Mejia v. Travis Buquet Construction L L C et al
ORDER 16 Motion to Change Venue is GRANTED and this matter is TRANSFERRED to the Eastern District of Louisiana. IT IS FURTHER ORDERED 16 Motion to Dismiss for Failure to State a Claim is DENIED AS MOOT. This Order shall be STAYED for fourteen days from the date of issuance. Any appeal to the District Judge must be filed within fourteen days from the date of this Order. Signed by Magistrate Judge Carol B Whitehurst on 3/8/2017. (crt,Chicola, C)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
Civil Action No. 6:16-01504
Judge Rebecca F. Doherty
Travis Buquet Construction, LLC et al
Magistrate Judge Carol B. Whitehurst
ORDER AND REASONS
Pending before the undersigned is a Rule 12(b)(6) Motion To Dismiss and Rule
12(b)(3) Motion To Transfer Venue [Rec. Doc. 16] filed by defendants, Travis
Buquet Construction, LLC, Travis Buquet Home Builders, LLC and Travis Buquet,
and plaintiff, Sergio Mejia’s, memorandum in opposition to Defendants’ Motion
[Rec. Doc. 19]. For the reasons that follow, the Motion to Dismiss will be denied as
moot and the Motion to Transfer will be granted.
This is a collective action for violation of the Fair Labor Standards Act
(“FLSA”) brought by Plaintiff, individually and on behalf of all other similarly
situated installers (collectively referred to as “Plaintiff”). Plaintiff alleges in his
Amended Complaint that he worked for Travis Buquet Construction, LLC (“TBC”),
Travis Buquet Home Builders, LLC (“TBH”) and Travis Buquet (“Buquet”)
(collectively referred to as “Defendants”) in Houma and Morgan City, Louisiana,
from approximately November 2011 until approximately August 2016, as a carpenter
related to building houses and other structures. R. 14, ¶¶ 6-8. Plaintiff alleges that
Defendants, TBC and TBH are owned and operated by Defendant Buquet with their
principal place of business in Houma, Louisiana. Id. at 11. He states that TBC and
TBH “are collectively a ‘single business enterprise’” and that his paychecks were
issued by TBC. Id. at ¶¶ 12, 15.
Plaintiff alleges he was an “employee” of Defendants under 29 U.S.C. § 203(e).
Id. at ¶ 10. He further alleges he normally worked more than forty hours a week—on
average at least 10 hours a day Monday through Friday and at least 7 hours a day on
Saturday. Id. at ¶ 25. Plaintiff alleges Defendants paid him $17.75 per hour and that
he was not paid overtime for hours he worked over forty hours in a work week. Id.
at ¶¶ 9, 26.
Defendants seek dismissal of TBH and Buquet under Federal Rule of Civil
Procedure 12(b)(6). They assert that TBH “is simply a holding company that owns
properties upon which homes are built” and Buquet “is one of the owners of TBC”,
but TBH and Buquet: (1) have no employees; (2) do not engage in the construction
of homes; (3) never employed Plaintiff; and (4) never issued a check to Plaintiff.
Defendants further assert that Plaintiff’s allegation that all Defendants are a “single
business enterprise” is merely “conclusory” and does not provide a claim against
TBH or Buquet.
Defendants also seek transfer of this action to the Eastern District of Louisiana
under Rule 12(b)(3) for improper venue. In his Opposition memorandum, Plaintiff
confirms Defendants’ statement that “Plaintiff does not oppose Defendants’ Rule
12(b)(3) Motion to Transfer Venue.” R. 16, 19.
Generally the court should not consider challenges under Rule 12(b) (6) until
after jurisdiction and venue challenges are resolved. Arrowsmith v. United Press
Int'l., 320 F.2d 219, 221 (2d Cir.1963) (holding that it was error for district court to
dismiss action for failure to state a claim prior to addressing challenges to personal
jurisdiction and venue, because dismissal on the former ground would be with
prejudice, while dismissal for either of the two latter grounds would be without
prejudice).1 Accordingly, the Court will consider Defendant’s argument of improper
Rule 12(b)(3) of the Federal Rules of Civil Procedure authorizes a defendant
to move for dismissal due to improper venue. Where, as here, the Court rules without
conducting an evidentiary hearing, the plaintiff bears the burden of establishing a
prima facie case that the Court has jurisdiction over the defendant. Johnston v.
A motion to transfer venue is not dispositive on any issue, nor does it deprive any party
of the ability to assert any claim or defense. On the other hand, a motion to dismiss, if granted, by
its very nature deprives a party of bringing certain claims or defenses, and the Court must adhere
to a stricter standard of analysis when considering a motion to dismiss. Auto-Dril, Inc. v.
National Oilwell Varco, L.P., 2015 WL 12868183, at *5 (W.D.Tex., 2015).
Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir. 2008). In deciding the motion,
the court must accept as true all allegations in the complaint and resolve all conflicts
in favor of the plaintiff. Braspetro Oil Services, Co. v. Modec (USA), Inc., 240
Fed.Appx. 612, 615 (5th Cir. 2007). Unlike a Rule 12(b)(6) motion, however, the
court may consider extrinsic evidence—including affidavits and other evidentiary
materials— in determining whether venue is proper. Ambraco Inc. v. Bossclip B.V.,
570 F.3d 233, 238 (5th Cir. 2009).
28 U.S.C. § 1406 states, “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.” Whether or not this Court is a proper venue is determined pursuant to 28
U.S.C. § 1391. Section 1391(b) provides: “[a] civil action may be brought in a
judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the subject of the action
Here, Defendants attached to their motion a detailed report from the Louisiana
Secretary of State which provides that TBC is a Louisiana limited liability company
domiciled at 510 Bayou Gardens Drive, Houma, Louisiana. 70364. R. 16-2, Exh. A.
Also, the factual allegations in Plaintiff’s Amended Complaint allege that Defendants
are limited liability companies organized under the laws of Louisiana with their
principal place of business in Houma, Louisiana, R. 14, ¶ 11; Plaintiff worked in
Houma and in Morgan City2 , Id at ¶ 7; and, Plaintiff was paid with checks issued by
TBC from its office in Houma. Houma is located in the Eastern District of Louisiana.
Based on the foregoing, as well as the fact that Plaintiff does not object to the transfer
of venue, the Court finds that venue in this case lies within the Eastern District of
Having reviewed the pleadings, the record, and the relevant law, the Court
concludes that Defendants’ unopposed Motion To Transfer Venue is merited and that
venue is lacking in the Western District of Louisiana. Therefore, the Court transfers
this case to the United States District Court for the Eastern District of Louisiana, and
declines to consider Defendants’ 12(b)(6) motion for failure to state a claim.
IT IS ORDERED that the unopposed Rule 12(b)(3) Motion To Transfer
Venue filed by defendants, Travis Buquet Construction, LLC, Travis Buquet Home
Builders, LLC and Travis Buquet [Rec. Doc. 16] is GRANTED and this matter is
TRANSFERRED to the Eastern District of Louisiana.
While Morgan City, Louisiana is in the Western District, Plaintiff does not allege the
time spent in Morgan City or whether he worked in Morgan City more or less time than in
IT IS FURTHER ORDERED that the Rule 12(b)(6) Motion To Dismiss filed
by defendants, Travis Buquet Construction, LLC, Travis Buquet Home Builders,
LLC and Travis Buquet [Rec. Doc. 16] is DENIED AS MOOT.
This Order shall be STAYED for fourteen days from the date of issuance. Any
appeal to the District Judge must be filed within fourteen days from the date of this
Order. If an appeal is taken to the District Judge, this Order shall remain stayed until
the appeal is decided. If no timely appeal is filed, the clerk shall transfer the action
THUS DONE AND SIGNED this 8th day of March, 2017 at Lafayette,
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