United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
22, 2017, Defendants filed a Motion to Dismiss
Plaintiff's Individual and Class Claims (ECF No. 12). The
Court, having considered the motion, briefs, pleadings, and
applicable law, concludes that the motion should be denied.
Rick Gandy worked for Defendants RWLS, LLC, and its
president, Matthew Grey (collectively,
“Defendants”), as an operator and rigger in New
Mexico from approximately November 2014 to June 2015. Compl.
¶¶ 1, 4, ECF No. 1. RWLS, LLC, headquartered in
Texas, is an oilfield service company that provides wireline
and other oilfield services to customers. Id. ¶
6. As a Field Employee, Plaintiff's primary job duties
consisted of performing technical and manual labor to provide
Defendants' products and services for customers at job
sites. Id. ¶ 18. During his employment,
Plaintiff reported to Defendants' Hobbs, New Mexico
location. Id. ¶ 4.
to the complaint, “Defendants regularly scheduled
Plaintiff to work for a minimum of twelve (12) hours per day
and a minimum of eighty-four (84) hours per week during his
employment.” Id. ¶ 24. “Despite
Plaintiff routinely working over 80 hours per week,
Defendants failed to pay him any overtime premium for all
hours worked in excess of 40 per workweek during the time
period Plaintiff received compensation on a salary or salary
plus non-discretionary bonus basis.” Id.
¶ 25. Defendants misclassified Plaintiff as exempt and
paid him on a salary or salary-plus-bonus basis with no
overtime pay for his many hours of overtime work.
Id. ¶ 26.
brings his wage claim as a Rule 23 class action on behalf of
the “NM Class Members, ” all of Defendants'
Field Employees who received pay on a salary or salary plus
non-discretionary bonus basis who worked in excess of 40
hours in at least one workweek in New Mexico over the past
three years. Id. ¶ 5. According to the
complaint, “Defendants regularly scheduled the Class
Members to work for a minimum of twelve (12) hours per day
and a minimum of eighty-four (84) hours per week.”
Id. ¶ 36. “Despite the NM Class Members
routinely working over 40 hours per week, Defendants failed
to pay the NM Class Members any overtime premium for all
hours worked in excess of 40 per workweek during the time
period the NM Class Members received compensation on a salary
or salary-plus-bonus basis.” Id. ¶ 37.
Defendants misclassified the NM Class Members as exempt and
paid them on a salary or salary-plus-bonus basis with no
overtime pay for their many hours of overtime work.
Id. ¶ 38.
alleges that Defendants violated the New Mexico Minimum Wage
Act (“NMMWA”), N.M. Stat. Ann. § 50-4-22(D),
by misclassifying him and the other NM Class Members as
exempt from overtime and by failing to pay him and other NM
Class Members overtime compensation at a rate of
time-and-one-half for all hours worked in excess of 40 in an
motion to dismiss, the court assesses the legal sufficiency
of the allegations contained within the four corners of the
complaint. Archuleta v. Wagner, 523 F.3d 1278, 1281
(10th Cir. 2008). Rule 8 requires the complaint to contain
"a short and plain statement of the claim showing that
the pleader is entitled to relief." Fed.R.Civ.P.
8(a)(2). The court accepts as true all well-pleaded facts,
viewing them in the light most favorable to the nonmoving
party and allowing all reasonable inferences in favor of the
nonmoving party. Archuleta, 523 F.3d at 1283. The
court "should disregard all conclusory statements of law
and consider whether the remaining specific factual
allegations, if assumed to be true, plausibly suggest the
defendant is liable." Kansas Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). The
complaint "does not need detailed factual allegations,
" but “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).
move to dismiss the Complaint under Federal Rule of Civil
Procedure 12(b)(6) and 12(f) on two grounds: (i) failure to
plead sufficient facts to support a reasonable inference that
Plaintiff received less than the overtime pay due; and (ii)
the case cannot proceed as a matter of law as a Rule 23 class
action, but must be pursued as a collective action.
to the NMMWA, an “employee shall not be required to
work more than forty hours in any week of seven days, unless
the employee is paid one and one-half times the
employee's regular hourly rate of pay for all hours
worked in excess of forty hours.” N.M. Stat. Ann.
§ 50-4-22(D). The NMMWA “establishes a floor below
which employers cannot pay employees wages and also requires
the payment of time and a half for work in excess of a
forty-hour workweek.” Armijo v. Wal-Mart Stores,
Inc., 2007-NMCA-120, ¶ 47, 168 P.3d 129 (quotations
omitted). Any “one or more employees for and on behalf
of the employee or employees and for other employees
similarly situated” may bring a lawsuit for relief
under the NMMWA. N.M. Stat. Ann. § 50-4-26(D).
Sufficiency of Allegations to Support Plaintiff's Cause
argue that Plaintiff is required to identify a specific
workweek in which he worked more than 40 hours and was denied
overtime pay. This Court has rejected this argument in a
similar case brought under the Fair Labor Standards Act, 29
U.S.C. §§ 201 to 219 (“FLSA”). See
Tapia v. DirecTV, Inc., No. Civ. 14cv939-JCH-GBW, Mem.
Op. and Order 8-10 (ECF No. 43, filed June 22, 2016)
(refusing to dismiss FLSA case under Rule 12(b)(6) for
failure to state a claim where plaintiffs alleged in
complaint that they “routinely worked more than 40
hours per week” and spent in excess of 50 to 60 hours
per week performing tasks for the benefit of Defendants, many
of those hours unpaid, despite that plaintiff failed to
allege specific workweek).
this Court's decision in Tapia, the Tenth
Circuit issued an unpublished opinion in ElHelbawy v.
Pritzker, 663 Fed.Appx. 658 (10th Cir. Oct. 13, 2016),
upon which Defendants rely. The Tenth Circuit cited
Landers v. Quality Communications, Inc., 771 F.3d
638, 644-45 (9th Cir. 2014), for the proposition that to
survive Rule 12(b)(6) dismissal, a plaintiff “must
allege that she worked more than forty hours in a given
workweek without being compensated for the overtime hours
worked during that workweek.” Pritzker, 663
Fed.Appx. at 663. The actual holding of the Pritzker
case was limited, however, because the plaintiff there failed
to even state that she “worked more than 40 hours in
any week or that, if she did, she was not paid overtime for
those hours.” Id. Pritzker does not resolve
whether the Tenth Circuit would also have required an
allegation of a ...