Dean v. Community Dental Services, Inc. et al

Filing 19

ORDER: Defendants' Motion to Dismiss 11 is GRANTED to the extent that Count I of the Complaint is dismissed. The Court DENIES the Motion 11 as to Count II. Plaintiff may file a Motion for Attorneys' Fees concerning the FLSA claim by October 1, 2012. Signed by Judge Virginia M. Hernandez Covington on 9/19/2012. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALEAH DEAN,
Plaintiff,
v.

Case No.: 8:12-cv-1507-T-33AEP

COMMUNITY DENTAL SERVICES, INC.,
DENTAL POWER OF FLORIDA, INC.,
ARGUS DENTAL PLAN, INC., NICHOLAS
M. KAVOUKLIS, and EDITH L.
KAVOUKLIS,
Defendants.
_________________________________/
ORDER
This

matter

comes

before

the

Court

pursuant

to

Defendants’ Motion to Dismiss Plaintiff’s Complaint with
Prejudice Pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure (Doc. # 11), filed on August 10, 2012.
Plaintiff filed her Response in Opposition to the Motion on
August 16, 2012. (Doc. # 12).

For the reasons stated below,

the Court grants in part and denies in part the Motion to
Dismiss.
I.

Background
Defendant Nicholas M. Kavouklis, DDS is a dentist who

owns and operates Dental Power of Florida, Inc. and Argus
Dental Plan, Inc. as the President, Chief Executive Officer
and principal owner of each, respectively. (Doc. # 1 at ¶ 16).
Nicholas

Kavouklis

is

also

the

Chief

Dental

Officer

of

Community Dental Services, Inc. Id. at ¶ 15.

Defendant Edith

L.

Dental

Kavouklis

owns

and

operates

Community

as

its

President, Chief Executive Officer and principal owner. Id. at
¶ 24.

Both Defendants Nicholas Kavouklis and Edith Kavouklis

manage, oversee and operate Dental Power, Argus Dental, and
Community Dental as a single business enterprise. Id. at
¶¶ 17, 25.
Plaintiff Aleah Dean was employed by Defendants from
October 24, 2011, to April 20, 2012, as Staffing Agent and
Business Office Director. Id. at ¶ 28.

Plaintiff’s primary

duties were secretarial and consisted of typing, bookkeeping,
responding

to

telephone

records. Id. at ¶ 29.

calls

and

maintaining

files

and

Plaintiff was paid an annual salary of

$38,000 and avers she worked approximately three overtime
hours per week from October 24, 2011, through January 1, 2012.
Id. at ¶¶ 32-33.
Plaintiff

also

alleges

that

she

participated

in

Defendants’ health care plan and was terminated on for reasons
other than gross misconduct. Id. at ¶¶ 44-45.

Plaintiff

asserts that her termination was a qualifying event pursuant
to 29 U.S.C. § 1166(a) and that Defendants failed to provide
Plaintiff notice of her COBRA rights in violation of federal
law. Id. at ¶¶ 46-47.
2

On July 6, 2012, Plaintiff filed this action against
Defendants, alleging that Defendants failed to pay Plaintiff
time and one half of her regular rate of pay for overtime
hours worked in violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 207 (Count I); and failed to notify
Plaintiff of her right to extended health coverage under the
Consolidated Omnibus Reconciliation Act (“COBRA”), 29 U.S.C.
§ 1166 (Count II). (Doc. # 1).

Defendants seek dismissal of

both counts pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure.
II.

Rule 12(b)(1) Legal Standard
Federal

courts

are

courts

of

limited

jurisdiction.

“[B]ecause a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously insure that jurisdiction exists over a case, and
should

itself

raise

the

question

of

subject

matter

jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir. 2001).
Motions

to

dismiss

for

lack

of

subject

matter

jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) may attack
jurisdiction facially or factually.

Morrison v. Amway Corp.,

323

Cir.

F.3d

920,

924

n.5

(11th
3

2003).

When

the

jurisdictional attack is factual, as in the instant case, the
Court may look outside the four corners of the complaint to
determine if jurisdiction exists.

Eaton v. Dorchester Dev.,

Inc., 692 F.2d 727, 732 (11th Cir. 1982).
attack,

the

presumption

of

truthfulness

In a factual
afforded

to

a

plaintiff under Fed. R. Civ. P. 12(b)(6) does not attach.
Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999)(citing
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)).
Because the very power of the Court to hear the case is at
issue in a Rule 12(b)(1) motion, the Court is free to weigh
evidence outside the complaint.

Eaton, 692 F.2d at 732.

III. Analysis
A. Count I
Defendants argue that Plaintiff’s FLSA claim as asserted
in Count I is moot and should be dismissed pursuant to
Fed.R.Civ.P. 12(b)(1) because Defendants have made a tender
offer to the Plaintiff for the entire amount claimed by
Plaintiff. (Doc. # 11 at 2).

Specifically, Plaintiff sent a

demand letter to Defendants dated June 13, 2012, indicating
that

her

overtime

wages

and

liquidated

damages

equaled

$1,644.26 and further indicating that Plaintiff had so far

4

incurred $1,250.00 in attorney’s fees. (Doc. # 16 at 6).1

On

August 6, 2012, Defendants responded by sending Plaintiff a
$1,644.26 check issued by Community Dental. Id. at 10.
Shortly thereafter, Plaintiff rejected Defendants’ offer by
returning Defendants’ check uncashed.
A case is moot when the parties lack a legally cognizable
interest in the outcome or when there is no longer a live
controversy

with

respect

to

which

the

court

can

give

meaningful relief. See City of Erie v. Pap’s A.M., 529 U.S.
277, 287 (2000).

As recently explained in Evans v. General

Mechanical Corp., 6:12-cv-229, 2012 U.S. Dist. LEXIS 57715, at

1

The demand letter accuses Defendants of other conduct
not mentioned in the Complaint. Among other allegations, the
demand letter accuses Defendants of violating Title VII of the
Civil Rights Act of 1964, the Florida Civil Rights Act of
1992, and the Family and Medical Leave Act. Beyond FLSA and
COBRA contentions, Plaintiff alleges that she was terminated
from her position due to becoming pregnant.
Among other
allegations, the demand letter indicates:
On Ms. Dean’s first day of employment, she was
asked by her supervisor, Mrs. Edith L. Kavouklis,
about her home life, whether she was married, had a
boyfriend or had any plans to have kids. Mrs.
Kavouklis told Mrs. Dean that the company needed
her help and made it clear that it would not be a
good idea to have children in the near future.
Mrs. Kavouklis would make constant comments to Ms.
Dean warning her not to become pregnant until their
company’s business was “well established.”
(Doc. # 16 at 4).
5

*2 (M.D. Fla. Apr. 25, 2012), “FLSA claims are frequently
mooted where an employer/defendant tenders ‘full payment.’”
See also Cameron-Grant v. Maxim Healthcare Servs., Inc., 347
F.3d 1240, 1244 (11th Cir. 2003)(mootness doctrine applies to
FLSA cases); Gathagan v. The Rag Shop/Hollywood, Inc., No. 0480520, 2005 U.S. Dist. LEXIS 47235, at *7 (S.D. Fla. Feb. 10,
2005)(defendant’s tender of plaintiff’s maximum recoverable
damages rendered plaintiff’s case moot); Mackenzie v. Kindred
Hosps. E., 276 F. Supp. 2d 1211, 1219 (M.D. Fla. 2003)(offer
of full relief eliminates a legal dispute upon which federal
jurisdiction can be based and renders the case moot).
In Dionne v. Floormasters Enters., Inc., 667 F.3d 1199
(11th Cir. 2012), the Eleventh Circuit determined that a FLSA
claim was moot upon full payment of such claim.

There, the

FLSA plaintiff accepted the tender and agreed that the action
was moot.

In the present case, however, Plaintiff indicates

that she rejected the tender offer by returning the check to
the Defendants. (Doc. # 12 at 2).
that her FLSA claim is moot.

Plaintiff has not conceded

She asserts that she is unsure

of the exact wages owed and can only estimate the compensation
that will be required under the FLSA. Id.
The Court rejects Plaintiff’s contention.

Her counsel

issued a demand letter as to Plaintiff’s FLSA overtime claim
6

for a sum certain, and Defendants tendered that exact amount.
Plaintiff’s present contention that “Plaintiff did not make a
claim for a specific sum certain, and as such, the Court as
well cannot dismiss the [FLSA claim] merely because the
Defendant sent a check for a specified dollar amount” is
disingenuous and is belied by the demand letter before the
Court. (Doc. # 12 at 2; Doc. # 16 at 6).

Judge Posner’s

decision discussing an unaccepted offer in Greisz v. Household
Bank (Illinois), N.A., 176 F.3d 1012, 1015 (7th Cir. 1999), is
highly persuasive: “Such an offer, by giving the plaintiff the
equivalent of a default judgment (here it was actually larger
by $ 200 than a default judgment would have been), eliminates
a legal dispute upon which federal jurisdiction can be based
. . . you cannot persist in suing after you’ve won.”
This

Court

determines

that

Defendants’

tender

of

Plaintiff’s FLSA overtime wages and liquidated damages moots
Count I of the Complaint.

Plaintiff may be entitled to

attorneys’ fees on this claim pursuant 29 U.S.C. § 216(b);
however, the issue of attorneys’ fees is a collateral matter
and does not involve the merits of the case. See Budinich v.
Becton Dickinson & Co., 486 U.S. 196, 199-200 (1988).
Consequently, the issue of attorneys’ fees does not prevent
this Court from finding the FLSA claim moot.
7

Thus, the Motion to Dismiss is granted as to Count I.
The Court directs the parties to confer regarding the issue of
attorneys’ fees in an attempt to resolve such issue without
court intervention. However, if the parties cannot come to an
agreement as to this issue, Plaintiff may file a Motion for
Attorneys’ fees on or before October 1, 2012.
B. Count II
In Count II, Plaintiff asserts a claim against Defendants
based on Defendants’ alleged failure to notify Plaintiff of
her COBRA rights. (Doc. # 1 at 7).

Defendants argue that

notification of extended health care coverage under COBRA is
not required pursuant to 29 U.S.C. § 1161, if all employers
maintaining a health care plan normally employ fewer than 20
employees on a typical business day during the preceding
calendar

year.

Defendants

contend

they

fall

within

this

exception to COBRA’s application because they employed less
than the threshold amount of 20 employees during 2011.
As proof, Defendants filed Florida Department of Revenue
Employer’s Quarterly Report statements from January 1, 2011,
to December 31, 2011, for Defendant companies Community Dental
and Argus Dental which purport to show less than 20 employees
employed at each company during the relevant time. (Doc. # 11
at 13-20).

Plaintiff responded to the Motion to Dismiss by
8

providing an employee roster for Community Dental, Argus
Dental, and “Dr. Nick’s” totaling 28 employees. (Doc. # 121).2
Under Fed.R.Civ.P. 12(b)(1), the Court may look outside
the four corners of the complaint and examine conflicting
exhibits if the Court is evaluating whether it has subject
matter jurisdiction over a claim.

Eaton, 692 F.2d at 732.

Here, however, the Court has subject matter jurisdiction over
Plaintiff’s

COBRA

claims,

and

the

Court

determines

that

Defendants’ arguments are better suited for summary judgment
analysis,
12(b)(1).3

rather
It

than

would

analysis

be

an

under

erroneous

the

prism

result

of

to

Rule

dismiss

Plaintiff’s COBRA claim pursuant to Rule 12(b)(1). See Arbaugh
v. Y & H Corp., 546 U.S. 500, 511 (2006)(“Subject matter
jurisdiction

in

federal-question

cases

is

sometimes

erroneously conflated with a plaintiff’s need and ability to
prove the defendant bound by the federal law asserted as the
predicate

for

relief--a

merits-related

2

Dr. Nick’s is not a Defendant in this action, and the
parties have not discussed the relevance, if any, of Dr.
Nick’s.
3

In addition, it should be noted that the parties’
arguments would not be appropriately considered pursuant to
Rule 12(b)(6) because such arguments are based on documents
external to the pleadings.
9

determination.”)(internal citations omitted).
At this early stage of the pleadings and without the aid
of discovery to uncover the true facts concerning the number
of Defendants’ employees, there is no way for the Court to
appropriately determine the legitimacy of Plaintiff’s COBRA
claim.

Defendants’ arguments are prematurely and incorrectly

asserted in the present Motion pursuant to Rule 12(b)(1).
Therefore, the Court declines to dismiss Count II.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Defendants’ Motion to Dismiss (Doc. # 11) is GRANTED to
the extent that Count I of the Complaint is dismissed.
The Court DENIES the Motion as to Count II.

(2)

Plaintiff

may

file

a

Motion

for

Attorneys’

Fees

concerning the FLSA claim by October 1, 2012.
DONE and ORDERED in Chambers in Tampa, Florida, this 19th
day of September, 2012.

Copies to: Counsel of Record

10