1

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

THOMAS SLOANE, individually and on behalf )

of all persons similarly situated, )

)

Plaintiff, ) Civil Action No. 15-1208

) Judge Nora Barry Fischer

v. )

)

GULF INTERSTATE FIELD SERVICES, INC. )

)

Defendant. )

MEMORANDUM OPINION

I. INTRODUCTION

In this civil action Thomas Sloane (“Plaintiff”), on behalf of himself and all persons 

similarly situated, brings suit against Gulf Interstate Field Services, Inc. (“Defendant” or “Gulf 

Interstate”) and asserts claims under the Fair Labor Standards Act (“FLSA”) and Pennsylvania 

state law, including the Pennsylvania Minimum Wage Act (“PMWA”) and Pennsylvania 

common law, for alleged failure of Defendant to pay overtime wages. Presently pending before 

the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint (Docket No. 6) pursuant to 

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be 

granted. After consideration of the parties’ filings and oral argument, and for the reasons set 

forth below, Defendant’s Motion will be DENIED.

II. PROCEDURAL BACKGROUND

Plaintiff asserts three claims in his Complaint. Count I alleges a violation of the FLSA 

(on behalf of the FLSA Class); Count II alleges a violation of the PMWA (on behalf of the 

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Pennsylvania Class); and Count III alleges a claim for unjust enrichment (on behalf of the 

Pennsylvania Class). (Docket No. 1 at ¶¶ 47-68). 

On September 16, 2015, Plaintiff filed his Class and Collective Action Complaint. 

(Docket No. 1). Defendant filed its Motion to Dismiss for Failure to State a Claim (Docket No. 

6) and Memorandum of Law in Support thereof (Docket No. 7) on November 5, 2015. Plaintiff 

filed a Memorandum of Law in Opposition to Defendant’s Motion to Dismiss (Docket No. 17) 

on November 25, 2015. Defendant filed its Reply Memorandum in Support on December 14, 

2015. (Docket No. 25). The Court then heard argument (Docket Nos. 28 & 51) on January 8, 

2016. Subsequently, Plaintiff filed a Motion for the Commencement of Discovery, or in the 

Alternative, For Equitable Tolling of Opt-In Plaintiffs’ FLSA Claims (Docket No. 30) on 

January 15, 2016, and a Memorandum of Law in Support thereof (Docket No. 31). Defendant 

filed a Response in Opposition (Docket No. 34) on January 22, 2016. With leave of Court, 

Defendant filed its Supplemental Authority for its Motion to Dismiss on February 2, 2016 

(Docket No. 39), and Plaintiff responded with his Supplemental Authority on February 9, 2016.

(Docket No. 42). During the pendency of this matter, in addition to Plaintiff, various other 

individuals have filed consents to opt-in as class members. (Docket Nos. 14, 15, 18, & 54).

III. ALLEGATIONS OF THE COMPLAINT

Specifically, Plaintiff’s Class and Collective Action Complaint avers as follows: Plaintiff 

is a Texas resident who was employed by Gulf Interstate as a pipeline inspector in Western 

Pennsylvania and Oklahoma. (Docket No. 1 at ¶ 4). Defendant is a wholly owned subsidiary of 

Gulf Interstate Engineering Company, which was incorporated in Delaware and maintains its 

corporate headquarters in Houston, Texas. (Docket No. 1 at ¶¶ 5-6). Over the last three (3) 

years, Defendant has employed over 500 workers as field workers, which include pipeline 

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inspectors such as Plaintiff. (Docket No. 1 at ¶ 17). Defendant employed Plaintiff between 

approximately April 2014 and October 2014 and his employment responsibilities included 

performing and reviewing inspections on gas pipelines. (Docket No. 1 at ¶¶ 18-20). Plaintiff and 

the members of the proposed classes are blue-collar workers who are primarily engaged in 

manual labor or basic office duties. (Docket No. 1 at ¶ 21). 

Prior to “hiring on,” all field workers received an offer letter from Defendant dictating

that they will be paid a set amount per day worked. (Docket No. 1 at ¶ 25). Plaintiff contends

that Defendant did not keep accurate records of the field workers’ hours, and that it instructed the 

field workers to record only ten (10) hours per day, regardless of the true number of hours that 

they worked. (Docket No. 1 at ¶ 28). Plaintiff maintains that the timesheets submitted to 

Defendant indicate that field workers regularly worked sixty (60) or more hours per week. 

(Docket No. 1 at ¶ 28). In sum, Plaintiff contends that Defendant, by not paying its field workers 

overtime compensation for hours worked over the forty-hour workweek, violated the FLSA and 

Pennsylvania state law. (Docket No. 1 at ¶ 29). Plaintiff further avers that because Defendant 

paid overtime to a number of its other employees and has previously received a number of 

complaints regarding its overtime pay practices with respect to field workers, it was fully aware 

that its payment plan was illegal and thus recklessly disregarded its overtime obligations. 

(Docket No. 1 at ¶ 30). 

IV. LEGAL STANDARDS

A valid complaint requires only “a short and plain statement of the claim showing that 

the pleader is entitled to relief.” FED. R .CIV. P. 8(a)(2). To survive a motion to dismiss brought 

pursuant to Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 

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v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). The United States Supreme Court in Iqbal clarified that its decision in Twombly

“expounded the pleading standard for ‘all civil actions.’” Iqbal, 556 U.S. at 684. The Supreme 

Court further explained that even though a court must accept as true all of the factual allegations 

contained in a complaint, that requirement does not apply to legal conclusions; therefore, the 

pleadings must include factual allegations to support the legal claims asserted. Id. at 678–79.

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 555). Thus, “[a]lthough a 

reviewing court now affirmatively disregards a pleading's legal conclusions, it must still . . . 

assume all remaining factual allegations to be true, construe those truths in the light most 

favorable to the plaintiff, and then draw all reasonable inferences from them.” Connelly v. Lane 

Const. Corp., 809 F.3d 780, 790 (3d Cir. 2016) (citing Foglia v. Renal Ventures Mgmt., LLC,

754 F.3d 153, 154 n.1 (3d Cir. 2014)). The facial plausibility requirement is met “when the 

plaintiff pleads factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 

unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556–57) (internal citations 

omitted). Furthermore, the determination as to whether a complaint contains a plausible claim for 

relief is “a context-specific task that requires the reviewing court to draw on its judicial 

experience and common sense.” Iqbal, 556 U.S. at 679 (citation omitted).

In light of Iqbal, the United States Court of Appeals for the Third Circuit has instructed 

that district courts should first separate the factual and legal elements of a claim, and accepting 

the “well-pleaded facts as true,” then should “determine whether the facts alleged in the 

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complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Fowler v. 

UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (citing Iqbal, 556 U.S. at 679). The matter 

for the court’s determination is not whether the pleading party ultimately will prevail on the 

claim, but rather whether that party is entitled to offer evidence in support of it. United States ex 

rel. Wilkins v. United Health Grp., 659 F.3d 295, 302 (3d Cir. 2011). Accordingly, a plaintiff 

must plead “factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 

at 556). As part of this task, the court must “identify those allegations that, being merely 

conclusory, are not entitled to the presumption of truth.” Connelly, 809 F.3d at 789. This Court 

is mindful that to meet the standard a plaintiff “need only put forth allegations [of fact] that raise 

a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 

578 F.2d at 213 (internal quotations omitted); see also Connelly v. Lane Const. Corp., 809 F.3d 

780, 791 (3d Cir. 2016). As further instructed by the Court of Appeals, the allegations of fact, 

even if unrealistic, nonsensical, or extravagantly fanciful, are entitled to the presumption of truth 

and are construed in the pleader’s favor on a motion to dismiss. Connelly, 809 F.3d at 789, 791. 

V. DISCUSSION

Defendant has moved the Court to dismiss Plaintiff’s Complaint pursuant to Rule 

12(b)(6) of the Federal Rules of Civil Procedure. After considering the parties’ arguments and 

pertinent authority, the Court is not persuaded by Defendant’s position. In the Court’s 

estimation, many of the proffered arguments are more appropriate for the summary judgment 

stage and inappropriate at this stage of the litigation. 

a. Extrinsic Evidence

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First, in making its arguments on the instant motion, Defendant urges the Court to 

consider documents attached to its Memorandum of Law, including certified copies of Plaintiff’s 

criminal records and a June 2014 letter executed by Plaintiff regarding his pay and his timesheets 

and paystubs, which Defendant claims have somehow been authenticated and are not in dispute. 

(Docket No. 7 at 7-8). In arguing that the Court should not consider any extrinsic evidence, 

Plaintiff correctly asserts that under Rule 12(b)(6) the Court should only consider the allegations 

in the complaint, exhibits attached to the complaint, and matters of public record. Schmidt v. 

Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (Docket No. 17 at 11-12). In ruling on a motion to 

dismiss, a court typically only considers the allegations contained in the complaint, exhibits 

attached thereto, and matters of public record. Schmidt 770 F.3d at 249; see also Mayer v. 

Belichick, 605 F.3d 223, 230 (3d Cir. 2010); Pension Benefit Guar. Corp. v. White Consol. 

Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Plaintiff also correctly asserts that if the Court 

is to consider extrinsic evidence, the motion should be converted to a motion for summary 

judgment, and that he should be afforded discovery to respond to same. See FED. R. CIV. P. 

12(d); (Docket No. 17 at 12). 

Plaintiff concedes under Schmidt, 770 F.3d at 249, an exception to the general rule that 

the Court only consider the allegations in the Complaint—namely, “that a ‘document integral to 

or explicitly relied upon in the complaint’ may be considered without converting the motion to 

dismiss into one for summary judgment.” (Docket No. 17 at 12). Plaintiff argues, however, that 

the various documents upon which Defendant relies for its motion may not fairly be considered 

as part of the Complaint. (Docket No. 17 at 12-13). Moreover, Plaintiff asserts that the Court 

should not take judicial notice of Plaintiff’s criminal record, as urged by Defendant, given that it 

is extrinsic evidence and not part of or necessary to the allegations in the complaint. (Docket 

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No. 17 at 13-14). Plaintiff argues that even if the Court took judicial notice of his criminal

record, some of the convictions are over ten (10) years old and are thus inadmissible under 

Federal Rule of Evidence 609(b).1

In support of its argument, Defendant cites Pension Ben. Guar. Corp. v. White Consol. 

Indus., Inc., in which the Third Circuit states that “[w]e now hold that a court may consider an 

undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if 

the plaintiff's claims are based on the document.” Pension Ben. Guar. Corp., 998 F.2d at 1196. 

However, the Third Circuit goes on to say that 

Our decision will not undermine the rationale underlying Rule 12(b)(6)'s 

requirement that a motion to dismiss be converted to a summary judgment motion 

if a court considers matters outside the pleadings. The reason that a court must 

convert a motion to dismiss to a summary judgment motion if it considers 

extraneous evidence submitted by the defense is to afford the plaintiff an 

opportunity to respond.

Id. at 1196 (3d Cir. 1993). Here, Defendant improperly urges the Court to rely upon extrinsic 

documents when it cannot be fairly stated that Plaintiff’s claims are based on those documents,

rather than being documents on which Gulf Interstate’s defense is based. It would be 

inappropriate to consider the attached materials at the motion to dismiss stage without allowing 

Plaintiff to conduct discovery in order to adequately respond to said materials. Hence, the Court 

declines to convert Defendant’s motion to one for summary judgment under Federal Rule of 

Civil Procedure 12(d). Defendant may renew its argument at the conclusion of discovery and on 

motion for summary judgment.

b. Overtime Pay

Defendant maintains that “Count I and II must be dismissed because Plaintiff is a highly 

compensated, FLSA and PMWA exempt employee who is not entitled to receive a payment for 

 

1 The Court notes that Rule 609(b) limits the use of such evidence after ten (10) years. It does not provide an 

absolute prohibition. 

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overtime in addition to his salary.” (Docket No. 6 at ¶ 1). Defendant further contends that 

Counts I and II must be dismissed because Plaintiff did not plead sufficient facts to state a 

plausible claim that he is “misclassified” by Defendant as exempt from the FLSA and PMWA’s 

overtime requirements. (Docket No. 6 at ¶ 2). Specifically, Defendant argues that under the 

2004 Department of Labor (“DOL”) exemption for “highly compensated” employees, Plaintiff 

was exempt from overtime under the FLSA and PMWA. (Docket No. 7 at 6). 

In making these assertions, Defendant relies on 29 C.F.R. § 541.601(c), which provides:

A high level of compensation is a strong indicator of an employee's exempt status, 

thus eliminating the need for a detailed analysis of the employee's job duties. 

Thus, a highly compensated employee will qualify for exemption if the employee 

customarily and regularly performs any one or more of the exempt duties or 

responsibilities of an executive, administrative or professional employee 

identified in subparts B, C or D of this part. An employee may qualify as a highly 

compensated executive employee, for example, if the employee customarily and 

regularly directs the work of two or more other employees, even though the 

employee does not meet all of the other requirements for the executive exemption 

under § 541.100.

29 C.F.R. § 541.601(c). Section 541.601(a) states that “[a]n employee with total annual 

compensation of at least $100,000 is deemed exempt . . . if the employee customarily and 

regularly performs any one or more of the exempt duties or responsibilities of an executive, 

administrative or professional employee identified in subparts B, C or D of this part.” Defendant 

asserts that there are facts that cannot be disputed, including, that Plaintiff had an annualized 

salary of over $140,504.00 and that he was guaranteed to be paid every two weeks. (Docket No. 

7 at 6). According to Defendant, these facts establish that Plaintiff was a highly compensated 

employee under 29 C.F.R. § 541.601(a). 

Defendant claims that Plaintiff meets the prongs of the established test to be an exempt 

employee given that he had an annualized salary over $100,000.00, that he was guaranteed 

$386.00 per day, earned at least $455.00 per week, that his job included the performance of nonCase: 2:18-cv-00583-EAS-EPD Doc #: 66 Filed: 03/08/16 Page: 8 of 16 PAGEID #: 835
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manual work, and that he customarily and regularly performed one or more of the duties of an 

exempt administrative employee. (Docket No. 7 at 7-11). In further support of its contention, 

Defendant maintains that “[q]uality control and personnel management are administrative tasks,” 

under 29 C.F.R. § 541.201(b). (Docket No. 7 at 11). In making these assertions, Defendant 

points out that Plaintiff’s Complaint fails to plead a claim for overtime pay violations because it 

does not allege that he performed non-exempt duties, and that the Court does not have a factual 

basis from which it can infer that he was performing any manual labor or that manual labor was 

his primary duty. (Docket No. 7 at 12). 

In response, Plaintiff asserts that the FLSA and PMWA claims do not fail under the Rule 

12(b)(6) standard and thus should not be dismissed. (Docket No. 17 at 15). Simply put, 

Plaintiff alleges that he and other members of the classes were employed by Defendant, were 

engaged in commerce, regularly worked in excess of forty (40) hours per week, and were denied 

overtime pay as a result of Defendant’s compensation scheme. (Docket No. 17 at 15) (Docket 

No. 1 at ¶¶ 18-19, 24-29). Thus, Plaintiff argues that he has stated a prima facie case under the 

FLSA and PMWA. In so asserting, Plaintiff relies on Schmidt, which states that the exemptions 

under the regulations are affirmative defenses that are not appropriate at the motion to dismiss 

stage—and are not part of his pleading requirements. Schmidt, 770 F.3d at 248. (Docket No. 17 

at 15-17). 

The absence of an FLSA exemption is not a required element of Plaintiff's claim and, 

therefore, Plaintiff need not plead facts which would permit a finder of fact to conclude that an

exemption does not apply. However, an exemption may be plead as affirmative defense to an 

FLSA claim. As such, Defendant’s reliance upon affirmative defenses at this stage is misguided, 

as it is inappropriate for the Court to grant a motion to dismiss based on an affirmative defense 

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where the factual predicate of said defense is not apparent from the face of the complaint. Brody 

v. Hankin, 145 F. App'x 768, 771 (3d Cir. 2005) (citing Bethel v. Jendoco Constr. Corp., 570 

F.2d 1168, 1174 n.10 (3d Cir. 1978)); see also In re Tower Air, Inc., 416 F.3d 229, 242 (3d Cir.

2005) (“affirmative defenses generally will not form the basis for dismissal under Rule 

12(b)(6)”); In re Adams Golf, Inc. Sec. Litig., 381 F.3d 267, 277 (3d Cir. 2004) (“an affirmative 

defense may not be used to dismiss a plaintiff's complaint under Rule 12(b)(6)”). Indeed, 

“[u]nder Federal Rule of Civil Procedure 8, a complaint need not anticipate or overcome 

affirmative defenses . . .” Schmidt, 770 F.3d at 248.

Moreover, federal courts have held that whether a plaintiff falls within a particular 

exemption under the FLSA overtime provision constitutes a mixed question of law and fact, and 

ultimately requires courts to examine the historical and record facts. Hein v. PNC Fin. Servs. 

Grp., Inc., 511 F.Supp.2d 563, 570 (E.D. Pa. 2007). As a result, courts routinely deny motions 

to dismiss when a defendant relies on an exemption. See Haskins v. VIP Wireless Consulting,

2009 WL 4639070, at *6 (W.D. Pa. Dec. 7, 2009) (“We conclude such a detailed, fact-intensive 

analysis is impossible at this stage of the litigation.”); Snyder v. Dietz & Watson, Inc., 837 

F.Supp.2d 428, 451–52 (D.N.J. 2011) (“The Court finds that resolution of the affirmative 

defense raised by Defendants is not appropriate on a motion to dismiss under Rule 12(b)(6).”). 

Finally, the Court notes that Defendant, in making the assertion that Plaintiff was exempt 

under the FLSA because he was a highly compensated employee, entirely ignores that the 

PMWA does not even have such an exemption. See 43 Pa. Stat. § 333.105; see also Galdo v. 

PPL Electric Utilities Corp., 2016 WL 454416, at *3 (E.D. Pa Feb. 5, 2016) (stating that no such 

exemption exists under the PMWA). Accordingly, Defendant’s Motion to Dismiss Counts I and 

II, will be denied. 

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c. Unjust Enrichment

Defendant argues that Count III, the unjust enrichment claim, must be dismissed because 

it is based on the same facts of the FLSA and PMWA claims, seeks the same relief as Plaintiff’s 

FLSA claim, and is therefore preempted by the FLSA. (Docket Nos. 6 at ¶ 6 and 7 at 14).

According to Defendant, because the unjust enrichment claim has a statute of limitations of four 

(4) years, rather than the two (2) year limitation period of the FLSA, Plaintiff is in essence 

improperly attempting to extend the FLSA’s limitations period. (Docket No. 7 at 14). 

Defendant relies on Knepper v. Rite Aid Corp., 675 F.3d 249 (3d Cir. 2012), and Anderson v. 

Sara Lee Corp., 508 F.3d 181, 193-94 (4th Cir. 2007), in support of its argument that the 

Plaintiff cannot use a Pennsylvania unjust enrichment claim to extend the FLSA’s statute of 

limitations period. (Docket No. 7 at 13). 

Plaintiff counters that the unjust enrichment claim is not preempted under the FLSA and 

notes that the Third Circuit has not addressed this issue. (Docket No. 17 at 19). Indeed, 

Defendant’s argument that the unjust enrichment claim is preempted because the FLSA can 

preempt even parallel state law claims is considered to be a minority view. Duffie v. The 

Michigan Group, Inc., 2016 WL 28987, at *17 (E.D. Mich. Jan. 4, 2016). Gutwirth v. Woodford 

Cedar Run Wildlife Refuge, 38 F. Supp. 3d 485, 489, 491 (D.N.J. 2014), while finding that a 

plaintiff’s FLSA claim preempted his state unjust enrichment and contract claims, acknowledged 

that the Third Circuit has not yet addressed the preemption issue presented by Defendant.

This Court notes that, 

[t]he FLSA contains a “savings clause” that expressly permits states to create their 

own wage and hour laws. 29 U.S.C. § 218(a). By extension, the FLSA can be read 

so as not to preempt remedies under state law. That is particularly so where 

plaintiff's state law claim is not redundant of the FLSA's claim, but instead states 

a different legal theory than the FLSA claim.” 

Duffie, 2016 WL 28987, at *17. The savings clause specifically states,

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No provision of this chapter or of any order thereunder shall excuse 

noncompliance with any Federal or State law or municipal ordinance establishing 

a minimum wage higher than the minimum wage established under this chapter or 

a maximum work week lower than the maximum workweek established under 

this chapter, and no provision of this chapter relating to the employment of child 

labor shall justify noncompliance with any Federal or State law or municipal 

ordinance establishing a higher standard than the standard established under this 

chapter. No provision of this chapter shall justify any employer in reducing a 

wage paid by him which is in excess of the applicable minimum wage under this 

chapter, or justify any employer in increasing hours of employment maintained by 

him which are shorter than the maximum hours applicable under this chapter.

29 U.S.C.A. § 218(a).

In the instant matter, the FLSA’s savings clause allows states to enact their own wage and 

hour statutes and regulations in addition to the FLSA. Therefore, “the FLSA can be read so as 

not to preempt remedies under state law.” Duffie, 2016 WL 28987, at *17. The lack of 

preemption may extend to both the PMWA and the Pennsylvania unjust enrichment claim, which 

this Court leaves for a decision at a later stage. This Court observes that several courts have 

permitted plaintiffs to plead causes of action pursuant to the PMWA as well as the doctrine of 

unjust enrichment. See Zelinsky v. Staples, Inc., 2008 WL 4425814, at *8 (W.D. Pa. Sept. 29, 

2008) (“Indeed, it appears that at least one Pennsylvania court has certified class claims for both 

violation of PMWA and unjust enrichment.”) (citing Braun v. Wal–Mart Stores, Inc., 2005 WL 

3623389, at *1 (Pa. Ct. Com. Pl. Dec. 27, 2005)); Thompson v. U.S. Airways, Inc., 717 

F.Supp.2d 468, 480–81 (E.D. Pa. 2010) (permitting both PMWA and unjust enrichment claims); 

Lugo v. Farmers Price, Inc., 967 A.2d 963, 970 (Pa. 2009) (same). 

Regardless, this Court has previously held that Rule 8(d)(2) of the Federal Rules of Civil 

Procedure expressly authorizes parties to plead claims in the alternative. Hively v. Allis-Chalmers 

Energy, Inc., 2013 WL 2557629, at *3 (W.D. Pa. June 10, 2013) (Fischer, J.). Therefore, at a 

minimum, Plaintiff may pursue unjust enrichment as an alternative theory at this stage of the 

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litigation. Based on the forgoing, Defendant’s Motion to Dismiss Counts II and III under 

preemption theory is likewise denied. 

d. Adequacy of Plaintiff as Class Representative

Defendant argues that Plaintiff must be disqualified as a class representative under 

Federal Rule of Civil Procedure 23 because of his extensive criminal history, which includes 

convictions for crimes of dishonesty and which renders him inadequate to serve as a class 

representative and atypical of class members. (Docket No. 6 at ¶¶ 3-5; Docket No. 7 at 15). 

Citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-79 (1977)), Defendant claims that courts 

regularly disqualify potential class representatives because of credibility issues, such as lack of 

honesty or conscientiousness, as a means of protecting the rights of absent class members. 

(Docket No. 7 at 17). Defendant also asserts that numerous courts have rejected the appointment 

of a Rule 23 class representative under Rule 23(a)(4) where that putative representative has been 

convicted of felonies or other crimes that involve fraud or dishonesty, or even if they did not 

commit crimes, but lacked credibility. (Docket No. 7 at 18-19). Similarly, Defendant argues that 

Plaintiff must be disqualified from acting as the FLSA class representative because he is not 

“similarly situated” to the class with respect to the FLSA violations, given his alleged 

inadequacy and credibility issues. (Docket No. 7 at 20-21). Defendant further posits that 

Plaintiff’s serving as a class representative will prejudice the other members of the class, because 

his “criminal history gives rise to individualized issues and defenses that will be distracting . . . 

and confusing for the jury in the context of a representative action.” (Docket No. 39 at 10). 

Defendant nonetheless acknowledges that Plaintiff theoretically could find relief in an individual 

FLSA lawsuit, were his allegations sufficient. (Docket No. 39 at 10). Finally, Defendant argues 

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that, once Plaintiff is disqualified as class representative, the collective claims must be dismissed 

for lack of a class representative. (Docket No. 7 at 21). 

Plaintiff contends that Defendant’s disqualification argument is not appropriate at the 

motion to dismiss stage, especially given that there has not yet been full discovery on this issue. 

(Docket No. 17 at 21). Plaintiff relies on Swank v. Wal-Mart Stores, Inc., 2015 WL 1508403, at 

*2 (W.D. Pa. Mar. 31, 2015). The Swank Court observed that courts grant motions to dismiss 

class allegations before class discovery only in rare cases when the requirements for maintaining 

a class action lawsuit cannot be met. According to Plaintiff, there is no basis to deviate from the 

general rule here and Defendant has not argued that there are any deficiencies within the 

Complaint regarding the requirements for maintaining a class action. (Docket No. 17 at 22). 

Citing Hodczak v. Latrobe Speciality Steel Co., 2009 WL 911224 (W.D. Pa. Mar. 31, 2009), 

Plaintiff points out that these assertions are premature because he has not yet even moved for 

certification of the classes. (Docket No. 17 at 22-23). 

Plaintiff also asserts that his criminal record does not render him inadequate to be a class 

representative, given that he has recognized his mistakes and “has gotten his life back on track”

and that his criminal record is irrelevant as to whether Defendant violated the PMWA and FLSA, 

citing Cantu v. Milberger Landscaping, Inc., 2014 WL 1413500, at *2 (W.D. Tex. Apr. 3, 2014) 

(a plaintiff’s criminal history is not related to whether a defendant complied with federal 

regulations). (Docket No. 17 at 23-24; Docket No. 42 at 3). Plaintiff also points out that FLSA 

collective action requirements under section 216(b) differ from Rule 23’s adequacy requirement, 

(Docket No. 17 at 25-26), particularly at the notice stage. Finally, Plaintiff argues that the 

“similarly situated” analysis does not focus on the plaintiff, but rather is concerned with the 

Defendant’s “common, illegal day rate pay scheme.” (Docket No. 17 at 26).

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The Court finds unpersuasive Defendant’s argument that because of various issues with 

Plaintiff serving as a class representative, he should be immediately disqualified and that the case 

as a result should be dismissed for lack of a class representative. Plaintiff’s criminal record may 

be irrelevant to conditional certification under the FLSA, which has not yet occurred. 

Furthermore, it is immaterial to whether Defendant incorrectly failed to pay Plaintiff and other 

inspectors overtime. See Cantu, 2014 WL 1413500, at *2 (finding that named plaintiff’s 

criminal conviction did not make him an inadequate representative due to credibility issues, and 

that it is a matter for a factfinder and not for whether defendant complied with the FLSA). 

In regards to whether or not Plaintiff is “similarly situated” to the other members of the 

prospective class, the Third Circuit has held that, “[t]he burden of demonstrating that members of 

the collective action are similarly situated is to be borne by the plaintiffs, who must show by a 

preponderance of the evidence that they are similarly situated.” Zavala v. Wal Mart Stores Inc., 

691 F.3d 527, 534 (3d Cir. 2012). The Third Circuit also has stated “the standard for final 

certification is more stringent than the standard for conditional certification.” Id. Generally, 

plaintiffs meet the standard by producing some evidence indicating common facts among the 

parties' claims, and/or a common policy affecting all of the collective members. 7B Wright, 

Miller, & Kane, Federal Practice and Procedure: Civil § 1807, at 489–90 (3d ed. 2005). The 

Court notes that while the issue of whether Plaintiff is an appropriate representative is not 

pertinent to determine whether Plaintiff’s Complaint contains sufficient factual allegations, when 

accepted as true, as the Court must, the issue may be addressed at later stages of this litigation.

Case: 2:18-cv-00583-EAS-EPD Doc #: 66 Filed: 03/08/16 Page: 15 of 16 PAGEID #: 842
16

VI. CONCLUSION

For all of the foregoing reasons, Gulf Interstate Field Services, Inc.’s Motion to Dismiss 

will be DENIED. 

 s/Nora Barry Fischer 

Nora Barry Fischer

 United States District Judge 

cc/ecf: All counsel of record.

Case: 2:18-cv-00583-EAS-EPD Doc #: 66 Filed: 03/08/16 Page: 16 of 16 PAGEID #: 843