United States District Court, D. Kansas
KRYSTAL LARSON, On behalf of herself and all others similarly situated, Plaintiff,
FGX INTERNATIONAL, INC., Defendant.
MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
This case arises out of the alleged under-payment of wages to plaintiff Krystal Larson and other similarly situated employees of defendant FGX International, Inc. Plaintiff alleges violations of the Fair Labor Standards Act ("FLSA"), the Kansas Wage Payment Act ("KWPA"), and the Missouri Minimum Wage Maximum Hour Law ("MMWMHL"). Before the court is plaintiff's Motion for Leave to Amend the Complaint (Dkt. 40). For the reasons set forth below, the motion is denied.
Plaintiff is a merchandiser employed by FGX to collect and record product placement and inventory information from retail stores. Merchandisers drive to multiple retail stores each day, using their own vehicles. Plaintiff alleges that FGX inadequately reimburses merchandisers for transportation and other work-related expenses. She further alleges that the under-reimbursed expenses, when debited from a merchandiser's wage, yield earnings below minimum wage and without overtime pay.
Plaintiff filed an Amended Complaint, with leave of the court, on September 22, 2014. (Dkt. 16). The Amended Complaint alleges three counts: Count I: FLSA minimum wage and overtime violations, pursuant to 29 U.S.C. §§ 206(a) and 207(a)(1); Count II: KWPA minimum wage and overtime violations, as provided by the FLSA; and Count III: MMWMHL minimum wage and overtime violations. Plaintiff seeks an opt-in collective action for Count I, pursuant to 29 U.S.C. § 216(b), and class actions for Counts II and III pursuant to FED. R. CIV. P. 23(b)(2) and (3).
On November 21, 2014, FGX moved to dismiss Count II for failure to state a claim under FED. R. CIV. P. 12(b)(6). (Dkt. 24). The court granted the motion, holding that minimum wage and overtime claims may not be brought under the KWPA against an FLSA-covered employer. (Dkt. 36). Plaintiff now seeks to amend the complaint again to re-assert a KWPA claim.
II. Legal Standard
"[T]he court should freely give leave" to amend a complaint "when justice so requires." FED. R. CIV. P. 15(a)(2). It is within a court's discretion to deny leave to amend if the proposed amendment is futile. Foman v. Davis, 371 U.S. 178, 182 (1962). "A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Lind v. Aetna Health, Inc., 466 F.3d 1195, 1199 (10th Cir. 2006) (quotation and citations omitted). A complaint may be dismissed for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6).
Plaintiff's proposed amendment would revise plaintiff's class definitions and alter Count II to seek recovery of unpaid straight-time wages and under-reimbursed expenses under the KWPA. FGX argues that the portion of proposed Count II which seeks recovery of under-reimbursed work-related expenses fails to state a KWPA claim.
Plaintiff's theory of the under-reimbursed expenses runs as follows. FGX employs merchandisers at a contracted hourly rate. FGX agreed to pay merchandisers $2.55 per store visit, evidencing an implied contractual obligation to reimburse reasonably approximated expenses. (Dkt. 43, at 6). However, $2.55 per store visit is significantly less than reasonably approximated actual expenses. This under-reimbursement resulted in a realized wage that is less than the contracted amount. Plaintiff clarifies that her Count I FLSA claim is to recover under-reimbursement of expenses that restore realized wages to minimum wage, and that the proposed Count II KWPA claim seeks further recovery of under-reimbursement to restore her realized hourly pay from minimum wage to the contracted rate.
FGX argues that the amendment is futile because reimbursements of expenses are not recoverable under the KWPA, and is therefore subject to dismissal. The court agrees.
A. The KWPA is a mechanism for the recovery of wages due.
"The KWPA gives employees the right to receive their wages due' and concerns when and how those wages are paid out." Garcia v. Tyson Foods, Inc., 766 F.Supp.2d 1167, 1187 (D. Kan. 2011) (citing K.S.A. § 44-314). The KWPA does not provide any substantive rights, and is therefore only a mechanism for recovery of "wages due." See K.S.A. §§ 44-312 to 44-327. The KWPA "provides a mechanism for penalizing employers who withhold payment of earned wages; it does not enhance contractual remedies for those who enter into agreements with parties who happen to be their employers." Fitzgerald v. City of Ottawa, Kan., 975 F.Supp. 1402, 1407 (D. Kan. 1997) (emphasis in ...