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Govan v. Whiting-Turner Contr. Co.

United States District Court, D. South Carolina, Charleston Division

November 23, 2015

DUANE GOVAN, on behalf of himself and all others similarly situated, Plaintiff,
v.
WHITING-TURNER CONTRACTING COMPANY; SHIELDS INC.; MOLINA CONSTRUCTION INC.; and BALTAZAR T. MOLINA, individually, Defendants

          For 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.

         For Whiting-Turner Contracting Company, Shields Inc, Defendants: Jessica Lee Gooding, Reginald W Belcher, LEAD ATTORNEYS, Turner Padget Graham and Laney, Columbia, SC.

         ORDER

         DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         Defendant 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.

         Govan 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.

         Govan 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 court's review.

         II. STANDARD

         Under 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).

         On a 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).

         III. DISCUSSION

         Defendants 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.

         A. Govan's ...


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