United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on initial review of
Plaintiff’s Amended Complaint (Filing No. 7) pursuant
to 28 U.S.C. § 1915(e).
SUMMARY OF COMPLAINT
initiated this action on May 31, 2016. (Filing No. 1.)
Plaintiff filed an Amended Complaint on June 10, 2016, naming FBG
Cleaning Services, “[T]errance (FBG/H.R. Manager),
” Marco Garfias, and “Eli” as defendants.
(Filing No. 7 at CM/ECF pp. 2-3.) Plaintiff a lleges that
Defendant FBG Cleaning Services is a company that provides
cleaning services. Plaintiff claims he was employed by FBG
from May 4, 2016 to May 15, 2016, and was paid at a rate of
$11.00 per hour. Plaintiff alleges he worked 60 hours, but
was only paid for 41.5 hours. He also maintains that he was
not paid for three days of labor in retaliation for filing
APPLICABLE STANDARDS ON INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate. See 28
U.S.C. § 1915(e). The court must dismiss a complaint or
any portion of it that states a frivolous or malicious claim,
that fails to state a claim upon which relief may be granted,
or that seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B).
plaintiffs must set forth enough factual allegations to
“nudge their claims across the line from conceivable
to plausible, ” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“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”).
essential function of a complaint under the Federal Rules of
Civil Procedure is to give the opposing party ‘fair
notice of the nature and basis or grounds for a claim, and a
general indication of the type of litigation
involved.’” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting
Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir.
1999)). However, “[a] pro se complaint must be
liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
construed, Plaintiff brings this action under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201,
et seq., and relevant state law to recover unpaid
overtime compensation. The FLSA’s overtime compensation
requirements apply to (1) employees who are “engaged in
commerce or in the production of goods in commerce” and
(2) employees of an “enterprise engaged in commerce or
in the production of goods for commerce.” 29 U.S.C.
§ 207. The FLSA defines commerce as “trade,
commerce, transportation, transmission, or communication
among the several States or between any State and any place
outside thereof.” 29 U.S.C. § 203(b).
has not sufficiently alleged an FLSA violation. The Amended
Complaint simply lists the nature of FBG’s business as
“cleaning services.” (Filing No. 7 at CM/ECF p.
4). The Amended Complaint describes Plaintiff’s job
duties as “[j]anitorial, cleaning toilets, floors,
operate scrub buffer, trash collector, compactor operator,
washed garments from metal shop.” (Id.) The
allegations in the Amended Complaint do not contain
sufficient facts to support an inference that Plaintiff was
either engaged in commerce or that FBG is an enterprise
engaged in commerce.
the Amended Complaint names Marco Garfias and
“Eli” as defendants. However, other than listing
their names in the caption of the Amended Complaint,
Plaintiff makes no allegations against these individuals. A
complaint that only lists a defendant’s name in the
caption without alleging that the defendant was personally
involved in the alleged misconduct fails to state a claim
against that defendant. Krych v. Hvass, 83 F.
App’x 854, 855 (8th Cir. 2003). See also
Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974)
(“Where a complaint alleges no specific act or conduct
on the part of the defendant and the complaint is silent as
to the defendant except for his name appearing in the
caption, the complaint is properly dismissed, even under the
liberal construction to be given pro se complaints”).
Therefore, Plaintiff has failed to state a claim against
Garfias and Eli.
an abundance of caution, the court will provide Plaintiff an
opportunity to file an amended complaint that states a claim
upon which relief may be granted. Plaintiff shall file his
amended complaint no later than September 2, 2016. Failure to
file an amended complaint within the time specified by the