Peery v. Nixon Engineering,llc

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

REPLY to Response to Motion, filed by Nixon Engineering, LLC, re {{10}} MOTION to Dismiss (Def.'s Partial Motion to Dismiss 1st Amended Complaint) filed by Defendant Nixon Engineering, LLC And Brief in Support

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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 similarly situated CIVIL ACTION NO. 6: 18 - cv - 00358 JURY TRIAL DEMANDED Plaintiff, con cascos con cascos cos cos con con COLLECTIVE ACTION PURSUANT TO 29U.S. C. $ 216 (b) NIXON ENGINEERING, LLC, CLASS ACTION PURSUANT TO FED. R. CIV. P. 23 (b) Defendant. DEFENDANT'S REPLY AND BRIEF IN SUPPORT OF ITS PARTIAL MOTION TO DISMISS FIRST AMENDED COMPLAINT Defendant Nixon Engineering, LLC ("Nixon " or " Defendant") hereby files its Reply and Brief in Support of its Partial Motion to Dismiss First Amended Complaint pursuant to Rule 12 (b) (6) of the Federal Rules of Civil Procedure as described below. ARGUMENT AND AUTHORITIES Based on Plaintiff's Allegations, Plaintiff's Texas Common - Law Claim Is Preempted by the Fair Labor Standards Act. Plaintiff's Response cites cases where common - law claims may not be preempted by the Fair Labor Standards Act ("FLSA") . Looking at the factual allegations on the face of Plaintiff's First Amended Collective / Class Action Complaint ("First Amended Complaint"), as required for purposes of a Motion to Dismiss, however, it is clear that Plaintiff's alleged common - law claims expressly rely on allegations that Nixon failed to pay overtime for the more than forty (40) hours Irs worked each week - - rights expressly protected by the FLSA. More specifically, allegations fail to state a plausible claim to relief that is not expressly protected by the FLSA. Ashcroft v. Iqbal, 556U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550U.S. 544, 570 (2007) ("To 4848 - 2700 - 6345. 3 0 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. " ') . As stated in Plaintiff's Response, " A gap - 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) . Plaintiff references " unpaid " straight time ' or ' gap time ' wages " in the Complaint, but he provides no factual allegations in support of such claims. Pl. ' s First Am. Compl. at 1 93. Instead, factual support for such claims is based on Plaintiff's incorporation of the Complaint's previous paragraphs. See id. at 1 90. A review of such incorporated factual allegations reveals Plaintiff's allegations that he and the putative class members worked forty " on - the - clock " hours per workweek, for which they were paid, but that compensation is sought is for " off - the - clock " hours worked in excess of these forty " on - the - clock " hours: Plaintiff and the Putative Class Members worked approximately forty " on - the clock " hours per week. Id. at 9 25. Plaintiff Peery was scheduled to work, and did work, forty " on - the - clock " hours every week of his employment with Nixon, with the possible exception of weeks in which he was forced to deviate from his regular schedule as a result of sickness, weather, holidays, and / or vacation. Id. at 26 (emphasis added) . In addition to their forty " on - the - clock " hours, Plaintiff and the Putative Class Members worked up to thirteen (13) hours " off - the - clock " per week and have not been compensated for that time. Id. at 27 (emphasis added) . Plaintiff Peery worked up to thirteen (13) " off - the - clock " hours, in addition to his forty " on - the - clock " hours, every week of his employment with Nixon, with the possible exception of weeks in which he was forced to deviate from his regular schedule as a result of sickness, weather, holidays, and / or vacation. Id. at 9 28 (emphasis added) . As a result of Nixon's failure to compensate Plaintiff and the Putative Class Members for performing their daily pre - and post - shift responsibilities " off - the 4848 - 2700 - 6345. 3 0 clock, " Plaintiff and the Putative Class Members worked overtime hours for which they were not compensated on a weekly basis. Id. at (35. These " off - the - clock " activities render the actual time Plaintiff and the Putative Class Members work over fifty - three (53) hours. Id. at 51. See also Pl. ' s First Am. Compl. at 193, 5, 8, 28, 32 - 34, 39, 47, 49, 51, 55, 57, 59 - 60, 71 - 72, 77 and 84. The above factual allegations are not, for the most part, included in those paragraphs of the Complaint specifically stating Plaintiff's claim under the FLSA. See id. at 9 (beginning m FLSA allegations at 9 62) . Instead, they are included in the general statement of " Additional Facts " of the Complaint. See id. at 4 - 9, 1921 - 61. As shown above, Plaintiff's First Amended Complaint alleges that Plaintiff worked forty " on - the - clock " hours and that Plaintiff was not paid for certain " off - the - clock " hours in addition to this time; other than the vague reference to " straight time " and " gap time, " Plaintiff's First Amended Complaint does not allege that Plaintiff or any Putative Class Member is owed compensation for hours worked in a week in which less than forty (40) hours had been worked Caus and paid. Accordingly, " the claim at issue is pled as an alternative cause of action for conduct that is addressed by the FLSA and for which the Act provides a remedy, [ and ] the common law claim is preempted. " Newsom v. Carolina Logistics Servs ., No. 2: 11CV172 - DCB - JMV, 2012U.S. Dist. LEXIS 126391, at * 10 (N. D. Miss. Sept. 6, 2012) (citing Henley v. Simpson, No. 3: 10CV590 DPJ - FKB, 2012U.S. Dist. LEXIS 101646 (S. D. Miss. July 23, 2012); Guerrero v. JPMorgan Chase & Co ., No. 6: 09CV388, 2010U.S. Dist. LEXIS 9908 (E. D. Tex. Feb. 5, 2010); Valcho v. Dallas Cty. Hosp. Dist ., 658 F. Supp. 2d 802 (N. D. Tex. 2009)) . Plaintiff's First Amended Complaint contains allegations that Plaintiff and Putative Class Members were not paid " for all hours worked. " Pl. ' s First Am. Compl. at 12, 6, 11, 57, 61 and 81. In light of the number of more specific allegations distinguishing between " on - the - clock " hours and " off - the - clock " hours, these general statements should reasonably be construed to refer to Nixon's alleged failure to properly compensate Plaintiff and Putative Class Members for " off - the - clock " hours worked. 4848 - 2700 - 6345. 3 0 Plaintiff's First Amended Complaint contains a passing reference to a " possible exception " that there may have been weeks in which payment of the allegedly unpaid hours would not require payment of overtime for having worked more than forty (40) hours in a week. Pl. ' s First Am. Compl. at 19 26, 28. The mere statement that it was possible that Plaintiff nere as worked fewer than forty " on - the - clock " hours at some point during his employment is not sufficient to support an alleged independent state law claim of quantum meruit for " gap - time " or " straight - time, " particularly in the face of the numerous, more detailed allegations that Plaintiff and the putative class members worked forty " on - the - clock " hours, for which they have been paid. " [ 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. " Erwin v. Russ, 481 F. App ' x 128, 131 (5th Cir. 2012) (quoting Iqbal, 556U.S. at 678 - 79) ("While they certainly permit the court to infer the possibility of misconduct, the SW sweeping and conclusory allegations in the pleadings do not show the Plaintiffs are entitled to relief. Because the allegations cannot state a claim for which relief could be granted, we affirm the ruling of the district court .") . Plaintiff's First Amended Complaint alleges that Plaintiff and Putative Class Members were not compensated for their " off - the - clock " work over and above the forty (40) hours of " on the - clock " work for which they were properly and previously paid. Accordingly, Plaintiff's First Amended Complaint fails to assert any claim arising outside of the FLSA: The complaint does not assert state law claims wholly aside from or independent of the FLSA. Rather, Plaintiff is seeking relief under state law theories of recovery for Defendant's alleged violation of the FLSA. That is, Plaintiff's state law claims are predicated on Defendant's alleged failure to compensate him for hours worked in excess of 40 hours; a requirement imposed by the FLSA. The FLSA provides the exclusive remedy for violation of its mandates and pre - empts Plaintiff's FLSA - based state law claims. Plaintiff's claims for quantum meruit. . . should be dismissed pursuant to FED, R. Civ. P. 12 (b) (6) . 4848 - 2700 - 6345. 3 0 Guerrero, 2010U.S. Dist. LEXIS 9908 at * 9 - 10. As alleged in Plaintiff's First Amended Complaint, Plaintiff's state law claim for quantum meruit is therefore preempted by the FLSA and should be dismissed. B. Plaintiff's Rule 23 Claim and FLSA Claim Are Incompatible, and the Court Should Decline to Exercise Supplemental Jurisdiction. Plaintiff argues that LaChapelle v. Owens - Illinois, Inc. ? stands solely for the proposition that a plaintiff may not bring FLSA claims as a Rule 23 opt - out action. 513 F. 2d 286 (5th Cir. 1975) . Subsequent interpretations of LaChapelle do not support such a narrow reading. As cited - - in Nixon's Motion, and as Plaintiff has failed to refute, many federal courts agree that the fundamental differences between the FLSA's opt - in procedure and Rule 23 ' s opt - out procedure rence make the claims incompatible in one action and that " managing two irreconcilable classes, for the sole purpose of hearing state law claims that the court would not otherwise have jurisdiction over, provides the court with sufficient basis to decline jurisdiction under & 1367 (c) (4) . " Ridley v. Regency Vill ., Inc ., No. H - 17 - 974, 2018U.S. Dist. LEXIS 42541, at * 12 (S. D. Tex. Mar. 15, 2018) (citing Jackson v. City of San Antonio, 220 F. R. D. 55, 59 - 61 (W. D. Tex. 2003) ("simultaneous management of the two " irreconcilable ' procedures for class formation is unwieldy, would detract from the efficient resolution of the substantive dispute and. . . is frowned upon by the Fifth Circuit") . Rather than addressing the cases cited in Nixon's Motion in which numerous courts found FLSA opt - in collective actions incompatible with Rule 23 opt - out class actions, Plaintiff 2 Nixon notes that, contrary to Plaintiff's assertion, it did inform the Court regarding the procedural posture of LaChapelle. See Def. ' s Partial Mot. to Dismiss at p. 6, n. 1. 3 See, e. g ., De Asencio v. Tyson Foods, Inc ., 342 F. 3d 301, 310 (3d Cir. 2003); Riddle v. National Security Agency, Inc ., No. 05 - C - 5880, 2007U.S. Dist. LEXIS 68842, at * 4 (N. D. III. Sept. 13, 2007); Williams y. Trendwest Resorts, Inc ., No. 2: 05 - CV - 0604 - RCJ - LRL, 2007U.S. Dist. LEXIS 62396, at * 7 - 11 (D. Nev. Aug. 20, 2007); Ramsey v. Ryan Beck & Co ., Inc ., No. 07 - 635, 2007U.S. Dist. LEXIS 56129, at * 2 (E. D. Pa. Aug. 1, 2007); Otto v. Pocono Health Sys ., 457 F. Supp. 2d 522, 523 - 24 (M. D. Penn. 2006); Moeck v. Gray Supply Corp ., No. 03 - 1950, 2006U.S. 4848 - 2700 - 6345. 3 0 relies on Lang v. DirecTV, Inc ., for the position that a collective action under section 216 (b) and a class action under Rule 23 should be brought in the same action. See Pl. ' s Resp. at 4 (citing 735 F. Supp. 2d 421, 429 (E. D. La. 2010)) . However, Lang is distinguishable, as explained further below, particularly in that it did not involve allegations that the state law claims predominated over the federal claims. 735 F. Supp. 2d at 429 - 30. Here, to the extent it could be found that Plaintiff articulates a quantum meruit claim Comme IS under common law that is not preempted by the FLSA, the allegations contained in Plaintiff's First Amended Complaint and the nature of a quantum meruit claim itself make clear that, in this case, the state law claim will substantially predominate over Plaintiff's FLSA claim such that the court should decline to exercise supplemental jurisdiction over the claim. As noted above, the only factual allegation that could be said to state a claim for payment of non - overtime hours worked as a quantum meruit claim alleges as follows: Plaintiff Peery was scheduled to work, and did work, forty " on - the - clock " hours every week of his employment with Nixon, with the possible exception of weeks in which he was forced to deviate from his regular schedule as a result of sickness, weather, holidays, and / or vacation. Pl. ' s First Am. Compl. at 926; see also id. at 128. To determine if Plaintiff, or any Putative Class Member, may have a plausible quantum meruit claim, a finder of fact will be required to CO conduct an individualized inquiry into whether or not, on a week - to - week basis, that individual was was impacted by sickness, weather, holidays, and / or vacation such that he or she worked fewer than the forty " on - the - clock " hours that Plaintiff alleges were always worked, absent such exceptions. In addition, based on the elements of a quantum meruit claim, proof of such claims will require examination of the existence and number of each class member's " straight - time " Dist. LEXIS 511, 2006 WL 42368, at * 5 (D. N. J. Jan. 6, 2006); McClain v. Leona's Pizzeria, Inc ., 222 F. R. D. 574, 577 (N. D. Ill. 2004); Rodriguez v. The Texan, Inc ., No. 01 - C - 1478, 2001U.S. Dist. LEXIS 24652, at * 2 (N. D. Ill. Mar. 7, 2001) . 4848 - 2700 - 6345. 3 0 hours worked without pay, Nixon's notice of any " off - the - clock " work, whether the claimant Urs should have accounted for such time, and whether the " straight - time " class claimant had an expectation to be paid for the ' off - the - clock ' time claimed - - an expectation that is irrelevant to any claim under the FLSA. These necessarily employee - specific inquiries needed for the quantum meruit claim undermine Plaintiff's assertion that the quasi - contract claim is intertwined with the FLSA claim. Further, given that the Rule 23 opt - out class action for any such quantum meruit claim would likely result in a far greater number of plaintiffs involved in these highly me individualized assessments than the smaller group of plaintiffs who might choose to participate through the FLSA's opt - in collective action, inclusion of such state law claims in this federal lawsuit would result in the much more rigorous and time - consuming quantum meruit determinations at trial predominating over the fewer and less rigorous FLSA determinations. To further complicate matters, if it were found that the certain members of the much larger class of opt - out plaintiffs had worked sufficient hours such that the combination of alleged " off - the clock " hours and previously - paid " on - the - clock " hours resulted in more than forty (40) hours being worked in a week – the precise factual allegation made by Plaintiff – such finding would, then, presumably result in findings with respect to allegedly unpaid overtime under the FLSA for ne individuals who had not willingly opted - in as is required by Section 216 (b) of the FLSA. Such findings would subvert the opt - in procedures specifically designed by Congress with respect to FLSA claims and result in adjudication of FLSA claims on behalf of individuals who had not chosen to participate in this proceeding. Lang, relied upon by Plaintiff, stands in stark contrast. In Lang, the plaintiffs alleged a number of violations of the FLSA, including that the defendants made certain improper deductions. 735 F. Supp. 2d at 425. Plaintiffs also contended that the deductions from pay 4848 - 2700 - 6345. 3 0 violated the Louisiana wage and hour laws. " Id. Finally, the plaintiffs asserted various state tort laws based on the defendants ' alleged failure to pay them the proper amounts. Id. " The claims are not separate because they allege the same wrongs. . . When a single wrong gives rise to multiple claims, those claims are not considered separate. " Id. at 427. In the circumstances of Lang, the court determined that the claims involved the same facts and evidence such that the exercise of supplemental jurisdiction over the state law claims was appropriate. Id. at 428 - 30. This is not a case where an improper deduction, once proved, simultaneously constitutes case UV a violation of the FLSA and of the state law claims. Instead, different and additional proof will be required in support of Plaintiff's quantum meruit claim and the claims of any additional Putative Class Members. Further, given the irreconcilable natures of the Rule 23 opt - out procedures and the Section 216 (b) opt - in procedures, it is extremely likely that the FLSA class will consist of a small subset of employees which is swallowed up by a much larger state - law class and that, ultimately, the federal claims on which this Court's original jurisdiction is based will be subsumed by individualized inquiries related to such state law claims. See McClain, 221 F. R. D. at 577 ("Were we to certify a class action for McClain's supplemental state claims based on the same facts and issues underlying McClain's federal claim, we could very well be left ' with the rather incongruous situation of an FLSA ' class ' including only a tiny number of employees. . . with a state - law class that nonetheless includes all or nearly all of the companies ' present or former employees. To do so would effectively " allow [ ] a federal tail to wag what is SO in substance a state dog. ' ') (citations omitted) . Even where state and federal claims are largely intertwined, federal courts routinely decline to exercise supplemental jurisdiction over state law claims. See, e. g ., Jackson, 220 F. R. D. at 60. This issue is soundly within this Court's discretion 4848 - 2700 - 6345. 3 0 and, in these circumstances, the Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claim. CONCLUSION For the reasons set forth herein and in Defendant's Partial Motion to Dismiss First Amended Complaint and Brief in Support, Nixon respectfully requests that the Court dismiss those portions of Plaintiff's First Amended Collective / Class Action Complaint alleging violations of Texas Common Law for failure to state a claim. - - - - - 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: rbissmeyer @ dykema. com 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: evoss @ dykema. com ATTORNEYS FOR DEFENDANT NIXON ENGINEERING, LLC 4848 - 2700 - 6345. 3 0 CERTIFICATE OF SERVICE I hereby certify that on the 26th day of February 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 (clif @ a2xlaw. com) Lauren E. Braddy (lauren @ a2xlaw. com) Alan Clifton Gordon (cgordon @ a2xlaw. com) Carter T. Hastings (carter @ a2xlaw. com) George Schimmel (geordie @ a2xlaw. com) ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, Texas 78401 / s / Ramon D. Bissmeyer Counsel for Defendant 4848 - 2700 - 6345. 3