DeJean v. HLM Protective Service, Inc. et al

Filing 17

ORDER granting 13 Motion to Dismiss for Failure to State a Claim. Amended Complaint due by 11/6/2017. Signed by Judge Robert N. Scola, Jr on 10/27/2017. (vmz)

Case 0:17-cv-61291-RNS Document 17 Entered on FLSD Docket 10/27/2017 Page 1 of 4

United States District Court
for the
Southern District of Florida
Ronald DeJean, Plaintiff,
v.
HLM Protective Service, Inc. and
others, Defendants.

)
) Civil Action No. 17-61291-Civ-Scola
)
)

Order Granting the Defendants’ Motion To Dismiss
Plaintiff Ronald DeJean brings this suit for violations of the Fair Labor
Standards Act (“FLSA”). DeJean alleges that, from September 2016 through
June 2017, he was employed by the Defendants as a security guard at various
sites in South Florida. (Compl. ¶ 21, ECF No. 1.) DeJean alleges that he worked
in excess of forty hours per week, but was not paid overtime wages. (Id. ¶ 23.)
This matter is before the Court on the Defendants’ Motion to Dismiss (ECF No.
13). For the reasons set forth below, the Court grants the motion to dismiss.
1. Legal Standard
Federal Rule of Civil Procedure 8(a) requires “a short and plain statement
of the claims” that “will give the defendant fair notice of what the plaintiff's
claim is and the ground upon which it rests.” Fed. R. Civ. P. 8(a). The Supreme
Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's obligation to
provide the ‘grounds' of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do. Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted).
“To survive a motion to dismiss, a complaint 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 (2009) (quotations and citations omitted).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 1950. When considering a
motion to dismiss, the Court must accept all of the plaintiff's allegations as
true in determining whether a plaintiff has stated a claim for which relief could
be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). For purposes of
Rule 12(b)(6), a court generally may not look beyond the pleadings, which

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includes any information attached to a complaint. U.S. ex. Rel. Osheroff v.
Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015) (internal citations omitted).
2. Analysis
The FLSA requires an employer to pay its employee “an overtime wage of
one and one-half times his regular rate for all hours he works in excess of forty
hours per week.” See Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d
1292, 1298 (11th Cir. 2011); see also 29 U.S.C. § 207(a). “If a covered employee
is not paid the statutory wage, the FLSA creates for that employee a private
cause of action against his employer for the recovery of unpaid overtime wages
and back pay.” Josendis, 662 F.3d at 1298; see also 29 U.S.C. § 216(b). “In
order to be eligible for FLSA overtime, however, an employee must first
demonstrate that he is ‘covered’ by the FLSA.” Josendis, 662 F.3d at 1298.
This requires a showing that the jurisdictional prerequisite of “interstate
commerce” exists in a given case, a showing that may be made one of two
ways––individual coverage or enterprise coverage. Id.
“An employee is subject to individual coverage if he is directly and
regularly ‘engaged in’ interstate commerce.” Josendis v. Wall to Wall Residence
Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011) (emphasis in original)
(citing Thorne v. All Restoration Servs. Inc., 448 F.3d 1264, 1266 (11th Cir.
2006)). Thus, an employee must allege that he was “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 his work, e.g., regular and
recurrent use of interstate telephone, telegraph, mails, or travel.” Thorne, 448
F.3d at 1266 (citations omitted).
Here, the Plaintiff alleges that he worked “as a non-exempt security
guard at various sites in South Florida,” and that he was “‘engaged in
commerce’ within the meaning of the FLSA.” (Compl. ¶¶ 15, 21.) These
allegations do not include sufficient information for the Court to infer that the
Plaintiff directly participated in the actual movement of persons or things in
interstate commerce. See Thorne, 448 F.3d at 1266 (citations omitted).
Although a plaintiff “need not do much” to plead individual or enterprise
coverage, this Court has held that a plaintiff fails to adequately plead
individual coverage where the plaintiff does not allege specific facts concerning
the nature of the plaintiff’s work and whether the work involved a connection to
interstate commerce. Ceant v. Aventura Limousine & Transp. Serv., Inc., 874
F.Supp.2d 1373, 1377 (S.D. Fla. 2012) (Scola, J.); see also Perez v. Muab, Inc.,
No. 10-62441, 2011 WL 845818, at *3 (S.D. Fla. Mar. 7, 2011) (Cohn, J.) (mere

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recitation of the statutory language that an individual was engaged in
commerce is insufficient to allege individual coverage). Since the Plaintiff has
not alleged any facts establishing a connection to interstate commerce, the
Plaintiff has not sufficiently pleaded individual coverage under the FLSA.
An employee may assert “enterprise coverage” if his employer: (1) has
employees engaged in interstate commerce or in the production of goods for
interstate commerce, or employees who handle, sell, or otherwise work on
goods or materials that have been moved in, or produced for, interstate
commerce by any person; and (2) has gross volume sales or business of at least
$500,000 annually. 29 U.S.C. § 203(s)(1)(A). “To satisfy the first prong, [a]
[p]laintiff must demonstrate that, on a regular and recurrent basis, at least two
of [the] [d]efendants' employees engaged in commerce or handled goods and
material that have been moved in commerce.” Williams v. Signature Pools &
Spas, Inc., 615 F. Supp. 2d 1374, 1378 *S.D. Fla. 2009) (Ungaro, J.); see also
Polycarpe v. E & S Landscaping Serv., Inc. (Polycarpe I), 616 F.3d 1217, 1220
(11th Cir. 2010) (“If an employer ha[s] two or more workers engaged in
commerce or the production of goods for commerce, the FLSA coverage
extend[s] to all of the enterprise's employees.”).
The Plaintiff argues that his allegation that Defendant HLM Protective
Service, Inc.’s revenue exceeds $500,000 annually is sufficient on its own to
establish coverage under the FLSA. (Resp. at 5.) However, the clear language of
the statute requires that an employer have both revenue of at least $500,000
annually and employees engaged in interstate commerce. See 29 U.S.C. §
203(s)(1)(A). The only non-conclusory allegation in the Complaint concerning
the nature of the Defendants’ business is that the “Defendants were engaged in
providing security services at various sites within the Southern District of
Florida.” (Compl. ¶ 10.) Again, although the Court recognizes that an FLSA
plaintiff “need not do much” to allege enterprise coverage, Ceant, 874 F. Supp.
2d at 1378, a plaintiff must provide the “factual underpinnings” which support
his general allegations and legal conclusions, Pardue v. Specialty Eng’g
Consultants, Inc., 85 F. Supp. 3d 1347, 1349–50 (S.D. Fla. 2015) (Marra, J.).
Since the Complaint is devoid of any factual allegations showing that the
security services provided by the Defendants meet the requirements for
enterprise coverage, the Plaintiff has failed to adequately plead enterprise
coverage. See Ceant, 874 F.Supp.2d at 1377 (holding that plaintiff did not
adequately plead enterprise coverage because the complaint did not “allege
what kind of transportation services [the defendant] provides to customers or
whether such services are tied to interstate commerce.”); Perez, 2011 WL
845818, at *2 (holding that plaintiff did not adequately plead enterprise
coverage because the complaint was “devoid of facts.”).

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3. Conclusion
Accordingly, the Defendants’ Motion to Dismiss is granted (ECF No. 13),
and the Complaint is dismissed without prejudice. If the Plaintiff is able to
correct the deficiencies identified above, he may file an amended complaint on
or before November 6, 2017.
Done and ordered, Miami, Florida, on October 27, 2017.
_______________________________
Robert N. Scola, Jr.
United States District Judge