United States District Court, N.D. Mississippi, Aberdeen Division
SHAVON DAVIS, and JAQUELINE GILMORE, on behalf of themselves and others similarly situated PLAINTIFFS
BOSS WINGS ENTERPRISES, LLC, BOSS WINGS V. LLC, BOSS WINGS X LLC, BOSS WINGS XII LLC, BOSS WINGS XXV LLC, BOSS WINGS XXVI LLC, BOSS WINGS XXVII LLC, and BOSS WINGS XXX LLC DEFENDANTS
SHARION AYCOCK, UNITED STATES DISTRICT JUDGE
Davis and Jaqueline Gilmore, on behalf of themselves and
others similarly situated, filed their Complaint  against
Boss Wings Enterprises, LLC in this Court on July 12, 2018
asserting claims pursuant to the Fair Labor Standards Act
(“FLSA”). Now before the Court is the
Defendant's Motion  to Dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure.
and Procedural History
Plaintiffs were employed at the Defendants' Tupelo,
Mississippi location during the relevant statutory period.
Plaintiff Shavon Davis worked as a cook and Plaintiff
Jaqueline Gilmore worked as a cook and as a shift leader. The
Plaintiffs allege that throughout their employment, they
regularly worked over forty hours per workweek without
receiving proper overtime compensation. The Plaintiffs
further allege that the Defendants regularly made substantial
deductions from the Plaintiffs' paychecks related to
their work performance, resulting in the Defendants'
failure to compensate employees minimum wage. According to
the Plaintiffs, they and other employees made multiple
complaints regarding the Defendants' failure to pay
overtime, specifically, the Defendants' failure to
compensate employees for breaks. The Plaintiffs further
allege that when employees inquired as to why they were not
paid overtime, the Defendants explained that they did not pay
employees for breaks and reprimanded those employees who
complained about not being paid for overtime hours.
Plaintiffs claim that the Defendants did not compensate them
for the total overtime worked during the relevant time
period, asserting individual and putative class claims
against the Defendants for violations of the FLSA overtime
requirement and for fraudulent misrepresentation, alleging
that the Defendants fraudulently misrepresented to the
Plaintiffs that they were not owed overtime or minimum wage.
December 17, 2018 the Defendants, Boss Wings Enterprises and
Boss Wings V, XI, XXVI, XXVII, and XXX, filed this Motion
 to dismiss the collective action Complaint  under
Rule 12(b)(6), arguing that the Plaintiffs cannot plead
sufficient factual allegations in support of their FLSA claim
as to any entity other than Boss Wings XXV because only Boss
Wings XXV employed the Plaintiffs. The Defendants request
that the Court dismiss this action with prejudice.
preliminary stage in the proceedings, the Plaintiffs have yet
to move for conditional certification and discovery has just
deciding the Defendants' Motion to Dismiss, the Court
must read the Complaint in the light most favorable to the
Plaintiff and all well-pleaded, material allegations in the
Complaint must be taken as true. Estelle v. Gamble,
429 U.S. 97, 112, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). It is
the purpose of a Rule 12(b)(6) motion to test the formal
sufficiency of the statement for relief. Murray v. Amoco
Oil Co., 539 F.2d 1385 (5th Cir. 1976). A legally
sufficient complaint must establish more than a “sheer
possibility” that the plaintiff's claim is true.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct.
937, 173 L.Ed.2d 868 (2009). It need not contain detailed
factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a
cause of action. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In
other words, a “[plaintiff's] complaint therefore
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Id. at 570, 127 S.Ct. 1955. If there are
insufficient factual allegations to raise a right to relief
above the speculative level, the claim must be dismissed.
Id. at 555, 127 S.Ct. 1955. “[C]onclusory
allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to
dismiss.” Fernandez-Montes v. Allied Pilots
Assn., 987 F.2d 278, 284 (5th Cir. 1993).
considering Rule 12(b)(6) motions in FLSA cases, courts
[D]istinguish between individual . . . claims and those
brought on behalf of a putative class. Creech v. Holiday
CVS, LLC, No. 11-46-BAJ, 2012 WL 4483384, *3 (M.D. La
Sep. 28, 2012) (citation omitted). Prior to certification,
collective actions concern individuals who are not presently
before the court and may not have communicated with the named
plaintiffs' attorneys. Recognizing this, courts that
apply Rule 12(b)(6) motions to collective action claims
simply require plaintiffs to “give the defendant fair
notice of the putative class.” This arguably more
liberal Rule 12(b)(6) standard allows both the rule and the
certification process to play their proper role in the
management of collective actions.
Flores v. Act Event Services, Inc., 55 F.Supp.3d
928, 934 (N.D. Tex. Oct. 21, 2014) (quoting Dyer v.
Lara's Trucks, Inc., No. 1:12-CV-1785-TWT, 2013 WL
609307, *3 (N.D. Ga Feb. 19, 2013). Thus, to survive a motion
to dismiss in FLSA cases, the complaint must give the
defendant fair notice “that the claim is one for unpaid
overtime under the FLSA and that it is based on a failure to
pay employees time-and-a-half for hours worked in excess of
40 per workweek.” Hoffman v. Cemex, Inc., No.
H-09-3144, 2009 WL 4825224, *3 (S.D. Tex. Dec. 8, 2009).
their Motion  to Dismiss, the Defendants argue that the
Plaintiffs can only plead sufficient factual allegations in
support of their FLSA claim against Boss Wings XXV because
only Boss Wings XXV employed the Plaintiffs, thus requiring
the collective action Complaint against Boss Wings
Enterprises, Boss Wings V, XI, XXVI, XXVII, and XXX to be
dismissed under Rule 12(b)(6). Under the more liberal Rule
12(b)(6) standard as applied to putative class claims,
however, to survive the Defendants' Motion  to
dismiss the Plaintiffs need only give Boss Wings Enterprises,
Boss Wings V, XI, XXVI, XXVII, and XXX fair notice of the
putative class, the claims, and the grounds on which the
claims rests. Indeed, ...