United States District Court, N.D. Alabama, Middle Division
MARLA HOLCOMB-JONES, REBA LACKEY, STEVEN JOEL PARTAIN, SHARON ANN RAWLS, and PAMELA ROBERTS, on behalf of themselves and all others similarly-situated, Plaintiffs,
STONEMOR PARTNERS, L.P., Defendant.
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
matter comes before the court on Defendant StoneMor Partners,
L.P.'s (StoneMor) motion to dismiss. (Doc. 31). Before
this motion, StoneMor filed a motion to dismiss (doc. 6),
which became moot when the court (Hopkins, J.) granted
plaintiffs leave to amend their complaint. (Doc. 18).
Plaintiffs amended their complaint and StoneMor filed another
motion to dismiss. (Docs. 21, 24). StoneMor's second
motion to dismiss also became moot when plaintiffs were
granted leave to amend their complaint for a second time.
(Doc. 29). Plaintiffs filed a second amended complaint and it
is StoneMor's motion to dismiss that complaint, its third
motion to dismiss overall, which is now before the court.
(Docs. 6, 24, 30, 31). StoneMor seeks dismissal of unpaid
minimum wage and overtime claims brought by plaintiffs Marla
Holcomb-Jones, Reba Lackey, Steven Joel Partain, Sharon Ann
Rawls, and Pamela Roberts (collectively,
“Plaintiffs”) on behalf of themselves and a
putative class of similarly situated employees. According to
the plaintiffs, StoneMor violated the Fair Labor Standards
Act (“FLSA”) by failing to pay them wages that
they are due.
reasons set out in this opinion, the court
GRANTS StoneMor's motion to dismiss
because plaintiffs' allegations are factually inadequate
to make their FLSA claims plausible.
well-pled 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, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007));
see also Harris, 572 F.3d at 71-72. To be plausible,
the complaint need not show a probability of plaintiff's
success, but it must evidence more than a mere possibility of
a right to relief. Iqbal, 556 U.S. at 678, 129 S.Ct.
1937; Twombly, 550 U.S. at 556, 127 S.Ct. 1955. And
in evaluating whether a complaint states a plausible claim,
the court draws upon “'judicial experience and
common sense' to determine whether the factual
allegations, which are assumed to be true, ‘plausibly
give rise to an entitlement of relief.” Landers v.
Quality Communications, Inc., 771 F.3d 638, 641, citing
Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
resolving a motion to dismiss, the court must “accept
the allegations in the complaint as true and constru[e] them
in the light most favorable to the plaintiff.”
Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d
1291, 1297 (11th Cir. 2015) (quoting Hill v. White,
321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam)). Although
the court must accept well-pleaded facts as true, the court
is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Twombly, 550
U.S. at 555.
a national provider of deathcare services, owns and operates
cemeteries and funeral homes across the United States and in
Alabama. (Doc. 30, ¶ 22). Part of its operation is in
sales, selling various cemetery products and services. (Doc.
30, ¶ 23). In 2014 and 2015, plaintiffs were a part of
StoneMor's sales operation, employed as so-called
“family counselors” and/or “family
advisors.” (Doc. 30, ¶ 9-13, 24-25). Plaintiffs
worked as family counselors and family advisors at different
locations, but were all indisputably employed by StoneMor in
non-exempt jobs at all times relevant to the complaint.
as family counselors and advisors, plaintiffs were paid a
commission on their sales. (Id. ¶ 29). The
sales commission was the only compensation paid to plaintiffs
if, in a given week, they earned enough commission to exceed
payment of the equivalent minimum wage requirement for a
forty-hour week. (Id.). If the commission did not
satisfy the forty-hour minimum wage requirement, plaintiffs
received commissions plus additional compensation to meet the
FLSA's minimum wage requirement, but not to exceed the
minimum wage requirement for a forty-hour week.
(Id.). Plaintiffs were regularly required to work
more than forty hours a week, irrespective of whether their
pay was generated from commission or minimum wage.
(Id. ¶ 30). And they were instructed not to
record working more than forty hours per workweek even when
required to do so regularly. (Id.). Individually,
the plaintiffs allege the following:
• Ms. Holcomb-Jones alleges that she “worked more
than 40 hours per week [sic] on a regular basis but was told
not to record more than 40 hours and was therefore not paid
either minimum wage or overtime for every hour she worked.
(Doc. 30, ¶ 32).
• Ms. Reba Lackey alleges that she “worked the six
days the last week of March (Monday through Saturday and was
then called in Sunday afternoon to meet with a family.”
She also alleges that during “the first week of April,
2016, she worked (Monday through Saturday, ) and was called
in again that Sunday. During the second week of April, 2016,
she worked Monday through Saturday, and was told that she was
going to be on call that Sunday. Ms. Lackey was not paid for
any hours in excess of 40 either week.” She was
required to watch a video on overtime pay and sign a document
stating that overtime pay would “not be paid if not
preapproved by management.” And “many
times” she worked until 8:00 P.M. for call nights on
Tuesdays and Thursdays. She also alleges that if she worked
through lunch, 30 minutes was deducted from her time
“whether she received lunch or worked through lunch
doing non-exempt work.” (Doc. 30, ¶¶ 34-37).
• Mr. Steven Joel Partain alleges he “worked more
than 40 hours per week on numerous occasions but was not paid
overtime compensation.” (Doc. 30, ¶ 38).
• Ms. Sharon Ann Rawls alleges that on “numerous
occasions” she worked “more than 40 hours per
week but she did not receive overtime compensation.”
(Doc. 30, ¶ 39).
• Ms. Pamela Roberts alleges that she was
“required to work on Saturday and Sunday after working
a full workweek but was only allowed to record that she had
worked forty hours that week and therefore not paid ...