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Trevino v. RDL Energy Services, L.P.

United States District Court, S.D. Texas, Houston Division

March 29, 2017

ALFONSO TREVINO, et al., Individually and On Behalf of All Persons Similarly Situated, Plaintiffs,



         Pending before the Court in the above referenced cause, brought by Plaintiffs who were at varying times employed as non-exempt day-rate employees with Defendant RDL Energy Services, L.P., a Texas staffing corporation operating throughout the United States, alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and seeking unpaid overtime compensation and reimbursement of expenses incurred on the employer's behalf for sums spent for the convenience of the employer under 29 C.F.R. § 778.217, are the following motions:

(1) Defendant Greene Energy Group, LLC's (“Greene's”) motion to dismiss Plaintiffs' Third Amended Complaint[1]pursuant to Fed. R. of Civ. Proc. 12(b)(6) (instrument #131);
(2) Defendant RDL Energy Services, LP's (“RDL's”) motion for clarification and/or reconsideration of Opinion and Order, [2] alternatively motion for leave to file a further amended answer, or motion to certify pursuant to 28 U.S.C. § 1292(b) and stay case (#133); and
(3) RDL's motion for leave to file its motion to dismiss and or for summary judgment (#134).

         Because the Court vacated the docket control schedule on August 23, 2016 (#138), stating it would reset the schedule after the Court resolved the pending motions, if appropriate, the circumstances motivating these motions in part have changed.

         I. Greene's Motion to Dismiss (#131)

         Greene's motion to dismiss the Third Amended Complaint rests on the same allegations, case law, and analysis that the Court applied when it dismissed Defendants Baker Hughes Process and Pipeline Services, LLC and Weatherford U.S., LP, alleged joint employers along with Greene's of Plaintiffs, under Rule 12(b)(6). See #130, entered on July 21, 2016. Greene insists the Third Amended Complaint contains no factual allegations plausibly showing that Greene employed any of them under the applicable, multi-factor “economics realities” test[3] to determine whether an employer-employee relationship exists between the parties and then to make out a facially plausible claim of multiple employer liability under the FLSA.

         In response, Plaintiffs emphasize that the dispositive motion deadline was June 1, 2016 and that Greene did not file the instant Rule 12(b)(6) motion to dismiss until July 25, 2016, one month before trial was set at the time, nor did it seek leave of Court to do so. Should the Court allow Greene to file the motion, it should still be denied because Plaintiffs have met the Twombly/Iqbal pleading standard of fair notice of their joint appointment and facts that satisfy the standards of the economic realities test. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009). For example Plaintiffs plead that RDL “provides workforces to oil and natural gas exploration companies” (#61 at ¶ 20), that “Baker Hughes, Weatherford, and Greene's controlled means of the work, provided the tools for the work, trained the Plaintiffs on their job duties, supervised Plaintiff's job duties, reported to RDL which Plaintiffs worked for them and when, and tracked the days that Plaintiffs showed up to work for them all the while reporting it back to RDL, ” and that “Defendants controlled the amount that Plaintiffs were paid by negotiating with RDL their day-rate.” Id. at ¶ 25.

         Greene replies that as with the Court's dismissal of Baker Hughes and Weatherford, the Third Amended Complaint fails to plead any facts specific to Greene that would establish that Greene was a joint employer under the FLSA. Greene also complains that Plaintiffs contend that Greene makes three “misguided” arguments: (1) Greene waived its opportunity to file a 12(b)(6) motion; (2) the dispositive deadline bars the filing of Greene's 12(b)(6) motion; and (3) the conclusory statement in their Third Amended Complaint sufficiently pleads joint employment. Regarding the first contention, Greene claims that a Rule 12(b)(6) motion has no deadline, and relief under a failure to state a claim cannot be “waived.” In footnote 29 of its Opinion and Order, the Court erroneously stated, “Unlike Baker Hughes and Weatherford, Greene[] did not file a motion to dismiss under Rule 12(b)(6) and thus waived its opportunity to do so.” Rule 12(h)(1) provides that a party can waive defenses listed under 12(b)(2)-(5), but Rule 12(b)(6) is not listed there. Rule 12(h)(2) states that “failure to state a claim upon which relief can be granted” can be raised in a pleading allowed under Rule 7(a), by motion under Rule 12(c), or “at trial.” Wright & Miller have pronounced that “failure to state a claim upon which relief can be granted . . . [is] preserved from the waiver mechanism by the express terms of subdivision (h).” 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1361 (3d ed. 1998)(updated April 2016).

         As for the second reason, Greene's 12(b)(6) motion is not by definition a dispositive motion because it does not seek a ruling on the merits, because Greene did not attach anything to it that would convert it to a motion for summary judgment under Rule 12(d), and because relief sought under Rule 12(b)(6) may be raised at trial according to Rule 12(h)(2)(C).

         Geene also insists that the third contention is wrong because, as this Court has already determined, the Third Amended Complaint fails to state a claim under a joint employer theory.

         Greene states that the reason he failed to file a motion to dismiss by the deadline was because until the Court issued its Opinion and Order, it was not clear whether Plaintiffs would be permitted to amend their Third Amended Complaint. Greene now seeks leave to amend and argues granting its motion will not prejudice Plaintiffs because the pretrial conference has not yet occurred, trial exhibits and witnesses have not yet been identified, motions in limine have not been filed, etc.

         The Court finds that because the motion deadline passed long ago and because the merits of the suit should be trial-ready at this point, allowing the filing of a 12(b)(6) motion at this late date would appear to be unfair to Plaintiffs. Instead, the Court denies Greene's motion to dismiss, but grants Greene leave, if it is able, to file a motion for summary judgment within twenty days of receipt of this Opinion and Order. If Greene does so, Plaintiffs shall ...

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