United States District Court, D. Nebraska
EDWARD C. HUGLER, Acting Secretary of Labor, United States Department of Labor, Plaintiff,
CILANTROS MEXICAN BAR & GRILL, LLC, MANAGUA, LLC, and ALEGRIA LLC, Defendants.
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on the defendants' motions to
dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6). Filing
No. 9; Filing No. 10; Filing No. 11.
Plaintiff alleges that defendants violated sections of the
Fair Labor Standards Act of 1938 (“FLSA”). 29
U.S.C. § 201 et seq. Specifically, plaintiff alleges
that defendants are an enterprise engaged in commerce under
the meaning of the Act, that defendants failed to pay at
least the minimum wage to certain employees, that defendants
failed to pay overtime compensation to certain employees, and
that defendants failed to make, keep, and preserve records
required under the Act. Filing No. 20, Exhibit 1,
who is the Acting Secretary of Labor, filed a complaint
against Cilantros Mexican Bar & Grill, LLC, Managua LLC,
and Alegria, LLC. Plaintiff alleges that defendants are an
enterprise under the FLSA. Plaintiff alleges defendants
violated the FLSA by failing to pay certain employees at
least the minimum wage, by failing to pay overtime
compensation, and by failing to make, keep, and preserve
required records. Plaintiff names these employees in Appendix
A. Defendants then each filed a motion to dismiss alleging
that plaintiff's complaint fails to state a claim upon
which relief may be granted. Filing No. 9,
Filing No. 10., Filing No. 11. The three
motions to dismiss appear to be identical and raise the same
issues. As such, the motions to dismiss will be considered
allege plaintiff failed to plead any facts, and that the
complaint did not give defendants notice of what the claims
are and which defendant must defend against which claims.
Defendants also allege that a portion of the claim is
time-barred by the statute of limitations. Plaintiff filed a
motion for leave to file an amended complaint and included
the amended complaint as Exhibit 1. Filing No. 20.
Plaintiff argues the amended complaint fixes the prior
deficiencies. Defendant argues leave to amend the complaint
would be futile because the amended complaint still fails to
state a claim upon which relief may be granted.
amended complaint, Plaintiff provides further allegations.
Plaintiff alleges defendants failed to pay at least the
minimum wage by not compensating employees for all hours
worked including mandatory staff meetings and by paying
salaried nonexempt employees less than minimum wage for all
hours worked. Plaintiff alleges defendants failed to pay
overtime compensation by paying straight time for overtime
hours, not compensating employees for all hours worked, not
combining hours of employees who worked at more than one
Cilantro's Mexican Bar and Grill restaurant location for
calculating overtime, and not paying overtime to salaried
nonexempt employees. Plaintiffs allege defendants did not
make, keep, and preserve records of the hours employees
actually worked each workday and workweek, of wages paid in
cash, and of deductions in wages for uniform costs.
the Federal Rules, a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The rules
require a “‘showing, ' rather than a blanket
assertion, of entitlement to relief.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556 n.3. (2007) (quoting
Fed.R.Civ.P. 8(a)(2)). “Specific facts are not
necessary; the statement need only ‘give the defendant
fair notice of what the . . . claim is and the grounds upon
which it rests.'” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at
555). In order to survive a motion to dismiss under
Fed.R.Civ.P. 12(b)(6), the plaintiff's obligation to
provide the grounds for his entitlement to relief
necessitates that the complaint contain “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
factual allegations of a complaint are assumed true and
construed in favor of the plaintiff, “even if it
strikes a savvy judge that actual proof of those facts is
improbable and ‘that a recovery is very remote and
unlikely.'” Id. at 556 (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
“[O]n the assumption that all the allegations in the
complaint are true (even if doubtful in fact), ” the
allegations in the complaint must “raise a right to
relief above the speculative level.” Id. at
555-56. In other words, the complaint must plead
“enough facts to state a claim for relief that is
plausible on its face.” Id. at 547. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (stating that the plausibility standard does not
require a probability, but asks for more than a sheer
possibility that a defendant has acted unlawfully.).
is based on the principles that (1) the tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions and (2) only a
complaint that states a plausible claim for relief survives a
motion to dismiss. Id. at
678-79.Determining whether a complaint states a
plausible claim for relief is “a context-specific
task” that requires the court “to draw on its
judicial experience and common sense.” Id. at
679. Accordingly, under Twombly, a court considering
a motion to dismiss may begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth. Id. Although legal
conclusions “can provide the framework of a complaint,
they must be supported by factual allegations.”
Id. When there are well-pleaded factual allegations,
a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
the court must find “enough factual matter (taken as
true) to suggest” that “discovery will reveal
evidence” of the elements of the claim.
Twombly, 550 U.S. at 556; Dura Pharms., Inc. v.
Broudo, 544 U.S. 336, 347 (2005) (explaining that
something beyond a faint hope that the discovery process
might lead eventually to some plausible cause of action must
be alleged). When the allegations in a complaint, however
true, could not raise a claim of entitlement to relief, the
complaint should be dismissed for failure to state a claim
under Fed.R.Civ.P. 12(b)(6). Twombly, 550 U.S. at
558; Iqbal, 556 U.S. at 679.
alleges defendants are covered employers under FLSA minimum
wage and overtime compensation requirements as an enterprise
engaged in commerce or in the production of goods for
commerce. 29 U.S.C. §§ 206-207 (2016 & 2010).
An enterprise is defined in the Act and the plaintiff must
allege defendants have related activities performed, through
unified operation or common control, for a common business
purpose. 29 U.S.C. § 203 (2014). Plaintiff alleges
defendants operate the same type of business under the same
name in the same geographic area. Plaintiff also alleges that
the defendant companies are owned by the same people in the
same percentages for each company. In order to be an
enterprise engaged in commerce or the production of goods for
commerce, the plaintiff must also allege: (1) employees
either engaged in commerce, the production of goods for
commerce, or that employees handle, sell, or work on good or
materials that have been moved or produced for commerce, and
(2) their annual gross volume of sales made or business done
is not less than $500, 000. Plaintiff alleges defendants meet
both these requirements. Plaintiff alleges defendants
violated the FLSA by failing to pay at least minimum wage for
certain employees, failing to pay overtime compensation to
certain employees, and failing to make, maintain, and
preserve records required by the Act.
Court finds that plaintiff has sufficiently pled these
allegations. Plaintiff alleges defendants are covered
employers under the FLSA as an enterprise engaged in commerce
or in the production of goods for commerce. Alleging these
requirements is sufficient to survive a motion to dismiss.
Duby v. Shirley May's Place, LLC, No. 16-11443,
2017 WL 1021062, at *3 (E.D. Mich., March 16, 2017). Several
cases have held that it is sufficient to plead coverage, that
the employee worked more than 40 hours in one workweek, and
that the employee was not paid overtime compensation.
Sec'y of Labor v. Labbe, 319 Fed.Appx. 761,
763-4 (11th Cir. 2008); McDonald v. Kellogg Co., No.
08-2473-JWL, 2009 WL 1125830, at *1 (D. Kan., Apr. 27, 2009);
See Kehler v. Albert Anderson, Inc., No. 16-5318
(JBS/KMW), 2017 WL 1399628, at *7 (D. N.J., Apr. 18, 2017).
Similarly, cases have held similar liberal pleading standards
for alleging failure to pay minimum wage, and for alleging
failure to make, keep, and preserve records. See
Sec'y of Labor v. Labbe, 319 Fed.Appx. 761, 763-4
(11th Cir. 2008); Schmidt v. DIRECTV, LLC, No.
14-3000 (JRT/JSM), 2016 WL 519654, at *18 (D. Minn., Jan. 22,
2016); Kemp v. Frank Fletcher Cos., Ltd., No.
4:10CV01122JLH, 2010 WL 4096564, at *2 (E.D. Ark., Oct. 18,
2010). Plaintiff also alleges the actions that led to the
wrongful compensation (e.g. not combining hours of employees
who worked at more ...