United States District Court, D. North Dakota
Derek Fenlon, individually and on behalf of all others similarly situated, Plaintiff,
Nickelback Transport, Inc., Defendant.
ORDER DENYING DEFENDANT'S MOTION TO
L. HOVLAND, DISTRICT JUDGE
the Court is Defendant's Rule 12(b)(6) motion to dismiss
filed on August 2, 2019. See Doc. No. 5. The
Plaintiff filed a response in opposition to the motion on
August 23, 2019. See Doc. No. 8. The Defendant filed
a reply brief on September 6, 2019. See Doc. No. 9.
For the reasons set forth below, the motion is denied.
an action by the Plaintiff, Derek Fenlon, to recover unpaid
overtime wages and other damages from Defendant Nickelback
Transport, Inc. (“Nickelback”) under the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq.
(“FLSA”) and the overtime provisions found in
Title 34 of the North Dakota Century Code and Section
46-02-07 et seq. of the North Dakota Administrative Code.
This collective action was commenced on July 11, 2019.
is a former truck driver and manager of Nickelback.
Nickelback is an Idaho corporation doing business in North
Dakota hauling fresh water, production water, flowback water,
and other materials to and from various oilfield locations in
and other similarly situated employees of Nickelback, were
truck drivers transporting materials to and from oilfield
sites within the State of North Dakota, who contend they were
not paid for all the overtime hours they worked, as
Nickelback only paid straight time for all hours worked. In
addition, they contend Nickelback shaved their overtime hours
to reduce or eliminate Nickelback's overtime obligations.
Nickelback contends the Plaintiff truck drivers fall within
the FLSA's Motor Carrier Act exemption.
STANDARD OF REVIEW
8(a)(2) of the Federal Rules of Civil Procedure provides that
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). Rule 12(b)(6) of the
Federal Rules of Civil Procedure mandates the dismissal of a
claim if there has been a failure to state a claim upon which
relief can be granted. When considering a motion to dismiss
under Rule 12(b)(6), the court must accept all well-pleaded
factual allegations in the complaint as true. Detailed
factual allegations are not necessary under the Rule 8
pleading standard, rather a plaintiff must set forth grounds
of its entitlement to relief which “requires more than
labels and conclusions, and 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). A
complaint does not “suffice if it tenders ‘naked
assertions' devoid of ‘further factual
enhancement.'” Aschcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
557). The determination of whether a complaint states a claim
upon which relief can be granted is a “context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at
679. The court must consider whether the allegations set
forth in the complaint “plausibly give rise to an
entitlement to relief.” Id. at 679. Dismissal
will not be granted unless it appears beyond doubt the
plaintiff can prove no set of facts entitling him to relief.
Ulrich v. Pope Cty., 715 F.3d 1054, 1058 (8th Cir.
court may generally only look to the allegations contained in
the complaint to make a Rule 12(b)(6) determination.
McAuley v. Fed. Ins. Co., 500 F.3d 784, 787 (8th
Cir. 2007). “[I]n considering a motion to dismiss, the
district court may sometimes consider materials outside the
pleadings, such as materials that are necessarily embraced by
the pleadings and exhibits attached to the complaint.”
Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4
(8th Cir. 2003) (citing Porous Media Corp. v. Pall
Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)). However, if
“matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.” Fed.R.Civ.P. 12(d).
conversion to a motion for summary judgment, “[a]ll
parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion.”
Id.; Brooks v. Midwest Heart Grp., 655 F.3d
796, 800 (8th Cir. 2011). As the Defendant has submitted
matters outside the pleadings in support of its motion, the
Court will treat the motion as one for summary judgment under
judgment is appropriate when the evidence, viewed in a light
most favorable to the non-moving party, indicates that no
genuine issues of material fact exist and that the moving
party is entitled to judgment as a matter of law. Davison
v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th
Cir. 2007); see Fed.R.Civ.P. 56(a). Summary judgment
is not appropriate if there are factual disputes that may
affect the outcome of the case under the applicable
substantive law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). An issue of material fact is
genuine if the evidence would allow a reasonable jury to
return a verdict for the non-moving party. Id.
Court must inquire whether the evidence presents a sufficient
disagreement to require the submission of the case to a jury
or whether the evidence is so one-sided that one party must
prevail as a matter of law. Diesel Mach., Inc. v. B.R.
Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). The
moving party bears the responsibility of informing the court
of the basis for the motion and identifying the portions of
the record which demonstrate the absence of a genuine issue
of material fact. Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011). The non-moving party may
not rely merely on allegations or denials in its own
pleading; rather, its response must set out specific facts
showing a genuine issue for trial. Id.; Fed.R.Civ.P.
56(c)(1). The court must consider the substantive standard of
proof when ruling on a motion for summary judgment.
Anderson, 477 U.S. at 252.
filed this FLSA collective action on July 11, 2019. In lieu
of an answer, Nickelback filed a Rule 12(b)(6) motion to
dismiss on August 2, 2019. In its motion, Nickelback contends
it is exempt from the FLSA overtime provisions because the
Plaintiff truck drivers fall within the FLSA's Motor
Carrier Act exemption (“MCA exemption”), 29
U.S.C. § 213(b)(1). In support of its motion, Nickelback
has submitted the declaration of Nickelback President Shawn
Holdaway. In his declaration, Holdaway states Nickelback is a
federal motor carrier which operates commercial vehicles
hauling commodities in interstate commerce and its drivers
are thus exempt from FLSA overtime provisions. In response to
the motion to dismiss, Fenlon correctly points out that by
citing to matters outside the complaint, ...