United States District Court, D. Maryland
RONALDO FLORES, et al. Plaintiffs,
HMS HOST CORP., et al. Defendants, and, AMY STORCH, et al. Plaintiffs,
HMS HOST CORP., et al. Defendants.
Xinis, United States District Judge
before the Court in these companion FLSA class cases are
Defendants' motions to dismiss in Flores v. HMS Host
Corp., No. 8:18-cv-03312-PX, ECF No. 15, and Storch
v. HMS Host Corp., No. 8:18-cv-03322-PX, ECF No. 14. The
motions are fully briefed, and no hearing is necessary.
See Loc. R. 105.6. For the following reasons,
Defendants' motions are DENIED.
cases are related to Acey v. HMS Host USA, Inc., No.
8:18-cv-01395-PX, also pending before this Court.
Acey involves a Fair Labor Standards Act
(“FLSA”) suit also against Defendants HMS Host
Corporation and HMS Host USA, Inc. (collectively “HMS
Host, ” “HMS, ” or
“Defendants”). Acey, ECF No. 115 at 1.
HMS Host owns and operates food and beverage franchises
across the United States, mostly in large airports.
Id. The Acey Plaintiffs are employees of
HMS Host and allege that their employer systematically
under-compensated them in violation of the FLSA. Id.
had been filed originally in the Western District of
Tennessee. Id. at 2. At the time Acey was
transferred to this District, the Plaintiffs represented that
they would pursue claims on behalf of three groups of
employees: (1) untipped “Quick Service
Restaurant” (“QSR”) employees; (2) untipped
(“runner”) employees; and (3) tipped waitstaff.
Id. at 3. The Acey Plaintiffs initially
intended to amend the Complaint to reflect the three distinct
subclasses. Id. at 3. Instead, in September 2018,
the Acey Plaintiffs narrowed their Complaint so that
it only alleged claims on behalf of QSR employees. See
Acey, ECF No. 96 at ¶ 4. The “runner”
employees then filed Flores, ECF No. 1, and the
waitstaff filed Storch, ECF No. 1.
Court has already denied Defendants' motion to dismiss
the Acey Complaint. Acey, ECF No. 115. The
Court now turns to similar, but not identical, challenges
that HMS lodges against the Flores and
allegation unifying all three cases is that HMS Host used a
coordinated scheme to under-compensate its employees.
Acey, ECF No. 1 at ¶ 14; Flores, ECF
No. 1 at ¶ 15; Storch, ECF No. 1 at ¶ 15.
The precise theories vary slightly from case to case. But, at
bottom, each Complaint accuses HMS Host of “strictly
enforc[ing]” a set of “labor budgets” that
were out of line with the operational demands of its
establishments. Acey, ECF No. 1 at ¶ 14;
Flores, ECF No. 1 at ¶ 15; Storch, ECF
No. 1 at ¶ 15. Then, to meet these unrealistic labor
budgets, management extracted unpaid and underpaid labor from
its employees. Acey, ECF No. 1 at ¶ 14;
Flores, ECF No. 1 at ¶ 15; Storch, ECF
No. 1 at ¶ 15.
runner employees bring one claim for overtime wages through
named Plaintiff Ronaldo Flores, asserting that HMS Host
failed to pay any wages for Plaintiffs'
“off-the-clock” work. Flores, ECF No. 1
at ¶¶ 44-51. Flores maintains that he
“routinely” worked eight to ten hours in excess
of a forty-hour work week but was not properly compensated
for that time. Id. at ¶ 25. Flores worked
off-the-clock before his shift started, during breaks, and
after scheduled shifts. Id. at ¶ 28. This work
consisted of opening the warehouse in the morning, cleaning,
making various deliveries, and swapping CO2 tanks and kegs.
Id. Flores alleges that management ignored his
complaints and threatened disciplinary action if he refused
to work off-the-clock. Id. at ¶¶ 30-31.
waitstaff employees, through named plaintiffs Amy Storch,
Samantha Curry and Jenna Plotkin (collectively
“Storch”), allege that HMS Host required the
waitstaff to work one to three off-the-clock hours per shift,
performing such tasks as cutting fruit, cleaning and
sweeping, and preparing place settings. Storch, ECF
No. 1 at ¶ 22. The Storch plaintiffs further allege that
Defendants improperly deprived them of a minimum wage for
“related, non-tip producing” duties. Id.
at ¶ 41. On this claim, Storch puts forward a host of
tasks that Defendants required her to perform that did not
earn her tips. Id. at ¶¶ 23, 41.
Storch specifically notes that these tasks took up more than
20% of her time, but that she received a “tip credit
wage” instead of the regular minimum wage. Id.
Host now moves to dismiss the entirety of Flores and
Storch's complaints. Flores, ECF No. 15;
Storch, ECF No. 14. Much as they did in
Acey, HMS Host argues that Plaintiffs have averred
boilerplate FLSA violations that cannot survive challenge.
Flores, ECF No. 15-1 at 8-17; Storch, ECF
No. 14-1 at 9-11, 14-16. Additionally, with respect to the
Storch Complaint, HMS Host contends that a recent
2018 Department of Labor (“DOL”) opinion letter
forecloses Storch's “related duties” claim by
reinterpreting a pivotal regulation. Storch, ECF No.
14-1 at 11-13, 16-17. The Court addresses each contention in
Standard of Review
motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the sufficiency of the complaint.
Presley v. City of Charlottesville, 464 F.3d 480,
483 (4th Cir. 2006). The Court accepts “the well-pled
allegations of the complaint as true, ” and construes
all facts and reasonable inferences most favorably to the
plaintiff. See Ibarra v. United States, 120 F.3d
472, 474 (4th Cir. 1997). To survive a motion to dismiss, a
complaint's factual allegations “must be enough to
raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
Motion to Dismiss the Flores and Storch