Before the Court is plaintiffs’ motion to remand state class action claims, 1 defendants’ motion to dismiss certain claims, 2 defendants’ motion to strike class action claims, 3 and plaintiffs’ motion to for leave to file a first amended complaint. 4 For the following reasons, the Court DENIES plaintiffs’ motion to remand their state law class action claims, GRANTS IN PART and DENIES IN PART defendants’ motion to dismiss certain claims, DENIES defendants’ motion to strike the class action claims, and GRANTS plaintiffs’ motion for leave to amend the complaint.
I. BACKGROUND
Plaintiffs are satellite television technicians who installed DirecTV products at customers’ houses. On February 22, 2010, Plaintiffs filed a petition in the 22nd Judicial District Court of Louisiana on behalf of themselves and all similarly situated individuals. 5 Plaintiffs seek a collective action under the Fair Labor Standards Act, alleging minimum wage, overtime, and record keeping violations. 6 Plaintiffs also bring a class action for alleged violations of the Louisiana wage and hour laws 7 and for state law tort violations. 8
Specifically, plaintiffs allege that the defendants engaged in “a nationwide scheme” in violation of both the FLSA and Louisiana law. 9 First, plaintiffs allege that the defendants failed to record or pay wages, or deducted wages, for time actually worked. These uncompensated hours include time worked before the first and after the last customer visit of the day, travel time, and meal periods during which work was performed. Second, plaintiffs allege that the defendants failed to calculate the applicable overtime rate properly. Third, plaintiffs allege that the defendants engaged in a “charge-back scheme” in which they improperly withheld certain amounts from the plaintiffs’ pay. At times, plaintiffs allege, they were charged even more than they earned and therefore lost money on a particulаr job assignment. Plaintiffs allege that each of these actions violated the FLSA. They also contend that the deductions from their pay violated the Louisiana wage and hour laws. In addition, plaintiffs allege that under state tort law, the defendants’ failure to pay them the proper amounts constituted negligence, misrepresentation, acts of dominion over plaintiffs’ property, and fraud, and that defendants’ actions caused them severe emotional distress.
Defendants removed the case to this Court,
10
and plaintiffs now move to remand their state claims to state court.
11
Defendants move to dismiss the FLSA claims and the state law fraud claims,
12
and they also move to strike the class allegations associated with the state law claims.
13
II. MOTION TO REMAND
A. Legal Standard
A defendant may remove any civil action over which the federal court has original jurisdiction. 15 The removing party bears the burden of establishing the existence of federal jurisdiction. 16 Section 1441 is to be narrowly construed to restrict removal because “a defendant’s use of that statute deprives a state court of a case properly before it and thereby implicates important federalism concerns.” 17
B. Discussion
It is undisputed that the removal of the FLSA claims to this Court was proper. Further, the presence of a federal claim brings the entire action within the Court’s original jurisdiction. 18 Thus, removal of both the federal and state law claims was proper under section 1441. Plaintiffs also have not questioned that the Court may exercise supplemental jurisdiction over the state claims under section 1367(a). 19 Plaintiffs contend, however, that the Court should exercise its discretion to remand their state claims under section 1441(c) and should decline supplemental jurisdiction under section 1367(c). These рrovisions will be considered in turn.
1. Discretionary Remand
Section 1441(c) provides:
Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. 20
For remand to be proper under section 1441(c), the claim to be remanded must be (1) a separate and independent claim or cause of action; (2) joined with a federal question; (3) otherwise non-removable; and (4) a matter in which state law predominates.
21
One claim is not separate and independent from another when “there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transaсtions.”
22
The test for separateness is “the separateness of the wrong to the plaintiff,”
23
and the test for independence is whether the
Plaintiffs’ state claims are not separate and independent from their FLSA claims. The claims are not separate because they allege the same wrongs, namely, a “charge-back” scheme in which the defendants made improper deductions from plaintiffs’ pay. When a single wrong gives rise to multiple claims, those claims are not considered separate. 26 Further, the state and federal claims are not independent because they involve substantially the same facts. Plaintiffs allege a single “nationwide scheme” that is not divisible into state and federal components. Evidence of the deductiоns made from plaintiffs’ pay will be identical for the state and federal claims. Moreover, both sides agree that a crucial issue will be whether any or all of the defendants employed the plaintiffs and the evidence on this question will be the same as well. State and federal claims are not independent when their facts overlap to this extent. 27
Plaintiffs argue that the state and federal claims have different elements and requirements. Assuming that this is true, the claims nonetheless involve a single wrong and substantially the same facts. The claims, therefore, are not separate and independent.
28
Moreover, severing the
2. Supplemental Jurisdiction
Section 1367(c) provides that a district court may decline to exercise supplemental jurisdiction if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 30
In addition to the statutory factors, the court must also balance the factors of judicial economy, convenience, fairness, and comity. 31 Section 1367(c)(3) does not apply because the Court has not dismissed all of the plaintiffs’ federal claims, but the Court will consider subsections (1), (2), and (4).
Plaintiffs assert that their state claims raise novel and complex issues of state law under section 1367(c)(1), but they do not specify what they are. To the contrary, plaintiffs’ state wage-and-hour and tort claims do not appear to rаise any novel or complex issues of state law. Thus, section 1367(c)(1) does not apply.
As to section 1367(c)(2), plaintiffs’ state law claims do not substantially predominate over their federal claims. A state claim substantially predominates if it “constitutes the real body of a case, to which the federal claim is only an appendage.” 32 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.” 33 As discussed supra, plaintiffs’ federal and state actions involve substantially the same facts and evidence. The claims are “sufficiently intertwined so that one does not predominate over the other.” 34 The FLSA claims are addressed at length in the complaint, and they cannоt be considered a mere appendage to the state claims.
Plaintiffs also argue that the Court should decline to exercise supplemental jurisdiction over their state law claims because there are different procedures for aggregating class members in an FLSA
These procedures are indeed different, 37 but those differences do not justify remanding plaintiffs’ state law claims. The requirement that class members opt into a collective action applies only to claims under the FLSA and does not limit the procedural mechanisms available to employees who bring state law actions. 38 In cases with both FLSA collective action claims and Rule 23 class action claims based on state law, most courts have held that the differences between opt-in and opt-out procedures do not justify remanding the state law claims. 39 Moreover, some courts that have remanded the state law class action in this situation have relied at least in part on factоrs not present here, such as a showing that state claims vastly outnumbered federal claims. 40
Some courts have ruled that proceeding with both an opt-in and an opt-out class action would result in notices that would be confusing to potential class membеrs. 42 While the Court is aware of this possibility, the danger of confusion would also exist if opt-in and opt-out actions were to proceed simultaneously in federal and state court. The Court will consider the merits of any notices drafted by counsel at the appropriate time. At present, the Court will not remand plaintiffs’ state law claims on this basis. 43
For these reasons, plaintiffs’ motion to remand their state law claims is DENIED.
III. MOTION TO AMEND
Leave to amend a complaint is freely given “when justice so requires.” 44 In exercising its discretion to grant or deny leave to amend, the Court may consider whether the party seeking leave is doing so after undue delay, in bad faith, or for a dilatory motive. 45 “It is within the district court’s discretion to deny a motion to amend if it is futile.” 46 Futility means “that the amended complaint would fail to state a claim upon which relief could be granted.” 47 To determine futility, the court “applies] the same standard of legal sufficiency as applies under Rule 12(b)(6).” 48
Plaintiffs’ proposed amendments generally fall into two categories: allegations adding further detail to the existing FLSA claims, 49 and allegations of retaliation in violation of the FLSA. 50 Defendants argue that both categories of amendments should be rejected.
First, defendants argue that the proposed amendments that add further detail-' to the FLSA allegations would be futile because they do not cure the deficiencies that they assert exist in the original com
Second, defendants argue that the retaliation claim would be more appropriately adjudicated in a separate action. Plaintiffs claim that they have suffered retaliation, but they do not allege they share this in common with the other potential FLSA claimants. Although the assertion of these individual claims may ultimately affect the certification decision, plaintiffs are free to join their claims under Rule 18. Moreover, Defendants do not assert any undue delay, bad faith, or dilatory motive on the part of the plaintiffs, nor do -they allege that these amendments are futile. Thus, there is no reason to deny plaintiffs’ motion to amend.
Defendants offer no arguments in oppositiоn to the remainder of the proposed amendments. For the reasons stated, the Court GRANTS plaintiffs’ motion for leave to amend.
IV. MOTIONS TO DISMISS
A. Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, the plaintiffs must plead enough facts “to state a claim to relief that is plausible on its face.” 52 A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” 53 A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. 54 But the Court is not bound to accept as true legal conclusions couched as factual allegations. 55
A legally sufficient complaint must establish more than a “sheer possibility” that plaintiffs’ claim is true. 56 It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. 57 In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiffs’ claim. 58 If there are insufficient factual allegations to raise a right to relief above the speculative level, 59 or if it is apparent from the face of the complaint that there is an insuperable bar to relief, 60 the claim must be dismissed.
1. Employment Relationship
Defendants contend that plaintiffs have not adequately pleaded that they were employees of defendants, which is necessary to recover under the FLSA. 61 Plaintiffs do allege in their complaint that they were employees of DirecTV, JP & D, and Modern Day. 62 Plaintiffs also make allegations that are relevant to the factors used by the Fifth Circuit to determine employment status. Plaintiffs have pleaded facts upon which a plausible inference of employment can be made, and the Court therefore will not dismiss plaintiffs’ FLSA claims.
The FLSA defines “employee” as “any individual employed by an employer” 63 and “employ” as “to suffer or permit to work.” 64 The Supreme Court has observed that this definition is broad. 65 In determining whether an employment relationship exists, the Fifth Circuit has applied the following factors: (1) the degree of control the company exercises over the individual; (2) whether the employment takes place on the premises; (3) whether the company has the power to hire, fire or modify employment; (4) whether the employees perform a specialty job on the production line; and (5) whether the employee may refuse to work for the company or сhoose to work for others. 66 These factors are illustrative and should not be applied mechanically. Rather, in determining employment status, the Court must consider the totality of the circumstances and the economic reality of the overall arrangement. 67 Accordingly, a plaintiff is not required to show that all five of the factors have been met. 68 “Where the work done, in its essence, follows the usual path of an employee, putting on an ‘independent contractor’ label does not take the worker from the protection of the Act.” 69 Further, a defendant and its subordinate contractor may be jointly responsible for the contractor’s employees. 70
The Court’s review of the complaint reveals that plaintiffs have made sufficient allegations of employment to survive a motion to dismiss. Plaintiffs generally allege thаt they were jointly employed by the defendants.
71
In addition, plaintiffs make specific allegations that, if true, would sug
First, with regard to DirecTV, Plaintiffs Lang and Humphreys allege that DirecTV controlled their daily routines. 72 They allege that DirecTV set the rate of compensation for each job, monitored their performance, and ultimately controlled their receipt of wages. 73 Moreover, they claim that DirecTV and JP & D conducted background checks and drug tests at facilities of their choice. 74 Humphreys also alleges in his declaration that he was required to wear a DirecTV uniform, give clients DirecTV paperwork, and have a DirecTV logo on his vehicle. 75 He also alleges that he installed only DirectTV equipment. 76 In addition, Lang and Humphreys allege that DirecTV had the power to determine whether they were еmployed as installers of DirecTV equipment. 77 Plaintiffs further allege that the defendants orchestrated a “charge-back” scheme to deprive them of earned wages 78 and that the charge-back and underpayment scheme originated with DirecTV. 79 The allegations of DirecTV’s control over the technicians, including control of their compensation, work assignments, and uniforms, all tend to indicate that the plaintiffs were employees of DirecTV. 80
Plaintiffs allege that Modern Day and JP & D were “straw men” that DirecTV set up in an attempt to circumvent the FLSA and Louisiana law.
81
Although most of the plaintiffs’ allegations do not single out either of these entities, plaintiffs have sufficiently pleaded that they were jointly employed by Modern Day and JP &
As to Modern Day in particular, Lang and Humphreys allege that they reported directly to Modern Day. 85 They also assert that Modern Day constructively discharged them after the complaint was filed. 86 Plaintiffs make further allegations that suggest that they were not independent contractors. For example, Lang and Humphreys allege that the defendants withheld workers’ compensation premiums from their pay. 87 If the plaintiffs worked directly under Modern Day and were not independent contractors, that would imply that they were employees of Modern Day.
The complaint presents JP & D as an intermediary between Modern Day and DirecTV. Lang and Humphreys allege that JP & D or DirecTV assigned each of them a contractor number that DirecTV used to monitor their pay and performance. 88 Moreover, as noted above, Lang and Humphreys claim that JP & D, as well as DirecTV, conducted background checks and drug tests at facilities of their choice. 89 They also claim that JP & D is currently preventing them from being employed to work on DirecTV jobs in retaliation for filing the complaint. 90
Plaintiffs have sufficiently pleaded that they were employed by each of the defendants. Thus, defendants’ motion to dismiss plaintiffs’ FLSA claims on this ground is DENIED.
2. Collective Action
Defendants also move to dismiss plaintiffs’ collective action claims under the FLSA. Defendants contend that the plaintiffs have not adequately pleaded facts that would show that they are similarly situated to the potential class members.
The FLSA allows one or more employees to pursue an action in a representative capacity for “other employees similarly situated.”
91
A collective action affords plaintiffs “the advantage of lower individual costs to vindicate rights by the pooling of resources. The judicial system benefits by efficient resolution in one proceeding of common issues of law and fact.”
92
The FLSA does not define what it means for employees to be “similarly situated” such that collective adjudication of their claims is appropriate. Courts have utilized two methods for determining whether plaintiffs are similarly situated. The Fifth Circuit has not determined whether either approach is required. The prevailing method, first articulated in
Lusardi v. Xerox Corp.,
93
calls for a two-step
To determine whether plaintiffs are similarly situated to other employees who are potential members of a collective action, Lusardi applies a three-factor test: (1) the extent to which the employment settings of employees are similar or disparate; (2) the extent to which any defenses that an employer might have are common or individuated; and (3) general fairness and procedural considerations. 98 The more dissimilar plaintiffs’ job experiences are from one another and the more individuated an employers’ defenses are, the less appropriate the matter is for collective treatment. Some courts, however, have not used the three-part Lusardi test, but instead have decided whether a collective action is appropriate by drawing on the elements for certification of a class action under Rule 23. 99 The Fifth Circuit has affirmed a district court’s decertification decision based on the use of the Lusardi test, although it did not specifically endorse it. 100 This Court will use the Lusardi approach in determining whether this case is appropriate for collective treatment. 101
This case has not yet reached the first, conditional certification stage of the process outlined in
Lusardi.
Plaintiffs have not moved for certification, and they have not proposed that specific notices be distributed. The Court finds that defendants’ motion to dismiss is premature becаuse plaintiffs have not moved for certification and have had no opportunity to develop a record.
102
This challenge on the pleadings
Plaintiffs’ allegations are not uniquely personal or obviously unsuited to a collective action. At the conditional certification stage, the Court will decide whether the plaintiffs are similarly situated to potential class members under a “fairly lenient standard.” 103 Courts generally “require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan[.]” 104 Here, plaintiffs have not alleged “isolated personal incidents of failures to pay, but rather, contend that they and the potential class members were victims of a company-wide policy” of improper deductions. 105 Plaintiffs identify the following class:
There are numerous other similarly situated employees and former employees of the defendants who have been deprived of rights protected by the FLSA. Specifically, Technicians and Installers who have installed and/or serviced DirecTV equipment and have been subjected to the chargebacks on their pay that are determined by DirecTV, their HSPs and/or subcontractors, after the original work has been completed, should receive notice and the opportunity to join the present lawsuit. 106
In their complaint, plaintiffs allege that “Defendants have engaged and continue to engage in a centralized, widespread pattern and practice of FLSA violations and intentional schemes designed to undermine and avoid the minimum wage and overtime pay provisions of the FLSA on a systemic, corporate-wide basis.” 107 Plaintiffs allege that this policy originated “at the DirecTV level.” 108 Further, Plaintiffs Lang and Humphreys assert, based on their experience, that the defendants’ chargeback scheme operated the same way in ten states. 109
Plaintiffs have adequately pleaded that they are similarly situated to potential collective action members. The Court will consider defendants’ arguments against certification at the appropriate time, but to consider them now would be premature. Defendants’ motion to dismiss plaintiffs’ collective action claims is DENIED.
S. State Fraud Claim
Defendants also move to dismiss plaintiffs’ state law fraud claim for failure to plead with the particularity required by Rule 9(b). For the following reasons, defendants’ motion is granted.
Rule 9(b) provides that in fraud cases, “a party must state with particularity the circumstances constituting fraud or mistake.” The required conditions of a person’s mind, however, may be alleged
Here, plaintiffs’ fraud and misrepresentation allegations are limited to thе following:
Defendants engaged in a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. More specifically, they misrepresented the compensation that Plaintiffs would receive as well as the quality of Plaintiffs’ work via the charge-back scheme. They regularly made unilateral and unsubstantiated deductions from wages associated with Plaintiffs’ work. Such actions were done with the intention of gaining an unjust advantage and/or loss or inconvenience to Plaintiffs.... The net effect of Defendants’ actions is to get work successfully completed, receive the benefit for such services being rendered, and then unilaterally reduce their costs under a fraudulent scheme designed to exploit and harm those performing work for their benefit in Louisiana. 114
Plaintiffs’ complaint is devoid of the particular factual allegations required under Rule 9(b). Plaintiffs do not identify a particular fraudulent statement by an employee or officer of any defendant. The misrepresentations that plaintiffs allege are general in nature and do not specify a particular speaker, time, or place. When a plaintiff fails to “plead a description of a particular occasion in which a particular person made a fraudulent statement,” the fraud claim must be dismissed. 115
In addition, “a complaint alleging fraud may not group the defendants together.” 116 Plaintiffs must plead specific facts as to each defendant for each of the Rule 9(b) requirements, but they have not done so. Instead, plaintiffs have improperly grouped the defendants together for purposes of their fraud allegations.
Plaintiffs’ general allegations do not contain the particularity required by Rule 9(b). Moreover, the Court will not consid
C. Motion to Strike State Law Class Action Claims
Defendants ask the Court to strike plaintiffs’ class allegations on the grounds that the plaintiffs have not met the requirements of Rule 23. Under Rule 23(d)(1)(D), a court may “require that the pleadings be amended to eliminate allegations about representation of absent persons.” 120 When it is “facially apparent” that Rule 23 cannot be met, “а district court may dismiss the class allegation on the pleadings.” 121 The Fifth Circuit has observed, however, that “in most cases ‘a certain amount of discovery is essential in order to determine the class action issue and the proper scope of a class action.’ ” 122
To be certified, a class must satisfy the following threshold requirements of Rule 23(a): (1) numerosity (a “class [so large] that joinder of all members is impracticable”); (2) commonality (“questions of law or fact common to the class”); (3) typicality (“named parties’ claims or defenses are typical ... of the class”); and (4) adequacy of representation (representatives “will fairly and adequately protect the interest of the class”). 123 In addition, the class must satisfy one of the grounds listed in Rule 23(b). 124 Rule 23(b)(3), which plaintiffs appear to rely on, allows the Court to certify a class if “questions of law or fact common to class members predominate over any questions affecting only individual members, and ... a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Because class members must opt out of a Rule 23 class action in order to preserve their individual claims, the standard for certification of a class action is stricter than the test for certification of an opt-in collective action under the FLSA. 125
At this stage of the proceedings, plaintiffs have sufficiently alleged that common questions predominate over individual questions. Plaintiffs seek to represent a class of “[a]ll persons who have performed installation and service of DirecTV satellite systems in the state of Louisiana.” 130 They allege that common questions of law and fact predominate over individual questions. 131 In particular, plaintiffs allege that the defendants engaged in a common “charge-back scheme” in which they made deductions from the paychecks of their installers and technicians in violation of Louisiana wage-and-hour and tort law. 132 Whether the defendants applied such a general policy presents a common question.
Defendants make a number of arguments against class certification, but these arguments are premature. Plaintiffs have not moved for class certification, and the record is not sufficiently developed for the Court to determine whether class certification would be appropriate.
133
Defendants argue, for example, that whether class members were employed by any or all of the defendants presents individual rather than common questions. Plaintiffs argue, however, that the DirecTV workforce is uniform throughout the state, and the degree оf control that DirecTV had over its technicians may be a common question.
134
Defendants also argue that individualized determinations of liability and damages will be required, but the Court presently lacks the information to evaluate that argument. Whether common questions will predominate over individual question depends upon how plaintiffs intend to prove their case, but plaintiffs are not required to present their trial plan in the complaint. Plaintiffs’ class action claims are not facially insufficient,
135
and the Court therefore
V. CONCLUSION
For the reasons stated, the Court DENIES plaintiffs’ motion to remand their state class action claims, GRANTS plaintiffs’ motion for leave to file an amended complaint, GRANTS IN PART and DENIES IN PART defendants’ motion to dismiss certain claims, and DENIES defendants’ motion to strike the class action claims.
Notes
. (R. Doc. 17.)
. (R. Doc. 19.)
. (R. Doc. 20.)
. (R. Doc. 38.)
. (R. Doc. 1, Ex. 1.)
. Id. at ¶ 22-27.
. La. R.S. 23:631, et seq.
. (R. Doc. 1, Ex. 1 at ¶ 28-43.)
. Id. atHl.
. (R. Doc. 1.)
. (R. Doc. 17.)
. (R. Doc. 19.)
.(R. Doc. 20.)
. (R. Doc. 38.)
. 28 U.S.C. § 1441(a).
.
See Allen v. R & H Oil & Gas Co.,
.
Frank v. Bear Steams & Co.,
.
City of Chicago
v.
International College of Surgeons,
. 28 U.S.C. 1367(a)(”(a) Except as provided in subsections (b) and (c) ... in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.”).
. 28 U.S.C. § 1441(a).
.
Eastus v. Blue Bell Creameries, L.P.,
.
American Fire & Casualty Ins. Co. v. Finn,
.
Eastus,
.
American Fire & Casualty Ins. Co.,
.
See American Fire & Casualty Co.,
.
See Eastus,
.
See, e.g., Saenz v. Austin Roofer’s Supply, LLC,
.See, e.g., Doll v. U.S. West Communications, Inc.,
.
Alexander v. Cannon Cochran Management Services, Inc.,
No. 09-4614,
. 28 U.S.C. 1367(c).
.
Smith v. Amedisys, Inc.,
.
United Mine Workers of America
v.
Gibbs,
.
Id.
at 726-27,
.
United Disaster Response, L.L.C.
v.
Omni Pinnacle, L.L.C.,
.
Mooney v. Aramco Servs. Co.,
. 29 U.S.C. § 216(b).
.
See LaChapelle v. Owens-Illinois, Inc.,
.
See Lehman v. Legg Mason, Inc.,
.
Lehman,
.See De Asencio v. Tyson Foods, Inc.,
.
See Bartleson,
.
See, e.g., McClain v. Leona's Pizzeria, Inc.,
.
Ansoumana,
. Fed.R.Civ.P. 15(a)(2);
see also High Tech Comm’s v. Panasonic Co.,
No. 94-1477,
.
See Jamieson By and Through Jamieson v. Shaw,
.
Stripling v. Jordan Prod. Co., LLC,
. Id.
. Id.
. (R. Doc. 38-3, ¶ 48-52.)
. Id. at ¶ 44-47.
.
See McCormick v. Festiva Development Group, LLC,
No. 09-365-P-S,
.
Ashcroft v. Iqbal,
— U.S. —,
.
Iqbal,
.
Lormand v. U.S. Unwired, Inc.,
.
Iqbal,
. Id.
.
Twombly,
.
Lormand,
.
Twombly,
.
Jones v. Bock,
. (R. Doc. 33.)
. (R. Doc. 1, ¶ 2.)
. 29 U.S.C. § 203(e)(1).
. Id. § 203(g).
.
Rutherford Food Corp. v. McComb,
331 U.S.
722,
728,
.
Hodgson v. Griffin Brand of McAllen, Inc.,
.
Hodgson,
.
See, e.g., Martin,
.
Rutherford,
.
Hodgson,
. (R. Doc. 8.)
See Xavier v. Belfor Group USA, Inc.,
. (R. Doc. 38, Ex. B, ¶ 5; Ex. C, ¶ 5.) These аllegations appear in the declarations of plaintiffs Christian Lang and Edward Dwayne Humphreys. Defendants argue that these declarations should not be considered for purposes of ruling on the motion to dismiss because they were not attached to the original complaint. However, plaintiffs’ have attached these documents to their amended complaint. (R. Doc. 38.) A document attached as “an exhibit to a pleading is a part thereof for all purposes.” Fed.R.Civ.P. 10(c). The Court will therefore consider the declarations at this time.
See Brown
v.
Fla. Dept. of Highway Safety and Motor
Vehicles, No. 4:09cv171-RS/WCS,
. (R. Doc. 38, Ex. B, ¶ 6-7; Ex. C, ¶ 6-7.)
. (R. Doc. 38, Ex. B, ¶ 3; Ex. C, ¶ 3.)
. (R. Doc. 38, Ex. C, ¶ 2.)
. Id.
. (R. Doc. 38, Ex. B, ¶ 4; Ex. C, ¶ 4.)
. (R. Doc. 1, Ex. 1, ¶ 17 and ¶ 18(H).)
. (R. Doc. 38-3, ¶ 50.)
.
See, e.g., Rutherford,
. (R. Doc. 1, Ex. 1, ¶ 18(H); R. Doc. 38-3, ¶ 56.)
. (R. Doc. 38, Ex. B, ¶ 1.)
. (R. Doc. 38, Ex. C, ¶ 1.)
. Id. at 50.
. (R. Doc. 38, Ex. B, ¶ 3; Ex. C, ¶ 3.)
. (R. Doc. 38-3, ¶ 44.)
. (R. Doc. 38, Ex. B, ¶ 13; Ex. C, ¶ 11.)
. (R. Doc. 38, Ex. B, ¶ 7; Ex. C, ¶ 7.)
. (R. Doc. 38, Ex. B, ¶ 3; Ex. C, ¶ 3.)
. (R. Doc. 38-3, ¶ 44.)
. Id.
.
Hoffmann-La Roche Inc. v. Sperling,
.
.
Mooney v. Aramco Services Co.,
. Id. at 1214.
. Id.
. Id.
.
Kuperman v. ICF Intern.,
No. 08-565,
.
Shushan v. University of Colorado,
.
Mooney,
.
Johnson v. Big Lots Stores, Inc.,
.
See Hoffman v. Cemex, Inc.,
No. H-09-3144,
.
Mooney,
.
Id.
at 1214 n. 8, quoting
Sperling v. Hoffmann-La Roche, Inc.,
.
Crain v. Helmerich and Payne Intern. Drilling Co.,
No. 92-0043,
. (R. Doc. 38-3, V 52.)
. (R. Doc. 1, Ex. 1, ¶ 14.)
. (R. Doc. 38-3, ¶ 50.)
. (R. Doc. 38-3, Ex. B, ¶ 17; Ex. C, ¶ 15.)
. Fed.R.Civ.P. 9(b).
.
Flaherty & Crumrine Preferred Income Fund, Inc.
v.
TXU Corp.,
.
Williams v. WMX Technologies, Inc.,
.
Conerly Corp. v. Regions Bank,
No. 08-813,
. (R. Doc. 1, ¶ 36.)
.
Tigue Investment Co., Ltd. v. Chase Bank of Texas, N.A.,
No. Civ.A. 3:03 CV 2490 N,
.
Ingalls v. Edgewater Private Equity Fund III, L.P., 2005
WL 2647962 (S.D.Tex. Oct 17, 2005), quoting
Glaser v. Enzo Biochem, Inc.,
.
See Dorsey
v.
Portfolio Equities, Inc.,
.
Hart v. Bayer Corp.,
. Defendants' argument that plaintiffs' class fraud and misrepresentation claims cannot meet Rule 23 is therefore moot, pending further amendment to the complaint.
.
See Aguilar v. Allstate Fire and Cas. Ins. Co.,
No. 06-4660,
.
John v. National Sec. Fire and Cas. Co.,
.
Stewart v. Winter,
.
Amchem Prods., Inc. v. Windsor,
.
Id.
at 614,
.
See Basco v. Wal-Mart Stores Inc.,
No. Civ.A. 00-3184,
.
Unger v. Amedisys Inc.,
.
Gene and Gene LLC v. BioPay LLC,
. Id.
. Id.
. (R. Doc. 1, Ex. 1, ¶ 38.)
. Id. at ¶ 43.
. Id. at ¶ 28 and ¶ 40(a).
.
See Pinero v. Jackson Hewitt Tax Service Inc.,
.
See Smith v. Cardinal Logistics Management Corp.,
No. 07-2104 SC,
.
See Doyel v. McDonald’s Corp., No. 4:08-
CV-1198 CAS,