Summary
stating that although affidavits of other similarly situated employees "would help make the initial determination of a collective action easier, the Court does not believe that it is required"
Summary of this case from Chapman v. LHC Grp., Inc.Opinion
Civil Action No: SA-04-CA-0893-XR.
January 7, 2005
ORDER
On this date the Court considered (1) Defendant's Motion to Dismiss (docket no. 8), and (2) Defendant's Motion for a More Definite Statement (docket no. 9). Plaintiff has filed this case as a purported collective action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), claiming that he and similarly situated employees of Defendant were forced to work "volunteer" hours and on-call duty hours without pay. The Court finds that Plaintiff's complaint is sufficient to state a claim and to meet the requirements of FED. R. CIV. P. 8 and 9. Accordingly, the Court DENIES Defendant's motions (docket nos. 8 9). The Court also GRANTS Plaintiff's implied motion to conditionally certify Plaintiff's action as a collective action under 29 U.S.C. § 216(b).
I. Background
Plaintiff was employed as an Emergency Medical Technician ("EMT") by Defendant from January 1, 2001 until approximately June 30, 2004. During this time Plaintiff was a nonexempt, hourly paid employee. Plaintiff alleges that he, as well as other EMTs, were required by Defendant to work numerous shifts and hours with no compensation. Plaintiff alleges that Defendant referred to these hours as "volunteer time." According to Plaintiff, during these hours he was required to perform the same duties he typically performed during his normal work days. In addition, Plaintiff alleges that he, as well as other EMTs, were required to be "on-call" without compensation. Plaintiff complains that due to this requirement, he was not able to use his time as his own.
Plaintiff filed his "Original Collective Action Complaint" on October 5, 2004. Plaintiff purports to establish himself as the representative plaintiff in a collective action under § 16(b) of the Fair Labor Standards Act. 29 U.S.C. § 216(b). Defendant has filed a motion to dismiss for failure to state a claim and a motion for more definite statement.
II. Standard of Review
In considering a motion to dismiss, the Court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The issue is not whether the plaintiff will prevail but whether the plaintiff is entitled to pursue his complaint and offer evidence in support of his claims. Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996). The Court may not look beyond the pleadings in ruling on the motion. Baker, 75 F.3d at 196. Motions to dismiss are disfavored and are rarely granted. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). Dismissal should not be granted "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. at 164 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). However, the Court does not accept conclusory allegations or unwarranted deductions of fact as true. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
A Rule 12(e) motion for more definite statement is "proper only when the pleading to which it is addressed is so vague that it cannot be responded to." CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE PROCEDURE § 1377, at 340-41 (3d ed. 2004). The ability of the movant to prepare a responsive pleading should be measured in terms of the minimal duty imposed on it. Id. Rule 12(e) motions are disfavored. DVI Business Credit Corp. v. Crowder, 193 F. Supp.2d 1002, 1009 (S.D. Tex. 2002). "In view of the great liberality of FED.R.CIV.P. 8, permitting notice pleading, it is clearly the policy of the Rules that Rule 12(e) should not be used to frustrate this policy by lightly requiring a plaintiff to amend his complaint which under Rule 8 is sufficient to withstand a motion to dismiss." Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959). In reviewing a motion for a more definite statement, the Court will deny the motion where the moving party can reasonably respond to the pleading. Id. A motion for a more definite statement may not be used as a substitute for discovery. Nebout v. City of Hitchcock, 71 F. Supp.2d 702, 706 (S.D. Tex. 1999).
III. Analysis
As to the motion to dismiss, Defendant apparently seems to center on the statute of limitations under the FLSA. Defendant attempts to put forward certain dates as the beginning and end points of Plaintiff's employment. However, a Rule 12(b)(6) motion is dependent on the allegations in the plaintiff's complaint. Plaintiff's Complaint sufficiently states a claim, which if proven, would be within the statute of limitations. The statute of limitations is an affirmative defense that is properly addressed on summary judgment rather than a motion to dismiss. Defendant's argument as to the motion to dismiss is based on evidentiary matters that are not proper for resolution at this time. Consequently, the motion to dismiss is DENIED.
As to the motion for a more definite statement, Defendant's primary complaints are that Plaintiff uses the general description of "volunteer" work to describe part of his claim, that Plaintiff does not specify the dates, times, and description of the alleged volunteer work, and Plaintiff does not specify the other "similarly situated" employees. Rule 8 requires only a short and plain statement in the plaintiff's complaint. It does not require a plaintiff to detail in depth the specific dates, times, and description of the alleged injury. Plaintiff alleges that Defendant required him, and other nonexempt, hourly paid EMTs, to work "volunteer" hours without compensation. There is nothing so vague about this allegation that Defendant cannot reasonably respond. Plaintiff's allegation clearly states that he was required by Defendant to perform his normal duties without compensation. Discovery will likely bear out whether Plaintiff's allegations have merit. However, Plaintiff's allegations are sufficient in and of themselves to meet the requirements of Rule 8. Similarly, that Plaintiff does not specify the other similarly situated employees is not fatal to his claim. In a FLSA collective action, the employer is initially in the better position to provide names of similarly situated employees. See Hoffman-La Roche v. Sperling, 493 U.S. 165, 170 (1989). A purported collective action is not defective because it does not initially identify other similarly situated employees (however helpful that might be). Accordingly, Defendant's motion for a more definite statement is DENIED.
The remaining issue, which has not been raised by either party, is that a collective action under the FLSA should be initially certified by the Court, rather than automatically initiated by the plaintiff. 29 U.S.C. § 216(b) permits an employee to bring an action against her employer "[on] behalf of [her]self . . . and other employees similarly situated." However, "[n]o employee shall be a party plaintiff to such an action unless he gives his consent in writing to become a party and such consent is filed in the court in which such action is brought." Id. Therefore, unlike a Rule 23 class action allowing plaintiffs to "opt out" of the class, a § 216(b) plaintiff must first "opt in" to the class. A representative plaintiff cannot automatically join similarly situated persons.
Determining whether a claim should go forward as a collective action under 29 U.S.C. § 216(b) has generally been viewed as requiring one of two analyses. One method of analysis is the two-stage approach of Lusardi v. Xerox Corp., 118 F.R.D. 351, 359 (D.N.J. 1987). Under the two-stage approach, the District Court should initially determine, based on the pleadings and affidavits, whether notice of the action should be given to potential class members. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995). This initial determination is not demanding and will generally result in conditional certification of a representative class, to whom notice is sent and who receive an opportunity to "opt in." Id. at 1214. The case then proceeds through discovery as a representative action. Id. Once discovery is completed, the defendant will typically file a motion for decertification. At this second stage of the analysis, the District Court should make a factual determination as to whether the putative class members are similarly situated. Id. If so, then the representative action may proceed; if not, then the class should be decertified, the opt-in plaintiffs dismissed, and the class representatives should be allowed to proceed on their individual claims. Id.; Johnson v. TGF Precision Haircutters, Inc., 319 F. Supp.2d 753, 754-55 (S.D. Tex. 2004). The other method of analysis it to treat the collective action determination as coextensive with the class action determination under FED.R.CIV.P. 23. See LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir. 1975) (noting that Rule 23 and § 216(b) are "mutually exclusive and irreconcilable"). The two-stage approach seems to be the method of analysis more generally accepted and is the one that the Court will apply in this case.
Under the two-stage approach, the Court should make an initial determination as to whether notice of the plaintiff's action should be given to potential class members. Plaintiff has not provided any affidavits as to the names of other similarly situated employees. While this would help make the initial determination of a collective action easier, the Court does not believe that it is required where the Complaint sufficiently addresses a collective action. Plaintiff's Complaint is likely at the outer bounds of what should be presented to the Court when initiating a collective action — which should normally contain some evidence, such as affidavits from other employees, that there are similarly situated plaintiffs. However, the Court finds that Plaintiff's Complaint sufficiently states a claim against Defendant as to all nonexempt, hourly paid EMTs who were allegedly required to perform their regular services without compensation and who were not paid compensation for on-call time when they were required to receive payment. The Court finds no disadvantage to either side in conditionally certifying this case as a collective action. Other than Plaintiff, no other employee is a member of the collective action until that employee files a written consent with the Court. 29 U.S.C. § 257; Allen v. Atlantic Richfield Co., 724 F.2d 1131, 1135 (5th Cir. 1984). Therefore, the statute of limitations continues to run as to all similarly situated employees until the written consent is filed. Atkins v. General Motors Corp., 701 F.2d 1124, 1130 n. 5 (5th Cir. 1983). The initial certification allows the Court to bring this case into the first, notice stage of the two-stage analysis and allows the Court to move the case forward by ordering discovery of the names and addresses of similarly situated plaintiff. Therefore, the Court conditionally GRANTS Plaintiff's implied motion for certification of this case as a collective action and ORDERS that Defendant provide to Plaintiff the names and addresses of all nonexempt, hourly paid EMTs employed by Defendant since January 1, 2001 within twenty (20) days from the date of this Order. See Barnett v. Countrywide Credit Indus., Inc., No. Civ.A.3:01-CV-1182-M, 2002 WL 1023161 (N.D. Tex. May 21, 2002).
IV. Conclusion
Plaintiff has filed a purported collective action under the Fair Labor Standards Act, seeking relief for himself and similarly situated employees of Defendant for hours they were allegedly required to work without compensation. Plaintiff refers to these hours as "volunteer" and "on call" hours. Defendant has moved for dismissal and for a more definite statement. The Court finds that Plaintiff's Complaint sufficiently states a claim for which relief can be granted under the FLSA. Accordingly, Defendant's motion to dismiss is DENIED (docket no. 8). The Court also finds that Plaintiff's allegations that he and other similarly situated EMTs were required to perform their normal duties without compensation and were required to be "on call" without compensation are not vague and can reasonably be responded to. Plaintiff is not required to specify the date, time, and description of each alleged injury; this can be examined through discovery. Consequently, Defendant's motion for a more definite statement is DENIED (docket no. 9).
In addition, the Court finds that Plaintiff's Original Collective Action Complaint contains an implied motion to certify the case as a collective action under 29 U.S.C. § 216(b). Though Plaintiff has not detailed the names of any other similarly situated employees, and has not provided affidavits or any other evidence from similarly situated employees — which would have been helpful — the Court finds that Plaintiff's Complaint is sufficient to allow an initial conditional certification of the case as a collective action. To facilitate the progression of this case through a final determination of the collective action status, the Court ORDERS Defendant to provide Plaintiff with the names and addresses of all nonexempt, hourly paid EMTs employed by Defendant since January 1, 2001 within twenty (20) days of the date of this Order.