KANG et al v. BENNING GF LLC et al
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
NAM HYUP KANG and HYANG HO LEE, *
BENNING GF, LLC d/b/a Giant
Food, et al.,
CASE NO. 4:16-CV-152 (CDL)
O R D E R
The Court held a telephone conference in this action to
seek clarification on Plaintiffs’ allegations and to discuss the
Plaintiffs’ counsel clarified that Plaintiffs Nam Hyup Kang and
grocery businesses Benning GF, LLC and Super Giant Mart.1
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
U.S.C. §§ 201-219.
They now seek overtime wages and damages
under the FLSA.
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.
employment practices at Super Giant Mart should be dismissed for
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
occurrences’ and if ‘any question of law or fact common to all
defendants will arise in the action.’”
Id. (quoting Fed. R.
claims based on the employment practices at Benning GF, LLC
arise out of the same transaction, occurrence, or series of
At the telephone conference Plaintiffs’ counsel represented that Sang
Yim was involved in the employment decisions for Super Giant Mart.
employment practices at Super Giant Mart.
assert independent claims based on the employment practices at
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
Benning GF, LLC.
But Defendants argue that venue is not proper
in this Court for the claims based on the employment practices
Northern District of Georgia and whose alleged decisionmaker,
Sang Yim, lives in the Northern District.
28 U.S.C. § 1391(b)
Plaintiffs argue that
against separate defendants in the Middle District of Georgia as
long as all of the defendants reside in Georgia and one of the
correct that § 1391(b) permits an action to be brought in “a
defendants are residents of the State in which the district is
located . . . .”
But when the claims are severed because of
misjoinder, they are treated as separate actions.
Hofmann v. De
Marchena Kaluche & Asociados, 642 F.3d 995, 998 (11th Cir. 2011)
Plaintiffs did not cite any authority for the
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.
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
practices at Benning GF, LLC.
Because venue is not proper for
the claims against Super Giant Mart and Sang Yim, those claims
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.”).
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
against Forest Park Produce of Alabama, Inc., Super Giant Mart,
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 Jane Doe.3
Within seven days of the date of this
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.
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
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.
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