United States District Court, W.D. Arkansas, Fayetteville Division
MARK FOCHTMAN; CORBY SHUMATE; MICHAEL SPEARS; ANDREW DANIEL; FABIAN AGUILAR; and SLOAN SIMMS Individually, and on Behalf of All Others Similarly Situated PLAINTIFFS
DARP, INC.; HENDREN PLASTICS, INC.; and JOHN DOES 1-29 DEFENDANTS
MEMORANDUM OPINION AND ORDER
Timothy L. Brooks, Judge
pending before the Court are a Motion to Dismiss (Doc. 13), a
Brief in Support (Doc. 14), and a Reply in Support (Doc. 25)
filed by Defendant DARP, Inc. ("DARP"), as well as
a Motion to Dismiss (Doc. 15) and a Brief in Support (Doc.
16) filed by separate Defendant Hendren Plastics, Inc.
("Hendren"). Also before the Court are
Plaintiffs' Oppositions to the Motions to Dismiss (Doc.
17, 18). For the reasons explained herein, Defendants'
Motions are GRANTED IN PART AND DENIED IN
case is a putative class action, originally filed in Benton
County, Arkansas Circuit Court on October 23, 2017, and
removed to this Court on November 6, 2017, as Case Number
5:17-CV-05228, Mark Fochtman and Shane O'Neal v.
CAAIR, Inc., Simmons Foods, Inc, DARP, Inc., and Hendren
Plastics, Inc. ("Fochtman f). This Court found
jurisdiction is proper under the Class Action Fairness Act,
and denied Defendants' motions to remand on February 27,
2018 (Doc. 2). The instant case was severed from Fochtman
I on February 27, 2018. See Case Number
5:17-CV-05228, Doc. 97.
filed the instant Complaint on March 9, 2018, and alleged
violations of the Minimum Wage Act of the State of
Arl<ansas ("AIVIWA") (Counts I and II), the
Slavery Clause of the Arkansas Constitution (Count III), and
the Arkansas Human Trafficking Act of 2013 (Count IV). (Doc.
1). The claims arise from Plaintiffs' drug-court ordered
participation in DARP's substance abuse recovery program,
where DARP required Plaintiffs to work in Defendant
Hendren's plastics plant.
filed a Motion to Dismiss all counts pursuant to Federal Rule
of Civil Procedure 12(b)(6) (Doc. 13), and Hendren filed a
Motion to Dismiss pursuant to Rules 12(b)(6) and (7) (Doc.
15). Regarding the alleged AMWA violations in Counts I and
II, both Defendants DARP and Hendren argue that Plaintiffs
fail to state a claim because no employee-employer
relationship existed. Defendants assert that Plaintiffs did
not expect to receive compensation for their labor because
they were criminal defendants who voluntarily and knowingly
chose to participate in DARP where work was an essential
program component. In the alternative, Hendren argues that it
did not violate the AMWA because it paid DARP directly for
the hours Plaintiffs worked, including overtime.
the allegations of slavery/involuntary servitude and human
trafficking in Counts III and IV, first, both Defendants DARP
and Hendren argue that Plaintiffs fail to state valid claims
because they entered DARP voluntarily, and they were free to
leave the program at any time. Second, Defendants also
similarly argue that if Plaintiffs received any alleged
threats of incarceration while living at DARP and working for
Hendren, such were permissible reminders about the possible
future consequences of quitting the program. Third, both
Defendants argue that Plaintiffs have not alleged sufficient
facts to show that DARP or its agents made statements that
constitute coercion, duress, or menace and rise to the level
of slavery/involuntary servitude. Fourth, both Defendants
argue that Plaintiffs participated in DARP as part of the
punishment for a crime they had committed, and the Arkansas
Constitution's Slavery Clause expressly exempts criminal
punishment from its proscription on slavery/involuntary
offers three additional arguments regarding the
slavery/involuntary servitude and human trafficking
allegations. First, Hendren argues that the Arkansas
Constitution does not provide for a private cause of action
to remedy a violation of the Slavery Clause. Next, Hendren
argues that the Complaint should be dismissed because the
States of Arkansas and Oklahoma are indispensable parties
under Rule 19, and sovereign immunity prevents their joinder.
Finally, Hendren argues that the slavery/involuntary
servitude and human trafficking claims should be dismissed
because they are impermissible collateral attacks on
survive a motion to dismiss, a pleading must 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 purpose of this requirement is to "give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests." Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court
must accept all of a complaint's factual allegations as
true, and construe them in the light most favorable to the
plaintiff, drawing all reasonable inferences in the
plaintiff's favor. See Ashley Cnty., Ark. v. Pfizer,
Inc., 552 F.3d 659, 665 (8th Cir. 2009).
the complaint "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. "A
pleading that offers 'labels and conclusions' or
'a formulaic recitation of the elements of a cause of
action will not do.' Nor does a complaint suffice if it
tenders 'naked assertion[s]' devoid of 'further
factual enhancement.'" Id. In other words,
while "the pleading standard that Rule 8 announces does
not require 'detailed factual allegations,' ... it
demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation." Id.
Counts I and II: AMWA Violations
critical issue in the first two Counts of Plaintiffs'
Complaint is whether Plaintiffs state a plausible claim that
they were Defendants' employees. To determine if an
employment relationship exists under Arkansas law, courts
initially turn to the text of the AMWA, which uses language
identical to that of the Fair Labor Standards Act
("FLSA") to define an "employee,"
"an employer," and "to employ."
Compare Ark. Code Ann. § 11-4-203 with
29 U.S.C. § 203 (both defining "employee" as
"any individual employed by an employer";
"employer" as anyone "acting directly or
indirectly in the interest of an employer in relation to an
employee"; and "to employ" as "to suffer
or to permit to work"). Arkansas Administrative Code
010.14.1-112 provides that the Arkansas Department of Labor
may rely upon federal precedent established by the FLSA in
interpreting the AMWA, and courts regularly use federal FLSA
precedent to interpret the AMWA. See Karlson v.
Action Process Serv. & Private Investigation, LLC,
860 F.3d 1089, 1092 n.3 (8th Cir. 2017); Harris v.
Express Courier Int'l, 2017 WL 5606751, at M (W.D.
Ark. Nov. 21, 2017).
Supreme Court has instructed courts to broadly interpret the
meaning of "employee" under the FLSA. See
Nationwide Mut. Ins. Co. v. Darden,503 U.S. 318, 326
(1992); see also Ark. Code Ann. § 11-4-204
(stating that the AMWA should be "liberally construed In
favor of its purpose"). Furthermore, under the FLSA, the
test for employment is one of "economic reality."
Ash v. Anderson Merchandisers, LLC,799 F.3d 957,
961 (8th Cir. 2015) (citing Tony & Susan Alamo Found,
v. Sec'y of Labor,471 U.S. 290, 301 (1985)). Under
the economic reality test, courts look at the total
circumstances of the economic relationship between the
parties, including such factors as the "alleged
employers' right to control the nature and quality of
their work, the employers' right to hire, or fire, or the
source of ...