Smith v. Aaron's, Inc.

Filing 38

OPINION AND ORDER granting 10 motion to dismiss and the Collective Action Complaint is dismissed without prejudice to filing an amended complaint within 14 days of this Opinion and Order. Signed by Judge John E. Steele on 6/21/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAVARIS SMITH, individually and on
behalf of
all
those
similarly
situated, LEONARD DIXON, and ANTHONY
COLLIER,
Plaintiffs,
vs.

Case No.

2:12-cv-551-FtM-29DNF

AARON'S, INC.,
Defendant.
___________________________________

OPINION AND ORDER
This matter comes before the Court on defendant’s Motion to
Dismiss Plaintiff’s Collective Action Complaint (Doc. #10) filed on
November

8,

2012.

Plaintiff

filed

a

Memorandum

of

Law

in

Opposition (Doc. #18) on November 30, 2012, and with leave of
Court, defendant filed a Reply (Doc. #26) on January 9, 2013.
I.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This

obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citation
omitted).

To survive dismissal, the factual allegations must be

“plausible” and “must be enough to raise a right to relief above
the speculative level.”

Id. at 555.

See also Edwards v. Prime

Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).

This requires “more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take them
in the light most favorable to plaintiff, Erickson v. Pardus, 551
U.S. 89 (2007), but “[l]egal conclusions without adequate factual
support are entitled to no assumption of truth,”

Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011)(citations omitted).
“Threadbare

recitals

of

the

elements

of

a

cause

of

action,

supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
with

a

“Factual allegations that are merely consistent

defendant’s

plausible.”

liability

fall

short

of

being

facially

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012)(internal quotation marks and citations omitted).

Thus,

the Court engages in a two-step approach: “When there are wellpleaded factual allegations, a court should assume their veracity
and

then

determine

whether

entitlement to relief.”

they

plausibly

give

rise

to

an

(Smith

or

Iqbal, 556 U.S. at 679.
II.

On

October

5,

2012,

plaintiff

Javaris

Smith

plaintiff) filed a Collective Action Complaint (Doc. #1) seeking

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relief under

the

overtime wages.

Fair Labor

Standards Act

(FLSA)

for

unpaid

Plaintiff worked for Aaron’s, Inc. (defendant) as

a furniture delivery person, or “product technician”, and was paid
on an hourly basis with stop pay and bonuses.

Defendant maintains

a retail sales and lease ownership business of residential and
office furniture, electronics, computers, and appliances.

(Doc.

#1, ¶¶ 2, 13, 20, 21.)
Plaintiff was a product technician from May 2008 to October
2011 in Lee County, Florida and was an employee within the meaning
of

the

FLSA.

(Id.,

¶

7.)

Plaintiff

delivered

furniture,

appliances and other products to customers within the State of
Florida, throughout the day and returned the delivery truck to the
retail store at end of the day.

(Id., ¶ 22.)

Plaintiff, as well

as Leonard Dixon and Anthony Collier, filed Consents to Joint
Collective Class Action and be Represented by Labar & Adams, P.A.
(Docs. ## 2-4.)
Plaintiff alleges that defendant is a covered employer under
the FLSA who employed plaintiff and other similarly situated
product technicians in Lee County, Florida.
that plaintiff,

as

an

employee,

was

Further alleged is

engaged

in

commerce

and

defendant is an enterprise with an annual gross volume of sales
made or business done not less than $500,000.
that

defendant

repeatedly

and

willfully

Plaintiff alleges

failed

to

compensate

plaintiff and others similarly situated at a rate of one and one-

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half times the regular rate of pay for hours in excess of the 40
hour workweek.
III.
Defendant argues that plaintiff’s claims fail to provide fair
notice because no relevant or sufficient factual information is
provided to support the legal conclusions made in the Complaint.
Defendant further alleges that no factual basis is provided to
support

claims

of

willfulness

or

a

class,

and

a

failure

to

sufficiently allege the jurisdictional prerequisite of interstate
commerce.
Under Title 29, United States Code, Section 206(a), every
employer must pay each of its employees “who in any workweek is
engaged in commerce or in the production of goods for commerce, or
is

employed

in

an

enterprise

engaged

in

commerce

or

in

the

production of goods for commerce” wages at a certain hourly rate.
29 U.S.C. § 206(a).

See also 29 U.S.C. § 207(a)(1).

Paragraph 29

of the Complaint alleges that defendant “repeatedly and willfully
violated”1 the FLSA by failing to compensate plaintiff and other
product technicians at the applicable rate for hours worked in
excess

of

the

40

hour

workweek.

Combined

with

the

factual

allegations, this is sufficient to state a plausible claim under
the FLSA at this stage of the proceedings.

1

A willful violation will extend the statute of limitations
for a cause of action from 2 to 3 years. 29 U.S.C. § 255.
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Plaintiff alleges that other product technicians were also
denied overtime compensation.

To demonstrate that plaintiffs are

“similarly situated”, a opt-in plaintiff “need show only that their
positions are similar, not identical, to the positions held by the
putative class members.”

Hipp v. Liberty Nat’l Life Ins. Co., 252

F.3d 1208, 1217 (11th Cir. 2001)(quotations and citations omitted).
In this case, plaintiff alleges that other plaintiffs shared the
same title and role.

This is sufficient at this stage of the

proceedings. Therefore, the motion to dismiss will be denied as to
this issue.
In the Complaint, plaintiff cites Section 206(a) and states
that defendant “was engaged in commerce” as defined therein,
without specifying whether plaintiff was individually engaged or as
an employee of an enterprise so engaged.

(Doc. #1, ¶ 15.)

Plaintiff goes on to quote from the definition of “Enterprise
engaged in commerce or in the production of goods for commerce”
that defendant

has

employees

“engaged

in commerce

or

in

the

production of goods for commerce, or that has employees handling,
selling, or otherwise working on goods or materials that have been
moved in or produced for commerce by any person” pursuant to 29
U.S.C. § 203(s)(1)(A)(i), and that plaintiff “reasonably believes
that during his employment” defendant had an annual gross volume of
sales

not

less

203(s)(1)(A)(ii).

than

$500,000,

(Doc.

#1,

¶¶

-5-

pursuant
16,

17.)

to

29
Based

U.S.C.
on

§

these

allegations, the Court will assume that plaintiff is claiming
“enterprise coverage” under the FLSA.
For “enterprise coverage”, plaintiff must have been “employed
in an enterprise engaged in commerce2 or in the production of goods
for commerce.”

29 U.S.C. § 207(a)(1).

An “enterprise” is the “the

activities performed by a person or persons who are (1) engaged in
“related

activities,”

(2)

under

“unified

operation

control,” and (3) have a “common business purpose,”

or

common

Josendis v.

Wall to Wall Residence Repairs Inc., 662 F.3d 1292, 1299 (11th Cir.
2011)(citing

29

U.S.C.

§

203(r)(1)).

Plaintiff

specifically

alleges that he and others made deliveries all day for the common
purpose of delivering furniture, appliances, and other products to
customers.

(Doc. #1, ¶ 22.)

Therefore, it would appear that

plaintiff has sufficiently alleged “enterprise coverage”. However,
plaintiff alleges that the deliveries were made “within the State
of Florida”, and that opt-in individuals also performed services
for defendant “in Florida.”

(Id., ¶¶ 22, 24.)

The factual

allegations appear to contradict the allegation of interstate
commerce. Therefore, the motion to dismiss will be granted on this
basis with leave to amend.
Accordingly, it is now
ORDERED:

2

“Commerce” is defined as “trade, commerce, transportation,
transmission, or communication among the several States or between
any State and any place outside thereof.” 29 U.S.C. § 203(b).
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Defendant’s Motion to Dismiss Plaintiff’s Collective Action
Complaint (Doc. #10) is GRANTED and the Collective Action Complaint
is dismissed without prejudice to filing an Amended Collective
Action Complaint within FOURTEEN (14) DAYS of this Opinion and
Order.
DONE AND ORDERED at Fort Myers, Florida, this
June, 2013.

Copies:
Counsel of record

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21st

day of