United States District Court, S.D. Mississippi.
MEMORANDUM OPINION AND
STARRETT, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants Motion to Dismiss
for Failure to State a Claim for Relief . For the reasons
below, the Court grants in part the motion.
is a former employee of Big River Lumber Company, LLC
(“Big River”). He alleges that he
“routinely worked more than forty (40) hours per week
and defendants did not compensate [him] for the hours worked
in excess for forty (40) hours per week.” (Compl.
¶ 19). He further alleges that “Defendants failed
to maintain accurate records of Fountain's time and
engaged in a scheme to avoid compensating Fountain's
overtime earned.” (Id. ¶ 21). He further
alleges that “Defendants represented to Plaintiff that
he was a daily employee as opposed to an hourly employee and
was not entitled to overtime pay, ” that Defendants
knew these statements to be false, and that they intended to
induce Plaintiff not to make a claim for benefits.
(Id. ¶ 33). Plaintiff has alleged race
discrimination under Title VII and 42 U.S.C. § 1981,
overtime and recordkeeping violations under the FLSA, fraud,
negligent and/or intentional infliction of mental distress,
and common law harrassments. He filed suit against Big River
and two of its managers, Andrew McGruder Hazlip and Edward
Alex Kirkland. Defendants now move to dismiss the claims
related to inadequate recordkeeping, the claims against
Hazlip and Kirkland in their individual capacities, and the
claim for fraud.
Standard of Review
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Great
Lakes Dredge & Dock Co. LLC v. La. State, 624 F.3d
201, 210 (5th Cir. 2010) (punctuation omitted). “To be
plausible, the complaint's factual allegations must be
enough to raise a right to relief above the speculative
level.” Id. (punctuation omitted). The Court
must “accept all well-pleaded facts as true and
construe the complaint in the light most favorable to the
plaintiff.” Id. But the Court will not accept
as true “conclusory allegations, unwarranted factual
inferences, or legal conclusions.” Id.
Likewise, “a formulaic recitation of the elements of a
cause of action will not do.” PSKS, Inc. v. Leegin
Creative Leather Prods., Inc., 615 F.3d 412, 417 (5th
Cir. 2010) (punctuation omitted). “While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009).
Damages under the FLSA
Complaint , Plaintiff requested “non-pecuniary
losses” including compensation for “emotional
pain, suffering, inconvenience, loss of enjoyment of life,
humiliation and other non-pecuniary losses.” (Compl.
Prayer for Relief, ¶ 6). Defendants argue that this
claim must be dismissed because the FLSA does not allow for
such relief for an overtime violation. 29 U.S.C. §
216(b) (2012) (permitting an employee to recovery
“unpaid overtime compensation . . . and an additional
equal amount as liquidated damages” for overtime
compensation violations). In his Response, Plaintiff argues
that he seeks only permitted damages under the FSLA and that
the non-pecuniary damages claimed were related to other
causes of action he asserted, such as Title VII, 42 U.S.C.
§ 1981, fraud, and infliction of emotional distress. In
their Rebuttal, Defendants made no response to this
argument. As Defendants have failed to respond to
Plaintiff's arguments, the Court finds that such portion
of the motion should be denied.
FLSA Record Maintenance
211(c) of the FLSA requires that an employer keep accurate
time records for its employees. 29 U.S.C § 211(c)
(2012). Section 211(a) provides that the Administrator of the
Wage and Hour Division of the U.S. Department of Labor may
bring claims for equitable relief to restrain any FLSA
violations that are discovered. Id. § 211(a);
see Id. § 204(a) (defining
“Administrator”). However, § 216(b), which
grants employees a private right of action to redress FLSA
violations, does not extend that right to violations of
§ 211(c)'s recordkeeping requirements. Plaintiff
does not appear to dispute this. Therefore, to the extent
that Defendants' Motion requests that the Court dismiss
any claim under FLSA's recordkeeping requirement, it is
Defendants' motion goes further and argues that
“each reference made [to Defendants'
alleged defective employee recordkeeping] in Plaintiff's
Complaint should be dismissed with prejudice.” (Mem.
Supp. Rule 12(b)(6) Mot. Partial Dismissal , 6) (emphasis
added). The Court construes this to be a motion to strike
under Rule 12(f) of the Federal Rules of Civil Procedure.
Under such rule, the Court may strike “any redundant,
immaterial, impertinent, or scandalous matter.”
Court declines to do so, finding that the allegations that
Defendants violated the recordkeeping requirement under
§ 211(c) material. When a plaintiff makes such
allegations, “[i]t alters the Plaintiff['s] burden
and should alter the pleading requirements [because] the
United States Supreme Court [has] held that when an
employer's wage and hour records are unreliable, an
employee claiming FLSA violations meets the required burden
of proof by showing ‘there is a basis for a reasonable
inference as to the extent of the damages.'”
Daniels v. City of Jackson, Miss., No.
3:14-cv-279-DPJ-FKB, 2014 WL 4546020, at *3 n.2 (S.D.Miss.
Sept. 11, 2014) (quoting Anderson v. Mount Clemens
Pottery Co., 328 U.S. 680, 688 (1946), superseded by
statute on other grounds, Portal-to-Portal Act of 1947,
Pub. L. No. 80-49); Kirk v. Invesco, Ltd., No.
H-15-833, 2016 WL 4394336, at *3-4 (S.D. Tex. Aug. 18, 2016)
(setting out the burdens of proof under the Anderson
framework). Thus, to the extent that Defendants request that
the Court strike all allegations that Defendants violated the
FLSA in failing to keep accurate records, it is
Individual Liability of ...