KENNY v. SEMINOLE WIND RESTAURANT OF BAINBRIDGE LLC et al
Filing
23
ORDER granting in part and denying in part 12 Motion to Dismiss for Failure to State a Claim.Ordered by U.S. District Judge HUGH LAWSON on 12/23/2014 (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
WILLIAM KENNY, individually and
on behalf of others similarly
situated,
Plaintiff,
Civil Action No. 7:14-CV-97 (HL)
v.
SEMINOLE WIND RESTAURANT OF
BAINBRIDGE, LLC, SEMINOLE WIND
RESTAURANT OF THOMASVILLE,
LLC,
SEMINOLE
WIND
RESTAURANT OF CAIRO, LLC, and
THOMAS BRYANT,
Defendants.
ORDER
Before the Court is Defendant Thomas Bryant’s Motion to Dismiss (Doc.
12) pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated
below, the motion is granted in part and denied in part.
I.
Motion to Dismiss Standard
To avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible if its
factual allegations allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The plausibility standard “calls
for enough fact to raise a reasonable expectation that discovery will reveal
evidence” of the defendant’s liability. Twombly, 550 U.S. at 556.
In ruling on a motion to dismiss, the court must accept “all well-pleaded
facts … as true, and the reasonable inferences therefrom are construed in the
light most favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271,
1273 n. 1 (11th Cir. 1999). However, this tenet does not apply to legal
conclusions in the complaint. Iqbal, 556 U.S. at 679. “[C]onclusory allegations,
unwarranted deductions of fact, or legal conclusions masquerading as facts will
not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188
(11th Cir. 2002). A court must dismiss the complaint if, “on the basis of a
dispositive issue of law, no construction of the factual allegations will support the
cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992
F.2d 1171, 1174 (11th Cir. 1993) (citing Executive 100, Inc. v. Martin County, 992
F.2d 1536, 1539 (11th Cir. 1991) and Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct.
773, 90 L.Ed.2d 939 (1946)).
II.
Factual Summary
Construing the Complaint’s factual allegations in favor of Plaintiff William
Kenny (“Kenny”), Defendant Thomas Bryant (“Bryant”) is the owner and
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managing member of Defendants Seminole Wind Restaurant of Bainbridge, LLC;
Seminole Wind Restaurant of Thomasville, LLC; and Seminole Wind Restaurant
of
Cairo,
LLC
(collectively
“Defendants”).
Defendants
operate
various
restaurants. From approximately July 2009 until June 2013, Plaintiff was
employed by Defendants, primarily at the Bainbridge location, where he was the
general manager. From time to time, Plaintiff filled in for other workers at the
restaurant in Cairo and, prior to its closing, the restaurant in Tallahassee, Florida.
(Complaint, Doc. 1, pp. 2-3, ¶¶5-12).
While employed by Defendants, Plaintiff regularly worked more than forty
hours a week, but for these overtime hours Defendants did not pay him at a rate
that was one and a half times his normal pay rate. Defendants engaged in a
practice of paying their employees the standard rates even when the employees
were working overtime. As the owner and managing member of the corporate
Defendants, Bryant regularly hired and fired employees of the corporate entities,
set the employees’ compensation, and controlled the operations and finances of
the corporate Defendants. (Id. at p. 3, ¶¶10, 13).
On his own behalf and on behalf of all other similarly-situated employees,
Plaintiff sued Defendants in this Court on June 23, 2014. He alleges that
Defendants violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et
seq., by failing to pay employees for overtime work at a rate that was at least one
3
and a half times their normal pay rate. Additionally, Plaintiff alleges that these
violations were willful. (Id. at pp. 4-5, ¶¶1-9). Defendant Bryant now moves to
dismiss Plaintiff’s claims against him, contending that he is not a proper party to
this action, that the Complaint fails to state a claim against him, and that the
collective action allegations in the Complaint fail to meet the pleading standards
set forth in Twombly and Iqbal.
III.
Legal Analysis
A.
Defendant Bryant as Plaintiff’s Employer
The Court is unconvinced by Bryant’s argument that he was not Plaintiff’s
employer and, consequently, is not a proper party to this action. While it is true
“that ‘individuals are ordinarily shielded from personal liability when they do
business in a corporate form’ … the FLSA contemplates at least some individual
liability….” Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1313 (11th
Cir. 2013) (quoting Baystate Alt. Staffing, Inc. v. Herman, 163 F.3d 668, 677 (1st
Cir. 1998)). The FLSA’s definition of “employer” is broad and includes “both the
employer for whom the employee directly works as well as ‘any person acting
directly or indirectly in the interests of an employer in relation to an employee.’”
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir.
2011) (quoting 29 U.S.C. § 203(d)). The Eleventh Circuit has interpreted this
statutory language to mean that there could be individual liability for someone
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who controls “a corporation’s financial affairs and can cause the corporation to
compensate (or not to compensate) employees in accordance with the FLSA.”
Lamonica, 711 F.3d at 1313 (internal quotation omitted). An individual’s
ownership interest in the business and control over its day-to-day activities are
indicative of whether the individual caused the alleged FLSA violation. Id.
The Complaint’s allegations are sufficient to establish Bryant’s liability
under this test.1 According to the Complaint, Bryant was the owner and managing
member of the various limited liability companies that employed Plaintiff. Bryant
hired and fired the companies’ employees, determined their compensation, and
controlled the companies’ operations and finances. These allegations state a
sufficient nexus between Bryant’s activities and the failure to pay Plaintiff
appropriate wages for his overtime labor as to allow Plaintiff to move forward with
his claim that Bryant is liable for FLSA violations. Of course, whether there is
actually evidence to support these allegations will have to be determined in
discovery.
1
Bryant has filed an affidavit in support of his denial that he was Plaintiff’s employer. In
analyzing a motion to dismiss under Rule 12(b)(6), a court is generally restricted from
considering matters outside the pleadings. See Trustmark Ins. Co. v. ESLU, Inc., 299
F.3d 1265, 1267 (11th Cir. 2002). Thus, the Court declines to consider Bryant’s affidavit.
If he wishes the Court to examine the evidence contained in the affidavit, he may, of
course, file a motion for summary judgment.
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B.
Alleged Violations of the FLSA
The Complaint also sufficiently alleges a claim for unpaid overtime wages.
Bryant insists, without citing any binding authority, that this claim is deficiently
pled because the Complaint does not allege the specific number of overtime
hours for which Plaintiff has not been fully compensated. Under Federal Rule of
Civil Procedure 8, even if a complaint does not contain “detailed factual
allegations,” it is nonetheless sufficient so long as it “give[s] the defendant fair
notice of what … the claim is and the grounds upon which it rests.” Twombly, 550
U.S. at 555 (internal quotations and citations omitted). A complaint’s factual
allegations need only “be enough to raise a right to relief above the speculative
level.” Id. Plaintiff’s Complaint meets this standard because it tells Defendants
what his claim is and the factual basis for it.
C.
Collective Action Allegations
The motion to dismiss is granted with regard to the Complaint’s claim on
behalf of those employees who are similarly situated to Plaintiff. Defendant
Bryant argues that the collective action elements of the Complaint fail to state a
claim upon which relief may be granted. Plaintiff maintains that the appropriate
time to consider this issue is when, and if, he moves to conditionally certify a
class of similarly situated employees. The Court disagrees. Numerous courts
have determined that a complaint’s collective action elements under the FLSA
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are still subject to the pleading standards of Rule 8 and may be dismissed under
Rule 12(b)(6). See Dyer v. Lara’s Trucks, Inc., 1:12-cv-1785-TWT, 2013 WL
609307, at *4 (N.D. Ga. Feb. 19, 2013) (citing various cases). The Court concurs
with their reasoning. Plaintiff may not pursue discovery concerning FLSA
violations wrought against a class of employees unless his Complaint fairly
informs Defendants of the nature of this putative class.
The Complaint fails to state a claim so far as any collective action is
concerned because it does not adequately identify a class of “similarly situated
employees” to Plaintiff. According to the Complaint, “Defendants engaged in a
practice of paying all hourly employees, including the Plaintiff, at a straight time
rate of pay for all hours in excess of 40.” (p. 3, ¶13). Accordingly, Plaintiff asserts
“that there are other similarly situated current and former hourly employees of the
Defendants who are entitled [to] overtime compensation[].” (Id. at p. 5, ¶9).
Plaintiff worked as a general manager at restaurants in Cairo, Georgia,
Bainbridge, Georgia, and Tallahassee, Florida during the period from July 2009
to June 2013, but the Complaint does not allege where these “similarly situated
employees” worked, what their duties were, or when they were not paid overtime
compensation. Lacking such information, the Complaint does not provide
Defendants with notice of what constitutes this class of employees, as Rule 8
requires. See Dyer, 2013 WL 609307, at *4.
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Therefore, the class action elements of the Complaint are dismissed.
Plaintiff has requested that, in the event the motion to dismiss was granted in
part or in full, he be given an opportunity to amend his Complaint. His request is
granted. Any amended complaint must be filed not later than January 13, 2015.
IV.
Conclusion
For the reasons stated above, the Defendant Thomas Bryant’s Motion to
Dismiss (Doc. 12) is granted in part and denied in part. The Complaint is
dismissed to the extent Plaintiff seeks to bring claims on behalf of similarly
situated employees. If Plaintiff wishes to file an amended complaint, he must do
so not later than January 13, 2015.
SO ORDERED, this the 23rd day of December, 2014.
s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE
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