French v. Louisiana Cleaning Systems Inc. et al, No. 2:2016cv00277 - Document 41 (E.D. La. 2016)
Court Description: ORDER denying 15 Motion to Certify Class; granting in part and denying in part 20 Motion to Dismiss for Failure to State a Claim; denying 25 Motion to Strike ; granting in part and denying in part 27 Motion to Dismiss. Signed by Judge Jay C. Zainey on 6/14/16. (jrc)
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French v. Louisiana Cleaning Systems Inc. et al Doc. 41 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA CHRISTOPHER FRENCH CIVIL ACTION VERSUS NO: 16-277 LOUISIANA CLEANING SYSTEMS, INC., ET AL. SECTION: "A" (5) ORD ER AN D REAS ON S The following m otions are before the Court: Mo tio n to Co n d itio n ally Ce rtify a Co lle ctive Actio n Pu rs u a n t to th e FLSA ( Re c. D o c. 15) and Mo tio n to Strike ( Re c. D o c. 2 5) filed by plaintiff Christopher French; Mo tio n to D is m is s Pu rs u an t to Ru le 12 ( b) ( 6 ) ( Re c. D o c. 2 0 ) filed by defendant The Scott Fetzer Com pany d/ b/ a The Kirby Com pany; Mo tio n to D is m is s Pu rs u a n t to Ru le 12 ( c) ( Re c. D o c. 2 7) filed by defen dants Louisiana Cleaning System s, Inc. and Charles Nugent. The m otions, noticed for subm ission on May 18, 20 16, and J une 1, 20 16, are before the Court on the briefs without oral argum ent. 1 I. Defendant The Scott Fetzer Com pany d/ b/ a The Kirby Com pany (“Kirby”) m anufactures “Kirby” brand hom e cleaning system s and vacuum s. Kirby does not sell its 1 Oral argum ent has been requested but the Court is not persuaded that it would be helpful in light of the issues presented. Page 1 of 10 Dockets.Justia.com vacuum cleaning system s directly to consum ers; rather, Kirby sells the system s to independent distributors, who in turn retain sales forces of Indepen dent Dealers to sell system s to custom ers. Defendant Louisiana Cleaning System s, Inc. (“LCS”), which is located in Kenner, Louisiana an d owned by defendant Charles Nugent, is one such distributor. Plaintiff Christopher French was an Independent Dealer/ Kirby vacuum salesm an for two weeks in Novem ber-Decem ber 20 14. French contends that his duties and responsibilities in cluded inter alia attending a m ulti-day training session an d m andatory pep rally. French contends that he was never paid for the week spen t in m andatory training. The crux of French’s com plaint, however, is that he was wrongfully characterized as an independent contractor when he should have been considered an “em ployee.” French seeks to represent an FLSA2 collective class of Kirby/ LCS “em ployees” who were denied both wages and overtim e pay under federal law. French also asserts a plethora of supplem ental state law claim s. French now m oves the Court to conditionally certify this m atter as a collective action pursuant to 29 U.S.C. § 216(b) so that he can send a court-approved notice to potential opt-in plaintiffs. Defendants, in addition to opposing certification, have m oved to dism iss the Com plaint in its entirety under Rule 12(b) and (c). II. In the context of a m otion to dism iss the Court m ust accept all factual allegations 2 Fair Labor Standards Act Page 2 of 10 in the com plaint as true and draw all reasonable inferences in the plaintiff=s favor. Lorm and v. US Unw ired, Inc., 565 F.3d 228, 232 (5th Cir. 20 0 9) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 30 8 (20 0 7); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Lovick v. Ritem oney , Ltd., 378 F.3d 433, 437 (5th Cir. 20 0 4)). However, the foregoing tenet is inapplicable to legal conclusions. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (20 0 9). Thread-bare recitals of the elem ents of a cause of action, supported by m ere conclusory statem ents, do not suffice. Id. (citing Bell Atlantic Corp. v. Tw om bly , 550 , U.S. 544, 555 (20 0 7)). The central issue in a Rule 12(b)(6) m otion to dism iss is whether, in the light m ost favorable to the plaintiff, the com plaint states a valid claim for relief. Gentilello v. Rege, 627 F.3d 540 , 544 (5th Cir. 20 10 ) (quoting Doe v. My Space, Inc., 528 F.3d 413, 418 (5th Cir. 20 0 8 )). To avoid dism issal, a plaintiff m ust plead sufficient facts to Astate a claim for relief that is plausible on its face.@ Id. (quoting Iqbal, 129 S. Ct. at 1949). AA claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reason able inferen ce that the defendant is liable for the m isconduct alleged.@ Id. The Court does not accept as true Aconclusory allegations, unwarranted factual inferences, or legal conclusions.@ Id. (quoting Plotkin v. IP Axess, Inc., 40 7 F.3d 690 , 696 (5th Cir. 20 0 5)). Legal conclusions m ust be supported by factual allegations. Id. (quoting Iqbal, 129 S. Ct. at 1950 ). 3 3 The sam e standards that govern a Rule 12(b)(6) m otion will govern a Rule 12(c) m otion for judgm ent on the pleadings. See Great Plains Trust Co. v. Morgan Stanley Dean W itter & Co., 313 F.3d 30 5, 313 n.8 (5 th Cir. 20 0 5). Page 3 of 10 A. The Court begins with French’s Fair Labor Standards Act (“FLSA”) claim s because those are the claim s upon which original subject m atter jurisdiction is grounded. Count One of French’s Com plaint is a claim for failure to pay the federal hourly m inim um wage for hours worked. Count Two is a claim for failure to pay federal overtim e wages. Defen dants argue that these federal claim s should be dism issed because French’s own allegations plainly dem onstrate that he was an exem pted outside salesperson as defined by the FLSA. French argues that the outside sales exem ption is an affirm ative defense that his allegations do not undisputedly establish. Even if the defense is appropriate, French contends that it does n ot dispose of his FLSA claim s entirely because it does not apply to his claim that he was not paid the m inim um wage for the tim e spen t attending several days of m andatory training. The Court finds Defen dants’ argum ents pertaining to the outside sales exem ption to be m eritorious, at least in part. It is clear from French’s allegations that the overwhelm ing m ajority of his activities durin g his two-week affiliation with LCS places him squarely within the outside salesm an exem ption identified in 29 U.S.C. § 213(a)(1) (stating that FLSA m inim um wage and overtim e requirem ents do not apply to outside salesm en). French’s prim ary duty was to m ake product sales away from LCS’s offices. But French correctly notes that the m andatory training m ay fall outside of the exem ption, see 29 C.F.R. § 541.70 5. It rem ains, however, that the training m ay ultim ately reveal itself to Page 4 of 10 be exem pt sales work. The Court cannot m ake this determ ination on the current record. The m otions to dism iss are therefore GRANTED as to the Count One FLSA claim with the exception of the m inim um wage claim pertaining to the approxim ately 25 hours of m andatory training. The m otions to dism iss are GRANTED as to the Count Two FLSA overtim e claim in its entirety. 4 B. i. The sole FLSA claim rem aining for the certification analysis is French’s m inim um wage claim pertain ing to the approxim ately 25 hours of m andatory training. The FLSA creates a cause of action for em ploy ees against em ployers who violate the Act's requirem ents. The FLSA provides in pertinent part: An action . . . m ay be m aintained against an y em ployer . . . by any one or m ore em ployees for and in behalf of him self or them selves and other em ployees sim ilarly situated. No em ployee shall be a party plaintiff to any such action unless he gives his consent in writing to becom e such a party and such consent is filed in the court in which such action is brought. 29 U.S.C. A. ' 216(b) (West 1998 & Supp. 20 15). Thus, ' 216(b) establishes an Aopt-in@ schem e under which plaintiffs m ust affirm atively notify the court of their intention to becom e parties to the suit. The Act does 4 The Court doubts that French could satisfy even the broad definition of em ployee used in the FLSA. The Court notes that in August of 20 15, an adm inistrative law judge with the Louisiana Office of Workers’ Compensation issued a judgm ent and reasons following trial in which he concluded that one of LCS’s Independent Dealers was not an em ployee of the company under state law. (Rec. Doc. 24-2). That decision does not bind this Court, particularly with respect to the FLSA claim s, but the opinion is well-reasoned, thorough, and persuasive. Without “em ployee” status French has no claim for overtim e and m inim um wage paym ents. Page 5 of 10 not provide a definition for "sim ilarly situated." The district court will typically apply a two-step analysis when exercising its discretion with respect to certification. W ellm an v. Grand Isle Shipy ard, Inc., No. 148 31, 20 14 WL 5810 529, at *1, 3 (E.D. La. Nov. 7, 20 14) (Africk, J .). First, the court determ ines whether the putative plaintiffs' claim s are sufficiently sim ilar to m erit sending notice of the action to possible m em bers of the collective class. Acevedo v. Allsups Convenience Stores, Inc., 60 0 F.3d 516, 519 (5 th Cir. 20 10 ) (citing Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J . 1987); Mooney v. Aram co Servs. Co., 54 F.3d 120 7, 1216 (5th Cir. 1995)). If the claim s are sim ilar enough, the court will authorize counsel to put all potential m em bers of the class on notice so that they m ay join the suit if they wish to do so. Id. This stage is referred to as a "conditional certification." Second, after discovery is com plete and the allegations and claim s are m ore fully fleshed out, the court will m ake a final determ ination as to certification, typically in the posture of a m otion by the defendant to decertify the action. Id.; W ellm an, 20 14 WL 5810 529, at *2. This stage is referred to as "decertification." At step one, the conditional certification stage, the court's decision is usually based only on the pleadings and any affidavits that have been subm itted. W ellm an, 20 14 WL 58 10 529, at *1. Because the court has m inim al evidence, this determ ination is m ade using a fairly lenient standard, an d typically results in conditional certification of a representative class. Id. This lenient standard requires nothing m ore than only substantial allegations that potential m em bers Awere together the victim s of a single Page 6 of 10 decision, policy, or plan.@ Id. (quoting Mooney , 54 F.3d at 1214 n.8). ii. At the outset, LCS argues that French is not sim ilarly situated to the class he seeks to represent because he and his counsel planned this litigation, which is why French went to LCS in the first place. French’s Motion to Strike is related to this line of argum ent. The m otion to strike challenges Facebook pages and entries that LCS located on the internet. French does not dispute that he and Plaintiff’s counsel were friends before he filed the instant suit. The exact nature of the relationship does not concern the Court. But on the personal data sheet that French com pleted when seeking to join LCS’s team , Fren ch listed plaintiff’s counsel as his first personal reference and he describes her relationship to him as “boss.” (Rec. Doc. 23-7). French’s contention is that all of this is im m aterial to whether Defendants violated the FLSA. LCS’s theory is that Plaintiff’s counsel sent French to LCS to m ake a plaintiff out of him so that she would have a litigant with standing to invoke a collective action, ultim ately leading to an award of attorney’s fees. LCS characterizes French’s two week “stint” at LCS as a “setup” devised by plaintiff’s counsel after she reviewed pleadings in another case against Kirby. 5 French’s Motion to Strike is DENIED. Conditional certification involves court- 5 The Court’s initial reaction when reading the Com plaint was that it was not written by the sam e person who wrote French’s m emoranda in opposition. Noting the references to the Dixon case against Kirby, the Court retrieved the original com plaint filed in Dixon v. Zabka, 11-982, from the District of Connecticut’s PACER system. It appears that French’s pleading was taken in large part from that case, including the Rule 23 allegations which are not part of French’s case. Page 7 of 10 approved notice. Regardless of whether Fren ch’s m otivation in seeking to becom e an Indepen dent Dealer im pacts potential liability under the FLSA, French’s m otives are of interest to this Court, whose nam e and office French seeks to use in order to recruit litigants to join this lawsuit. That said, the Court declines to conditionally certify a collective action because the Court finds the record lacking in substantial allegations that potential m em bers were together the victim s of a single decision, policy, or plan. Aside from his own affidavit, French subm itted an affidavit from an Ada Solis (Rec. Doc. 15-1), of whom Defendants have no record whatsoever. LCS had significant paperwork on French, however, who was only affiliated with the com pany for two weeks. Defendants dispute that Solis ever attended training at LCS or was ever part of the sales team . Solis’s affidavit is identical to French’s and the record contains no independent indicia that Solis actually participated in the training at LCS. 6 The m otion to conditionally certify a collective action is DENIED. C. As stated earlier, French has also asserted num erous state law claim s. French’s conversion and m isrepresentation claim s are prescribed on their face. These claim s are subject to a one-year liberative prescription period. French filed suit on 6 LCS points out that an ad was placed on New Orleans Craigslist by an attorney affiliated with French’s counsel in order to recruit claim ants. (Rec. Doc. 23-6). It is not clear whether Ms. Solis responded to this ad or how she cam e to know about French’s lawsuit. The Court does not address at this tim e the ethical considerations raised by LCS. Page 8 of 10 J anuary 11, 20 16. He was with LCS in Novem ber - Decem ber 20 14. The m otions to dism iss are GRANTED as to Counts Three, Five, and Six of the Com plaint, which are dism issed. French fails to state a claim for unjust enrichm ent. The pivotal elem ent in a claim for unjust enrichm ent under Louisiana law is that there m ust be no other rem edy at law available to the plaintiff. Baker v. Maclay Props. Co., 648 So. 2d 888, 897 (La. 1995). French has rem edies at law against Defendants. Whether or not those causes of action are tim ely or m eritorious is of no m om ent. See Garber v. Badon & Ranier, 961 So. 2d 92, 10 0 (La. App. 3d Cir. 20 0 8) (citing La. N at’l Bank of Baton Rouge v. Belello, 577 So. 2d 10 99, 110 2 (La. App. 1st Cir. 1991)). In other words, unjust enrichm ent does not provide a safety net to cure an in justice or wrong should the legal rem edies available to a plaintiff fail. The m otions to dism iss are GRANTED as to Count Four of the Com plaint, which is dism issed. The m otions are DENIED as to the state law statutory wage claim , which is subject to a three-year liberative prescription period. La. Civ. Code art. 3494. III. Defendants’ m otions are GRANTED IN PART AND DENIED IN PART. The m otions are DENIED as to French’s FLSA wage claim pertaining to the two weeks of m andatory training and DENIED as to the state law statutory wage claim . The m otions are GRANTED in all other respects. French’s m otion to conditionally certify an FLSA collective action is DENIED. Page 9 of 10 French’s m otion to strike is DENIED. Accordingly, and for the foregoing reason s; IT IS ORD ERED that the Mo tio n to Co n ditio n ally Ce rtify a Co lle ctive Actio n Pu rs u a n t to th e FLSA ( Re c. D o c. 15) and Mo tio n to S trike ( Re c. D o c. 2 5 ) filed by plaintiff Christopher Fren ch are D EN IED ; IT IS FU RTH ER ORD ERED that the Mo tio n to D is m is s Pu rs u a n t to Ru le 12 ( b) ( 6 ) ( Re c. D o c. 2 0 ) filed by defendant The Scott Fetzer Com pany d/ b/ a The Kirby Com pany, and the Mo tio n to D is m is s Pu rs u a n t to Ru le 12 ( c) ( Re c. D o c. 2 7) filed by defen dants Louisiana Cleaning System s, Inc. and Charles Nugent are GRAN TED IN PART AN D D EN IED IN PART as explained above. J une 14, 20 16 ______________________________ J AY C. ZAINEY UNITED STATES DISTRICT J UDGE Page 10 of 10
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