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KEELEY v. LOOMIS FARGO & CO.

June 12, 1998

JOHN KEELEY, TIMMIE ORANGE, ARIEL KILPATRICK and CHARLES WERDANN, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
LOOMIS FARGO & CO., Defendant.



The opinion of the court was delivered by: DEBEVOISE

OPINION

 DEBEVOISE, Senior District Judge.

 Defendant, Loomis Fargo & Co. ("Loomis Fargo"), moves to dismiss the complaint of plaintiffs John Keeley, Timmie Orange, Ariel Kilpatrick and Charles Werdann for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the motion will be denied.

 BACKGROUND

 The following statement of facts has been compiled from the complaint, which is styled as a class action complaint.

 Loomis Fargo, a Delaware corporation, was created in January 1997 as a result of the merger between Wells Fargo Armored Services Corp. ("Wells Fargo") and Loomis Armored, Inc. Loomis Fargo assumed the operation of Wells Fargo's Lyndhurst, New Jersey armored car services, including its facilities, accounts, employees and equipment.

 Plaintiff Keeley is the president of the United Armed Guards of America (the "Union"), which represents guards, messengers and drivers at Loomis Fargo. Keeley was employed by Loomis Fargo in various positions, including guard, driver-guard and messenger-guard, and was employed as a messenger-guard in April 1997 when he resigned to devote his full efforts to the Union. Plaintiff Orange was employed by Loomis Fargo in various positions, including guard, driver-guard and messenger-guard, and was employed as a messenger-guard in March 1997 when his employment was terminated. *fn1" Plaintiff Kilpatrick has been employed by Loomis Fargo as a driver-guard since in or around July 1994. Plaintiff Werdann has been employed by Loomis Fargo as an ATM technician since in or around July 1996.

 Guards, driver-guards and messenger-guards load and unload armored vehicles and convey currency, coin, negotiable instruments and other valuables by way of armored vehicles primarily between the Loomis Fargo vault and the customers' premises. Guards, who may be either armed or unarmed, assist driver-guards and messenger-guards in their duties of loading, unloading and conveying property by armored vehicles. Driver-guards and messenger-guards are generally armed. Driver-guards drive the armored vehicles and assist messenger-guards in their duties. Messenger-guards load and unload vehicles and deliver property.

 ATM technicians, who are generally armed, load and unload vehicles and convey currency by way of vehicles primarily between the Loomis Fargo vault and the ATMs on the customers' premises. ATM technicians drive the vehicles and load currency into ATMs.

 The plaintiffs allege that they consistently performed more than 40 hours of work per week and that Loomis Fargo failed to pay them at the overtime rate for the hours worked in excess of 40 hours per week. They further allege that as a matter of company-wide policy and practice Loomis Fargo regularly and consistently fails to pay required overtime pay to guards, driver-guards, messenger-guards and ATM technicians. Their complaint, in which they seek overtime pay and other relief, was filed on November 20, 1997 in New Jersey Superior Court. The action was removed to this court by Loomis Fargo on December 19, 1997 on the basis of diversity jurisdiction.

 DISMISSAL PURSUANT TO RULE 12(b)(6)

 A complaint must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted if the court finds "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In analyzing motions to dismiss, all allegations set forth in the complaint must be accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). A court should allow a plaintiff to amend the complaint instead of dismissing it where "a more carefully drafted complaint might state a claim upon which relief could be granted." Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir. 1985); see Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984).

 A motion to dismiss which presents the court with matters outside the pleading which are not excluded is to be treated as a motion for summary judgment and analyzed pursuant to Rule 56. Fed. R. Civ. P. 12. In such circumstances, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Id. However, an undisputedly authentic document attached to a motion to dismiss may be considered without converting it to a motion for summary judgment if plaintiff's claims are based upon that document. Pension Ben. Guar. ...


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