Mayo v. Jean Nicole Hair Salons, Inc. et al

Filing 29

ORDER granting 22 Defendants Jean Nicole Hair Salons, Inc., Douglas S. Gast, and Sandra K. Gast's Motion to Dismiss Plaintiff's First Amended Complaint as follows: 1. Plaintiff Alexis Mayo's claims are dismissed without prejudice. 2. Plaintiff Alexis Mayo has up to and including August 25, 2015 to amend the First Amended Complaint. Signed by Judge Sheri Polster Chappell on 8/11/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ALEXIS MAYO, an individual
Plaintiff,
v.

Case No: 2:15-cv-115-FtM-38MRM

JEAN NICOLE HAIR SALONS, INC.,
DOUGLAS S. GAST and SANDRA K.
GAST,
Defendants.
/
ORDER1
This matter comes before the Court on Defendants Jean Nicole Hair Salons, Inc.,
Douglas S. Gast, and Sandra K. Gast's Motion to Dismiss Plaintiff's First Amended
Complaint (Doc. #22) filed on June 15, 2015. Plaintiff Alexis Mayo filed a Response in
Opposition (Doc. #28) on July 20, 2015. The Motion is now ripe for the Court’s review.
FACTS
On June 5, 2015, Plaintiff brought this action for recovery of overtime
compensation under the Fair Labor Standards Act (“FLSA”) and damages for wrongful
termination under Section 440.205 of the Florida Statutes. (Doc. #20 at ¶ 1). Defendant
Jean Nicole Hair Salons, Inc. is a hair salon business, owned and operated by Defendant

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Douglas S. Gast. (Doc. #20 at ¶ 6). Defendant Sandra K. Gast further assists in the
operation of the hair salon. (Doc. #20 at ¶ 7).
From October 2013 to November 2014, Plaintiff worked as a hairstylist at
Defendants’ place of business. (Doc. #20 at ¶ 10). During such time, Plaintiff avers
working more than forty hours in a work week on more than one occasion without
receiving overtime compensation. (Doc. #20 at ¶¶ 13-14). In addition, Plaintiff claims she
was wrongfully terminated in retaliation for requesting workers’ compensation paperwork.
(Doc. #20 at ¶ 27).
Subsequent to her termination, Plaintiff filed suit in this Court. See (Doc. #20).
Defendants now move to dismiss Plaintiff’s First Amended Complaint, arguing failure to
state a claim. (Doc. #22 at 3-10). In response, Plaintiff contends she alleges enough to
state an actionable claim under both the FLSA and Section 440.205 of the Florida
Statutes. (Doc. #28 at ¶ 3). In the alternative, Plaintiff requests leave to amend her First
Amended Complaint should the Court find that Plaintiff failed to state a claim. (Doc. #28
at ¶ 3).
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), "a [c]omplaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Id. at 678. The issue in resolving such a motion is not whether

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the non-movant will ultimately prevail, but whether the non-movant is entitled to offer
evidence to support his claims. See id. at 678-79.
"Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." Id. at 679 (citations omitted). Although legal conclusions can
provide the framework for a complaint, factual allegations must support all claims. See
id. Based on these allegations, the court will determine whether the plaintiff's pleadings
plausibly give rise to an entitlement to relief. See id. at 678-79. Legal conclusions
couched as factual allegations are not sufficient, nor are unwarranted inferences,
unreasonable conclusions, or arguments. See Twombly, 550 U.S. at 555; Byrnes v.
Small, No. 8:14-CV-1726-T-36MAP, 2015 WL 1243219, at *3 (M.D. Fla. Mar. 18, 2015).
Rule 8 of the Federal Rules of Civil Procedure provides parallel pleading
requirements that also must be satisfied. Under this rule, "a pleading 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). "[T]he pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, the-defendant-unlawfullyharmed-me-accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Labels, conclusions, and formulaic recitations of the elements of a cause of action are not
sufficient. Id. at 678-79. Mere naked assertions are also inadequate. Id.

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DISCUSSION
I.

FLSA Claim
In the Motion to Dismiss, Defendants contend that Plaintiff fails to allege facts to

support a claim under the FLSA. (Doc. #22 at 3-7). In response, Plaintiff asserts she
alleges facts establishing individual coverage under the FLSA. (Doc. #28 at 4-8).
When enacting the FLSA, Congress plainly indicated its intention to leave local
businesses to the protection of the state. See Walling v. Jacksonville Paper Co., 317 U.S.
564, 570 (1943). “The [FLSA] requires employers to pay their employees time and a half
for all the work they do over forty hours a week.” Arilus v. Diemmanuele, 552 F. App’x
881, 882 (11th Cir. 2013) (citing 29 U.S.C. § 207(a)(1)). An employee seeking coverage
under the FLSA must either establish the enterprise’s or the individual’s engagement in
interstate commerce. See Rushton v. Eye Consultants of Bonita Springs, No. 2:10-cv357-FtM-29SPC, 2011 WL 2601245, at *1 (M.D. Fla. June 30, 2011). A plaintiff electing
to establish individual coverage under the FLSA must show: (1) she was engaged in
commerce; or (2) she was engaged in the production of goods for commerce. See id. at
2; see also 29 U.S.C. § 207(a)(1). To engage in commerce, an employee
must be directly participating in the actual movement of persons or things
in interstate commerce by (i) working for an instrumentality of interstate
commerce, e.g., transportation or communication industry employees, or (ii)
by regularly using the instrumentalities of interstate commerce in [her] work,
e.g., regular and recurrent use of interstate telephone, telegraph, mails, or
travel.
Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 1266 (11th Cir. 2006).
To establish that she is covered individually under the FLSA, Plaintiff alleges her
duties involved using a telephone to communicate and schedule appointments with
customers outside of Florida and used credit cards to finalize sales. (Doc. #28 at 5).

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(1) Telephone
Plaintiff claims she used the telephone to schedule appointments with out of state
customers no less than once a week. (Doc. #28 at 5). Based upon the Plaintiff’s
allegations in her Amended Complaint, her employment as a hairstylist did not require
her to use the telephone to solicit business from out of state customers or a regular basis
and at best sporadically answered out of state phone calls to schedule appointments.
Simply using the phone once a week does not constitute interstate commerce under the
FLSA. See Dent v. Giaimo, 606 F. Supp. 2d 1357, 1360 (S.D. Fla. 2009) (“employee’s
interstate activity must be regular and recurrent and not simply isolated or sporadic for
jurisdiction to exist.”). Plaintiff presents no claims in her Complaint to establish that her
contact with out of state customers occurred on a “regular and recurrent” basis. See
Dent, 606 F. Supp. 2d at 1361 (plaintiff's use of the telephone or facsimile machines to
make long distance phone calls or use of the internet and credit cards is insufficient to
establish jurisdiction).
The primary scope of Plaintiff’s duties involved performing hair services at the
salon, not answering the telephone to schedule appointments. Thus, Plaintiff has failed
to establish that she was directly involved in the movement of persons or things in
interstate commerce by working either the instrumentalities of interstate commerce or by
regularly using the instrumentalities of interstate commerce in her work. See McLeod v.
Threlkeld, 319 U.S. 491, 497 (1943) (employees must be “actually in or so clearly related
to the movement of the commerce as to be a part of it.”).

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(2) Credit Card Sales
Plaintiff additionally claims she has processed customer credit card payments and
has sold various hair products, moving items into the stream of commerce. (Doc. #28 at
7-8). While the Plaintiff claims that she processed sales for customers with their credit
cards, merely using a customer’s credit card to ring up the sale does not constitute
interstate commerce. Thorne, 448 F.3d at 1267 (there is no binding authority which holds
that credit card transactions constitute an instrumentality of interstate commerce). Even
if Plaintiff processed credit card payments from out of state customers, she performed
hair salon services in Florida and any hair products were likewise sold to customers in
Florida. The sale of haircare products in the salon to her customers does not cover the
Plaintiff individually for the purposes of her claim under the FLSA. See McCraken v.
Bubba's World, LLC, 2010 WL 3463280, 3 (M.D. Fla. August 4, 2010) (quoting Thorne,
448 F.3d at 1267 (holding “[t]he store receiving items from out of state wholesalers ends
the interstate journey and employees engaged in further intrastate movement of the
goods are not covered under the Act.”). Once the services and goods were provided to
customers in the hair salon, the stream of commerce conceivably ended. See Thorne,
448 F.3d at 1267; Tran v. Thai, No. H-08-3650, 2010 WL 5232944, at *4 (S.D. Tex. Dec.
16, 2010) (occasional sales are insufficient to show individual coverage under the FLSA).
Upon review, the Court finds Plaintiff fails to successfully allege individual
coverage under the FLSA. Consequently, Plaintiff’s FLSA claim is dismissed without
prejudice.

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II.

Workers’ Compensation Retaliation Claim
If the Court dismisses Plaintiff’s FLSA claim, then Defendants contend the Court

should not extend supplemental jurisdiction over Plaintiff’s workers’ compensation
retaliation claim pursuant to Fla. Stat. § 440.205. (Doc. #22 at 10-11). In response,
Plaintiff requests an opportunity to amend her FLSA claim or, in the alternative, requests
dismissal of her state retaliation claim without prejudice. (Doc. #28 at 10).
“[S]tate claims should ordinarily be dismissed if all federal claims are eliminated
before trial.” Edwards v. Okaloosa Cnty., 5 F.3d 1431, 1433 (11th Cir. 1993). Plaintiff’s
FLSA claim is due to be dismissed. Consequently, the Court declines to exercise
supplemental jurisdiction over Plaintiff’s state retaliation claim. See Rowe v. City of Fort
Lauderdale, 279 F.3d 1271, 1288 (11th Cir. 2002) (“Both comity and economy are served
when issues of state law are resolved by state courts.”).
III.

Motion for More Definite Statement
In the instant motion, Defendants also move for a more definite statement. (Doc.

#22 at 11). In response, Plaintiff contends her First Amended Complaint is not so vague
as to warrant a more definite statement. (Doc. #28 at 10-11).
Here, Plaintiff’s claims in the First Amended Complaint are due to be dismissed
without prejudice. Consequently, the Court finds Defendants’ Motion for a More Definite
Statement is moot.
Accordingly, it is now
ORDERED:
Defendants Jean Nicole Hair Salons, Inc., Douglas S. Gast, and Sandra K. Gast's
Motion to Dismiss Plaintiff's First Amended Complaint (Doc. #22) is GRANTED as follows:

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1. Plaintiff Alexis Mayo’s claims are dismissed without prejudice.
2. Plaintiff Alexis Mayo has up to and including August 25, 2015 to amend the
First Amended Complaint.
DONE and ORDERED in Fort Myers, Florida this 11th day of August, 2015.

Copies: All Parties of Record

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