Greg Landers v. Quality Communications, Inc. ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREG LANDERS, individually and on No. 12-15890
behalf of others similarly situated,
Plaintiff-Appellant, D.C. No.
2:11-cv-01928-
v. JCM-RJJ
QUALITY COMMUNICATIONS, INC.;
BRADY E. WELLS; ROBERT J. ORDER AND
HUBER, AMENDED
Defendants-Appellees. OPINION
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
November 8, 2013—San Francisco, California
Filed November 12, 2014
Amended January 26, 2015
Before: Andrew J. Kleinfeld, Johnnie B. Rawlinson,
and Ronald Lee Gilman*, Circuit Judges.
Order;
Opinion by Judge Rawlinson
*
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the
United States Court of Appeals for the Sixth Circuit, sitting by
designation.
2 LANDERS V. QUALITY COMMUNICATIONS
SUMMARY**
Labor Law
The panel affirmed the dismissal, pursuant to Rule 8 of
the Federal Rules of Civil Procedure, of an action under the
Fair Labor Standards Act, alleging failure to pay minimum
wages and overtime wages.
The panel held that under Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662(2009), it is not enough for a complaint under the FLSA
merely to allege that the employer failed to pay the employee
minimum wages or overtime wages. Rather, the allegations
in the complaint must plausibly state a claim that the
employer failed to pay minimum wages or overtime wages.
Agreeing with the First, Second, and Third Circuits, the panel
held that detailed factual allegations regarding the number of
overtime hours worked are not required, but conclusory
allegations that merely recite the statutory language are not
adequate. A plaintiff asserting a claim to overtime payments
must allege that she worked more than forty hours in a given
workweek without being compensated for the hours worked
in excess of forty during that week.
The panel held that the complaint in this case did not state
a plausible claim because it did not allege facts showing that
there was a specific week in which the plaintiff was entitled
to but denied minimum wages or overtime wages.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LANDERS V. QUALITY COMMUNICATIONS 3
COUNSEL
Christian James Gabroy, Gabroy Law Offices, Henderson,
Nevada; Leon Greenberg and Dana Sniegocki (argued), Leon
Greenberg Professional Corporation, Las Vegas, Nevada, for
Plaintiff-Appellant.
Malani L. Kotchka (argued) and Steven C. Anderson, Lionel,
Sawyer, & Collins, Las Vegas, Nevada, for Defendants-
Appellees.
ORDER
The mandate is hereby recalled.
The opinion in the case of Landers v. Quality
Communications, Inc., No. 12-15890, filed November 12,
2014, is hereby amended as follows:
1. Slip Opinion, p. 15, first full paragraph, line 10 -
replace with .
2. Slip Opinion, p. 17:
a. Line 5 - replace with
.
b. Line 7 - replace with
.
4 LANDERS V. QUALITY COMMUNICATIONS
c. Line 11 - replace with .
No further petitions for rehearing will be entertained.
OPINION
RAWLINSON, Circuit Judge:
Plaintiff-Appellant Greg Landers (Landers) appeals from
an order dismissing his complaint against Defendants-
Appellees Quality Communications, Inc. (Quality), Brady E.
Wells, and Robert J. Huber. Landers’ complaint alleged
violations of the Fair Labor Standards Act (FLSA).
Specifically, Landers alleged that Quality failed to pay
Landers and other similarly situated employees minimum
wages and overtime wages. The district court dismissed
Landers’s complaint pursuant to Rule 8 of the Federal Rules
of Civil Procedure, and Landers filed a timely appeal. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
I. BACKGROUND
Landers was employed by Quality as a cable services
installer. He brought suit, individually and on behalf of other
similarly situated persons, alleging that Quality failed to pay
him, and other similarly situated individuals, minimum wages
and overtime wages in violation of the FLSA.
In the complaint, Landers alleged that: (1) he was
employed by Quality in its cable television, phone, and
LANDERS V. QUALITY COMMUNICATIONS 5
internet service installation business; (2) his employment was
subject to the FLSA’s minimum wage and overtime pay
requirements; (3) he was not paid at the minimum wage; and
(4) he was subjected to a “piecework no overtime” wage
system, whereby he worked in excess of forty hours per week
without being compensated for his overtime.
In the alternative, Landers alleged that even if he were
paid some measure of overtime, the overtime payment was
less than that required by the FLSA. According to Landers,
Quality failed to compensate him for all of the overtime hours
he worked and/or the overtime rate at which he was paid was
calculated using an incorrect rate, resulting in an overtime
payment that was less than that required by the FLSA.
Quality moved to dismiss the complaint pursuant to Rules
8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure.
The district court granted the motion, concluding that Landers
failed to state a plausible claim for unpaid minimum wages
and overtime wages. The district court determined that the
complaint did “not make any factual allegations providing an
approximation of the overtime hours worked, plaintiff’s
hourly wage, or the amount of unpaid overtime wages. . . .”
Given these deficiencies, the district court concluded that the
allegations asserted in the complaint were “merely
consistent” with Quality’s liability, but fell “short of the line
between possibility and plausibility of entitlement to relief,”
under Rule 8, as construed in Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662(2009). Landers filed a timely appeal challenging the
dismissal.
6 LANDERS V. QUALITY COMMUNICATIONS
II. STANDARD OF REVIEW
“We review de novo the district court’s decision to grant
Defendants’ motion to dismiss under Rule 12(b)(6) . . . We
accept as true all well pleaded facts in the complaint and
construe them in the light most favorable to the nonmoving
party.” Zadrozny v. Bank of N.Y. Mellon, 720 F.3d 1163, 1167
(9th Cir. 2013) (citations and internal quotation marks
omitted).
III. DISCUSSION
This case presents an issue of first impression in this
circuit. Post-Twombly and Iqbal, this court has not addressed
the degree of specificity required to state a claim for failure
to pay minimum wages or overtime wages under the FLSA.
A. Rule 8 Pleading under Twombly and Iqbal
“The FLSA sets a national minimum wage[] . . . and
requires overtime pay of one and a half times an employee’s
hourly wage for every hour worked over 40 hours in a
week. . . .” Probert v. Family Centered Servs. of Alaska, Inc.,
651 F.3d 1007, 1009–10 (9th Cir. 2011) (citations omitted);
see also 29 U.S.C. § 206(a)(1) (minimum wage); 29 U.S.C.
§ 207(a)(1) (overtime). In determining whether a plaintiff
has stated a plausible claim under the FLSA, we look to Rule
8 of the Federal Rules of Civil Procedure. See, e.g., Eclectic
Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990,
995–97 (9th Cir. 2014).
Rule 8(a)(2) of the Federal Rules of Civil Procedure
requires that each claim in a pleading be supported by “a
short and plain statement of the claim showing that the
LANDERS V. QUALITY COMMUNICATIONS 7
pleader is entitled to relief . . .” Fed. R. Civ. P. 8(a)(2). Pre-
Twombly and Iqbal, the pleading requirement could be met by
a statement merely setting forth the elements of the claim.
See, e.g., AlliedSignal, Inc. v. City of Phoenix, 182 F.3d 692,
696 (9th Cir. 1999) (holding that dismissal under Rule 8 was
not warranted even though the plaintiff “failed to plead
specific facts in its complaint concerning the nature of the
City’s alleged negligence”). However, that state of affairs
changed when the Supreme Court clarified in Twombly that
to satisfy Rule 8(a)(2), a complaint must contain sufficient
factual content “to state a claim to relief that is plausible on
its face. . . .” 550 U.S. at 570. Under Twombly, a complaint
that offers “labels and conclusions, . . . a formulaic recitation
of the elements of a cause of action[,]” or “naked
assertion[s]” devoid of “further factual enhancement” will not
suffice. Id. at 555, 557.
This requirement of plausibility was reinforced in Iqbal.
See 556 U.S. at 678 (explaining that to satisfy Rule 8(a)(2),
“a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face”)
(citation and internal quotation marks omitted). A claim for
relief is plausible on its face “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. (citation omitted). This standard does not rise to the level
of a probability requirement, but it demands “more than a
sheer possibility that a defendant has acted unlawfully. . . .”
Id. (citation omitted). In keeping with Twombly, the Supreme
Court held in Iqbal that “[w]here a complaint pleads facts that
are merely consistent with a defendant’s liability, it stops
short of the line between possibility and plausibility of
entitlement to relief.” Id. (citation and internal quotation
marks omitted).
8 LANDERS V. QUALITY COMMUNICATIONS
In evaluating whether a complaint states a plausible claim
for relief, we rely on “judicial experience and common sense”
to determine whether the factual allegations, which are
assumed to be true, “plausibly give rise to an entitlement to
relief.” Id. at 679.
B. Application of Twombly and Iqbal to Claims Brought
Under the FLSA
Pre-Twombly and Iqbal, a complaint under the FLSA for
minimum wages or overtime wages merely had to allege that
the employer failed to pay the employee minimum wages or
overtime wages. See Takacs v. A.G. Edwards & Sons, Inc.,
444 F. Supp. 2d 1100, 1107 (S.D. Cal. 2006) (holding that a
complaint citing to the statute was adequate to plead a claim
under the FLSA). However, post-Twombly and Iqbal, we
review Landers’s complaint to determine whether the
allegations plausibly state a claim that Quality failed to pay
minimum wages and overtime wages, keeping in mind that
detailed facts are not required. See Twombly, 550 U.S. at
555.
The district courts that have considered this question are
split: some district courts, including the district court in this
case, have required plaintiffs to approximate the overtime
hours worked or the amount of overtime wages owed,
whereas other courts have forgone such a requirement.1 No
1
Compare Lagos v. Monster Painting, Inc., No. 2:11-CV-00331, 2011
WL 6887116, at *2 (D. Nev. Dec. 29, 2011) (relied on by the district
court); De Silva v. North Shore-Long Is. Jewish Health Sys. Inc., 770 F.
Supp. 2d 497, 509-510 (E.D.N.Y. 2011); Zhong v. August August Corp.,
498 F. Supp. 2d 625, 628 (S.D.N.Y. 2007) (requiring the plaintiff to allege
the approximate number of hours worked and overtime wages to survive
a motion to dismiss), with Goodman v. Port Auth. of New York and New
LANDERS V. QUALITY COMMUNICATIONS 9
circuit court has interpreted Rule 8 as requiring FLSA
plaintiffs to plead in detail the number of hours worked, their
wages, or the amount of overtime owed to state a claim for
unpaid minimum wages or overtime wages. Although the
circuit courts are in harmony on what is not required by
Twombly and Iqbal, there is no consensus on what facts must
be affirmatively pled to state a viable FLSA claim
post-Twombly and Iqbal.
In Pruell v. Caritas Christi, 678 F.3d 10, 13 (1st Cir.
2012), plaintiffs alleged that they had “regularly worked
hours over forty in a week and were not compensated for
such time . . .” The First Circuit described this allegation as
“one of those borderline phrases” that, “while not stating
ultimate legal conclusions, are nevertheless so threadbare or
speculative that they fail to cross the line between the
conclusory and the factual.” Id. (citation and internal
quotation marks omitted). The court observed that this
allegation was “little more than a paraphrase of the statute[]”
and thus “too meager, vague, or conclusory to . . .” nudge
plaintiffs’ claim “from the realm of mere conjecture. . . .” to
the realm of plausibility, as required by Twombly and Iqbal.
Id. (citation omitted). The First Circuit noted that the
amended complaint lacked examples of unpaid time, a
Jersey, 850 F. Supp. 2d 363, 379–81 (S.D.N.Y. 2012); Williams v. Skyline
Auto. Inc., No. 11 Civ. 4123, 2011 WL 5529820, at *2 (S.D. N.Y. Nov.
14, 2011); Allen v. City of Chicago, No. 10 C 3183, 2011 WL 941383, at
*6 (N.D. Ill. Mar. 15, 2011); Carter v. Jackson-Madison Cnty. Hosp.
Dist., No. 1:10-cv-01155, 2011 WL 1256625, at *4–6 (W.D. Tenn. Mar.
31, 2011); Noble v. Serco, Inc., No. 3:08-76, 2009 WL 1811550, at *2–3
(E.D. Ky. June 25, 2009); and Monroe v. FTS USA, LLC, No. 2:08-CV-
02100, 2008 WL 2694894, at *3 (W.D. Tenn. July 9, 2008) (rejecting the
argument that approximation of overtime hours must be included in the
complaint).
10 LANDERS V. QUALITY COMMUNICATIONS
description of work performed during overtime periods, or
estimates of the overtime amounts owed. See id. at 14. The
court concluded that the allegations were “deficient[,]
although not by a large margin.” Id.In a trilogy of cases, the Second Circuit also grappled
with the level of specificity required to state a claim for
overtime pay under the FLSA. The first case in this trilogy
is Lundy v. Catholic Health System of Long Island Inc.,
711 F.3d 106 (2d Cir. 2013). In Lundy, the Second Circuit
noted that some courts within that circuit had required that a
complaint seeking overtime wages under the FLSA contain
“an approximation of the total uncompensated hours worked
during a given workweek in excess of 40 hours.” Id. at 114(citation omitted). In contrast, courts outside the Second
Circuit had “done without an estimate of overtime, and
deemed sufficient an allegation that plaintiff worked some
amount in excess of 40 hours without compensation.” Id.(citation omitted).
After commenting that the determination of plausibility
of a claim is “context-specific . . . ” and “requires the
reviewing court to draw on its judicial experience and
common sense,” the court concluded that no plausible FLSA
claim was pled. Id. (citation and footnote reference omitted).
Critically, Plaintiffs had failed to allege “a single workweek
in which they worked at least 40 hours and also worked
uncompensated time in excess of 40 hours.” Id.Plaintiff No. 1 alleged a typical schedule of three shifts
per week that totaled 37.5 hours. On occasion, she worked an
additional shift of 12.5 hours or a slightly longer shift.
Plaintiff’s failure to detail “how occasionally” or “how long”
she worked in excess of her regular shift, or that she was
LANDERS V. QUALITY COMMUNICATIONS 11
denied overtime pay in any of those weeks when she worked
in excess of her regular shift doomed her claim. Id. at
114–15.
Plaintiff No. 2 alleged that her “typical[]” workweek
consisted of “four shifts per week, totaling 30 hours.” Id. at
115. “[A]pproximately twice a month, she worked five to six
shifts instead of four shifts, totaling between 37.5 and 45
hours.” Id. (citation and internal quotation marks omitted).
However, like Plaintiff No. 1, she failed to allege denial of
overtime pay in any of the weeks when she worked additional
shifts. See id.Plaintiff No. 3 (Lundy) “worked between 22.5 and 30
hours per week[.]” Id. (citation omitted). Because his hours
worked never exceeded forty in any given week, he was
unable to state a valid claim. See id. Because no plaintiff
alleged both a single workweek composed of at least forty
hours and uncompensated time in excess of forty hours in that
same workweek, the Second Circuit affirmed the dismissal of
Plaintiffs’ overtime claims. See id.In Nakahata v. New York-Presbyterian Healthcare
System, Inc., 723 F.3d 192 (2d Cir. 2013), the Second Circuit
once again resolved a case involving plaintiffs alleging that
“they were not paid for overtime hours worked.” 723 F.3d at
201. The Second Circuit concluded that Plaintiffs’
allegations that they “were not compensated for work
performed during meal breaks, before and after shifts, or
during required trainings . . .” failed to state a plausible claim
that they were denied overtime, because the Plaintiffs failed
to allege that they “were scheduled to work forty hours in a
given week. . . . ” Id. The court explained that Lundy’s
requirement that plaintiffs plead with specifity a workweek in
12 LANDERS V. QUALITY COMMUNICATIONS
which they were entitled to but denied overtime, was
designed to ensure that plaintiffs provide “sufficient detail
about the length and frequency of their unpaid work to
support a reasonable inference that they worked more than
forty hours in a given week.” Id. The Second Circuit
declined to adopt a requirement that Plaintiffs approximate
the number of overtime hours worked. See id. n.10.
In the final case of the trilogy, Dejesus v. HF
Management Services, LLC, 726 F. 3d 85, 89 (2d Cir. 2013),
the plaintiff avoided the error of her predecessor plaintiffs.
She alleged that in “some or all weeks she worked more than
forty hours a week without being paid 1.5 times her rate of
compensation.” (citation and internal quotation marks
omitted). The Second Circuit nevertheless concluded that the
plaintiff failed to state a plausible claim for relief because she
did not “allege overtime without compensation in a given
workweek,” as required by Lundy. Id. at 90 (citation and
internal quotation marks omitted) (emphasis added). The
court explained that Lundy’s requirement that plaintiffs allege
with specificity a workweek in which they were entitled to
but denied overtime payment, “was designed to require
plaintiffs to provide some factual context that will nudge their
claim from conceivable to plausible. . . .” Id. (citation and
internal quotation marks omitted). Although the Lundy
standard did not require “plaintiffs to keep careful records
and plead their hours with mathematical precision,” the
standard could not be satisfied by allegations that do little
more than parrot the statutory language of the FLSA. Id.Instead, Lundy required plaintiffs to draw on their memory
and personal experience to develop factual allegations with
sufficient specificity that they plausibly suggest that
defendant failed to comply with its statutory obligations
under the FLSA. See id. Notably, as in Lundy and Nakahata,
LANDERS V. QUALITY COMMUNICATIONS 13
the Second Circuit again declined to require an approximation
of the number of overtime hours worked.
In an unpublished decision, the Eleventh Circuit
analogized Plaintiff’s allegations in an FLSA case to the
allegations of an antitrust violation at issue in Twombly. See
Sec’y of Labor v. Labbe, 319 F. App’x 761, 763 (11th Cir.
2008) (per curiam). The Eleventh Circuit reasoned that a
claim for unpaid minimum wages and/or overtime wages
under the FLSA was straightforward and did not involve the
same level of complexity as the antitrust claims at issue in
Twombly. Given this dissonance in complexity, the court
reasoned that the quantum and specificity of facts necessary
to allege a plausible FLSA claim was much lower than that
necessary to allege the antitrust claim at issue in Twombly.
See id. The Eleventh Circuit thus concluded that the
Secretary’s allegations that “Labbe repeatedly violated stated
provisions of the FLSA by failing to pay covered employees
minimum hourly wages and to compensate employees who
worked in excess of forty hours a week at the appropriate
rates[]” stated plausible claims for relief. Id.Most recently, the Third Circuit applied the standards of
Twombly and Iqbal to a claim for unpaid overtime wages in
Davis v. Abington Memorial Hospital, 765 F.3d 236 (3d Cir.
2014). In Davis, each of the plaintiffs alleged that “he or she
typically worked shifts totaling between thirty-two and forty
hours per week and further allege[d] that he or she frequently
worked extra time. . . .” Id. at 242 (internal quotation marks
omitted). Plaintiffs contended that “[b]ecause they typically
worked full time, or very close to it and also worked several
hours of unpaid work each week, . . . it is certainly plausible
that at least some of the uncompensated work was performed
during weeks when the plaintiffs’ total work time was more
14 LANDERS V. QUALITY COMMUNICATIONS
than forty hours. . . .” Id. (citations, alterations, and internal
quotation marks omitted). The Third Circuit disagreed.
Consistent with Lundy, the court concluded that the
allegations were insufficient to state a plausible claim under
the FLSA. Although several of the plaintiffs alleged that
their typical workweek was at least forty hours “in addition
to extra hours frequently worked during meal breaks or
outside of their scheduled shifts[,]” none of the plaintiffs
alleged that the extra hours were in fact worked during a
typical forty-hour workweek. Id. at 243 (internal quotation
marks omitted). Absent that crucial allegation, no plausible
claim for overtime wages was stated. See id. The Third
Circuit explained that a plaintiff need not identify precisely
the dates and times she worked overtime. An allegation that
a plaintiff typically worked a forty-hour workweek, and
worked uncompensated extra hours during a particular forty-
hour workweek would state a plausible claim for relief.
However, because no such allegation was made by any of the
plaintiffs, the Third Circuit affirmed dismissal of the overtime
claims. See id.We are persuaded by the rationale espoused in the First,
Second and Third Circuit cases. Although we agree with the
Eleventh Circuit that detailed factual allegations regarding the
number of overtime hours worked are not required to state a
plausible claim, we do not agree that conclusory allegations
that merely recite the statutory language are adequate. But
see Labbe, 319 F. App’x at 763. Indeed, such an approach
runs afoul of the Supreme Court’s pronouncement in Iqbal
that a Plaintiff’s pleading burden cannot be discharged by
“[a] pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action . . .” Iqbal,
556 U.S. at 678 (citation and internal quotation marks
omitted).
LANDERS V. QUALITY COMMUNICATIONS 15
We agree with our sister circuits that in order to survive
a motion to dismiss, a plaintiff asserting a claim to overtime
payments must allege that she worked more than forty hours
in a given workweek without being compensated for the
overtime hours worked during that workweek. See Pruell,
678 F.3d at 13; see also Lundy, 711 F.3d at 114; Davis,
765 F.3d at 242–43. We are mindful of the Supreme Court’s
admonition that the pleading of detailed facts is not required
under Rule 8, and that pleadings are to be evaluated in the
light of judicial experience. See Twombly, 550 U.S. at 555;
Iqbal, 556 U.S. at 679. We also agree that the plausibility of
a claim is “context-specific.” Lundy, 711 F.3d at 114. A
plaintiff may establish a plausible claim by estimating the
length of her average workweek during the applicable period
and the average rate at which she was paid, the amount of
overtime wages she believes she is owed, or any other facts
that will permit the court to find plausibility. See Pruell,
678 F.3d at 14. Obviously, with the pleading of more specific
facts, the closer the complaint moves toward plausibility.
However, like the other circuit courts that have ruled before
us, we decline to make the approximation of overtime hours
the sine qua non of plausibility for claims brought under the
FLSA. After all, most (if not all) of the detailed information
concerning a plaintiff-employee’s compensation and schedule
is in the control of the defendants. See Pruell, 678 F.3d at 15;
see also 29 U.S.C. § 211(c) (FLSA provision requiring
employers subject to the FLSA to keep records concerning
their employees’ work schedules and compensation).2
We further agree with our sister circuits that, at a
minimum, a plaintiff asserting a violation of the FLSA
2
This reasoning applies with equal force to Landers’s minimum wage
claims.
16 LANDERS V. QUALITY COMMUNICATIONS
overtime provisions must allege that she worked more than
forty hours in a given workweek without being compensated
for the hours worked in excess of forty during that week. See
Pruell, 678 F.3d at 13; see also Lundy, 711 F.3d at 114;
Davis, 765 F.3d at 242–43. Applying that standard to the
pleadings in this case, Landers failed to state a claim for
unpaid minimum wages and overtime wages. The complaint
did not allege facts showing that there was a given week in
which he was entitled to but denied minimum wages or
overtime wages.
In his complaint, Landers alleged the following:
• The compensation system used by the defendants for
the plaintiff . . . was a de facto “piecework no
overtime” system, meaning such employees were
being paid a certain amount for each “piece” of work
they performed pursuant to a schedule, the plaintiffs
not being paid time and one-half their “regular hourly
rate” for work in excess of 40 hours a week . . .
• [A]lternatively, defendants utilized a compensation
system that did pay some measure of overtime wages
upon a designated hourly rate but failed to pay any
overtime wages on the additional and substantial
portion of the earnings of the plaintiff and those
similarly situated that were paid by the defendants
solely on a piece rate basis.
• Alternatively, if defendants did not engage in a
“piecework no overtime” pay scheme, and paid the
plaintiff . . . a facially proper overtime wage
demonstrated on their payroll records as time and
one-half their regular hourly rate including all
LANDERS V. QUALITY COMMUNICATIONS 17
piecework earnings, the defendants failed to pay such
persons for all overtime hours that they worked . . .
• Defendants, in furtherance of their scheme to deny the
plaintiff . . . proper overtime pay as required by the
FLSA would falsely list certain “overtime hours” and
“regular hours” and “overtime compensation” on the
plaintiff’s . . . pay stubs, such listings being inaccurate
in terms of hours actually worked and not reflecting
any attempt to pay time and one-half the employees’
true “regular rate” as required by the FLSA . . .
• [T]he named plaintiff . . . [was] entitled to a minimum
wage and an overtime hourly wage of time and one-
half [his] regular hourly wage for all hours worked in
excess of forty hours per week, the named plaintiff
. . . worked more than 40 hours per week for the
defendants, and the defendants willfully failed to
make said overtime and/or minimum wage payments.
Much like the plaintiffs in Lundy, Landers presented
generalized allegations asserting violations of the minimum
wage and overtime provisions of the FLSA by the defendants.
Landers alleged that the defendants implemented a “de facto
piecework no overtime” system and/or failed to pay minimum
wages and/or overtime wages for the hours worked by
Landers. Landers also asserted that the defendants falsified
payroll records to conceal their failure to pay required wages.
Notably absent from the allegations in Landers’s complaint,
however, was any detail regarding a given workweek when
Landers worked in excess of forty hours and was not paid
overtime for that given workweek and/or was not paid
minimum wages. Although plaintiffs in these types of cases
cannot be expected to allege “with mathematical precision,”
18 LANDERS V. QUALITY COMMUNICATIONS
the amount of overtime compensation owed by the employer,
they should be able to allege facts demonstrating there was at
least one workweek in which they worked in excess of forty
hours and were not paid overtime wages. Dejesus, 726 F.3d
at 90. Landers’s allegations failed to provide “sufficient
detail about the length and frequency of [his] unpaid work to
support a reasonable inference that [he] worked more than
forty hours in a given week.” Nakahata, 723 F.3d at 201.
Instead, as in Nakahata, Landers “merely alleged that [he
was] not paid for overtime hours worked. . . .” Id. Although
these allegations “raise the possibility” of undercompensation
in violation of the FLSA, a possibility is not the same as
plausibility. Id. Landers’s comparable allegations fail to
state a plausible claim under Rule 8. See id.
IV. CONCLUSION
Under the post-Twombly and Iqbal standard, Landers
failed to state a plausible claim for relief under the FLSA.
Landers expressly declined to amend his complaint, electing
to stand on his claims as alleged. Therefore, we do not
remand to the district court for amendment of the complaint.
See Alaska v. United States, 201 F.3d 1154, 1163–64 (9th Cir.
2000) (“[W]here a party did not seek leave to amend a
pleading in the lower court, we would not remand with
instructions to grant leave to amend.”) (footnote reference
omitted). We decline to impose a requirement that a plaintiff
alleging failure to pay minimum wages or overtime wages
must approximate the number of hours worked without
compensation. However, at a minimum the plaintiff must
allege at least one workweek when he worked in excess of
forty hours and was not paid for the excess hours in that
workweek, or was not paid minimum wages. Landers’s
allegations fell short of this standard, and the district court
LANDERS V. QUALITY COMMUNICATIONS 19
properly dismissed his complaint for failure to state a
plausible claim.
AFFIRMED.