Gandy v. RWLS, LLC

308 F.Supp.3d 1220

Rick GANDY, Plaintiff,

v.RWLS, LLC, d/b/a/ Renegade Services, and Matthew Gray, Individually, Defendants.

No. 2:17–cv–00558 JCH–CG

United States District Court, D. New Mexico.

Filed April 23, 2018

Jesse Hamilton Forester, J. Derek Braziel, Lee & Braziel LLP, Jack L. Siegel, Siegel Law Group PLLC, Dallas, TX, for Plaintiff.

Ellen S. Casey, Jaclyn M. McLean, Hinkle, Hensley, Shanor & Martin LLP, Santa Fe, NM, Brian S. Walsh, Pro Hac Vice, Law Offices of Brian S. Walsh, Levelland, TX, Christian Antkowiak, Pro Hac Vice, Curtis Schaffner, Pro Hac Vice, Buchanan Ingersoll & Rooney PC, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION AND ORDER

Judith C. Herrera, United States District Judge

On June 22, 2017, Defendants filed a Motion to Dismiss Plaintiff's Individual and Class Claims (ECF No. 12). The Court, having considered the motion, briefs, pleadings, and applicable law, concludes that the motion should be denied.

I. FACTUAL ALLEGATIONS

Plaintiff Rick Gandy worked for Defendants RWLS, LLC, and its president, Matthew Grey (collectively, "Defendants"), as an operator and rigger in New Mexico from approximately November 2014 to June 2015. Compl. ¶¶ 1, 4, ECF No. 1. RWLS, LLC, headquartered in Texas, is an oilfield service company that provides wireline and other oilfield services to customers.

Id. ¶ 6. As a Field Employee, Plaintiff's primary job duties consisted of performing technical and manual labor to provide Defendants' products and services for customers at job sites. Id. ¶ 18. During his employment, Plaintiff reported to Defendants' Hobbs, New Mexico location. Id. ¶ 4.

According to the complaint, "Defendants regularly scheduled Plaintiff to work for a minimum of twelve (12) hours per day and a minimum of eighty-four (84) hours per week during his employment." Id. ¶ 24. "Despite Plaintiff routinely working over 80 hours per week, Defendants failed to pay him any overtime premium for all hours worked in excess of 40 per workweek during the time period Plaintiff received compensation on a salary or salary plus non-discretionary bonus basis." Id. ¶ 25. Defendants misclassified Plaintiff as exempt and paid him on a salary or salary-plus-bonus basis with no overtime pay for his many hours of overtime work. Id. ¶ 26.

Plaintiff brings his wage claim as a Rule 23 class action on behalf of the "NM Class Members," all of Defendants' Field Employees who received pay on a salary or salary plus non-discretionary bonus basis who worked in excess of 40 hours in at least one workweek in New Mexico over the past three years. Id. ¶ 5. According to the complaint, "Defendants regularly scheduled the Class Members to work for a minimum of twelve (12) hours per day and a minimum of eighty-four (84) hours per week." Id. ¶ 36. "Despite the NM Class Members routinely working over 40 hours per week, Defendants failed to pay the NM Class Members any overtime premium for all hours worked in excess of 40 per workweek during the time period the NM Class Members received compensation on a salary or salary-plus-bonus basis." Id. ¶ 37. Defendants misclassified the NM Class Members as exempt and paid them on a salary or salary-plus-bonus basis with no overtime pay for their many hours of overtime work. Id. ¶ 38.

Plaintiff alleges that Defendants violated the New Mexico Minimum Wage Act ("NMMWA"), N.M. Stat. Ann. § 50–4–22(D), by misclassifying him and the other NM Class Members as exempt from overtime and by failing to pay him and other NM Class Members overtime compensation at a rate of time-and-one-half for all hours worked in excess of 40 in an individual workweek.

II. LEGAL STANDARD

On a motion to dismiss, the court assesses the legal sufficiency of the allegations contained within the four corners of the complaint. Archuleta v. Wagner , 523 F.3d 1278, 1281 (10th Cir. 2008). Rule 8 requires the complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The court accepts as true all well-pleaded facts, viewing them in the light most favorable to the nonmoving party and allowing all reasonable inferences in favor of the nonmoving party. Archuleta , 523 F.3d at 1283. The court "should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable." Kansas Penn Gaming, LLC v. Collins , 656 F.3d 1210, 1214 (10th Cir. 2011). The complaint "does not need detailed factual allegations," but "a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

III. ANALYSIS

Defendants move to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6) and 12(f) on two grounds: (i) failure to plead sufficient facts to support a reasonable inference that Plaintiff received less than the overtime pay due; and (ii) the case cannot proceed as a matter of law as a Rule 23 class action, but must be pursued as a collective action.

According to the NMMWA, an "employee shall not be required to work more than forty hours in any week of seven days, unless the employee is paid one and one-half times the employee's regular hourly rate of pay for all hours worked in excess of forty hours." N.M. Stat. Ann. § 50–4–22(D). The NMMWA "establishes a floor below which employers cannot pay employees wages and also requires the payment of time and a half for work in excess of a forty-hour workweek." Armijo v. Wal–Mart Stores, Inc. , 2007-NMCA-120, ¶ 47, 142 N.M. 557, 168 P.3d 129 (quotations omitted). Any "one or more employees for and on behalf of the employee or employees and for other employees similarly situated" may bring a lawsuit for relief under the NMMWA. N.M. Stat. Ann. § 50–4–26(D).

A. Sufficiency of Allegations to Support Plaintiff's Cause of Action

Defendants argue that Plaintiff is required to identify a specific workweek in which he worked more than 40 hours and was denied overtime pay. This Court has rejected this argument in a similar case brought under the Fair Labor Standards Act, 29 U.S.C. §§ 201 to 219 ("FLSA"). See Tapia v. DIRECTV, Inc. , No. Civ. 14cv939–JCH–GBW, Mem. Op. and Order 8–10, 2016 WL 9777179 (ECF No. 43, filed June 22, 2016) (refusing to dismiss FLSA case under Rule 12(b)(6) for failure to state a claim where plaintiffs alleged in complaint that they "routinely worked more than 40 hours per week" and spent in excess of 50 to 60 hours per week performing tasks for the benefit of Defendants, many of those hours unpaid, despite that plaintiff failed to allege specific workweek).

Following this Court's decision in Tapia , the Tenth Circuit issued an unpublished opinion in ElHelbawy v. Pritzker , 663 Fed.Appx. 658 (10th Cir. Oct. 13, 2016), upon which Defendants rely. The Tenth Circuit cited Landers v. Quality Communications, Inc. , 771 F.3d 638, 644–45 (9th Cir. 2014), for the proposition that to survive Rule 12(b)(6) dismissal, 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." Pritzker , 663 Fed.Appx. at 663. The actual holding of the Pritzker case was limited, however, because the plaintiff there failed to even state that she "worked more than 40 hours in any week or that, if she did, she was not paid overtime for those hours." Id. Pritzker does not resolve whether the Tenth Circuit would also have required an allegation of a specific workweek, even if the above details had been included. The parties agree that the Tenth Circuit has yet to adopt a specific approach for determining the level of detail needed in an FLSA or NMMWA claim to overcome a Rule 12(b)(6) motion.

The Landers case upon which the Tenth Circuit relied held that the plaintiff failed to state a claim because he failed to provide "any detail regarding a given workweek" in which he worked more than 40 hours and was not paid for overtime in that week. Landers , 771 F.3d at 646. Nor did he give sufficient detail about the length and frequency of his unpaid work to support a reasonable inference that he worked more than 40 hours in a given week. Id. As the Ninth Circuit stated: "Although plaintiffs in these types of cases cannot be expected to allege ‘with mathematical precision,’ the amount of overtime compensation owed by the employer, they should be able to allege facts demonstrating there was at least one workweek in which they worked in excess of forty hours and were not paid overtime wages." Id. (quoting Dejesus v. HF Management Services, LLC , 726 F.3d 85, 90 (2d Cir. 2013) ). The Ninth Circuit, however, declined to impose the requirement that a plaintiff must approximate the number of hours worked without compensation, but at minimum, the "plaintiff must allege at least one workweek when he worked in excess of forty hours and was not paid for the excess hours in that workweek." Id.

Turning to other out-of-circuit authority, the circuits are divided as to the level of detail required to state a claim. See Hall v. DIRECTV, LLC , 846 F.3d 757, 776 (4th Cir. 2017) (and cited cases). The First, Second, and Third Circuits have adopted an approach "requiring plaintiffs only to ‘sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.’ " Id. (quoting Lundy v. Catholic Health Sys. of Long Island Inc. , 711 F.3d 106, 114 (2d Cir. 2013), and citing Davis v. Abington Mem. Hosp. , 765 F.3d 236, 241–43 (3d Cir. 2014) (adopting Lundy standard); Landers , 771 F.3d at 644–45 (same); Manning v. Bos. Med. Ctr. Corp. , 725 F.3d 34, 46–47 (1st Cir. 2013) ). The Eleventh Circuit, in an unpublished opinion, has held that extensive pleading is not usually necessary and that a plaintiff states a claim where there are allegations that the defendant repeatedly violated the FLSA by failing to pay covered employees minimum hourly...