Monahan et al v. Emerald Performance Materials LLC, No. 2:2008cv01511 - Document 27 (W.D. Wash. 2009)
Court Description: ORDER granting 9 Motion to Dismiss Certain Claims Under FRCP 12(b)(6), plaintiffs' final claim survives this motion, signed by Judge Ronald B. Leighton.(DN)
Download PDF
<![CDATA[
Monahan et al v. Emerald Performance Materials LLC Doc. 27 1 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 12 13 14 MILES MONAHAN; DALE HOUSDEN; DAVID ROBERTS; JIM MUMFORD; CALVIN LUKKEN; BRADLEY PORTER; JAY EVENSON; AARON JESSOP; MICHAEL SWIHART; and DARREN WISHARD, individuals, Plaintiff, Case No. C08-1511 RBL ORDER GRANTING DEFENDANT’S MOTION TO DISMISS CERTAIN CLAIMS UNDER FRCP 12(B)(6) 15 v. 16 17 18 EMERALD PERFORMANCE MATERIALS, LLC, a foreign corporation, Defendant. 19 20 21 THIS MATTER is before the Court on Defendant’s motion to dismiss certain claims under FRCP 12(b)(6) [Dkt. #9]. For the reasons set forth below, Defendant’s motion is GRANTED. 22 I. Introduction 23 24 Defendant purchased a corporation on May 7, 2006, which included a chemical plant near 25 Kalama, Washington [Dkt. #1]. Plaintiffs were all employed by Defendant in the Kalama plant at the 26 time of purchase. Id. From the 2006 purchase date until May, 2008, Plaintiffs were all operating under a 27 collective bargaining agreement1. Id. In part, the collective bargaining agreement denied certain 28 1 The collective bargaining agreement had been in place since May, 2005 [Dkt. #1]. ORDER Page - 1 Dockets.Justia.com 1 2 employees overtime benefits due under the Fair Labor Standards Act (“FLSA”). Id. On May 27, 2008, the Secretary of the U.S. Department of Labor (“Secretary”) filed a complaint under FLSA §217 (Case 3 No. 5:08-CV-01207SL) in the District Court for Northern District of Ohio (“Ohio Suit”). Id. The 4 5 complaint sought to enjoin both Defendant’s continued violation of the FLSA (by not providing overtime 6 compensation for hours worked over 40 hours a week) and Defendant’s withholding of overtime wages 7 due. Id. On July 29, 2008, the court ruled in favor of the Secretary, ordering Defendant to pay its 8 employees $241,308.48 in unpaid compensation for the period of May 7, 2006 to June 15, 20082. Id., see 9 also Dkt. #9-3. Plaintiffs were not notified of the Ohio Suit or given an opportunity to participate in it. 10 11 Id. The Plaintiffs did not accept the payment tendered to them as a result of the Ohio Suit. 12 Plaintiffs commenced this action on October 10, 2008. Id. Plaintiffs complaint asserts the 13 following causes of action: (1) violation of 29 U.S.C. §201 et. seq., for unpaid overtime wages due under 14 the FLSA; (2) violation of 29 U.S.C. §251 et. seq., for unpaid overtime wages under the Portal-to-Portal 15 Act; and (3) violation of RCW 49.46.090 et seq., for unpaid overtime wages under Washington state law3. 16 17 Defendant argues that the Secretary’s FLSA §217 claim operates as a bar to Plaintiffs’ FLSA 18 claim [Dkt. #9]. Defendant also argues that Plaintiffs’ claim under the Portal-to-Portal Act is barred 19 because that statute does not establish an independent cause of action for unpaid wages. Id. 20 21 Plaintiffs argue that notwithstanding the statutory bar, the purpose of the FLSA was not furthered by the Ohio Suit, and that the Court should interpret the statute as allowing Plaintiffs’ suit under the 22 unique circumstances presented here [Dkt. #14]. Plaintiffs argue that FLSA §217, as applied, violates 23 24 25 their constitutional right to due process. Id. Plaintiffs also argue for a separate cause of action under the Portal-to-Portal Act. Finally, Plaintiffs argue in the alternative for liquidated damages which were not 26 2 27 28 The judgment identified the amounts owed to each employee and provided that Defendant was responsible for paying each employee the amount owed within 30 days. Id. 3 Specifically, Plaintiffs claim that they were not compensated for 30 extra minutes of “donning and doffing” activities required as part of their daily job duties. Id. ORDER Page - 2 1 awarded in the Ohio Suit. Id. 2 II. Discussion 3 A motion to dismiss under Fed. R. Civ. P. 12(b)(6) should be granted only if, accepting all of the 4 5 allegations of material fact as true, and construed in the light most favorable to the nonmoving party, the 6 plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Cahill v. 7 Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The plaintiff, however, must plead factual 8 allegations with specificity; vague and conclusory allegations of fact fail to state a claim for relief. 9 Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3rd Cir. 1988). Dismissal may be based on either 10 11 12 the lack of a cognizable legal theory, or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). 13 A. Plaintiffs FLSA §216(b) Claim is barred by FLSA §217 14 Defendant argues that the Secretary’s prior §217 action bars Plaintiffs’ current FLSA claim for 15 unpaid overtime wages. Plaintiffs asks the Court to look beyond the statute’s clearly expressed terms and 16 17 18 to the purpose of the FLSA and allow their §216(b) claim notwithstanding the prior action and judgment. The Secretary’s prior filing of a FLSA §217 complaint clearly bars Plaintiffs’ §216(b) claim as a 19 matter of law. FLSA §216(b) allows an employee to maintain an action to recover unpaid overtime 20 compensation, including an equal amount of liquidated damages, against any employer. 29 U.S.C. 21 §216(b). However, the same section of the statute goes on to terminate an employee’s right to bring an 22 action against an employer once the Secretary has filed a complaint. This terminating effect is clear from 23 24 the language of the statute: “the right . . . shall terminate upon the filing of a complaint by the Secretary 25 of Labor in an action under 217 of this title.” Id. Moreover, abundant case law has confirmed a clear 26 statutory bar within FLSA §216(b). See e.g., Wirtz v. Malthor, Inc., 391 F.2d 1, 3 (9th Cir. 1968) 27 (employee’s right to sue for unpaid overtime wages is terminated upon the Secretary’s filing of a §217 28 claim); Donovan v. University of Texas El Paso, 643 F.2d 1201, 1204 (5th Cir.1981) (same). ORDER Page - 3 1 2 Apparently aware of this bar, the Plaintiffs ask the Court to look beyond the express language of the statute (by delving into an analysis of legislative history and the like). There is no justification for 3 doing so. Settled principles of statutory construction require that a statute be applied according to its 4 5 terms when those terms are unambiguous. See e.g., Carcieri v. Salazar, 555 U.S. __, __, 129 S.Ct. 1058, 6 1059 (2009). Because the Court finds no ambiguity in §216(b), and Plaintiffs fail to raise the issue of 7 ambiguity, the legislative history of the provision will not be considered here. 8 9 The Secretary of Labor filed an FLSA §217 complaint on May 27, 2008, in the Northern District of Ohio. Plaintiffs did not file their complaint in this Court until October 10, 2008. Because Plaintiffs’ 10 11 12 right to bring a §216(b) claim terminated on May 27, 2008, they cannot establish a cognizable legal theory under FLSA §216(b), and that claim is DISMISSED under FRCP 12(b)(6). 13 B. FLSA §217 is not Unconstitutional As Applied to Plaintiffs 14 Plaintiffs argue that (1) they had a vested property right in either the unpaid overtime wages or in 15 their cause of action to recover those wages, and (2) FLSA §217 is unconstitutional “as applied” to this 16 17 case because Plaintiffs’ property rights were deprived without due process of the law [Dkt. #14]. 18 Plaintiffs’ §216(b) claim depends on a showing that Plaintiffs had a vested property right and that §217 is 19 unconstitutional as applied. 20 21 Plaintiffs do not have a vested property right in any unpaid overtime compensation. “Property rights to public benefits are defined by statutes or customs that create the benefits.” Austin v. City of 22 Brisbee, 855 F.2d 1429, 1436 (9th Cir. 1988) (citing Jones v. Reagan, 748 F.2d 1331, 1338-39 (9th Cir. 23 24 1984). It is also well established that “legislation readjusting [property] rights and burdens is not 25 unlawful solely because it upsets otherwise settled expectations.” Usery v. Turner Elkhorn Mining Co., 26 428 U.S. 1, 16 (1976) (citations omitted). 27 28 While Plaintiffs claim a protected property right in the unpaid overtime, their argument is misplaced. The FLSA does not create a vested property right of the Plaintiffs in unpaid wages; rather, it ORDER Page - 4 1 2 creates a terminable right to assert a claim for unpaid wages (a cause of action)4. The only “right” referenced in §216(b) is the right to bring a cause of action. In fact, the title of the subsection reads 3 “Damages; right of action; attorney’s fees and costs; termination of right of action.” 29 U.S.C. §216(b) 4 5 (emphasis added). The text of the provision deals with only one right, “the right . . . to bring an action by 6 or on behalf of any employee . . . shall terminate upon the filing of a complaint by the Secretary of Labor 7 in an action under §217 of this title.” Id. Only after instigating a cause of action, and succeeding on the 8 merits, would Plaintiffs have a vested property right in the unpaid overtime compensation. 9 Plaintiffs do not have a vested property right in a cause of action under FLSA §216(b). “Causes 10 11 of action are a species of property protected by the Fourteenth Amendment Due Process Clause (citations 12 omitted). However, a ‘party’s property right in any cause of action does not vest until a final 13 unreviewable judgment is obtained.’” Fields v. Legacy Health Systems, 413 F.3d 943, 956 (9th Cir. 2005). 14 Rather, a statutorily granted cause of action is “inchoate and affords no definite or enforceable property 15 right until reduced to final judgment.” Id. (Citing Austin, 855 F.2d at 1436). Only then will a cause of 16 17 18 19 20 21 action qualify as a constitutionally protected property right. Jones Disposal Co., Inc. v. Jefferson Parish, 603 F.Supp.1125, 1137-38 (E.D. La. 1985). Here, Plaintiffs never obtained a final non-reviewable judgment. Plaintiffs never even filed a cause of action until after their inchoate right had already been foreclosed. The statute clearly terminates a FLSA §216(b) cause of action upon the filing of a §217 claim by the Secretary. Only after the Secretary 22 had filed a §217 complaint and received a judgment in the Ohio Suit, did Plaintiffs file a complaint in this 23 24 25 26 27 28 4 By way of analogy, legislatively enacted statutes of limitations produce the same result as the Secretary filing a §217 suit. Statutes of limitations are provisions of statutes which limit a claimant’s ability to recover damages by defining a time within which a claim must be brought. This limit is most often contained within the very statute which grants the claimant an ability to recover initially. Upon the happening of a certain event (the passing of three years for example in many torts cases), a prospective claimant’s expectation for recovery under the initial claim is upset. While the prospective claimant was once able to bring an action to recover damages, upon the happening of the statutorily defined event, that ability no longer exists. After the statute of limitations runs, the claimant would have no property interest in the damages he can no longer legally receive. ORDER Page - 5 1 2 Court. Because Plaintiffs did not receive a final non-reviewable judgment, their interest in the §216(b) cause of action never matured into a constitutionally protected property right. As such, the §217 bar 3 effectively prevents their §216(b) claim. Because Plaintiffs have failed to show a constitutionally 4 5 protected property right, their “as applied” constitutional challenge necessarily fails. 6 C. FLSA §217 does not Otherwise Violate Due Process 7 Even if Plaintiffs could establish a vested property right and that FLSA §217 deprived them of that 8 9 right, they have not demonstrated that the §217 bar violates due process. “An act of Congress comes . . . clothed in a presumption of constitutionality, and the burden is on the plaintiff to show that it violates due 10 11 process.” In re: Consolidated U.S. Atmospheric Testing Litigation, 820 F.2d 982, 990 (9th Cir. 1987) 12 (citing Hammond v. United States, 786 F.2d 8 (1st Cir. 1986)). Because Congress used its Commerce 13 Clause powers in passing the FLSA and because no fundamental rights or suspect classifications are 14 involved, the rational basis standard of due process is appropriate. Id. 15 In order for plaintiffs to prevail under the rational basis standard, they must establish that the 16 17 statute is “wholly arbitrary and irrational in purpose and effect, i.e., not reasonably related to the 18 legitimate congressional purpose.” Id. The legislative purpose for the 1961 amendments to the FLSA 19 (including the statutory bar described in §216(b)) was “to relieve courts and employers of the burden of 20 litigating a multiplicity of suits based upon the same violations of the Act by an employer5.” EEOC v. 21 Pan American World Airways, Inc., 897 F.2d 1499, 1505 (9 th Cir. 1990) (citing S.Rep. No. 145, 87th 22 Cong., 1st Sess. (1961), Code Cong. & Ad.News 1620, 1659). See also, Donovan, 643 F.2d at 1207. The 23 24 statutory structure contemplated by the 1961 amendments was to establish the primacy of government 25 enforcement actions over those private actions brought by employees. EEOC, 897 F.2d at 1505. By 26 terminating the opportunity for employees to bring private actions upon the government filing a complaint 27 5 28 While EEOC v. Pan Am. deals with ADEA, the legislative purpose cited above pertains to the FLSA, after which the ADEA was closely modeled. 897 F.2d at 1505. The Court noted that the Equal Pay Act borrows the procedure of the FLSA including the statutory bar to a private causes of action upon the government filing a §217 claim. See 897 F.2d at 1504-06. ORDER Page - 6 1 2 under FLSA §217, the statute reduces the possibility for inconsistent judgment, reduces res judicata problems, and reduces pressure on courts’ dockets by consolidating all plaintiffs’ claims in one action. 3 Because the statute is reasonably related to the congressionally stated purpose it does not violate due 4 5 process6. 6 D. Plaintiffs’ Liquidated Damages Claim is Statutorily Barred 7 Plaintiffs argue in the alternative for liquidated damages under FLSA §216(b) [Dkt. #14]. They 8 9 argue that the bar established as a result of the Ohio Suit does not prevent them from recovering full liquidated damages in this Court7. Id. Plaintiffs argue that the liquidated damages provided under 10 11 12 13 14 15 §216(b) are not barred by the Secretary’s filing of a §217 suit, and that those liquidated damages are instead “mandatory under the FLSA.” Id. Liquidated damages are unavailable as a remedy in a FLSA §217 suit. Donovan v. Brown Equipment and Service Tools, Inc., 666 F.2d 148, 156 (5th Cir. 1982). FLSA §216(b) does provide liquidated damages, stating “any employer . . .shall be liable . . . to the employee . . . [for] unpaid 16 17 overtime compensation . . . and in an additional equal amount [for] liquidated damages.” 29 U.S.C. 18 §216(b). However, as is discussed above, the statutory bar created by the Secretary’s §217 action 19 terminates all rights under FLSA §216(b). While liquidated damages under §216(b) are nonwaivable8, 20 21 22 23 24 25 6 Plaintiffs also complain that they were not provided with notice of the Ohio Suit or given the opportunity to participate in the proceeding. This argument fails as a matter of law. A §217 suit by the government does not require notice to employees, nor does it allow employees to participate in its proceedings. Donovan, 643 F.2d at 1208. “The Secretary’s statutory obligation to redress public wrongs is one likely explanation as to why there is no requirement under §17 that the employees request consent, compromise, or otherwise affect the pending litigation by the Secretary. Logically, because there is neither opting out or in by employees in a §17 suit, no purpose neither fundamental nor due process requirements . . . would be served by notification procedures like those found in Rule 23.” Id. Moreover, Plaintiffs recognize that notice and the opportunity to participate in the proceeding are not available or required in a §217 suit [Dkt. #14, p. 9]. 7 26 27 FLSA §216(b) uses the term “liquidated damages;” however, that term is somewhat misleading. Essentially, §216(b) allows for double damages by allowing recovery of unpaid overtime, as well as an additional equal recovery in what the statute refers to as “liquidated damages.” This second award of damages is really an exemplary award of damages. 8 28 Barrentine v. Arkansas–Best Freight System, Inc., 450 U.S. 728, 740 (1981) (holding “FLSA rights cannot be abridged by contract or otherwise waived because that would “nullify the purposes” of the statute and thwart the legislative policies it was designed to effectuate”) (citations omitted). ORDER Page - 7 1 2 those damages are not exempt from the statutory bar created by a §217 suit. As is discussed in Section A supra, the Secretary’s filing of a §217 complaint terminates all employees’ rights of action under FLSA 3 216(b). There is no indication that liquidated damages were intended to remain available to employees as 4 5 a remedy upon the filing of a §217 suit. In fact, the contrary is expressed by looking again to the 6 legislative purpose in amending the FLSA in 1961 (noting that the legislative purpose was to “relieve 7 courts and employers of the burden of litigating a multiplicity of suits based upon the same violations”). 8 S.Rep. No. 145, at 1659. Allowing employees to bring separate liquidated damages claims after a §217 9 suit had been filed would run counter to the legislative purpose of the 1961 amendments. The waiver 10 11 argument relied on by Plaintiffs does not resolve the statutory bar created by filing of a §217 suit9. 12 Because the statutory bar applies to all of FLSA §216(b), Plaintiffs’ claim for liquidated damages under 13 that section must be denied. 14 15 E. Prejudgment Interest is not Recoverable from this Court It is well established that when liquidated damages are unavailable, prejudgment interest is 16 17 necessary to fully compensate employees for lost wages. Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir. 18 1986). The court in Ford explained the avenue for recovery of prejudgment interest stating “it is 19 ordinarily an abuse of discretion not to include prejudgment interest in a back-pay award under the 20 FLSA.” Id. 21 The quote from Ford shows the problem with Plaintiffs’ claim for prejudgment interest being 22 presented to this Court. District courts are not courts of appellate jurisdiction charged with determining if 23 24 25 abuse of discretion has occurred; rather they are trial courts. Plaintiffs’ challenge of the District Court for the Northern District of Ohio’s failure to compensate for prejudgment interest fails at the most 26 27 28 9 Plaintiffs argue that “the pay mandates of the FLSA are nonwaivable. They cannot be abridged by contract or otherwise waived” [Dkt. #14, p. 8, n.8] (citing Barrentine, 450 U.S. at 740). Barrentine dealt with waiver resulting from provisions in a collective bargaining agreement. Barrentine does not support an exemption for liquidated damages after a §217 suit has been filed by the Secretary barring causes of actions by employees. ORDER Page - 8 1 fundamental level. This Court has no authority to review a judgment entered by a District Court in Ohio. 2 Indeed the only courts with such authority are the 6th Circuit Court of Appeals, and the United States 3 Supreme Court. While Plaintiffs may have a legitimate complaint in seeking prejudgment interest, this 4 5 6 Court is the improper venue to pursue such a claim10; therefore, Plaintiffs claim for prejudgment interest must be denied. 7 F. Plaintiffs Abandoned their Portal-to-Portal Act claim 8 Plaintiffs stated in their response brief, “Defendant argues that the Portal-to-Portal Act does not 9 state a separate and distinct cause of action for unpaid overtime wages. Defendant is probably correct in 10 11 12 this regard. Plaintiffs’ counsel should have denominated the Portal-to-Portal Act claim as a second count of the unpaid overtime claim, rather than as a separate cause of action.” Id. 13 Indeed, the Portal-to-Portal Act does not establish a separate cause of action for unpaid overtime 14 wages. Plaintiffs stated as a separate cause of action, a Portal-to-Portal Act claim under 29 U.S.C. §254 15 for unpaid overtime wages [Dkt. #1]. However, 29 U.S.C. §254 clearly relies on provisions of the FLSA 16 17 in determining liability and does not itself constitute a separate cause of action. 29 U.S.C. §254 states “no 18 employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938 . . . 19 on account of the failure of such employer to pay . . . overtime compensation.” Because Plaintiffs’ FLSA 20 claim is barred as discussed above, their 29 U.S.C. §254 claim must fail as it was brought as a separate 21 cause of action. 22 III. Conclusion 23 24 Plaintiffs’ §216(b) claim is dismissed because it is barred by the Secretary’s filing of the FLSA 25 §217 action. Plaintiffs’ constitutional challenge to the §217 statutory bar also fails. Plaintiffs’ alternative 26 claim for liquidated damages is also barred by the Secretary’s filing of the §217 action. Finally, 27 10 28 There are other ways for Plaintiffs to pursue their prejudgment interest claim and to receive compensation for overtime hours actually worked. For example, they could request that the Secretary appeal the Ohio Suit to the 6th Circuit. They could also request that the Secretary bring a second action under §216(c) as Plaintiffs alluded to in their response brief [Dkt. #14, p. 10]. ORDER Page - 9 1 2 Plaintiffs’ request that this Court award prejudgment interest fails as a matter of law. Therefore, Defendant’s motion to dismiss Plaintiffs’ FLSA and Portal-to-Portal Act claims is hereby GRANTED. 3 Those claims are dismissed with prejudice. Plaintiffs final claim under RCW 49.46.090 et. seq., survives 4 5 6 this motion and the court will exercise supplemental jurisdiction as to that claim under 28 U.S.C. §1367. IT IS SO ORDERED. 7 8 9 10 11 Dated this 22nd day of April, 2009. 12 A 13 14 RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER Page - 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
