Johnson v. TitleMax of Alabama, Inc.

Filing 23

MEMORANDUM OPINION AND ORDER GRANTING plaintiff's 19 MOTION for leave to file a first amended complaint; directing that on or before 11/15/2013, plaintiff shall file a duplicate of the first amended complaint that is attached as an exhibit [1 9]-3 to plaintiff's 19 response; further ORDERING that defendant's 4 MOTION TO DISMISS pursuant to Rule 12(b)(2), (4), and (5) is DENIED; defendant's motion to dismiss pursuant to Rule 12(b)(6) and plaintiff's 21 MOTION for Hearing are DENIED as MOOT. Signed by Chief Judge William Keith Watkins on 11/7/13. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JACQUON JOHNSON, on behalf
of himself and all others similarly
situated,
Plaintiff,
v.
TITLEMAX OF ALABAMA, INC.,
Defendant.

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) CASE NO. 3:13-CV-306-WKW
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[WO]
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MEMORANDUM OPINION AND ORDER
This action arises under the Fair Labor Standards Act, 29 U.S.C. §§ 201–
219. Before the court is Defendant’s motion to dismiss pursuant to Federal Rules
of Civil Procedure 12(b)(2), (4), (5) and (6).

(Doc. # 4.)

In response to

Defendant’s motion to dismiss the complaint for failure to state a claim, Plaintiff
moves for leave to file a first amended complaint, which also is before the court.
(Doc. # 19.) The motion to amend is due to be granted; the motion to dismiss
pursuant to Rule 12(b)(4) and (5) is due to be denied; and the motion to dismiss
pursuant to Rule 12(b)(6) is due to be denied as moot.
A.

Rule 12(b)(2),(4) and (5)
Defendant argues that Plaintiff failed to perfect service of process because

he addressed the certified mailing to the registered agent, CT Corporation Systems,

yet failed to address it to a natural person, as required by Alabama Rule of Civil
Procedure 4. See Fed. R. Civ. P. 4(h)(1)(A) (permitting service on a corporation in
accordance with state law). It further argues that the person who signed for the
mail, Laura Payne, did not check the box labeled “agent” on the return receipt
proving that she was authorized to receive mail on behalf of Defendant. Plaintiff
argues that service was perfected because Defendant received and answered the
summons and complaint by filing its motion to dismiss.

Alternatively, Rule

4(i)(2)(C) defines “agent” as “a person or entity specifically authorized . . . ,” and
C.T. Corporation Systems is clearly such an entity. Finally, Plaintiff argues that if
the court finds that he did not fully comply, then he substantially complied and any
alleged problems associated with the service did not result in harm to Defendant.
Defendant cites several cases that support its contention that a plaintiff must
strictly adhere to the service rules to confer jurisdiction. Notably however, each
case cited by Defendant is distinguishable from the facts in this case. Each case
involves circumstances where a default judgment or motion for entry of default has
been granted against the defendant and service was not strictly adhered to and
therefore, improper. See Duncan v. S.N., 907 So. 2d 428 (Ala. 2005); Premier
Health Mgmt., Inc. v. Sherling, 100 So. 3d 561 (Ala. Civ. App. 2012); LVNV
Funding LLC v. Boyles, 70 So. 3d 1221 (Ala. Civ. App. 2009); Johnson v.
Champion, No. 12-334-WS-M, 2013 WL 275957 (S.D. Ala. Jan. 24, 2013). The
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court agrees that in those circumstances, it was questionable whether the
defendants received service, and, thus, default judgments or entries of default were
not warranted. Rule 4 is clear on the issue:
(C) When effective. Service by certified mail shall be deemed
complete and the time for answering shall run from the date of
delivery to the named addressee or the addressee’s agent as evidenced
by signature on the receipt. Within the meaning of this subdivision,
“agent” means a person or entity specifically authorized by the
addressee to receive the addressee’s mail and to deliver that mail to
the addressee. . . . An action shall not be dismissed for improper
service of process unless the service failed to inform the defendant
of the action within time to avoid a default.
Ala. R. Civ. P. 4(i)(2)(C) (emphasis added).

Here, any alleged defects in

Plaintiff’s service of process has not resulted in a failure to inform Defendant of
the action within time to avoid default, unlike the defendants in Duncan, Johnson,
Premier Health, and LVNV Funding.
Alabama Rule of Civil Procedure 4(i)(2)(B)(i) describes service by certified
mail. It states, “In the case of an entity within the scope of one of the subdivisions
of Rule 4(c), the addressee shall be a person described in [Rule 4(c)(6)].” Rule
4(c)(6) permits service “by serving an officer, a partner (other than a limited
partner), a managing or general agent, or any agent authorized by appointment or
by law to receive service of process.” The Rule further describes when it is
deemed effective and defines the meaning of agent stating, “‘agent’ means a
person or entity specifically authorized by the addressee [TitleMax] to receive the
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addressee’s mail and to deliver that mail to the addressee.”

Ala. R. Civ. P.

4(i)(2)(C) (emphasis added). Therefore, an “agent” as described by the rule (as
opposed to “addressee”), can be a natural person or an entity.
Defendant does not contest the entity’s authority to receive mail for it and
expressly states, “[t]o be clear, CT Corporation Systems was Defendant’s
registered agent for service in Alabama. However, as the Johnson court correctly
held, an entity [that] serves as a registered agent under Alabama law may be served
by certified mail only if addressed properly to a natural person.” (Doc. # 5 at 8
n.3.) Defendant misunderstands the Johnson court. The Johnson court confirms
that “[a]n agent for receipt and delivery of mail can be a ‘person or entity.’ Ala. R.
Civ. P. 4(i)(2)(C).

The addressee, however, must be a ‘person,’ id. Rule

4(i)(2)(B)(i), (ii), which rules out artificial entities as acceptable addressees.”
Johnson, 2013 WL 275957 at *2 n.2.1 Indeed, “service is not complete until the
mailing is delivered to the human addressee or to his agent for purposes of receipt
and delivery of mail.” Id. at *2 (emphasis added) (citations omitted). Defendant’s
argument is wrong, as it relies on CT Corporation being the addressee. Correctly
stated, TitleMax is the addressee, and CT Corporation is the agent. Perhaps a

1

Footnote 2 of the Johnson opinion cites Rule 4(i)(2)(B)(iii). However, Rule 4(i)(2)(B)(iii)
does not exist and should read Rule 4(i)(2)(B)(i), (ii), to correlate with the relevant paragraph of
the opinion which does cite the Rule correctly.
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natural person with TitleMax should have been named as addressee, but that is not
Defendant’s argument. Accordingly, Defendant’s first argument fails.
Defendant further argues that Laura Payne did not check the agent or
addressee box on the return receipt. The courts in Premier Health and Duncan
held that service by certified mail was not valid because the plaintiffs offered “no
evidence indicating that the person who signed the return receipt was ‘specifically
authorized by [the defendants] to receive mail and to deliver that mail to [the
defendants].’” Duncan, 907 So. 2d at 432. “To the contrary, the box marked
‘agent’ on the return receipt was left blank.” Id; see also Premier Health, 100 So.
3d at 568.
Contrary to the defendants in Premier Health and Duncan, Defendant
concedes that CT Corporation Systems is authorized to receive its mail and it was
not in danger of default judgment and thus, was not harmed. Rule 4(i)(2)(C) does
not allow for an action to be dismissed for improper service in circumstances like
these. “An action shall not be dismissed for improper service of process unless the
service failed to inform the defendant of the action within time to avoid a default.”
Ala. R. Civ. P. 4(i)(2)(C). Accordingly, Defendant’s second argument also fails,
and service was proper.

Defendant’s motion to dismiss for lack of personal

jurisdiction pursuant to Rule 12(b)(2), (4), and (5) is due to be denied.

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B.

Motion to Amend
Defendant generally does not oppose a curative amendment to the

complaint, but argues that the proposed first amended complaint does not cure all
of the pleading defects, in particular, those pertaining to the collective class
allegations.

“The court should freely give leave [to amend] when justice so

requires.” Fed. R. Civ. P. 15(a)(2). But “denial of leave to amend is justified by
futility when the complaint as amended is still subject to dismissal.” Hall v.
United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir. 2004); see also Christman
v. Walsh, 416 F. App’x 841, 844 (11th Cir. 2011) (“A district court may deny leave
to amend a complaint if it concludes that the proposed amendment would be futile,
meaning that the amended complaint would not survive a motion to dismiss.”).
The proposed amendment to the complaint is curative and not futile as to
Plaintiff’s individual FLSA allegations. “[T]he requirements to state a claim of a
FLSA violation are quite straightforward.” Sec’y of Labor v. Labbe, 319 F. App’x
761, 763 (11th Cir. 2008). Pursuant to § 207(a)(1), an employer shall pay a
covered employee for hours worked in excess of forty hours a week. See 29
U.S.C. § 207(a)(1). “The elements that must be shown are simply a failure to pay
overtime . . . to covered employees . . . in accordance with the [FLSA].” Labbe,
319 F. App’x at 763. The first amended complaint specifies Plaintiff’s position
(general manager), the factual basis for Plaintiff’s belief that he was a covered,
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non-exempt employee for FLSA purposes (an employer-provided form specifically
designating Plaintiff as “non-exempt”), the hours for which Defendant did not
compensate Plaintiff (hours worked in excess of forty hours a week), the amount of
pay Plaintiff contends he should have received for those unpaid hours (time and a
half), and the time frame of the alleged FLSA violations (March 2012 to March
2013).

These allegations satisfy the straightforward elements of § 207(a)(1),

comply with the pleading standards set forth in Iqbal and Twombly,2 and are
sufficient to withstand a motion to dismiss.
The same conclusion is warranted as to the proposed first amended
complaint’s FLSA collective class allegations addressed to other similarly situated,
non-exempt managers. “An action . . . may be maintained against any employer
. . . by any one or more employees for and in behalf of himself or themselves and
other employees similarly situated.” 29 U.S.C. § 216(b). The employees should
be “‘similarly situated’ with respect to their job requirements and with regard to
their pay provisions.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1258
(11th Cir. 2008) (quoting Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562,
1567 (11th Cir. 1991)).

2

See Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007).
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As alleged, Defendant gave Plaintiff a form expressly designating him as a
“non-exempt” employee. (See Proposed 1st Am. Compl. ¶ 21 & Ex. A.) Plaintiff
alleges that Defendant also “defined” other managers as “non-exempt” and failed
to pay them overtime during the same period of time. (See Proposed 1st Am.
Compl. ¶ 30.) Although Defendant argues that the allegations are deficient as to
Plaintiff’s and the other employees’ job descriptions, the authority it cites is
distinguishable. See Pickering v. Lorillard Tobacco Co., No. 10cv633, 2011 WL
111730 (M.D. Ala. 2011). Unlike in Pickering, Plaintiff alleges that his employer
affirmatively classified certain managerial employees as non-exempt. Defendant’s
express designation (a concession of sorts) obviates the need for detailed factual
comparisons of job duties and descriptions of the comparators, at least at the
pleading stage. Discovery may reveal a different set of facts, but for pleading
purposes, Plaintiff’s allegations suffice.
Based upon Rule 15(a)(2) and because the amendment is not futile (and
makes factual allegations that would survive a Rule 12(b)(6) motion to dismiss),
the court will grant Plaintiff leave to amend his complaint.
C.

Conclusion
Accordingly, it is ORDERED that Plaintiff’s motion for leave to file a first

amended complaint (Doc. # 19) is GRANTED. On or before November 15, 2013,

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Plaintiff shall file a duplicate of the first amended complaint that is attached as an
exhibit to Plaintiff’s response (Doc. # 19-3).
Because service was proper, it is further ORDERED that Defendant’s
motion to dismiss pursuant to Rule 12(b)(2), (4), and (5) (Doc. # 4) is DENIED.
Defendant’s motion to dismiss pursuant to Rule 12(b)(6) and Plaintiff’s Motion for
Hearing (Doc. # 21) are DENIED as MOOT.
DONE this 7th day of November, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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