United States District Court, D. South Carolina, Charleston Division
ANTHONY WRIGHT, DANIEL HANSON and KENNETH PRIVETTE, all individually and on behalf of all others similarly situated Plaintiffs,
WASTE PRO USA, INC., WASTE PRO OF FLORIDA, INC., WASTE PRO OF SOUTH CAROLINA, INC., and WASTE PRO OF NORTH CAROLINA, INC., Defendants.
C. NORTON UNITED STATES DISTRICT JUDGE.
following matter is before the court on defendants Waste Pro
of South Carolina ("Waste Pro SC") and Waste Pro of
North Carolina's ("Waste Pro NC")
(collectively, "defendants") motion to dismiss for
lack of subject-matter jurisdiction, failure to state a
claim, and preemption, ECF No. 178. For the reasons discussed
below, the court denies the motion, severs the lawsuit, and
orders plaintiffs to file amended complaints consistent with
brought this action against defendants individually and on a
collective and class-wide basis. Plaintiffs are waste
disposal drivers for defendants. They claim that, due to the
defendants' company-wide policies, they were deprived of
wages for hours actually worked. According to plaintiffs,
defendants did this in the following ways: (1) erroneously
calculating their prevailing hourly rate; (2) only paying
plaintiffs "half-time" for all hours worked over
forty hours in a given workweek; (3) requiring them to
perform pre-shift and post-shift duties while not clocked in;
and (4) automatically deducting thirty minutes for lunch
breaks that defendants knew plaintiffs worked through.
Plaintiffs bring this action on behalf of all other similarly
situated non-exempt waste disposal drivers who were paid a
day rate and who have been employed by Waste Pro entities
throughout the United States, at any time from September 29,
2014 through the final disposition of this matter. Plaintiffs
all filed consent forms to join this collective action
lawsuit against Waste Pro USA. ECF Nos. 30-3, 30-4, 30-5.
However, each plaintiff specifies that they work or worked
for a particular Waste Pro facility-plaintiff Anthony Wright
worked at Waste Pro's facility in Florida, plaintiff
Daniel Hansen in South Carolina, and plaintiff Kenneth
Privette in North Carolina.
procedural history of this case is complex. Plaintiffs filed
suit in this court on October 2, 2017 against Waste Pro SC,
Waste Pro NC, Waste Pro of Florida, Inc. (“Waste Pro
FL”), and Waste Pro USA, Inc. (“Waste Pro
USA”). Plaintiffs filed their second amended complaint
on December 5, 2017, bringing the following causes of action:
(1) violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201, et
seq.; (2) violation of the South Carolina Payment of
Wages Act (“SCPWA”), South Carolina Code
§§ 41-10-10, et seq.; and (3) violation of
the North Carolina Wage and Hour Act, North Carolina General
Statutes §§ 95-25.1, et seq.. ECF No.
30-2. On December 20, 2017, Waste Pro USA and Waste Pro FL
filed a motion to dismiss for lack of subject matter
jurisdiction, lack of personal jurisdiction, and failure to
state a claim, and also seeking the dismissal of
plaintiffs' North Carolina claim based on preemption
grounds. ECF Nos. 37 and 38. Waste Pro S.C. and Waste Pro NC
filed nearly identical motions that same day but declined to
file motions to dismiss for lack of personal jurisdiction.
ECF Nos. 39 and 40. On January 16, 2018, plaintiffs filed
virtually identical responses to all of the motions. ECF Nos.
46, 47, 48, and 49. On February 2, 2018, defendants filed a
joint reply to those responses. ECF No. 54. Pursuant to the
court's order to conduct jurisdictional discovery, Waste
Pre USA and Waste Pro FL filed their supplemental briefing on
the personal jurisdiction issue on November 30, 2018, ECF No.
124, and plaintiffs filed their supplemental briefing on
February 15, 2019, ECF No. 141. Defendants filed a reply to
plaintiffs' brief on February 25, 2019. ECF No. 143.
25, 2019, the court filed an order granting Waste Pro
USA's and Waste Pro FL's motion to dismiss for lack
of personal jurisdiction and dismissing those defendants from
the case (the “July 25 Order”). Accordingly, the
court dismissed all plaintiffs who were not employed by the
remaining defendants, Waste Pro S.C. and Waste Pro NC.
Because he was an employee of Waste Pro FL, Wright was
dismissed from the case as a plaintiff. The July 25 Order
further found that plaintiffs lacked standing to jointly
assert claims against Waste Pro S.C. and Waste Pro NC and
ordered plaintiffs to file an amended complaint in which the
plaintiffs employed by Waste Pro NC (the “North
Carolina plaintiffs”) would proceed against Waste Pro
NC or the plaintiffs employed by Waste Pro S.C. (the
“South Carolina plaintiffs”) would proceed
against Waste Pro SC. Instead, on August 9, 2019, plaintiffs
collectively filed their Third Amended Complaint, ECF No.
173, under which they proceeded jointly against Waste Pro
S.C. and Waste Pro NC. On August 23, 2019, defendants filed a
motion to dismiss the Third Amended Complaint, ECF No. 178.
On September 6, 2019, plaintiffs responded in opposition, ECF
No. 181, to which the defendants replied on September 13,
2019, ECF No. 184. The court held a hearing on the matter on
October 25, 2019. The matter has been fully briefed and is
now ripe for the court's review.
Motion to Dismiss for Lack of Subject Matter
standing argument implicates this court's subject matter
jurisdiction and is governed by Rule 12(b)(1). Crumbling
v. Miyabi Murrells Inlet, LLC, 192 F.Supp.3d 640, 643
(D.S.C. 2016). The determination of subject matter
jurisdiction must be made at the outset before any
determination on the merits. Steel Co. v. Citizens for a
Better Environment, 523 U.S. 83 (1998). “The
plaintiff bears the burden of persuasion if subject matter
jurisdiction is challenged under Rule 12(b)(1).”
Williams v. United States, 50 F.3d 299, 304 (4th
Cir. 1995). If the plaintiff cannot overcome this burden,
then the claim must be dismissed. Welch v. United
States, 409 F.3d 646, 651 (4th Cir. 2005). When a party
contends that “the complaint  fails to allege facts
upon which subject matter jurisdiction can be based[, ] . . .
all the facts alleged in the complaint are assumed to be
true.” Luna-Reyes v. RFI Const., LLC, 57
F.Supp.3d 495, 499 (M.D. N.C. 2014) (quoting Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). “[A]
trial court should dismiss under Rule 12(b)(1) only when the
jurisdictional allegations are ‘clearly . . .
immaterial, made solely for the purpose of obtaining
jurisdiction or where such a claim is wholly unsubstantial
and frivolous.'” Kerns v. United States,
585 F.3d 187, 193 (4th Cir. 2009) (quoting Bell v.
Hood, 327 U.S. 678, 682 (1946)).
Motion to Dismiss for Failure to State a Claim
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 (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. 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 Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (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).
assert five grounds for their motion to dismiss: (1)
plaintiffs' consent forms are insufficient under the
FLSA, (2) the court lacks subject matter jurisdiction based
on the plaintiffs' lack of standing, (3) the Third
Amended Complaint fails to state a claim against each
defendant, (4) plaintiffs' FLSA claims are barred by the
Motor Carrier Act exemption, and (5) plaintiffs' SCWPA
claims are preempted by the FLSA. The court addresses each
ground in turn.
Sufficiency of Consents
argue that the consent forms of Hansen and Privette are
insufficient for their claims against Waste Pro S.C. and
Waste Pro NC. Plaintiffs filed consent forms to join this
lawsuit, as required by the FLSA, in conjunction with their
previous complaint. In those forms, plaintiffs stated their
consent “to participate in a collective action lawsuit
against Waste Pro USA, Inc.” ECF Nos. 1-1 and 1-2.
Since plaintiffs' filing of their consent forms, the
court has dismissed Waste Pro USA from the case. Defendants
now argue that plaintiffs' consents, which continue to
support their claims against Waste Pro S.C. and Waste Pro NC,
are insufficient because they name Waste Pro USA as the
defendant, not Waste Pro S.C. or Waste Pro NC. Because
consent forms under these circumstances provide consent for
the collective action, rather than for a specific claim, the
consents are sufficient.
employee shall be a party plaintiff to any [collective FLSA]
action unless he gives his consent in writing to become such
a party and such consent is filed in the court in which such
action is brought.” 29 U.S.C. § 216. Consents are
to be interpreted “according to the plain meaning of
their language.” Turner v. BFI Waste Servs.,
LLC, 292 F.Supp.3d 650, 653 (D.S.C. 2017). Plain-meaning
construction, however, does not require the court to be
overly formalistic in interpreting consents. This court has
held that FLSA opt-in plaintiffs do not consent to join
specific claims of a collective FLSA action, but rather,
consent to “join the action as a whole.”
Id. at 654 (citing Prickett v. DeKalb
County, 349 F.3d 1297 (11th Cir. 2003)). In so
holding, the court noted both the language and the spirit of
the statute demanded this construction:
Section 216(b) of the FLSA, which authorizes a plaintiff to
sue his or her employer for overtime or wage law violations,
authorizes “[a]n action to recover the liability
prescribed” by the FLSA and provides that, by
consenting in writing, or “opting in, ” an
employee may become a plaintiff to “any such
action.” 29 U.S.C. § 216(b) (emphasis
added). The statute does not say that an employee may become
a plaintiff to any such “claim.” If Congress
wished to parse out that plaintiffs needed to opt in to each
FLSA claim, it would have replaced the word
“action” with “claim” in §
216(b). It did not do so. Therefore, the plain language of
the FLSA weighs in favor of finding that plaintiffs opt-in to
a FLSA action, not just a FLSA claim. Ultimately, the FLSA is
a remedial statute that “has been construed liberally
to apply to the furthest reaches consistent with
congressional direction.” Prickett, 349 F.3d
at 1296. Construing the language of § 216(b) liberally
in favor of the employees, this court follows Prickett and
the many courts that have interpreted it to hold that once a
FLSA action has been conditionally certified, opt-in
plaintiffs become parties to the FLSA action as a whole.
Id. at 652, 654.
plaintiffs' consent to opt into the collective FLSA
action against Waste Pro USA applies to the entirety of the
collective FLSA action, not just to claims against that
defendant. Thus, plaintiffs' consent forms are sufficient
for their claims against Waste Pro S.C. and for their claims
against Waste ...