Quinn et al v. Dermatech Research, LLC et al

Filing 66

ORDER terminating 52 Motion to Dismiss; granting 62 Motion for Leave to amend. Plaintiffs are directed to file their amended complaint by August 16, 2019. Jacobus is directed to file a notice by August 16, 2019 regarding venue. Signed by Judge Susan C. Bucklew on 8/9/2019. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PAUL QUINN and PDQ GROUP, INC.,
Plaintiffs,
v.

Case No: 8:18-cv-1181-T-24 JSS

DERMATECH RESEARCH, LLC, LORI
JACOBUS, and DENNIS YOUNG,
Defendants.
______________________________/
ORDER
This cause comes before the Court on Plaintiffs’ Motion for Leave to Amend. (Doc. No.
62). Defendant Lori Jacobus opposes the motion. (Doc. No. 65). As explained below, the
motion is granted.
I. Standard of Review
Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend should be freely
given when justice so requires. Because of the liberal policy allowing amendments embodied in
Rule 15(a), “a court should deny leave to amend a pleading only when: (1) the amendment would
be prejudicial to the opposing party; (2) there has been bad faith or undue delay on the part of the
moving party; or (3) the amendment would be futile.” Taylor v. Florida State Fair Authority, 875
F. Supp. 812, 814 (M.D. Fla. 1995)(citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
Since this motion was filed the day after the deadline to move to amend, the motion
would normally be analyzed under Federal Rule of Civil Procedure 16(b)(4)’s good cause
standard. However, the delay was caused by Plaintiffs’ counsel’s serious illness, so the Court
will review the motion under Rule 15(a)’s standard.

II. Background
Plaintiffs filed this case on May 16, 2018. Plaintiff Paul Quinn is the sole owner of
Plaintiff PDQ Group, Inc. (“PDQ”). Defendant Dermatech Research, LLC (“Dermatech”) is a
beauty-focused technology company.
In their complaint (Doc. No. 1), Plaintiffs allege that Quinn and/or his company, PDQ,
was hired by Dermatech. Quinn began working at Dermatech in August of 2013, where he held
the position of Vice President of Sales with a starting salary of $70,000. Quinn reported to
Dermatech executives, Defendants Lori Jacobus and Dennis Young. Quinn’s salary was
structured to increase to $100,000 after three months, to $120,000 after six months, and to
$125,000 after nine months of employment.
Plaintiffs contend that Defendants stopped paying them wages/amounts due under their
contract with Dermatech, and after Quinn complained, Dermatech fired him in August of 2016.
As a result, Plaintiffs assert seven claims in their complaint: (1) violation of the Fair Labor
Standards Act (“FLSA”); (2) retaliation in violation of the FLSA; (3) violation of the Florida
Minimum Wage Act (“FMWA”); (4) violation of the California Labor Code;1 (5) breach of
contract; (6) unjust enrichment; and (7) breach of fiduciary duties. This Court has federal
question subject matter jurisdiction due to the FLSA claims; the Court does not have diversity
subject matter jurisdiction over this case.2 (Doc. No. 7).
Plaintiffs served Defendants, and Dermatech and Young have not responded to the
complaint. As a result, the Clerk entered default against them. (Doc. No. 34, 38). Default was

1

Dermatech is a company with its principal place of business in California.

2

Plaintiff PDQ is a citizen of California, as are Defendants Jacobus and Young.
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initially entered against Jacobus, but she moved to vacate the default and has moved to dismiss
the claims against her. (Doc. No. 18, 50, 52). In response to Jacobus’ motion to dismiss,
Plaintiffs filed the instant motion to amend.
III. Motion to Amend
Plaintiffs move to amend the complaint in order to assert additional allegations for
existing claims, to add three new defendants for which Plaintiffs recently learned of facts to
support Plaintiffs’ claims against them, and to add two additional claims. Specifically, the
proposed amended complaint contains the following nine claims against all six defendants
(Dermatech, Young, Jacobus, Hall Simeroth, Kim Wellin, and Scott Davis): (1) violations of the
FLSA’s minimum wage and overtime provisions; (2) FLSA retaliation; (3) violation of the
FMWA; (4) violation of the California Labor Code; (5) breach of contract; (6) unjust enrichment;
(7) breach of fiduciary duties; (8) violation of Florida’s Deceptive and Unfair Trade Practices
Act; and (9) violation of California’s unfair competition law.
Jacobus makes many arguments regarding why leave to amend should be denied, all of
which this Court rejects. Only the following four arguments require elaboration from the Court.
First, Jacobus argues that Quinn is an independent contractor, and therefore, his FLSA,
FMWA, and California Labor Code claims fail. Whether Quinn was an employee or independent
contractor is a disputed issue of fact, and therefore, it is not a proper basis for denying a motion
to amend these claims.
Second, Jacobus argues that even if Quinn was an employee, she was not Quinn’s
employer; only Dermatech could be Quinn’s employer. The flaw in this argument is that the
FLSA uses a broader definition of employer. A corporate officer with operational control of a
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corporation is an employer, and the officer is jointly and severally liable with the corporation
under the FLSA. See Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1309 (11th Cir.
2013).
Third, Jacobus argues that Quinn is exempt under the FLSA. Whether Quinn is exempt is
a disputed issue of fact, and therefore, it is not a proper basis for denying a motion to amend.
Fourth, Jacobus argues that Quinn has not alleged his wage and retaliation claims with
enough specificity. The Court finds that the proposed amended claims are pled with sufficient
detail to give Defendants fair notice of the claims being asserted against them. Whether Quinn’s
actual complaints to Defendants regarding the failure to pay him were sufficiently specific
enough to support an FLSA retaliation claim is an issue of fact.
The Court finds that leave to amend should be freely given and that Plaintiffs should be
allowed to amend their complaint. Therefore, the Court grants their motion to amend.
IV. Venue
This case is largely tied to California. The Court notes that in her motion to dismiss,
Jacobus, a California resident, argues that this Court does not have personal jurisdiction over her.
(Doc. No. 52). In response, Plaintiffs argue that this Court does have personal jurisdiction over
Jacobus, but they state that they would not object to a transfer of this case to the Central District
of California for her convenience. (Doc. No. 59). Additionally, in their original motion to
amend, Plaintiffs state that they intend to file a motion to transfer this case to California. (Doc.
No. 60). Accordingly, the Court directs Jacobus to file a notice by August 16, 2019, regarding
whether she consents to transfer of this case to the Central District of California for the
convenience of the parties. If Jacobus does not consent, Plaintiffs must file a motion to transfer
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if they still wish to transfer this case to California.
V. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1)

Plaintiffs’ Motion for Leave to Amend (Doc. No. 62) is GRANTED.

(2)

Plaintiffs are directed to file their amended complaint by August 16, 2019.

(3)

Jacobus is directed to file a notice by August 16, 2019 regarding whether she
consents to transfer of this case to the Central District of California for the
convenience of the parties.

(4)

Jacobus’ Motion to Dismiss (Doc. No. 52) is DENIED AS MOOT.

DONE AND ORDERED at Tampa, Florida, this 9th day of August, 2019.

Copies to:
Counsel of Record

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