United States District Court, E.D. Arkansas, Western Division
Kristine G. Baker United States District Judge.
the Court is defendants William E. Hall, Ivy Hall, Inc., and
Ivy Edward Hall's (collectively the “Hall
Defendants”) motion to dismiss original complaint (Dkt.
Nos. 7, 8). Plaintiff Alan Hunter filed a response (Dkt. No.
9). The Court denies the motion.
complaint, Mr. Hunter alleges that he was employed by the
defendants as a tow truck driver. Mr. Hunter specifically
alleges that he entered into an employment relationship with
separate defendants JHook Investments, Inc., and Jeff Hooker
in May 2015. He alleges that he performed towing services for
the Hall Defendants and that dispatchers employed by the Hall
Defendants called him to perform towing services on a regular
basis. Mr. Hunter alleges that, for at least one week, he
worked more than 40 hours per week and was not paid overtime
for those hours. Mr. Hunter alleges violations of the
overtime provisions of the Fair Labor Standards Act, 29
U.S.C. § 201 et seq. (“FLSA”), and
the overtime provisions of the Arkansas Minimum Wage Act,
Ark. Code Ann.§ 11-4-201 et seq.
Hall Defendants filed a motion to dismiss. In their motion,
the Hall Defendants contend that, on or about April 1, 2015,
William E. Hall of Ivy Hall, Inc., sold its towing business
to Mr. Hooker of JHook Investments, Inc. The Hall Defendants
contend that Ivy Edward Hall is deceased, having died in
1992. The Hall Defendants also contend, “[s]eparate
Defendants Hall never entered into an employer-employee
relationship with Plaintiff, they do not have
‘dispatchers' nor did they ever dispatch Plaintiff
on any tow calls. Further, Separate Defendant Ivy Edward Hall
passed away in 1992 and could not possibly have had any
communication with Plaintiff.” (Dkt. No. 7, at 2). The
Hall Defendants request that this Court dismiss Mr.
Hunter's complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state facts upon which
relief can be granted.
response, Mr. Hunter argues against dismissal and contends
that, at this stage of the litigation, the court must
construe all facts alleged in his complaint as true. Mr.
Hunter contends that the Hall Defendants presented facts
outside of the pleadings in their motion to dismiss and that
this Court may not rely on facts outside of the pleadings
without converting the motion to dismiss into a motion for
summary judgment. Mr. Hunter contends that, if this Court
does convert the motion, he must be provided with fair notice
and an opportunity to resist summary judgment. The Court
agrees with Mr. Hunter's position in regard to the facts
outside of the pleadings and the necessary procedure to be
followed if this Court considers or relies upon those facts.
The Court concludes that consideration of facts outside of
the pleadings is not necessary to resolve the pending motion
to dismiss, . For the reasons that follow, the Court denies
the motion to dismiss pursuant to Rule 12(b)(6).
reviewing a motion to dismiss, the Court assumes as true all
factual allegations of the complaint. Levy v. Ohl,
477 F.3d 988, 991 (8th Cir. 2007). “However, the
complaint must contain sufficient facts, as opposed to mere
conclusions, to satisfy the legal requirements of the claim
to avoid dismissal.” Id. (citing DuBois v.
Ford Motor Credit Co., 276 F.3d 1019, 1022 (8th Cir.
2002)). “In appraising the sufficiency of the complaint
we follow, of course, the accepted rule that a complaint
should not be dismissed for failure to state a claim unless
it appears beyond doubt that plaintiff can prove no set of
facts in support of his claim that would entitle him to
relief.” Id. (citing Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)).
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) “must be treated as a motion for summary
judgment when matters outside the pleadings are presented and
not excluded by the trial court.” Gibb v.
Scott, 958 F.2d 814, 816 (8th Cir. 1992) (citing
Woods v. Dugan, 660 F.2d 379, 380 (8th Cir. 1981)
(per curiam)). “Most courts . . . view ‘matters
outside the pleading' as including any written or oral
evidence in support of or in opposition to the pleading that
provides some substantiation for and does not merely
reiterate what is said in the pleadings.” Id.
(citing Wright & Miller, Federal Practice and Procedure
§ 1366 (footnotes omitted)). A district court must
exclude matters outside the pleadings when deciding a motion
to dismiss; otherwise the motion is converted to a motion for
summary judgment. Id. If the district court does
consider such matters, it must provide the parties with
notice and an opportunity to defend against summary judgment.
The failure to do so requires reversal unless the failure
constituted harmless error. Id.
FLSA requires that employers compensate covered employees for
hours worked in excess of 40 hours per week at one and one
half times the employees' regular pay rate. 29 U.S.C.
§ 207(a)(1). The employee bears the burden of proving
that he worked overtime without compensation. Fast v.
Applebee's Intern., Inc., 638 F.3d 872, 881 (8th
Cir. 2011). However, “[t]he remedial nature of this
statute and the great public policy which it embodies . . .
militate against making that burden an impossible hurdle for
the employee.” Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 687 (1946), superseded by statute
on other grounds.
test of employment under the FLSA is one of ‘economic
reality.'” Ash v. Anderson Merchandisers,
LLC, 799 F.3d 957, 961 (8th Cir. 2015), cert.
denied, 136 S.Ct. 804 (2016) (quoting Tony and Susan
Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 301
(1985) (quoting Goldberg v. Whitaker House Coop.,
Inc., 366 U.S. 28, 33 (1961))). To allege sufficiently a
FLSA overtime claim, a complaint should include facts
describing the “economic reality” of the
plaintiff's employment, such as the alleged
employer's right to control the nature and quality of the
work, the employer's right to hire or fire, or the source
of compensation for the work. Id. A plaintiff who
alleges employment with multiple defendants is not required,
at the pleading stage, to determine conclusively which of the
defendants the plaintiff's employer is, or to describe in
detail the employer's corporate structure. The pleading
standard under Rule 12(b)(6) contemplates that plaintiffs
will often be unable to prove definitively the elements of
the claim before discovery, particularly in cases where the
necessary information is within the control of defendants.
Id. The pleading standard therefore requires only
that the plaintiff allege facts sufficient to state a
plausible claim. Id. A complaint that contains only
the recitation of a legal conclusion that an
employer-employee relationship exists is not sufficient to
satisfy Rule 12(b)(6). Id.
Ash, the Eighth Circuit Court of Appeals affirmed
dismissal of a complaint where the plaintiff failed to
include any facts-such as the name on plaintiff's
business cards, the identity of plaintiff's supervisors,
the source of plaintiff's work schedules, and the
information plaintiff was given when plaintiff was hired-to
support the legal conclusion that an employer-employee
relationship existed between plaintiff and any of the three
defendant companies. Id.
Hunter, however, alleges some facts in his complaint to
support his allegation that an employer-employee relationship
existed between him and the Hall Defendants. The Court must
accept those facts as true at this stage of the proceeding.
Mr. Hunter's complaint alleges that he entered into an
employer-employee relationship with JHook and Mr. Hooker. Mr.
Hunter alleges that, after he entered into this
employer-employee relationship, the Hall Defendants
“regularly dispatched” him to perform towing
services (Dkt. No. 1, ¶ 24). He contends that those
defendants controlled his work schedule to some degree by
dispatching him to perform towing services. Although Mr.
Hunter's complaint focuses on the economic reality of his
employment with JHook, Inc. and Mr. Hooker, the Court
concludes that, if taken as true, Mr. Hunter's allegation