Ford v. Troyer ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-31328
Summary Calendar
HENDERSON FORD,
Plaintiff-Appellant,
versus
STEPHEN TROYER, d/b/a/ Troyer Enterprises
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 97-CV-890-G
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August 3, 1998
Before EMILIO M. GARZA, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Henderson Ford appeals the dismissal of his complaint
pursuant to Fed. R. Civ. P. 12(b)(1) against Troyer Enterprises.
Ford alleged that Troyer violated the Fair Labor Standards Act of
1938 (FLSA), as amended, 29 U.S.C. § 201, et seq., because from
December 1995 to January 30, 1997, Troyer failed to pay him
overtime and to keep adequate records. The district court
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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concluded that Ford’s claims were res judicata in view of a prior
suit by the Secretary of Labor against Troyer.
Ford argues that he should not be barred from receiving
overtime compensation due to him based on the prior litigation
because the prior suit did not name him specifically. He asserts
that the district court should have accepted as true his
allegation in his complaint that he worked for Troyer from
December 1995 to January 1997 and that he was not paid overtime
compensation during that time. He asserts that the Secretary of
Labor informed him that he was not covered by the time period of
the prior litigation.
When reviewing a dismissal pursuant to Fed. R. Civ. P.
12(b), this court accepts as true all the allegations of the
complaint, considering them in the light most favorable to the
plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
This court upholds the dismissal only if it appears certain that
the plaintiff cannot prove any set of facts in support of his
claim that would entitle him to relief. Home Capital Collateral,
Inc. v. F.D.I.C., 96 F.3d 760, 764 (5th Cir. 1996).
The Secretary of Labor may bring suits for unpaid minimum
wages and overtime compensation under 29 U.S.C. § 216(c) and for
injunctive relief under 29 U.S.C. § 217. Donovan v. University
of Texas at El Paso, 643 F.2d 1201 (5th Cir. 1981) 1204. Section
216 allows the Secretary to recover back wages and liquidated
damages on behalf of employees specifically named in the
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complaint. Id. Once the Secretary files suit, the claims of all
employees who had not already initiated private actions are
consolidated. Id. at 1207; see § 216(b). The right of an
affected employee to commence or become a party plaintiff in a
private action terminates unless the Secretary moves to dismiss
the action without prejudice. Id.; see § 216(c) (West Supp.
1998). Previously filed private ligation by employees is not
affected. Id. Section 216(c) further provides that an action is
considered commenced for § 216 purposes vis-a-vis an individual
claimant on the date when the complaint is filed if he is
specifically named as a party plaintiff, or if his name did not
appear in the complaint, on the subsequent date on which his name
is added as a party plaintiff. (West Supp. 1998). Section 217
allows the Secretary “to seek broad injunctive relief as well as
back wages for all affected employees without any requirement
that they be specifically named in the complaint.” 643 F.2d at
1204.
Troyer did not furnish the district court with a copy of the
complaint filed by the Secretary. Therefore, whether the
Secretary named Ford as an employee entitled to collect for
unpaid overtime cannot be determined. Moreover, Ford alleged in
the district court that he was unaware of the Secretary’s
litigation and that the time period covered by the Secretary’s
suit did not include him. This court must accept Ford’s
allegations as true. Baker, 75 F.3d at 196. Because whether
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Ford is entitled to relief cannot be determined on the basis of
the pleadings alone, the district court’s dismissal under Rule
12(b) was an abuse of discretion.
Accordingly, the district court’s order of dismissal is
VACATED and the case is REMANDED to the district court for
further proceedings. Troyer’s motion for sanctions against Ford
for filing the instant complaint is DENIED.