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Pickering v. Lorillard Tobacco Co., Inc.

United States District Court, M.D. Alabama, Northern Division
Jan 13, 2011
CASE NO. 2:10-CV-633-WKW[WO] (M.D. Ala. Jan. 13, 2011)

Summary

finding that a class of "sales representatives" who were "similarly situated to" the plaintiff was insufficient to meet the 12(b) standard because the complaint contained no factual basis to plausibly assert that the plaintiff and other employees were in fact similarly situated

Summary of this case from Huchingson v. Rao

Opinion

CASE NO. 2:10-CV-633-WKW[WO].

January 13, 2011


MEMORANDUM OPINION AND ORDER


Before the court are Defendant's Motion to Dismiss Collective Action or, in the Alternative, Motion for a More Definite Statement (Doc. # 6), and accompanying brief (Doc. # 7). The motions are filed pursuant to Rule 12(b)(6) and Rule 12(e) of the Federal Rules of Civil Procedure. Plaintiff filed a Response to the motion (Doc. # 15), to which Defendant replied (Doc. # 19). Based upon careful consideration of the arguments of counsel, the appropriate law and the Complaint's allegations, Defendant's motion to dismiss will be granted without prejudice, and the motion for a more definite statement (Doc. # 6) will be denied as moot.

I. JURISDICTION AND VENUE

The court properly exercises subject matter jurisdiction over this action, pursuant to 28 U.S.C. § 1331. Personal jurisdiction and venue are adequately pleaded and not contested.

II. STANDARDS OF REVIEW

A. Rule 12(b)(6)

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8: "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. "[F]acial plausibility" exists "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. at 1949 (citing Twombly, 550 U.S. at 556). Hence, the complaint need not set out "detailed factual allegations," but something "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action" is required. Twombly, 550 U.S. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.

B. Rule 12(e)

A party may "move for a more definite statement" under Rule 12(e) when a pleading is "so vague or ambiguous that the party cannot reasonably prepare a response." Fed.R.Civ.P. 12(e). District courts also have the "inherent authority to require the [plaintiff] to file a more definite statement" if not by Rule 12(e), then by their authority "to narrow the issues in the case in order to speed its orderly, efficient, and economic disposition." Fikes v. City of Daphne, 79 F.3d 1079, 1083 n. 6 (11th Cir. 1996).

III. FACTS

Plaintiff alleges that, while employed full-time by Defendant as a sales representative, Defendant did not pay him overtime for hours he worked beyond forty hours per week, in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a)(1). (Compl. ¶¶ 8-10.) He further avers that he was a non-exempt employee and was "performing the job functions and duties of a non-exempt employee." (Compl. ¶¶ 8, 11.) Plaintiff also seeks to bring a collective action under the FLSA, contending that both he and "all similarly situated employees" employed by Defendant are entitled to remedies provided under the FLSA. (Compl. ¶¶ 17, 18, 22, 23.)

IV. DISCUSSION

A. Rule 12(b)(6)

Defendant moves to dismiss the collective action component of Plaintiff's FLSA lawsuit. It argues that Plaintiff has failed to plead or define any attributes of the alleged similarly situated employees and that, therefore, the allegations fail to state a claim for relief as a collective action. (Def. Br. 1.)

"The FLSA authorizes collective actions against employers accused of violating the FLSA." Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1258 (11th Cir. 2008) (citing 29 U.S.C. § 216(b)); see also § 216(b) ("An action . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated."). "The FLSA itself does not define how similar the employees must be before the case may proceed as a collective action." Morgan, 551 F.3d at 1259. As set out in Morgan, the Eleventh Circuit has "not adopted a precise definition of the term." Id. It has, though, provided some clues. The employees should be "'similarly situated' with respect to their job requirements and with regard to their pay provisions." Id. (quoting Dybach v. State of Fla. Dep't of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991)). However, the positions need not be identical, only similar. Id. at 1260 (citing Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996)).

Applying these principles in light of the pleading standards established in Twombly and Iqbal, the court finds that the collective action allegations lack the level of factual specificity required to survive a Rule 12(b)(6) motion. That he worked as a full-time "sales representative" is the only detail provided in the Complaint about Plaintiff's job. (Compl. ¶ 8.) This is a job title, but not a job description. The allegation that Plaintiff performed the "functions and duties of a non-exempt employee" is conclusory and reveals nothing about Plaintiff's actual job duties as a "sales representative." See 29 C.F.R. § 541.2 ("A job title alone is insufficient to establish the exempt status of an employee. The exempt or nonexempt status of any particular employee must be determined on the basis of whether the employee's salary and duties meet the requirements of the regulations in this part."). There simply are no allegations revealing what Plaintiff did when he reported to work.

Moreover, there is no description of the job duties (or even the job titles) of the proposed similarly situated employees in the Complaint. In his response brief, Plaintiff says that the similarly situated employees also were "sales representatives." (Doc. # 15, at 5.) This is the first time Plaintiff has identified the job title of the other employees allegedly similarly situated. A job description nonetheless remains missing, and in any event, pleading deficiencies cannot be cured in a brief. See GJR Investments, Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1368 (11th Cir. 1998) (rejecting plaintiff's attempt to correct the complaint's deficiencies in arguments made in a brief), overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701 (11th Cir. 2010)). Nor are there any allegations concerning the similarly situated employees' pay provisions. Plaintiff merely seeks relief on behalf of "all similarly situated employees." This phrase is a legal conclusion and, absent some factual elaboration, is insufficient to satisfy Twombly's and Iqbal's pleading bar. See Iqbal, 129 S. Ct. at 1949 (One of the "working principles under[lying] [the] decision in Twombly" is "that the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." (citing Twombly, 550 U.S. at 555)).

In sum, the Complaint contains no factual basis by which to assess whether Plaintiff and the other employees are similarly situated. In the absence of any detail, Plaintiff has not sufficiently alleged an action on behalf of others similarly situated.

Plaintiff will be permitted, however, to file a motion to amend his Complaint to replead the FLSA collective action allegations. The motion must set forth the substance of the proposed amendment, see Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999), and the original of the amended complaint shall be attached to the motion, see M.D. Ala. LR 15.1 (Dec. 1, 2010). Leave to amend will be "freely given" to Plaintiff if "justice so requires." Fed.R.Civ.P. 15(a)(2).

B. Rule 12(b)(6)

The foregoing conclusions obviate the necessity to discuss Defendant's alternative Motion for a More Definite Statement, filed pursuant to Rule 12(e). The alternative motion, therefore, will be denied as moot.

V. CONCLUSION

For the foregoing reasons, Defendant's Motion to Dismiss Collective Action (Doc. # 6) is GRANTED. The individual claims brought by Plaintiff remain, but the FLSA collective action allegations are DISMISSED without prejudice. Plaintiff is GRANTED leave to and including January 25, 2011, to file a motion to amend the complaint, consistent with the directives herein.

It is further ORDERED that Defendant's alternative Motion for a More Definite Statement (Doc. # 6) is DENIED as moot.

DONE this 13th day of January, 2011.

A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST

1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4

Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).


Summaries of

Pickering v. Lorillard Tobacco Co., Inc.

United States District Court, M.D. Alabama, Northern Division
Jan 13, 2011
CASE NO. 2:10-CV-633-WKW[WO] (M.D. Ala. Jan. 13, 2011)

finding that a class of "sales representatives" who were "similarly situated to" the plaintiff was insufficient to meet the 12(b) standard because the complaint contained no factual basis to plausibly assert that the plaintiff and other employees were in fact similarly situated

Summary of this case from Huchingson v. Rao

dismissing collective action where "there [was] no description of the job duties (or even the job titles) of the proposed similarly situated employees in the Complaint."

Summary of this case from Lobo v. Sprint Safety, Inc.

In Pickering, the Middle District of Alabama dismissed claims on behalf of the named plaintiff and the purportedly similarly situated employees.

Summary of this case from Zanders v. Wells Fargo Bank N.A.

dismissing collective action where “there [was] no description of the job duties (or even the job titles) of the proposed similarly situated employees in the Complaint”

Summary of this case from Flores v. Act Event Servs., Inc.

In Pickering, the plaintiff alleged that he was employed as a "sales representative," and provided "no description of the job duties (or even the job titles) of the proposed similarly situated employees in the Complaint."

Summary of this case from Dyer v. Lara's Trucks, Inc.
Case details for

Pickering v. Lorillard Tobacco Co., Inc.

Case Details

Full title:JAMES PICKERING, JR., Plaintiff, v. LORILLARD TOBACCO CO., INC., Defendant

Court:United States District Court, M.D. Alabama, Northern Division

Date published: Jan 13, 2011

Citations

CASE NO. 2:10-CV-633-WKW[WO] (M.D. Ala. Jan. 13, 2011)

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