KANG et al v. BENNING GF LLC et al

Filing 23

ORDER granting 22 Motion for Extension of Time to Complete Discovery (Discovery to be complete by 2/22/2017; Dispositive motions due by 4/7/2017); granting in part and denying in part 15 Motion to Amend/Correct; granting in part and denying in part 16 Motion to Dismiss Complaint. Ordered by US DISTRICT JUDGE CLAY D LAND on 01/23/2017. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
NAM HYUP KANG and HYANG HO LEE, *
Plaintiffs,

*

vs.

*

BENNING GF, LLC d/b/a Giant
Food, et al.,

*

CASE NO. 4:16-CV-152 (CDL)
*
Defendants.
*
O R D E R
The Court held a telephone conference in this action to
seek clarification on Plaintiffs’ allegations and to discuss the
parties’

pending

motions.

During

the

telephone

conference,

Plaintiffs’ counsel clarified that Plaintiffs Nam Hyup Kang and
Hyang

Ho

Lee

allege

that

they

are

former

employees

of

grocery businesses Benning GF, LLC and Super Giant Mart.1

the
Kang

is also a former employee of the grocery business Forest Park
Produce of Alabama, Inc.

Plaintiffs worked at these separate

businesses at different times.

Plaintiffs assert that at each

grocery business, they were not paid overtime wages as required
by

the

Fair

Labor

U.S.C. §§ 201-219.

Standards

Act

of

1938

(“FLSA”),

29

They now seek overtime wages and damages

under the FLSA.
1

Plaintiffs claim that the correct legal name for Super Giant Mart is
Capitol Produce, Inc.
Defendants claim that the correct legal name
for Super Giant Mart is Forest Park Produce, LLC.
For purposes of
this Order, it does not matter which is correct.

Defendants filed a motion to dismiss Plaintiffs’ claims.
At the telephone conference, Plaintiffs’ counsel agreed that all
of Plaintiffs’ claims against Forest Park Produce of Alabama,
Inc., John Yim, James Yim, and Angela Yim should be dismissed.
Those claims are therefore dismissed.
Defendants

also

assert

that

the

claims

related

to

the

employment practices at Super Giant Mart should be dismissed for
improper venue.2

As discussed below, the Court finds that these

claims are not properly joined and that they should be severed.
And given that there is no independent basis for venue in this
Court, those claims are dismissed for improper venue.
“Under Federal Rule of Civil Procedure 18(a), a plaintiff
may generally bring as many claims as he has against a single
party.” Smith v. Owens, 625 F. App’x 924, 928 (11th Cir. 2015)
(per curiam) (citing Fed. R. Civ. P. 18(a)).

“But a plaintiff

may join multiple defendants in a single action only if the
right to relief asserted against them arises ‘out of the same
transaction,

occurrence,

or

series

of

transactions

or

occurrences’ and if ‘any question of law or fact common to all
defendants will arise in the action.’”
Civ.

P.

20(a)).

Here,

Plaintiffs

do

Id. (quoting Fed. R.
not

allege

that

their

claims based on the employment practices at Benning GF, LLC
arise out of the same transaction, occurrence, or series of
2

At the telephone conference Plaintiffs’ counsel represented that Sang
Yim was involved in the employment decisions for Super Giant Mart.

2

transactions

or

occurrences

as

their

claims

employment practices at Super Giant Mart.

based

on

the

Rather, Plaintiffs

assert independent claims based on the employment practices at
the

two

separate

grocery

businesses.

The

Court

finds

that

Plaintiffs’ two distinct FLSA claims against two distinct sets
of Defendants are not properly joined under Federal Rules of
Civil Procedure 18 and 20(a)(2).

Thus, the Court must sever

these claims pursuant to Rule 21.

The next question is whether

venue is proper in this Court for the severed claims.
Defendants do not dispute that venue is proper in this
Court

for

the

claims

Benning GF, LLC.

based

on

the

employment

practices

at

But Defendants argue that venue is not proper

in this Court for the claims based on the employment practices
at

Super

Giant

Mart,

which

is

undisputedly

located

in

the

Northern District of Georgia and whose alleged decisionmaker,
Sang Yim, lives in the Northern District.
28 U.S.C. § 1391(b)

permits

them

to

Plaintiffs argue that

bring

separate

claims

against separate defendants in the Middle District of Georgia as
long as all of the defendants reside in Georgia and one of the
defendants

resides

in

the

Middle

District.

Plaintiffs

are

correct that § 1391(b) permits an action to be brought in “a
judicial

district

in

which

any

defendant

resides,

if

all

defendants are residents of the State in which the district is
located . . . .”

But when the claims are severed because of

3

misjoinder, they are treated as separate actions.

Hofmann v. De

Marchena Kaluche & Asociados, 642 F.3d 995, 998 (11th Cir. 2011)
(per

curiam)

(“A

severed

claim

under

Rule

21

proceeds

as

a

discrete suit.”).

Plaintiffs did not cite any authority for the

proposition

§ 1391

that

extends

venue

to

claims

that

are

misjoined and severed under the circumstances presented here.
It is clear that no independent basis for venue exists over
the severed claims against Super Giant Mart and Sang Yim.

Super

Giant Mart is not a resident of the Middle District of Georgia.
Nor is its alleged decisionmaker, Sang Yim.

And, as previously

explained, Plaintiffs’ claims based on the employment practices
at Super Giant Mart do not arise out of the same nucleus of
operative

facts

as

their

practices at Benning GF, LLC.

claims

regarding

the

employment

Because venue is not proper for

the claims against Super Giant Mart and Sang Yim, those claims
are dismissed.

See 28 U.S.C. § 1406(a) (“The district court of

a district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest
of justice, transfer such case to any district or division in
which it could have been brought.”).
CONCLUSION
As discussed above, Defendants’ motion to dismiss (ECF No.
16) is granted in part and denied in part.

The following claims

are severed and dismissed without prejudice: Plaintiffs’ claims

4

against Forest Park Produce of Alabama, Inc., Super Giant Mart,
John

Yim,

James

Yim,

Angela

Yim,

and

Sang

Yim.

The

only

remaining claims are those based on the employment practices at
Benning GF, LLC.

The Court finds that Plaintiffs’ First Amended

Complaint sufficiently alleges FLSA violations based on those
employment practices, so those claims are not dismissed.
Plaintiffs’ Motion to Amend (ECF No. 15) is granted to the
extent that Plaintiffs shall be permitted to add Jaehan Kim as a
Defendant

and

may

substitute

Defendant Jane Doe.3
Order,

Plaintiffs

Hee

Jeang

Kim

for

pseudonym

Within seven days of the date of this

shall

file

a

Second

Amended

Complaint;

Plaintiffs shall not include any claims or Defendants that have
been dismissed in this Order.
Finally, the parties’ joint motion for an extension of time
to complete discovery (ECF No. 22) is granted.

Discovery shall

close on February 22, 2017, and dispositive motions are due on
or before April 7, 2017.
IT IS SO ORDERED, this 23rd day of January, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

3

In their proposed Second Amended Complaint, Plaintiffs allege that
Jaehan Kim has an ownership interest in Super Giant Mart. Proposed 2d
Am. Compl. ¶ 31, ECF No. 15-1. At the telephone conference, however,
Plaintiffs’ counsel represented that Jaehan Kim was involved in the
employment decisions for Benning GF, LLC. Plaintiffs also assert that
Hee Jeang Kim has an ownership interest in Benning GF, LLC.

5