Gross v. The Annexy Group, LLC et al

Filing 22

ORDER: Defendants The Annexy Group, LLC and Mary Annexy's Motion to Dismiss (Doc. # 11 ) is DENIED without prejudice. Defendants may reassert their arguments at a later time in these proceedings via an appropriate motion. Defendants are directed to file an Answer to the Complaint within 14 days of the date of this Order. Signed by Judge Virginia M. Hernandez Covington on 2/12/2018. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID GROSS,
Plaintiff,
v.

Case No.

8:17-cv-2885-T-33AEP

THE ANNEXY GROUP, LLC and MARY
ANNEXY,
Defendants.
_______________________________/
ORDER
This matter comes before the Court pursuant to Defendants
The Annexy Group, LLC and Mary Annexy’s Motion to Dismiss
(Doc. # 11), which was filed on January 3, 2018.

Plaintiff

David Gross filed a Response in Opposition to the Motion on
January 5, 2018. (Doc. # 16).

For the reasons stated below,

the Court denies the Defendants’ Motion without prejudice.
I.

Background
On December 1, 2017, Gross filed a Verified Complaint

against the Annexy Defendants seeking unpaid wages and other
damages under the Fair Labor Standards Act. (Doc. # 1).

He

claims to have worked for the Annexy Defendants as a laborer
from August 8, 2017, to October 10, 2017, in Pinellas County,
Florida. (Id. at ¶¶ 4, 16-17).

The Annexy Defendants paid

Gross $25.00 per hour, but he claims that “no provisions were
made by Defendants to properly pay Plaintiff for all hours
worked during his employment.” (Id. at ¶ 13).

In order to demonstrate FLSA coverage, an employee must
show “individual coverage” –- “that they were engaged in
commerce or in the production of goods for commerce,” or
“enterprise coverage” –- that the defendant employer is an
enterprise engaged in commerce. See 29 U.S.C. § 207(a)(1). In
this case, Gross’s Complaint alleges both individual coverage
and enterprise coverage.

As to individual coverage, Gross

alleges: “Plaintiff, in his capacity as an employee, was
individually

covered

by

the

FLSA;”

“routinely

used

the

instrumentalities of commerce in the course and scope of his
duties for both Defendants;” and “used the instrumentalities
of commerce, such as phones, email, highways and by-ways and
made purchases for products to be used by Defendants via a
credit card.” (Id. at ¶¶ 11-12, 17).
Gross also claims FLSA enterprise coverage. To this end,
the Complaint alleges:
Defendant
the
Annexy
Group,
LLC,
conducts
interstate commerce, using telephones, highways and
byways and products and supplies (that are used in
connection with services provided to Defendants’
customers) which do not originate from Florida and
which is extensively engaged in real property
transactions, including rentals and renovations.
Upon information and belief, Defendant The Annexy
Group, grosses far in excess of $500,000.00 in
annual revenue at all times material to this case,
including the 36 months prior to October 10, 2017.
. . . .
At all material times relevant to this action,
2

Defendant The Annexy Group, LLC, was an enterprise
covered by the FLSA, and as defined by 29 U.S.C. §
203(r) and Defendant Mary Annexy is also covered
under the FLSA as Defendant Mary Annexy, also
supervised, controlled and directed the terms of
Plaintiff’s employment.
(Id. at ¶¶ 7, 10).
In response to the Complaint, the Annexy Defendants filed
a

Motion

seeking

dismissal

for

lack

of

subject

matter

jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1) and for failure to state a claim pursuant to Rule
12(b)(6).
II. Analysis of Rule 12(b)(1) and Rule 56 Considerations
Rule 12(b)(1) of the Federal Rules of Civil Procedure
provides for dismissal of a case when the Court lacks subjectmatter jurisdiction.

Such a motion may launch a factual

attack or a facial attack. Morrison v. Amway Corp., 323 F.3d
920, 924 (11th Cir. 2003).

When the attack is factual, the

Court may review documents external to the Complaint in
conducting its jurisdictional analysis. Stalley ex. rel. U.S.
v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229-33 (11th
Cir. 2008).
The Court will review the motion as a motion for summary
judgment under Rule 56 because the Court may not review the
motion under Rule 12(b)(1).

In Turcios v. Delicias Hispanas
3

Corp., a FLSA case involving a factual attack on jurisdiction,
the court held that the Rule 56 standard, and not the Rule
12(b)(1)

standard,

must

be

used

when

dealing

with

a

jurisdictional matter that is “intertwined with the merits of
the cause of action.” 275 F. App’x 879, 880 (11th Cir. 2008).
This occurs when “a statute provides the basis for both
the subject matter jurisdiction of the federal court and the
plaintiff’s substantive claim for relief.” Id. at 881.

In

Turcios, the court noted that in addressing FLSA jurisdiction,
“the same operative fact determines whether the plaintiff can
recover under the statute and the scope of the statute’s
coverage.” Id. In Turcios, the district court granted a
defendant’s

Rule 12(b)(1) motion to dismiss in which the

defendant asserted that the plaintiff, a restaurant worker,
could

not

establish

the

required

necessary to satisfy the FLSA.

jurisdictional

facts

The Eleventh Circuit reversed

and remanded, calling for Rule 56 summary judgment analysis,
rather than Rule 12(b)(1) analysis.
The court cautioned that “the district court should only
rely on Rule 12(b)(1) if the facts necessary to sustain
jurisdiction do not implicate the merits of plaintiff’s cause
of action.” Id. at 880 (emphasis in original).

Here, as in

Turcios, the jurisdictional requirements are so inextricably
4

intertwined with the merits of Plaintiff’s case that to engage
in a Rule 12(b)(1) analysis at this stage of the proceedings
would

be

inappropriate.1

And,

all

of

Defendants’

Rule

12(b)(6) arguments are essentially jurisdictional arguments.
For instance, the Annexy Defendants argue: “plaintiff fails to
state a cause of action for individual coverage and the
complaint should be dismissed for lack of subject matter
jurisdiction or, alternatively, for failure to state a cause
of action.” (Doc. # 11 at 5). While Turcios calls for summary
judgment analysis, summary judgment under Rule 56 is not
appropriate at this juncture. This case is in its infancy and
the Court stayed traditional discovery in connection with its
FLSA Scheduling Order.

The Eleventh Circuit has instructed

that “summary judgment may only be decided upon an adequate
record.” WSB-TV v. Lee, 842 F.2d 1266, 1269 (11th Cir. 1988).

1

Both the overtime and minimum wage provisions of the
FLSA require that the plaintiff provide either that the
plaintiff was engaged in commerce or employed by an enterprise
engaged in commerce. 29 U.S.C. §§ 206, 207.
A court must look to the definition section of the
statute to determine the scope of coverage under the FLSA. See
29 U.S.C. § 203. “Enterprise engaged in commerce” is a defined
phrase in Section 203(s)(1)(A). Therefore, the sections that
provide for substantive relief under the FLSA, § 206 and §
207, are dependent on the section of the FLSA, § 203, that
defines the scope of the FLSA.
5

The Court denies the Motion to Dismiss because it is
aimed at deflecting FLSA coverage. See Sanchez v. A & A Perez
Trucking, Inc., No. 16-cv-81740, 2017 WL 529302 (S.D. Fla.
Feb. 8, 2017)(denying motion to dismiss FLSA complaint because
the arguments were aimed at FLSA coverage and declining to
conduct summary judgment on an undeveloped record). The Annexy
Defendants may reassert their arguments at a later time in
these proceedings via an appropriate motion.

The

Court

recognizes that the Annexy Defendants request the opportunity
to conduct jurisdictional discovery. (Doc. # 11 at 7). If the
parties reach an impasse at the mediation scheduled for
February 23, 2018, the Court will issue a Case Management and
Scheduling Order providing an appropriate window for discovery
and then dispositive motions.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Defendants The Annexy Group, LLC and Mary Annexy’s Motion
to Dismiss (Doc. # 11) is DENIED without prejudice.

(2)

Defendants may reassert their arguments at a later time
in these proceedings via an appropriate motion.

(3)

Defendants

are

directed

to

file

an

Answer

to

the

Complaint within 14 days of the date of this Order.
DONE and ORDERED in Chambers, in Tampa, Florida, this
6

12th day of February, 2018.

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