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Dean v. Billings

United States District Court, W.D. Oklahoma

May 12, 2017

URIKA DEAN, on behalf of herself, and all others similarly situated, Plaintiff,
v.
MICHAEL BILLINGS d/b/a MIDWAY ISLAND, and MIDWAY ISLAND, LLC, Defendants.

          ORDER

          VICKI MILES-LaGRANGE UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Michael Billings' Amended Motion to Dismiss, filed March 8, 2017. On March 28, 2017, plaintiff responded. No reply has been filed. Based on the parties' submissions, the Court makes its determination.

         I. Introduction

         Plaintiff filed this action against defendants Michael Billings d/b/a Midway Island (“Billings”) and Midway Island, LLC (collectively “Defendants”) on behalf of herself and others similarly situated alleging Defendants violated the Fair Labor Standards Act (“FLSA”) and the Oklahoma Minimum Wage Act. Plaintiff was employed by Defendants from June 2013 through February 2014, as an exotic dancer at Midway Island, a club located in Oklahoma City. Plaintiff alleges that Defendants deprived plaintiff, and others similarly situated, of compensation through the following practices, decisions or plan:

(a) Requiring adult entertainers and other employees to perform work without compensation;
(b) Requiring adult entertainers and other employees to perform work without compensation during times for which they could not receive tips;
(c) Refusing to compensate adult entertainers one and one half times minimum wage when their total hours worked exceed 40 hours;
(d) Requiring adult entertainers to share tips with non-tipped employees; and
(e) Requiring adult entertainers to pay fees for the right to work.

Compl. ¶¶ 12. Further, plaintiff alleges that Defendants misclassified all adult entertainers at Midway Island as independent contractors but established specific work schedules, dictated the specific times and manner in which the adult entertainers interacted with customers and danced on stage, and required the adult entertainers, including plaintiff, to wear specific types of attire while performing. Additionally, plaintiff alleges Defendants required the adult entertainers, including plaintiff, to pay a house fee or bar fee to qualify to work a given shift, and a disc jockey fee. Plaintiff alleges the amount of the fees varied from night to night, event to event.

         Plaintiff further alleges that adult entertainers, including plaintiff, were to pay a percentage of all gratuities received back to Midway Island, which constituted an illegal tip sharing arrangement with non-tipped employees and represented an illegal kickback within the meaning of the FLSA. Plaintiff also alleges Defendants never paid the adult entertainers, including plaintiff, any amount of wages and their sole source of work-related income during their employment with Defendants was gratuities received from paying customers. Plaintiff alleges that Defendants knew or should have known that misclassifying plaintiff as an independent contractor instead of the appropriate employee designation was a violation of the FLSA.

         Billings now moves this Court to dismiss this matter against him, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted against him.

         II. Standard for Dismissal

         Regarding the standard for determining whether to dismiss a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), ...


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