Case Information
*1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DAPHNE FLEMING AND BRINTNEY CIVIL ACTION JONES
NO: 19-2348 VERSUS
SECTION: T ELLIOT SECURITY SOLUTIONS, LLC,
IAN KENNARD, AND DARRIN
ELLIOT, SR.
ORDER
Before the Court is a Rule 12(b)(6) Motion to Dismiss and Alternative 12(E) Motion for More Definite Statement filed by defendants, Elliott Security Solutions, LLC (“Elliott”), Ian Kennard (“Kennard”), and Darrin Elliott, Sr. (“Elliott, Sr.”) (cоllectively, “Defendants”). Plaintiffs, Daphne Fleming (“Fleming”) and Brintney Jones (“Jones”) (collectively, “Plaintiffs”) have filed an opposition. For the following reasons, the Motion tо Dismiss is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND This matter arises out of Plaintiffs’ claims for unpaid wages under the Fair Labor Standards Act (“FLSA”). Plaintiffs allege they “worked for Defendants providing security guard services for Defеndants’ security guard business,” and that Defendants violated the FLSA by improperly deducting uniform, state licensing, and other miscellaneous expenses from employees’ paychecks, such that “these deductions reduce employees’ wages below the federally mandated $7.25 per hour…”. Defendants allegedly have a “kickbаck” policy of “improperly obtaining ‘kickbacks’ from employees, including the plaintiffs and the putative class, because, after deducting the cost of uniforms from their pay, they mandate that employees return those uniforms upon cessation of *2 working for Defendants in order to reserve their final wages.” Finally, Plaintiffs argue Defendants fail to pay overtime wages and fail to pay employees in a timely matter.
Defendants move to dismiss Plaintiffs’ complaint for failure to state a claim contending that Plaintiffs have not adequately pled any FLSA violations or a collective action.
LAW AND ANALYSIS
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for failure to state a claim upon which relief can be granted.” Motions to dismiss for failure to state a claim are viewed with disfavor аnd are rarely granted. To 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.’” In evaluating a complaint under Rule 12(b)(6), the district court should confine itself to the pleadings, and the documents attached to the complaint.
A complaint need not contain detailed factual allegations, but it must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a cause of action. The complaint is construed in the light most favorable to plaintiff, accepting as true all well-plеaded factual allegations and drawing all reasonable inferences in plaintiff's favor. On the other hand, courts may not rely on “legal conclusions that are disguised as factual allegations.” If factual *3 allegations are insufficient to raise a right to relief above the speculative level, the claim should be dismissеd.
A. Compensation under the FLSA
The FLSA mandates that employers pay covered employees a minimum wage of $7.25 per hour, and pay covered employees at least one and one-half times their normal rate of pay for hours worked in excess of 40 hours per week. To state a claim for unpaid overtime or minimum wages under the FLSA a plaintiff must plead: “(1) that there existed an employer-employee relationship during the unpaid ... periods claimed; (2) that the employee engaged in аctivities within the coverage of the FLSA; (3) that the employer violated the FLSA's overtime [or minimum] wage requirements; and (4) the amount of overtime [or minimum wage] compensation due.” To satisfy the second prong, that the employee engaged in activities within the coverage of the FLSA, the employee must demonstrate that he performed work for which he was not compensated. A plaintiff sufficiently pleads the amount of overtime compensation due by alleging sufficient facts tо put the defendant on notice as to the approximate date ranges, as well as the approximate number of hours worked.
In this case, Plaintiffs fail to state a claim under the FLSA because Plaintiffs do not allege facts to support that they were engaged in activities within the coverage of the FLSA, that Defendants violated the FLSA’s overtime or minimum wage requirements, or the amount of overtime or minimum wage compensation due. Plaintiffs merely conclude that Defendants violаted the FLSA by improperly deducting uniform, state licensing, and other miscellaneous *4 expenses from employees’ paychecks [20] and by failing to pay overtime wages [21] without providing factual allegations to support approximate date rаnges or the approximate number of hours worked. Therefore, Plaintiffs have not stated a claim under the FLSA.
B. Collective Action Under the FLSA
The FLSA authorizes “one or more employees to pursue an action in a representative capacity for ‘other employees similarly situated.’” [22] The FLSA has not, nor has the Fifth Circuit, defined what “similarly situated” means. [23] This Court traditionally follows a two-step analysis to determine whether plaintiffs are similarly situated. [24] Step one asks, at the “notice stage,” whether “notice should be given to potential members of the collective action” based on the pleadings. [25] Because there is little evidence at the notice stage, thе standard is lenient and typically results in a conditional certification. [26] To determine whether plaintiffs are similarly situated, the next step is to ask: “(1) the extent to which the employment setting is similar; (2) the extent to which any defenses the employer has are common or individuated; and (3) general fairness and procedural considerations.” [27]
Here, Plaintiffs have not yet reached the first certification stage because Plaintiffs have not yet moved for certification or for specific notices to be distributed. Accordingly, determination of a conditional certification is pre-mature. However, in order to survive a Rule 12(b)(6) motion, Plaintiffs must still “have adequately pleaded that [they are] similarly situated to potential collective action members.” “[O]pinions from district courts ... are inconsistent, arriving at *5 different сonclusions as to ... whether a motion to dismiss or collective action certification is the proper stage in the proceedings to address [conditional certification].” [29] However, this Court finds the proposition that dismissal of a collective action is inherently improper on a Rule 12(b)(6) motion to dismiss is inaccurаte. [30]
It is well settled that federal plaintiffs must first satisfy the mandates of Fed. R. Civ. P. 8(a) and allege facts that are “enough to raise a right to relief above the speculative level.” Here, Plaintiffs merely assert that a collective action is proper because “[m]embers of the proposed Collective Action Clаss are similarly situated, as they have substantially similar job requirements and provisions and are subject to a common practice, policy or plan that requires them to perform work without federally-mandated compensation.” This is a conclusory allegation disguised as legal conclusion. Plaintiffs merely speculatе that a class may exist and that this hypothetical class may have suffered widespread FLSA violations. This is not sufficient to survive a Rule 12(b)(6) motion. Accordingly, the Court finds that Plaintiffs hаve not adequately alleged an FLSA collective action.
CONCLUSION
Accordingly, IT IS ORDERED that the Rule 12(b)(6) Motion to Dismiss and Alternative 12(E) Motion for More Definite Statement filed by defendants, Elliott Security Solutions, LLC, Ian Kennard, and Darrin Elliott, Sr. is GRANTED.
*6 IT IS FURTHER ORDERED that Plaintiffs are granted an additional twenty-one (21) days from the entry of this Order to file an amended complaint alleging a Fair Labor Standards Act collective action. If an amended complaint is not filed, Plaintiff’s Fair Labor Standards Act collective action claims will be dismissed with prejudice.
New Orleans, Louisiana , on this _____ day of January, 2020.
GREG GERARD GUIDRY UNITED STATES DISTRICT JUDGE
Notes
[1] R. Doc. 11.
[2]
[3] R. Doc. 1 at ¶3.
[4]
[5]
[6]
[7] Fed. R. Civ. P. 12(b)(6).
[8]
Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc
.,
[9]
Ashcroft v. Iqbal
,
[10]
Kennedy v. Chase Manhattan Bank USA, NA
,
[11]
Collins v. Morgan Stanley Dean Witter
,
[12]
Iqbal
,
[13]
Lovick v. Ritemoney Ltd
.,
[14]
Jeanmarie v. United States
,
[15]
Twombly
,
[16] 29 U.S.C. §§ 206 and 207.
[17]
Johnson v. Heckmann Water Resources, Inc
.,
[18] Harvill v. Westward Commc'ns L.L.C., 433 F .3d 428, 441 (5th Cir.2005).
[19]
Maldanado v. New Orleans Millworks, LLC
,
[20] R. Doc. 1 at ¶15.
[21]
[22]
Johnson v. Big Lots Stores, Inc
.,
[23] See id . at 573.
[24]
Lang v. DirectTV, Inc.,
[25] Id. at 435.
[26] Id.
[27] Id.
[28] See id. at 435-36.
[29]
Creech v. Holiday CVS, LLC
,
[30]
See e.g., Maldanado,
[31]
Twombly,
[32]
[33]
See Dyer v. Lara’s Trucks, Inc
.,
[34]