United States District Court, S.D. Texas, Houston Division
H. Miller United States District Judge
Pending before the court is a motion to dismiss filed by
defendant MSF Electric, Inc. (“MSF”). Dkt. 10.
Plaintiff Faustino Saucedo responded. Dkt. 11. MSF did not
file a reply. Having considered the motion, response, and
applicable law, the court is of the opinion that the motion
to dismiss should be DENIED.
a Fair Labor Standards Act (FLSA) case. Dkt. 1. Saucedo filed
this FLSA suit against his former employer, MSF, to recover
unpaid overtime for himself and for other similarly situated
employees. Id. at 1. MSF moves to dismiss
under 12(b)(6) of the Federal Rules of Civil Procedure. Dkt.
10 at 1.
alleges he worked for MSF as an electrician and foreman from
November 2016 until June 2017. Dkt. 1 at 2. There,
he performed electrical work, supervised other electricians,
supervised projects at job sites, ordered work materials, and
organized those materials. Id.
undisputed that Saucedo was a non-exempt employee. Dkts. 1 at
2, 10 at 3. MSF paid him on an hourly basis and the same
hourly rate for all hours worked. Dkt. 1 at 2. However, he
was “not paid at all for the hours he worked over forty
in a workweek (‘off-the-clock.')”
Id. In particular, MSF “failed to pay
[Saucedo] the required overtime premium in every workweek
that [Saucedo] was employed by [MSF] in which [Saucedo]
worked in excess of 40 hours.” Id. at 3.
Saucedo alleges that MSF is not exempt from paying him for
that time. Id. Saucedo alleges that MSF paid
similarly situated employees in the same way. Id. at
2-3. He also alleges that MSF “has not made a good
faith effort to comply with the FLSA.” Id. As
a result, MSF “knowingly, willfully, or with reckless
disregard carried out its illegal pattern or practice
regarding overtime compensation” as to Saucedo.
8(a)(2) of the Federal Rules of Civil Procedure requires that
the pleading contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). A party against whom
claims are asserted may move to dismiss those claims when the
nonmovant has failed “to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6).
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
plead “‘enough facts to state a claim to relief
that is plausible on its face.'” In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955 (2007)). “Factual allegations must
be enough to raise a right to relief above the speculative
level on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (citations omitted). While
the allegations need not be overly detailed, a
plaintiff's pleading must still provide the grounds of
his entitlement to relief, which “requires more than
labels and conclusions, ” and “a formulaic
recitation of the elements of a cause of action will not
do.” Id.; see also Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937 (2009). “[C]onclusory
allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to
dismiss.” Blackburn v. City of Marshall, 42
F.3d 925, 931 (5th Cir. 1995). Instead, “[a] claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. Evaluating a motion to
dismiss is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Id. at 679. “Ultimately, the
question for a court to decide is whether the complaint
states a valid claim when viewed in the light most favorable
to the plaintiff.” NuVasive, Inc. v. Renaissance
Surgical Ctr., 853 F.Supp.2d 654, 658 (S.D. Tex. 2012).
the FLSA, employers must pay overtime compensation to
non-exempt employees for each hour worked beyond forty hours
per week. 29 U.S.C. § 207(a)(1) (“[N]o employer
shall employ any of his employees . . . for a workweek longer
than forty hours unless such employee receives compensation
for his employment in excess of [forty hours] at a rate not
less than one and one-half times the regular rate at which he
is employed”). “To show a violation of the
FLSA's overtime requirements, a plaintiff must allege (1)
that he was employed by the defendant; (2) that his work
involved interstate activity; and (3) that he performed work
for which he was undercompensated.” Coleman v. John
Moore Servs., Inc., Civil Action No. H-13-2090, 2014 WL
51290, *1, *3 (S.D. Tex. Jan. 7, 2014) (Rosenthal, J.).
Coleman, an electrician sued his former employer for
failing to pay overtime. Id. at *1. Coleman
analyzed First and Second Circuit authority to grant the
employer's motion to dismiss without prejudice and with
leave to amend after finding the electrician's
allegation's inadequate. Id. (analyzing
DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 89 (2d
Cir. 2013) and Pruell v. Caritas Christi, 678 F.3d
10, 13 (1st Cir. 2012). There, the court noted that
“[t]he complaint merely allege[d] that during one or
more weeks of Plaintiff's employment, Plaintiff worked in
excess of forty (40) hours and that during one or more weeks
Defendant failed to pay Plaintiff the overtime rate.”
Id. at *4. And, Coleman distinguished its
outcome from Hoffman because the latter provided
“some additional factual context for their claim”
Id. (citing Hoffman v. Cemex, Inc., Civil
Action No. H-09-3144, 2009 WL 4825224, at *1 (S.D. Tex. Dec.
8, 2009) (Rosenthal, J.)).
Hoffman, the district court denied an employer's
12(b)(6) motion to dismiss FLSA claims made by two
technicians to recover unpaid overtime. Hoffman,
2009 WL 485224, at *3. There, the technicians alleged that
they “were classified as nonexempt, that they regularly
worked more than 40 hours per workweek, and that they wer not
paid time-and-a half for those overtime hours.” Id.
Hoffman held that “those are all factual
allegation[s]-not legal conclusions-and, if proven, they give
rise to a plausible claim for relief.” Id.
support of that finding, Hoffman cited Qureshi
v. Panjwani, Civil Action No. H-08-3154, 2009 WL
1631798, at *3 (S.D. Tex. June 29, 2009) (Rosenthal, J.)
(granting store clerks leave to amend their complaint).
Qureshi held that a store clerks plead sufficient
allegations to state a claim to recover overtime pay when
they alleged the defendants employed them, that they did work
ordinarily performed by ...