Brian Dismuke v. McClinton Energy Group, L.L.C. , 670 F. App'x 210 ( 2016 )

Case: 16-50674 Document: 00513724462 Page: 1 Date Filed: 10/19/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-50674
FILED
October 19, 2016
Summary Calendar
Lyle W. Cayce
Clerk
BRIAN DISMUKE, Individually and on behalf of all others similarly
situated,
Plaintiff - Appellant
v.
TONY MCCLINTON, Individually and as Officer and Director of McClinton
and SWECO,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:16-CV-23
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*
Brian Dismuke sued Tony McClinton (“McClinton”), McClinton Energy
Group, L.L.C., and SWECO (“Defendant Companies”) 1 for unpaid overtime
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1 Dismuke subsequently amended his complaint removing Defendant Companies and
leaving only Tony McClinton, Individually and as Officer and Director of these companies, in
the lawsuit.
Case: 16-50674 Document: 00513724462 Page: 2 Date Filed: 10/19/2016
No. 16-50674
wages under the Fair Labor Standards Act. Dismuke appeals the district
court’s order dismissing his claims, compelling arbitration, and denying class
certification. He contends that McClinton, who signed the arbitration
agreement on behalf of Defendant Companies, could not enforce the arbitration
agreement because he was an independent liable employer. This argument is
unpersuasive. The district court correctly reasoned that Dismuke’s claims
arose from his employment relationship with the Defendant Companies.
Moreover, his claims against McClinton were claims against the companies.
See In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 190 (Tex. 2007)
(holding that because claims against a Merrill Lynch broker “are in substance
claims against Merrill Lynch, they must abide by their agreement to arbitrate
those claims.”).
Also, the arbitration agreement at issue contained a waiver prohibiting
class actions. This court is not compelled to reverse its holding that class action
waivers in arbitration agreements are enforceable. D.R. Horton, Inc. v. NLRB,
737 F.3d 344, 362 (5th Cir. 2013).
AFFIRMED.
2