Peery v. Nixon Engineering,llc

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

Motion to Dismiss for Failure to State a Claim by Nixon Engineering, LLC. Motions referred to Judge Jeffrey C. Manske.

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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 PARTIAL MOTION TO DISMISS FIRST AMENDED COMPLAINT AND BRIEF IN SUPPORT Defendant Nixon Engineering, LLC ("Nixon" or "Defendant") hereby moves for partial dismissal of Plaintiff Jayme Peery's ("Plaintiff") First Amended Collective/Class Action 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 three issues to be ruled on by the Court: (1) 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 his opt-in collective action claim under the Fair Labor Standards Act ("FLSA"), particularly where the common-law claims will require individualized inquiry. McKnight v. D. Houston, Inc., 756 F. Supp. 2d 794, 808 (S.D. Tex. 2010). (2) 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 1 4819-6709-2103.2