Opinion
Civil No. 05-1215-AS.
October 19, 2005
OPINION AND ORDER
The matter presently before the court is the motion of Defendant American United Life Insurance Company ("American"), to strike Plaintiff Monte Scott's First Cause of Action (Failure to Pay Minimum Wage, 29 U.S.C. § 206) and Second Cause of Action (Failure to Pay Minimum Wage, ORS 653.025). In the alternative, American requests the court to order Mr. Scott to make these claims more definite and certain. For the reasons set forth below, the court DENIES the defendant's motion to strike the plaintiff's first two causes of action, and DENIES the defendant's request to order the plaintiff to make these claims more definite and certain.
BACKGROUND
Mr. Scott was employed by American from April until November 2003. Mr. Scott's complaint alleges that American never paid Mr. Scott for work he performed from October 16, 2003, through November 13, 2003. The complaint alleges three causes of action against American: (1) failure to pay wages in violation of the Fair Labor Standards Act ( 29 U.S.C. § 206); (2) failure to pay wages in violation of ORS 653.025; and (3) failure to pay wages upon termination (ORS 652.150).
LEGAL STANDARDS
Motion to Strike
Under F.R.C.P. 12(f), the court may strike from any pleading "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." See also Lazar v. Trans Union LLC, 195 F.R.D. 665 (2000).
Motion to Make More Definite
Under F.R.C.P. 12(e), when a pleading is "so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement. A motion to make more definite is only appropriate when the complaint is "so indefinite that the defendant cannot ascertain the nature of the claim asserted." Cellars v. Pacific Coast Packaging, Inc., 189 F.R.D. 575, 578 (N.D. Ca. 1999).
DISCUSSION
Mr. Scott's complaint alleges that American "never paid Scott the wages he earned, including commissions, and accrued vacation." The complaint alleges violations of the Fair Labor and Standards Act (FLSA) and ORS 653.025. The FLSA requires every employer to pay each of its employees "who in any workweek engaged in commerce or in the production of goods for commerce" a minimum wage of $5.15 per hour. 29 U.S.C. § 206(a)(1). Under Oregon law, an employer is required to pay an employee for each hour of work time that the employee was gainfully employed at wages computed at a rate no lower than $6.90 an hour. ORS 653.025. American's motion to strike argues that alleging failure to pay a final paycheck is not sufficient to raise minimum wage claims under the FLSA and ORS 653.025. American alternatively requests that these claims be made more definite and certain.
American relies on Hurger v. Hyatt Lake Resort, Inc., to support its motion to strike. 170 Or. App. 320, 13 Pd.2d 123 (2000), rev. den. 331 Or. 583, 19 P.3d 355 (2001). In Hurger, the defendant had paid the plaintiff wages that satisfied ORS 653.025 within two weeks of the plaintiff's termination. Id. at 326. The court did not agree with the plaintiff's contention that a payment that is late for the purposes of ORS 652.140 (requiring full payment on the date of termination) is also necessarily deficient for the purposes of the State minimum wage law. Id. American argues that this reasoning applies to Mr. Scott's Federal and Oregon minimum wage claims and, therefore, Mr. Scott's claims should be stricken for attempting to create three remedies for the same alleged wrong through insufficient reasoning and redundancy. Lazar v. Trans Union LLC, 195 F.R.D. 665, 669 (2000).
However, in Pascoe v. Mentor Graphics Corp., Magistrate Judge Stewart applied Hurger and found that the defendant violated the FLSA and Oregon minimum wage provisions by not paying the plaintiff on his regular payday, even though the plaintiff eventually received payment of wages that exceeded the minimum wage. 199 F.Supp.2d 1034 (D. Or. 2001). Pascoe applied the reasoning used by the Ninth Circuit in Biggs v. Wilson, 1 F.3d 1537 (9th Cir. 1993), cert denied, 510 U.S. 1081, 114 S.Ct. 902, 127 L.Ed.2d 94 (1994), which Hurger did not address. 199 F.Supp.2d at 1061-1062. Biggs held that wages are considered unpaid, and a minimum wage not received under the FLSA, if wages are not paid on the employee's regular payday. 1 F.3d at 1539-1540. The court in Hurger found it unnecessary to addressBiggs since the court's decision "would be adverse to plaintiffs even if we found Biggs to be apposite and its holding correct" given that the plaintiffs made no contention that they were not paid by their regular payday. 170 Or. App. at 328. In Pascoe, the court found that Hurger limited its holding to the situation where the employee's minimum wage claim is premised solely on a violation of ORS 652.140, and differentiated it from a situation in which a plaintiff is not paid by his regular payday. 199 F.Supp 2d. at 1063. Therefore,Pascoe concluded that the FLSA and Oregon minimum wage provisions are violated if the minimum wage is not paid by the employee's next regular payday. Id. at 1062.
In the interest of consistency, this court will defer to the interpretation of Hurger set forth by Judge Stewart in Pascoe. This interpretation does not support the defendant's motion to strike based on alleged redundancy of claims. Moreover, these claims are not so vague as to prevent the defendant from ascertaining their nature; therefore, it would not be proper for this court to grant the defendant's request to make the plaintiff's claims more definite and certain.
Conclusion
The defendant's motion to strike (#5) is DENIED. The defendant's alternative request that the court grant its motion to make the plaintiff's claims more definite and certain is also DENIED.