Rodriguez, Jr v. Granite Services International, Inc., et al

Filing 27

ORDER: The Clerk is directed to transfer this action to the United States District Court for the Northern District of Texas, Amarillo Division. Defendant Granite Services International, Inc., and FieldCore Services Solutions, LLC's Motion to Dismiss (Doc. # 16) is denied as moot. Signed by Judge Virginia M. Hernandez Covington on 11/18/2020. (AR)

Case 8:20-cv-02129-VMC-JSS Document 27 Filed 11/18/20 Page 1 of 13 PageID 599

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOSE LUIS RODRIGUEZ, JR.,
individually and on behalf
of all others similarly
situated,
Plaintiff,
v.

Case No. 8:20-cv-2129-T-33JSS

GRANITE SERVICES
INTERNATIONAL, INC, and
FIELDCORE SERVICES SOLUTIONS,
LLC,
Defendants.
/
ORDER
This matter comes before the Court upon consideration of
Defendants

Granite

Services

International,

Inc.,

and

FieldCore Services Solutions, LLC’s Motion to Dismiss or, in
the alternative, Motion to Stay, filed on October 13, 2020.
(Doc. # 16). Plaintiff Jose Luis Rodriguez, Jr., responded on
November 10, 2020. (Doc. # 24). For the reasons below, the
Motion is denied as moot. Instead, the Court transfers this
case to the Northern District of Texas, Amarillo Division.
I.

Background
Rodriguez worked as a technical advisor for Granite

Services, which was later rebranded as FieldCore, from April
2016 to August 2019. (Doc. # 1 at ¶¶ 1, 14). Rodriguez alleges
1

Case 8:20-cv-02129-VMC-JSS Document 27 Filed 11/18/20 Page 2 of 13 PageID 600

that he and other hourly employees were paid “the same hourly
rates for all hours worked[,] including those in excess of
[forty] in a workweek.” (Id. at ¶¶ 4, 8).
Rodriguez filed this hybrid collective and class action
on September 10, 2020. (Doc. # 1). Rodriguez seeks to certify
an FLSA class under 29 U.S.C. § 216(b) on behalf of all
Granite

Services

and

FieldCore

employees

“who

were

paid

straight time for overtime” in the past three years, excluding
Environment, Health, and Safety (EHS) employees. (Id. at ¶
20). Rodriguez also seeks to certify a class under Federal
Rule of Civil Procedure 23 on behalf of Granite Services and
FieldCore employees working in California “who were paid
straight time for overtime” in the past four years, excluding
EHS employees. (Id. at ¶ 21).
The complaint includes claims against Defendants for
violations of the FLSA (Count I), failure to pay wages under
California law (Count II), failure to provide compensation
for missed meal and rest periods (Count III), violations of
recordkeeping requirements (Count IV), waiting time penalties
(Count V), and violations of unfair competition law (Count
VI). (Doc. # 1).
On October 13, 2020, Defendants moved to dismiss the
complaint for lack of subject-matter jurisdiction or, in the
2

Case 8:20-cv-02129-VMC-JSS Document 27 Filed 11/18/20 Page 3 of 13 PageID 601

alternative, for lack of personal jurisdiction or a stay
pending resolution of two related cases in the Northern
District of Texas. (Doc. # 16). Rodriguez responded (Doc. #
24), and the Motion is now ripe for review.
II.

Legal Standard
Federal

courts

are

courts

of

limited

jurisdiction.

Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).
“[B]ecause a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously [e]nsure that jurisdiction exists over a case[.]”
Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).
Motions

to

dismiss

for

lack

of

subject-matter

jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1)

may

attack

jurisdiction

facially

or

factually.

Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir.
2003). When the jurisdictional attack is based on the face of
the

pleadings,

the

Court

merely

determines

whether

the

plaintiff has sufficiently alleged a basis for subject-matter
jurisdiction,

and

the

allegations

in

the

plaintiff’s

complaint are taken as true for purposes of the motion.
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).
Conversely, with factual attacks, the Court assesses the
arguments asserted by the parties and the credibility of the
3

Case 8:20-cv-02129-VMC-JSS Document 27 Filed 11/18/20 Page 4 of 13 PageID 602

evidence

presented.

Assocs.,

104

F.3d

See
1256,

Garcia

v.

1260-61

Copenhaver,

(11th

Cir.

Bell,

1997).

&

“In

resolving a factual attack, the district court may consider
extrinsic evidence[.]” Morrison, 323 F.3d at 924 n.5.
“A plaintiff bears the burden of demonstrating that the
Court has jurisdiction.” Alvey v. Gualtieri, No. 8:15-cv1861-T-33AEP, 2016 WL 6087874, at *2 (M.D. Fla. Oct. 18,
2016). Courts may dismiss cases pursuant to Rule 12(b)(1)
upon

finding

immaterial,

that
made

the
solely

plaintiff’s
for

the

claims
purpose

are
of

“clearly
obtaining

jurisdiction[,] or are wholly unsubstantiated and frivolous.”
Lawrence, 919 F.2d at 1530 n.7 (quoting Eaton v. Dorchester
Dev., Inc., 692 F.2d 727, 734 (11th Cir. 1982)).
III. Analysis
Defendants argue that the complaint should be dismissed
for lack of subject-matter jurisdiction under the first-filed
rule because “two similar earlier-filed actions are pending
in the Northern District of Texas.” (Doc. # 16 at 6). In the
alternative, Defendants seek dismissal for lack of personal
jurisdiction or an order staying the case pending resolution
of the Texas actions. (Id.). Because the Court finds that the
first-filed rule applies, it need only address this argument.
Under the first-filed rule, when “two actions involving
4

Case 8:20-cv-02129-VMC-JSS Document 27 Filed 11/18/20 Page 5 of 13 PageID 603

overlapping issues and parties are pending in two federal
courts, there is a strong presumption . . . [favoring] the
forum of the first-filed suit[.]” Manuel v. Convergys Corp.,
430 F.3d 1132, 1135 (11th Cir. 2005). “Application of the .
. . rule lies within the discretion of the district court
where the later action was filed.” Czupryna v. Uncle Julio’s
Corp., No. 16-80821-CIV-ZLOCH, 2016 WL 10954509, at *1 (S.D.
Fla. Aug. 17, 2016) (citing Collegiate Licensing Co. v. Am.
Cas. of Reading, Pa., 713 F.3d 71, 77-79 (11th Cir. 2013)).
“The ‘first to file’ rule not only determines which court may
decide the merits of substantially similar issues, but also
establishes which court may decide whether the second suit
filed

must

be

dismissed,

stayed

or

transferred

and

consolidated.” AAMP of Fla., Inc. v. Audionics Sys., Inc.,
No. 8:12-cv-2922-T-33TGW, 2013 WL 1104889, at *2 (M.D. Fla.
Mar. 18, 2013) (citation omitted). Accordingly, the firstfiled court generally decides whether the second-filed case
should ultimately be stayed, dismissed, or transferred. Burns
v. MLK Express Servs., LLC, No. 2:18-cv-625-FtM-32MRM, 2020
WL

1891175,

at

*5

(M.D.

Fla.

Apr.

16,

2020)

(citing

Collegiate, 713 F.3d at 78).
Courts consider three factors in determining whether to
apply the first-filed rule: “(1) the chronology of the two
5

Case 8:20-cv-02129-VMC-JSS Document 27 Filed 11/18/20 Page 6 of 13 PageID 604

actions; (2) [the] identity of the parties; and (3) the
similarity of the issues.” Id. (citation omitted). “[T]he
parties and issues need not be identical, but rather the
parties and issues should substantially overlap.” Lott v.
Advantage Sales & Mktg. LLC, No. 2:10-cv-980-JEO, 2011 WL
13229682, at *2 (N.D. Ala. Jan. 26, 2011).
“Once a party shows that the two cases substantially
overlap,

the

Eleventh

Circuit

‘requires

that

the

party

objecting to jurisdiction in the first-filed forum carry the
burden of proving compelling circumstances to warrant an
exception to the first-filed rule.’” Burns, 2020 WL 1891175,
at *3 (quoting Manuel, 430 F.3d at 1135). The purpose of this
rule

is

“to

inconsistent

promote

judicial

judgments,

economy,

and

protect

avoid

against

fragmentary

determinations.” Id. at *4. Importantly, a number of federal
courts have found that the first-filed rule “is particularly
appropriate
actions,

in

which

the

context

threaten

to

of

competing

present

FLSA

collective

overlapping

classes,

multiple attempts at certification in two different courts,
and complicated settlement negotiations.” Ortiz v. Panera
Bread Co., No. 1:10-CV-1424, 2011 WL 3353432, at *2 (E.D. Va.
Aug. 2, 2011) (collecting cases).
Here, Defendants argue that the instant case “is the
6

Case 8:20-cv-02129-VMC-JSS Document 27 Filed 11/18/20 Page 7 of 13 PageID 605

third substantially similar case that . . . Rodriguez’s
attorneys . . . have filed against [Defendants] alleging wage
and

hour

violations

under

the

[FLSA],”

thus

warranting

application of the first-filed rule. (Doc. # 16 at 6). The
first similar case, Greinstein v. Granite Servs. Int’l, Inc.,
No. 2:18-cv-208-Z-BR (N.D. Tex. filed Nov. 2, 2018), is a
putative FLSA collective action that was initially filed in
the Northern District of Texas in November 2018. In the second
amended complaint, filed on March 3, 2020, Plaintiff Herman
Greinstein defined the FLSA class as: “All [EHS] employees of
FieldCore and Granite Services who were paid the same hourly
rate for all hours worked, including those hours in excess of
40 hours in a single work week, (or, ‘straight time for
overtime’) at any point in the last [three] years.” Id. (Doc.
#

87).

Greinstein’s

motion

for

conditional

class

certification is currently pending. Id. (Doc. # 97). Because
Rodriguez’s
proposed

complaint

classes,

excludes

these

two

EHS
cases

employees
arguably

from

the

do

not

substantially overlap.
The second similar case, Trottier v. FieldCore Servs.
Sols., LLC, No. 2:20-cv-77-PA-JC (C.D. Cal. filed Jan. 3,
2020), is a putative FLSA collective and class action that
was initially filed in January 2020 in the Central District
7

Case 8:20-cv-02129-VMC-JSS Document 27 Filed 11/18/20 Page 8 of 13 PageID 606

of California. There, Plaintiff Martin Trottier defined the
FLSA class as “All employees of FieldCore and Granite (except
for EHS employees) in the past three years who were paid
‘straight time for overtime.’” Id. (Doc. # 1). Trottier also
proposes two Rule 23 classes, one for all non-EHS FieldCore
and Granite employees who worked in California and were paid
straight time for overtime in the past four years, and another
for those working in New York in the past six years. Id. On
August 3, 2020, the court transferred the case to the Northern
District of Texas under 28 U.S.C. § 1404(a), finding that
transfer would “better serve the interests and convenience of
the parties and witnesses,” but declining to address whether
transfer would also be appropriate under the first-filed
rule. Id. (Doc. # 42). No motion for class certification has
yet been filed. Trottier v. FieldCore Servs. Sols., LLC, No.
2:20-cv-186-Z-BR (N.D. Tex. filed Jan. 3, 2020).
Based on the factors expounded in Burns, the Court finds
that the first-filed rule is applicable here because of the
earlier-filed case, Trottier. See Burns, 2020 WL 1891175, at
*3 (“The first-filed rule analysis considers three factors:
(1) the chronology of the two actions; (2) [the] identity of
the parties; and (3) the similarity of the issues.” (citation
omitted)). The first factor is satisfied because Trottier was
8

Case 8:20-cv-02129-VMC-JSS Document 27 Filed 11/18/20 Page 9 of 13 PageID 607

filed

in

January

2020

and

the

instant

case

was

filed

approximately nine months later, on September 10, 2020. See
Id. (“There is no dispute that the first factor is satisfied.
Gibbs was first filed on June 18, 2018. Burns was filed three
months later.”).
Regarding the second factor, both Trottier and this case
involve the same defendants – Granite Services and FieldCore.
Although Jose Luis Rodriguez, Jr., the named plaintiff in
this case, seemingly is not currently a party to the Trottier
case, Rodriguez still has the opportunity to join that case.
Indeed, Rodriguez falls squarely within the putative class,
as defined by the complaint in Trottier. Accordingly, the
parties are substantially similar for purposes of the firstfiled rule. See Ortiz, 2011 WL 3353432, at * 2 (“The parties
in these two cases are identical. Panera is the defendant
employer in both actions. Both Ortiz and the Lewis Plaintiffs
seek to represent the exact same class of current and former
Assistant

Manager

employees

who

worked

at

Panera

stores

nationwide during the past three years.”).
Finally, the issues in both cases substantially overlap.
Both Trottier and this suit propose an FLSA collective action
of non-EHS FieldCore and Granite Services employees who were
paid “straight time for overtime” in the past three years.
9

Case 8:20-cv-02129-VMC-JSS Document 27 Filed 11/18/20 Page 10 of 13 PageID 608

(Doc. # 1 at ¶ 20; Doc. # 16 at 8-9). Both complaints also
propose Rule 23 classes for non-EHS FieldCore and Granite
Services employees who worked in California in the past four
years and were paid “straight time for overtime.” (Doc. # 1
at ¶ 21). Additionally, Trottier includes all of the causes
of actions alleged in the instant case. Trottier, No. 20-cv186-Z-BR

(Doc.

#

1)

(including

a

cause

of

action

for

violations of the FLSA (Count I), failure to pay wages under
California Law (Count II), failure to provide compensation
for missed meal and rest periods (Count III), violations of
record

keeping

requirements

(Count

IV),

waiting

time

penalties (Count V), and violations of unfair competition law
(Count VI)). Therefore, the factors favor application of the
first-filed rule. See Goldsby v. Ash, No. 2:09-cv-975-TFM,
2010 WL 1658703, at *4 (M.D. Ala. Apr. 22, 2010) (“Both
actions seek certification of the same class. . . . Based on
the above, the Court finds that the case is due to be
transferred under the first-filed rule.”); see also Ortiz,
2011 WL 3353432, at *3 (applying the first-filed rule because
“[b]oth

cases

[sought]

the

same

relief

under

the

same

substantive law while requesting certification of the same
putative class”).
Additionally, although Rodriguez argues that Trottier
10

Case 8:20-cv-02129-VMC-JSS Document 27 Filed 11/18/20 Page 11 of 13 PageID 609

does not substantially overlap with this case because a
proposed first amended complaint in that case purports to
cover only employees who were paid under a particular pay
policy,

the

complaint

in

Trottier

contains

no

such

distinction. (Doc. # 24 at 7-8); Trottier v. FieldCore Servs.
Sols., LLC, No. 2:20-cv-186-Z-BR (N.D. Tex. filed Jan. 3,
2020) (Doc. # 1). Therefore, this argument is irrelevant at
this juncture, and Rodriguez has not carried his burden of
proving that any exception to the presumption in favor of the
first-filed rule applies. See Castillo v. Taco Bell of Am.,
LLC, 960 F. Supp. 2d 401, 404 (E.D.N.Y. 2013) (“Plaintiff’s
assertion that this case will accept as plaintiffs only those
who have not opted [into] Whittington makes this litigation
no less piecemeal. The class description is the same, as are
the potential plaintiffs — whether or not they have decided
to opt-in to Whittington. Also identical is the relief sought
– the payment of overtime compensation.”).
Accordingly, the Court finds that application of the
first-filed rule is appropriate here. Indeed, “it would be
patently unfair to require Defendants to litigate the class
issues here at the same time as those matters are being
litigated in the first-filed action.” Id. at 405. However,
the Court finds that transfer to the Amarillo Division of the
11

Case 8:20-cv-02129-VMC-JSS Document 27 Filed 11/18/20 Page 12 of 13 PageID 610

Northern District of Texas – the court ultimately responsible
for determining the application of the first-filed rule – is
the appropriate remedy for the relief sought in Defendants’
Motion, not dismissal. See AAMP, 2013 WL 1104889, at *3
(“Because the parties do not dispute that the instant action
post-dates the California action, and because this Court
finds a likelihood of substantial overlap between the two
cases, . . . the Central District of California is the
appropriate court to decide whether AAMP’s Florida action
should be allowed to proceed[.]”); see also Savage v. Seterus,
Inc., No. 2:19-CV-14256, 2020 WL 230982, at *3 (S.D. Fla.
Jan. 15, 2020) (“When the first-filed rule applies, the proper
course is to transfer the second-filed case to the firstfiled court to determine how the cases should proceed. A
transfer of a case under the first-filed rule does not depend
on

the

presence

or

absence

of

28

U.S.C.

§

1404(a)

considerations.” (citations omitted)). The Northern District
of Texas will then be able to determine whether this laterfiled suit should be dismissed, stayed, or consolidated.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

The Clerk is directed to TRANSFER this action to the
United States District Court for the Northern District
12

Case 8:20-cv-02129-VMC-JSS Document 27 Filed 11/18/20 Page 13 of 13 PageID 611

of Texas, Amarillo Division.
(2)

Defendant

Granite

Services

International,

Inc.,

and

FieldCore Services Solutions, LLC’s Motion to Dismiss
(Doc. # 16) is DENIED as moot.
DONE and ORDERED in Chambers, in Tampa, Florida, this
18th day of November, 2020.

13