United States District Court, S.D. Texas, Houston Division
RUSTY NICHOLS, individually and on behalf of all others similarly situated, Plaintiff,
SUPERIOR ENERGY SERVICES, LLC, Defendant.
MEMORANDUM AND OPINION GRANTING DISMISSAL, WITHOUT
ROSENTHAL, CHIEF UNITED STATES DISTRICT JUDGE.
Nichols sued Superior Energy Services, Inc. for violating the
Fair Labor Standards Act by paying him and other similarly
situated workers a fixed sum each week. (Docket Entry No. 1).
Nichols alleged that he routinely worked more than 40 hours
each work week but was not paid overtime for the additional
hours. Id. at 6. Nichols amended his complaint to
include Superior Energy Services, LLC. as a defendant.
(Docket Entry No. 11). Nichols dismissed Superior Energy,
Inc. by stipulation, but retained his Fair Labor Standards
Act claim against Superior Energy Services, LLC. (Docket
Entry No. 21). Before the stipulation was filed, Superior
Energy, Inc. moved to dismiss on two grounds: first, that it
was a holding company and not Nichols's employer; and
second, that Nichols had pleaded insufficient facts to
support his Fair Labor Standards Act claim. (Docket Entry No.
10). Superior Energy, LLC joined Superior Energy, Inc.'s
motion to dismiss and reply to Nichols's response.
(Docket Entry No. 16). Based on the pleadings, the motions,
the record, and the applicable law, Superior Energy LLC's
motion to dismiss is granted, because the amended complaint
does not sufficiently allege facts to state a claim under the
Fair Labor Standards Act. The dismissal is without prejudice
and with leave to amend, no later than May 18,
The Legal Standard
12(b)(6) allows dismissal if a plaintiff fails “to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) must be read in
conjunction with Rule 8(a), which requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a) (2). A complaint
must contain “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic
Corporation v. Twombly, 550 U.S. 544, 570 (2007). Rule 8
“does not require ‘detailed factual allegations,
' but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). “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.”
Id. (citing Twombly, 550 U.S. at 556).
“The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (citing Twombly, 550
U.S. at 556).
withstand a Rule 12(b)(6) motion, a “complaint must
allege ‘more than labels and conclusions, '”
and “a formulaic recitation of the elements of a cause
of action will not do.” Norris v. Hearst
Trust, 500 F.3d 454, 464 (5th Cir. 2007) (quoting
Twombly, 550 U.S. at 555). “Nor does a
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Iqbal , 556 U.S. at 678
(alteration in original) (quoting Twombly, 550 U.S.
at 557). “[A] complaint does not need detailed factual
allegations, but must provide the plaintiff's grounds for
entitlement to relief-including factual allegations that when
assumed to be true ‘raise a right to relief above the
speculative level.'” Cuvillier v. Taylor,
503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly,
550 U.S. at 555). “Conversely, when the allegations in
a complaint, however true, could not raise a claim of
entitlement to relief, this basic deficiency should be
exposed at the point of minimum expenditure of time and money
by the parties and the court.” Id. (quoting
Twombly, 550 U.S. at 558) (internal quotation marks
and alteration omitted).
plaintiff's complaint fails to state a claim, the court
should generally give the plaintiff a chance to amend the
complaint under Rule 15(a) before dismissing the action with
prejudice, unless it is clear that to do so would be
futile. See Carroll v. Fort James Corp., 470 F.3d
1171, 1175 (5th Cir. 2006) (Rule 15(a) “evinces a bias
in favor of granting leave to amend”); Great Plains
Trust Co. v. Morgan Stanley Dean Witter & Co., 313
F.3d 305, 329 (5th Cir. 2002) (“[D]istrict courts often
afford plaintiffs at least one opportunity to cure pleading
deficiencies before dismissing a case, unless it is clear
that the defects are incurable or the plaintiffs advise the
court that they are unwilling or unable to amend in a manner
that will avoid dismissal.”). A court may deny a motion
to amend for futility if an amended complaint would fail to
state a claim upon which relief could be granted.
Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 766
(5th Cir. 2016) (citing Stripling v. Jordan Productions
Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000)). The
decision to grant or deny leave to amend “is entrusted
to the sound discretion of the district court.”
Pervasive Software Inc. v. Lexware GMBH & Co.,
688 F.3d 214, 232 (5th Cir. 2012).
amended complaint, (Docket Entry No. 11), is more detailed
than the original. Superior Energy, LLC argues that it is
still not sufficient. (Docket Entry No. 15). The Fair Labor
Standards Act states that for “employees engaged in
interstate commerce . . . no 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 the hours above specified at a rate not less than
one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1). To show a
violation of the Fair Labor Standards Act's overtime
requirements, a plaintiff must allege facts that, if proved,
would show: (1) that he was employed by the defendant; (2)
that his work involved interstate activity; and (3) that he
performed overtime work for which he was undercompensated.
Coleman v. John Moore Servs., Inc., 2014 WL 51290,
at *2 (S.D. Tex. Jan. 7, 2014).
the Fifth Circuit has not yet addressed the type of
specificity required when pleading [a Fair Labor Standards
Overtime] claim, ” plaintiffs must allege more than
general, conclusory allegations that they have worked more
than 40 hours a week. Fernandez v. JaniKing Int'l,
Inc., 2018 WL 539364, at *4 (S.D. Tex. Jan. 8, 2018),
report and recommendation adopted sub nom. Fernandez v.
Jani-King Int'l, Inc., 2018 WL 542283 (S.D. Tex.
Jan. 23, 2018). In Dejesus v. HF Management Services,
LLC, 726 F.3d 85, 89 (2d Cir. 2013), the plaintiff
“alleged only that in ‘some or all weeks' she
worked more than ‘forty hours' a week without being
paid ‘1.5' times her rate of compensation.”
The Second Circuit upheld the dismissal because the complaint
merely tracked the Fair Labor Standards Act statutory
language, rephrased the § 207(a)(1) formulation, and did
not “estimate her hours in any or all weeks or provide
any other factual context or content.” Id. In
Pruell v. Caritas Christi, 678 F.3d 10, 12 (1st Cir.
2012), the plaintiffs alleged that they
“‘regularly worked' over 40 hours a week and
were not compensated for such time.” The First Circuit
held that the allegations, without examples or estimates of
unpaid time to substantiate the claim, were inadequate to
establish a Fair Labor Standards Act claim. Id. at
14 (“Yet even the amended complaint does not provide
examples (let alone estimates as to the amounts) of such
unpaid time for either plaintiff or describe the nature of
the work performed during those times.”). The court
[O]nce the complaint was amended to allege regular work by
plaintiffs and others of more than 40 hours a week, it now
described a mechanism by which the FLSA may have been
violated as to those who worked through their lunches.
But such persons could still have been properly compensated
under the FLSA: in particular, various forms of
“work” may not be not compensable. See
29 U.S.C. § 254(a) (non-“principal”
preliminary or postliminary work not compensable); 29 C.F.R.
§§ 785.27-785.32 (various types of training not
compensable); id. § 785.47 (insignificant time
beyond scheduled working hours not compensable).
Coleman, the court held that a complaint alleging
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” failed to state a Fair Labor Standards
Act claim. 2014 WL 51290, at *4. “[M]ore is required of
a plaintiff than an ‘all purpose pleading template'
with allegations providing no factual context and no way for
the court to determine that the plaintiff has stated a claim
as opposed to repeating the statutory elements of the cause
of action.” Id. The standard does not demand
“mathematical precision, ” but “it is
employees' memory and experience that lead them to claim
in federal court that they have been denied overtime in
violation of the [Fair Labor Standards Act] in the first
place. Our standard requires that plaintiffs draw on those
resources in providing complaints with sufficiently developed
factual allegations.” Id. (quoting
Dejesus, 726 F.3d at 90).
amended complaint is conclusory. It states that he regularly
worked more than 40 hours in a week, that Superior Energy
Services, LLC knew or should have known this, and that it did
not pay overtime for those hours. Id. at 2; (Docket
Entry No. 11 at ¶¶ 27-32). These allegations are
factual but uninformative. They do not state the pay period,
whether the putative class members clocked in and out or
otherwise had their time tracked, actual or estimated amounts
of unpaid time, the nature of the ...