. Plaintiff's proposed Texas claim will require unique discovery focused on witnesses and evidence that is contingent on individual inquiry, and a different analytical focus which will predominate over whether a similarly-situated group of individuals is entitled to relief under the FLSA. D. The FLSA Preempts Plaintiff's Common Law Causes of Action Plaintiff bases his common-law cause of action on what is really an FLSA-based claim that Nixon failed to remit unpaid wages (in the form of straight time pay). However, Plaintiff's FLSA-based claims—disguised as common law causes of action—are preempted by the FLSA and must be dismissed. "[I]t is a 'fundamental principle of the Constitution. . . that Congress has the power to preempt state law.'" Planned Parenthood of Houston and S.E. Tex. v. Sanchez, 403 F.3d 324, 336 (5th Cir.2005) (citation omitted). This preemptive power is based on the Supremacy Clause of the United States Constitution, Article VI, Clause 2. Hillsborough Cty., Florida v. Automated Med. Labs., 471 U.S. 707, 712 (1985). It is well-settled that the FLSA's statutory causes of action are the sole remedies available to an employee for enforcement of rights he or she may have under the FLSA. See, e.g., Lilani, 2011 U.S. Dist. LEXIS 440 at *40-41, 53 (holding plaintiff's quantum meruit cause of action seeking recovery payment for employment services rendered was preempted by the FLSA); Guerrero v. JP Morgan Chase & Co., No. 6:09CV388, 2010 U.S. Dist. LEXIS 9908, at *1-2 (E.D. Tex. Feb. 10, 2010) (holding Plaintiff's FLSA-based quantum meruit, unjust enrichment 18 4832-8377-8437.4 0 and breach of contract claims were precluded by conflict preemption); Botello v. COI Telecom, LLC, No. SA-10-CV-305-XR, 2010 U.S. Dist. LEXIS 99790, *9-12 (W.D. Tex. Sept. 21, 2010) (holding plaintiff's claim for unjust enrichment was preempted by the FLSA where plaintiff's claim was predicated on an alleged violation of the FLSA); Coberly v. Christus Health, 829 F. Supp. 2d 521, 525 (N.D. Tex. 2011) (holding plaintiff's claim for breach of contract seeking recovery of unpaid minimum and overtime wages was preempted by the FLSA); Avery v. Chariots for Hire, 748 F. Supp. 2d 492 (D. Md. 2010) (remedy for failure to remit gratuities is governed by the FLSA); Helm v. Alderwoods Grp., Inc., 696 F. Supp. 2d 1057, 1076 (N.D. Cal. 2009) (the FLSA "preempts common law claims that seek remedies for rights protected by the FLSA (such as minimum wage and overtime pay)"). This well-settled principle mandates dismissal of Plaintiff's common law claim for quantum meruit. Plaintiff's quantum meruit claim relies upon the allegation that Nixon failed to remit unpaid wages and/or pay hourly wages — rights protected by the FLSA. See, e.g., Guerrero, 2010 U.S. Dist. LEXIS 9908 at *1-2. The FLSA provides Plaintiff's exclusive remedy for these allegations, and Plaintiff cannot recast his allegations under a common law theory to avoid the rigorous requirements of the FLSA. Accordingly, Plaintiff's common law claims for quantum meruit fail as a matter of law, as the FLSA provides Plaintiff's exclusive remedy for the enforcement of FLSA-created rights. VI. CONCLUSION For the reasons set forth herein, Nixon respectfully requests that the Court dismiss Plaintiff's collective/class action complaint for failure to state a claim. 19 4832-8377-8437.4 0 Respectfully submitted, /s/ Ramon D. Bissmeyer_________ Ramon D. Bissmeyer State Bar No. 00787088 DYKEMA GOSSETT PLLC 112 East Pecan Street, Suite 1800 San Antonio, Texas 78205 Telephone: (210) 554-5500 Facsimile: (210) 226-8395 Email: Elizabeth A. Voss State Bar No. 24075160 DYKEMA GOSSETT PLLC 1717 Main Street, Suite 4200 Dallas, Texas 75201 Telephone: (214) 462-6400 Facsimile: (214) 462-6401 Email: ATTORNEYS FOR DEFENDANT NIXON ENGINEERING, LLC CERTIFICATE OF SERVICE I hereby certify that on the 8th day of January 2019, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing in accordance with the FRCP to the following: Clif Alexander ( Lauren E. Braddy ( Alan Clifton Gordon ( Carter T. Hastings ( George Schimmel ( ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, Texas 78401 /s/ Ramon D. Bissmeyer Counsel for Defendant 20 4832-8377-8437.4