United States District Court, D. South Carolina, Charleston Division
DUANE GOVAN, on behalf of himself and all others similarly situated, Plaintiff,
WHITING-TURNER CONTRACTING COMPANY; SHIELDS INC.; MOLINA CONSTRUCTION INC.; and BALTAZAR T. MOLINA, individually, Defendants
Duane Govan, On Behalf of Himself and All Others Similarly
Situated, James Green, Sammie Kenlaw, Plaintiffs: Marybeth E
Mullaney, LEAD ATTORNEY, Mullaney Law, Mount Pleasant, SC.
Whiting-Turner Contracting Company, Shields Inc, Defendants:
Jessica Lee Gooding, Reginald W Belcher, LEAD ATTORNEYS,
Turner Padget Graham and Laney, Columbia, SC.
C. NORTON, UNITED STATES DISTRICT JUDGE.
matter is before the court on defendants Whiting-Turner
Contracting Company and Shields Inc.'s (collectively
" defendants" ) motion to dismiss. For the reasons
set forth below, defendants' motion to dismiss is denied.
Whiting-Turner Contracting Company ("
Whiting-Turner" ) is a construction management and
general contracting company based in Baltimore, Maryland.
Compl. ¶ 10. Defendant Shields Inc. ("
Shields" ) is a commercial contracting company based in
Winston-Salem, North Carolina that specializes in the
installation of custom walls, ceilings, and floor systems.
Id. ¶ 11. Defendant Molina Construction Inc.
(" Molina" ) is a commercial construction company
based in Charlotte, North Carolina that specializes in metal
framing, dry-wall, and acoustic ceilings. Id. ¶
12. Defendant Baltazar T. Molina (" Mr. Molina" )
" managed, owned and/or operated Molina Construction
Company Inc." Id. ¶ 13. Plaintiff Duane
Govan (" Govan" ) alleges that Whiting-Turner,
Shields, Molina, and Mr. Molina " regularly exercised
the authority to hire and fire employees, determine the work
schedules of employees, set the rate of pay of employees, and
control the finances and operations" of such businesses
and are therefore considered employers under the FLSA.
Id. ¶ ¶ 10-13.
was employed by defendants from approximately February 2014
to August 2014. Id. ¶ 14. Govan alleges that he
and " other similarly situated laborers had an
employment agreement with the Defendants, whereby the
Defendants agreed to pay an hourly rate plus housing for all
hours worked." Id. at 17. Govan further alleges
that he and " other similarly situated laborers
regularly worked over 40 hours a week and were not
compensated at a rate of one and one-half times their regular
hourly wage." Id. ¶ 23. Govan contends
that although defendants provided room and board, they "
failed to add the cost of the hotels into the regular rate
for purposes of determining the overtime compensation of
these employees." Id. ¶ 25.
brings this action individually and as a collective action
seeking overtime compensation, liquidated damages, and
reasonable attorney's fees under the Fair Labor Standards
Act (" FLSA" ), 29 U.S.C. § 201 et seq.
Id. ¶ 1. Defendants filed the present motion to
dismiss on July 13, 2015. Plaintiffs responded on July 30,
2015, and defendants filed a reply on August 10, 2015. The
motion has been fully briefed and is now ripe for the
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss for " failure to state a claim upon which relief
can be granted." When considering a Rule 12(b)(6) motion
to dismiss, the court must accept the plaintiff's factual
allegations as true and draw all reasonable inferences in the
plaintiff's favor. See E.I. du Pont de Nemours & Co.
v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011). But
" the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions." Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
motion to dismiss, the court's task is limited to
determining whether the complaint states a " plausible
claim for relief." Id. at 679. A complaint must
contain sufficient factual allegations in addition to legal
conclusions. Although Rule 8(a)(2) requires only a "
short and plain statement of the claim showing that the
pleader is entitled to relief," " a formulaic
recitation of the elements of a cause of action will not
do." Bell A. Corp. v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The "
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Iqbal, 556
U.S. at 678 (quoting Twombly, 550
U.S. at 570). " Facts pled that are 'merely
consistent with' liability are not sufficient."
A Soc'y Without a Name v. Virginia, 655 F.3d
342, 346 (4th Cir. 2011) (quoting
Iqbal, 556 U.S. at 678).
argue that the court should dismiss Govan's individual
claim and collective action claim with prejudice because the
complaint fails to allege the following requisite facts: (1)
the number of unpaid overtime hours that Govan allegedly
worked; (2) the dates on which he worked those hours; (3) any
details regarding the defendants' allegedly unlawful
timekeeping practices; (4) the identities of any other
members of the alleged collective class; (5) the number of
unpaid overtime hours that each of the members of the alleged
collective class works and the dates on which they worked
those hours; (6) how the purported collective class is
similar to Govan; and (7) whether the defendants' common
policies and/or practices, if any, systematically applied to
Govan or a similarly situated class. Defs.' Mot. 2-3.