UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT RUMPZ,

Plaintiff,

Case No. 09-10971

-vs- HON. AVERN COHN

AMERICAN DRILLING & TESTING, INC.,

a Michigan corporation,

Defendant.

 /

MEMORANDUM AND ORDER GRANTING IN PART AND 

STAYING IN PART DEFENDANT’S MOTION TO DISMISS

I. Introduction

This is a Fair Labor Standards Act (FLSA) case under 29 U.S.C. § 201 et seq.

with a pendant state law claim. Plaintiff Robert Rumpz (Rumpz) claims that American

Drilling & Testing Inc. (American Drilling), his former employer, failed to properly

compensate him for work performed since 1991. The complaint is in two counts:

(I) Violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.; and

(II) Violation of the Michigan Minimum Wage Law (MMWL), MCL § 408.381 et

seq.

Now before the Court is American Drilling’s motion to dismiss under FED. R. CIV .P.

12(b)(6) on grounds that (1) a part of Rumpz’s claims are barred by the statutes of

limitations and (2) any part of his claims not barred by the statutes of limitations are not

plead with sufficient specificity. 

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For the reasons that follow, the motion will be granted in part and stayed in part.

II. Facts and Procedural History

A.

The following facts are taken from the complaint: 

Rumpz began working for American Drilling in March 1991 as a driller.

From March 1991 until 1996, American Drilling did not pay Rumpz for waiting

time, vehicle loading time, or travel time between American Drilling’s place of business

and his work sites. 

Beginning in 1996 American Drilling began to pay Rumpz for waiting time, vehicle

loading time, and travel time. However, it did not count this time toward the forty-hour

per week overtime compensation requirements of the statutes.

B.

On March 16, 2009 Rumpz filed his complaint against American Drilling. 

On July 20, 2009 American Drilling filed its motion.

On August 25, 2009 Rumpz filed his response to American Drilling’s motion

which included an affidavit making new factual assertions.

III. STANDARD OF REVIEW

A motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6) tests the sufficiency of a

complaint. To survive a Rule 12(b)(6) motion, the complaint's "factual allegations must be

enough to raise a right to relief above the speculative level on the assumption that all of the

allegations in the complaint are true." Bell Atlantic Corp. v. Twombley, 550 U.S.544, 545

(2007); see also Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548

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(6th Cir. 2007). The court is "not bound to accept as true a legal conclusion couched as a

factual allegation." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950 (2009) (internal

quotation marks and citation omitted). Moreover, "[o]nly a complaint that states a plausible

claim for relief survives a motion to dismiss." Id. Thus, "a court considering a motion to

dismiss can choose to begin by identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth. While legal conclusions can provide

the framework of a complaint, they must be supported by factual allegations. When there

are well-pleaded factual allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to relief." Id. In sum, "[t]o

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to state a claim for relief that is plausible on its face." Id. at 1949 (internal quotation

marks and citation omitted). This is a rather rigid test which must be carefully applied.

IV. ANALYSIS

A. Statute of Limitations

1.

When it is apparent from the face of a complaint that a claim is barred by the statute

of limitations, it is appropriate to dispose of the barred claim by 12(b)(6) motion. Hoover

v. Langston Equipment Associates, Inc., 958 F.2d 742, 744 (6th Cir. 1992). The FLSA

states:

Any action . . . to enforce any cause of action for unpaid

minimum wages, unpaid overtime compensation, or liquidated

damages . . . . 

(a) . . . may be commenced within two years after the cause of

action accrued, and every such action shall be forever barred

unless commenced within two years after the cause of action

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The Court will refer to the claims which accrued before March 16, 2006 and

which are potentially time barred as “pre-2006 claims.”

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accrued, except that a cause of action arising out of a willful

violation may be commenced within three years after the cause

of action accrued.

29 U.S.C. § 255. The MMWL includes a three year statute of limitations for all violations

of the act. Mich. Comp. Laws § 408.393.

Rumpz filed the complaint on March 16, 2009. The complaint alleges that American

Drilling willfully violated the FLSA and also violated the MMWL. Thus both claims are

subject to a three year statute of limitations. The complaint alleges violations extending

back to 1991 – more than three years before it was filed. Rumpz asserts that the pre-2006

claims1

 should not be time barred because (1) American Drilling’s actions constitute a

continuing violation and (2) the claims are subject to equitable estoppel.

2. 

FED. R. CIV. P. 12(d) states:

If, on a motion under Rule 12(b)(6) or 12(c) 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. All parties must be given a reasonable opportunity to

present all the material that is pertinent to the motion.

Thus a court has two choices when it is presented with matters outside of the pleadings on

a 12(b)(6) motion: it can exclude the outside matters and decide based on the pleadings

alone or it can include the outside matters and treat the motion as one for summary

judgment. 

Rumpz’s response to American Drilling’s motion includes an affidavit in support of

his assertion of equitable estoppel. This case is in its early stages and American Drilling

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has not yet filed an answer. To give the parties a reasonable opportunity to fully explain

their respective positions material would undoubtedly require some period of discovery.

As a result, it would not be fruitful to consider Rumpz’s affidavit and treat the motion as one

for summary judgment. Therefore, the affidavit is excluded and the motion will be decided

on the face of the complaint alone.

3.

Rumpz asserts that his pre-2006 claims are not barred because the continuing

violations doctrine applies to his claims. Courts have recognized two types of continuing

violations that can impact the applicability of a statute of limitations to otherwise time barred

claims: 

[T]he continuing violation doctrine embraces two types of

cases. The first includes cases in which the original violation

occurred outside the statute of limitations, but is closely related

to other violations which are not time-barred. In such cases,

recovery may be had for all violations, on the theory that they

are part of one, continuing violation.

The second type of continuing violation is one in which an initial

violation, outside the statute of limitations, is repeated later; in

this case, each violation begins the limitations period anew,

and recovery may be had for at least those violations that

occurred within the period of limitations.

Hendrix v. City of Yazoo City, 911 F.2d 1102, 1103 (5th Cir. 1990) (footnotes omitted). In

cases where the plaintiff alleges improper calculation or payment of wages, the Sixth Circuit

has held that the second theory of the continuing violation doctrine is applicable. National

Parks Conservation Ass’n, Inc. v. Tennessee Valley Authority, 480 F.3d 410 (6th Cir. 2007);

Gandy v. Sullivan County, 24 F.3d 861 (6th Cir. 1994).

The question under the second theory is not whether a plaintiff can recover for

claims that accrued outside of the statute of limitations, but whether a plaintiff can recover

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at all. If a defendant commits a single violation outside of the statute of limitations and a

plaintiff merely suffers a continued effect inside of the statute of limitations, the plaintiff is

not entitled to any recovery. Eidson v. Tennessee Department of Children’s Services, 510

F.3d 631, 635 (6th Cir. 2007). However, if a defendant commits a series of violations that

begin outside of the statute of limitations and continue over time, a plaintiff can recover for

the violations that occurred within the statute of limitations. Gandy, 24 F.3d at 864. In

these cases, the term “continuing violation” is a misnomer because the plaintiff is entitled

to recovery on the basis that each violation is an independent harm, creating an

independent cause of action with a new limitations period. 

In cases arising under the FLSA, courts have found that violations based on

improper calculation of wages or overtime wages constitute independent causes of action

which accrue with each new paycheck. In a case with nearly identical facts, fire department

employees alleged that their employer failed to pay them overtime wages and the Eleventh

Circuit held that the claims involving paychecks received within the statutory period were

not time barred. Knight v. Columbus, Georgia, 19 F.3d 579 (11th Cir. 1994). In this case,

the city of Columbus made a policy decision that a number of employees were exempt

under the FLSA and were not entitled to overtime compensation. Id. at 580. The city

asserted that its decision to classify the employees as exempt constituted a single violation

which occurred outside of the statute of limitations and that the subsequent failure to pay

overtime benefits was merely an effect of the city’s policy. Id. at 581. The Eleventh Circuit

disagreed and found that each paycheck for which the city failed to pay overtime created

a new cause of action and began a new statute of limitations. Id. at 582. The court held

that “the officer plaintiffs have a non-barred cause of action with respect to any claims (i.e.

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any paychecks which omitted pay for overtime worked) that accrued within two years –

three years if the City’s violations were willful – of the date the complaint was filed.” Id.

Thus the plaintiffs could maintain their cause of action for claims that arose within the

statute of limitations, but could not use the continuing violations doctrine to “save” a cause

of action for violations occurring outside the statute of limitations.

While the Sixth Circuit has not addressed the precise issue in this case, its

reasoning in other continuing violation cases supports the same outcome. In a case arising

under the Clean Air Act, the Sixth Circuit cited Knight with approval in determining that the

defendant’s actions constituted a series of discrete violations rather than a single violation

with continuing effects. National Parks, 480 F.3d at 417. Similarly, when addressing an

alleged violation of the Equal Pay Act, the Sixth Circuit stated:

Under the Equal Pay Act, a plaintiff’s action will not be timebarred as long as at least one forbidden discriminatory act

occurs within the relevant limitations period. It is irrelevant that

the employer has committed identical illegal acts prior to the

limitations period. To hold otherwise would grant license to

employers to discriminate perpetually as long as they have

been doing so unchecked for at least three years. In this case

[plaintiff’s] rights under the Equal Pay Act were violated with

every check she received after . . . 1982. Thus, the court

properly found that she had a cause of action for the violations

occurring between 1988 and 1991, the three years immediately

prior to filing the action.

Gandy, 24 F.3d at 864. Like FLSA cases, Equal Protection Act cases are subject to the

statute of limitations in 29 U.S.C. §255. Id. at 863.

Here Rumpz alleges that, from 1991 to 1996, American Drilling failed to pay him for

waiting time, vehicle loading time, and travel time. He further alleges that, beginning in

1996, American Drilling compensated him for those activities, but did not count those hours

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in calculating his overtime compensation. Rumpz is correct to assert that the continuing

violation doctrine applies to this case. However, the doctrine cannot save his otherwise

time barred claims. Each paycheck for which American Drilling incorrectly calculated

Rumpz’s compensation was an independent violation of the FLSA and created a new

cause of action. As the Sixth Circuit made clear in Gandy, Rumpz is entitled to recover

for any violation that occurred within the statute of limitations, but cannot recover for

violations that occurred outside of the three-year limitations period. Thus, the continuing

violations doctrine does not provide a means to “save” the causes of actions for the alleged

violations occurring from Rumpz’s hire in March, 1991 to March 16, 2006 – three years

before he filed his complaint. 

4.

Rumpz asserts that American Drilling should be estopped from asserting the statutes

of limitations as an affirmative defense. A court may employ equitable estoppel to toll the

statute of limitations on a plaintiff’s cause of action when the defendant took some

affirmative action to prevent the plaintiff from filing his claim in a timely manner. The Sixth

Circuit requires the following elements to support a claim of equitable estoppel:

1) there must be conduct or language amounting to a

misrepresentation of a material fact; 2) the party to be estopped

must be aware of the true facts; 3) the party to be estopped

must intend that the representation be acted on, or the party

asserting the estoppel must reasonably believe that the party to

be estopped so intends; 4) the party asserting the estoppel

must be unaware of the true facts; and 5) the party asserting the

estoppel must reasonably or justifiably rely on the

representation to his detriment.

Egerer v. Woodland Realty Inc., 556 F.3d 415, 425 (6th Cir. 2009). Equitable estoppel

focuses first on the conduct of the defendant, who must take “active steps in preventing the

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plaintiff from suing in time.” Id. But the conduct of the plaintiff is also considered. The

plaintiff’s reliance must be reasonable and he must “demonstrate that his ignorance is not

attributable to a lack of due diligence.” Id.

Here there is nothing on the face of the complaint suggesting the existence of any

element of equitable estoppel. The complaint includes no allegation that American Drilling

misrepresented any fact to Rumpz, much less that Rumpz relied on such a

misrepresentation to his detriment. Therefore, as the record stands Rumpz cannot rely on

the doctrine of equitable estoppel to save his otherwise time barred claims.

5. 

If, based on the face of the complaint, it is apparent that a claim is barred by the statute of

limitations, a court must dismiss the complaint unless it believes that the plaintiff may have

a valid defense to the statute of limitations. 

A complaint containing a built-in defense usually is vulnerable

under Rule 12(b)(6) to a motion to dismiss for failure to state a

claim upon which relief can be granted. The court, in its

discretion, may allow the pleader to amend the complaint if it

believes that the defense can be avoided. . . . (footnotes

omitted).

5 C. WRIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1226 (3d ed. 2004). A

court should freely grant leave to amend a compliant when justice requires. FED. R. CIV.

P. 15(a)(2). Furthermore, the Sixth Circuit has stated that “the thrust of Rule 15 is to

reinforce the principle that cases should be tried on their merits rather than the

technicalities of pleadings.” Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986).

When Rumpz filed the complaint, he did not know that American Drilling would

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 The amended complaint will be subject to the heightened pleading standards of

Iqbal. To comply with these heightened requirements, Rumpz must do more than

merely recite the elements of equitable estoppel in conclusory fashion.

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assert the statutes of limitations as an affirmative defense. Thus he had no reason to plead

equitable estoppel in the complaint. If Rumpz were to be successful in asserting the

doctrine of equitable estoppel, it would toll the statutes of limitations for his pre-2006 claims.

The Court expresses no opinion on the merits of Rumpz’s assertion of equitable estoppel,

but finds that it would be contrary to the principles of justice embodied in the Rules of Civil

Procedure to dismiss his claims with prejudice. If Rumpz has a plausible defense based

on equitable estoppel, it should be resolved on the merits, not on pleading technicalities.

Therefore, American Drilling’s motion will be stayed with respect to the pre-2006 claims

pending the filing of an amended complaint.2

B. Defective Pleading

 American Drilling also asserts that Rumpz failed to state a claim upon which

relief can be granted for the alleged violations occurring after March 16, 2006 because

“Plaintiff has not made any reference in his complaint as to whether he was still

employed by Defendant on or after March 16, 2006, or that Defendant continued to

violate the FLSA by failing to apply time worked toward overtime requirements on or

after March 16, 2006.” (Doc. 8). In other words, American Drilling asserts that Rumpz,

as the plaintiff, must affirmatively plead that his claims are not barred by the statutes of

limitations. In Iqbal the Supreme Court heightened the pleading requirements for

plaintiffs under FED R. CIV. P. 8(a)(2). A plaintiff must plead every element of each claim

that he or she wishes to assert. Iqbal, 129 S.Ct. at 1947. While Iqbal altered the

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meaning of Rule 8(a)(2), it did not change the responsibilities assigned to each party

under Rule 8. A plaintiff’s complaint is still required to state a claim for relief, FED R. CIV.

P. 8(a)(2), and a defendant’s responsive pleading is still required to state affirmative

defenses including the statute of limitations, FED R. CIV. P. 8(c).

American Drilling has not asserted that Rumpz failed to adequately plead each

element of the alleged FLSA and MMWL violations. The complaint alleges that Rumpz

was an employee of American Drilling and that American Drilling failed to properly

compensate him by not counting waiting time, vehicle loading time, and travel time

toward his forty-hour work week when calculating his eligibility for overtime

compensation. Based on these factual allegations, it is plausible that American Drilling

did violate the FLSA and MMWL. Instead, American Drilling seeks to expand the scope

of FED R. CIV. P. 8(a)(2) by requiring Rumpz to plead an avoidance of affirmative

defenses. Even under Iqbal’s heightened pleading standard, a plaintiff is not required to

anticipate and respond to every affirmative defense that a defendant may choose to

assert. To find otherwise would require a complaint to address and overcome every

possible affirmative defense. If American Drilling believes that none of the alleged

violations occurred within the past three years, it is entitled to assert the statutes of

limitations as an affirmative defense in its answer. However, it is not entitled to alter the

parties’ responsibilities under Fed. R. Civ. P. 8 and require Rumpz to anticipate its

affirmative defense and plead in avoidance of it. 

CONCLUSION

For the reasons stated above, American Drilling’s motion to dismiss is DENIED

for all claims arising after March 16, 2006. The motion is STAYED for 20 days on all

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claims arising prior to March 16, 2006 pending the filing of an amended complaint. 

SO ORDERED.

 s/ Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: October 23, 2009

I hereby certify that a copy of the foregoing document was mailed to the attorneys of

record on this date, October 23, 2009, by electronic and/or ordinary mail.

 s/ Julie Owens 

Case Manager, (313) 234-5160

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