Selby et al v. Sip & Bite Restaurant, Inc. et al

Filing 18

MEMORANDUM AND ORDER denying without prejudice 10 Motion to Dismiss. Signed by Judge Marvin J. Garbis on 8/12/13 (cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STEPHANIE A. SELBY, et al.
Plaintiffs
vs.

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SIP & BITE RESTAURANT, INC.,
et al.
Defendants

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CIVIL ACTION NO. MJG-13-1531

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MEMORANDUM AND ORDER RE: DISMISS MOTION
The Court has before it Defendants' Motion to Dismiss
[Document 10] and the materials submitted relating thereto.

The

Court has held a hearing.
Plaintiffs have sued Defendants pursuant to the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. and the Maryland
Wage-Hour Law.

By the instant motion, Defendants seek dismissal

of the federal claim because the corporate Defendant's gross
revenues did not and do not exceed the $500,000 gross revenue
threshold provided by 29 U.S.C. § 203(s)(1)(A)(ii).
At the motion hearing, Defendants stated that the corporate
accountant had just advised them that the gross revenue of Sip &
Bite Restaurant, Inc. for 2012 was in excess of $500,000.

Therefore, the instant motion was withdrawn as to 2012 and later
periods, but not for periods prior to 2012.1
It is apparent that there are factual questions presented
with regard to the $500,000 threshold at issue.

The parties

debate whether Plaintiffs must prove that the $500,000 threshold
was met as a jurisdictional prerequisite to their pre-2012 FLSA
claims or as an element of those claims.

It appears that judges

in several cases in this district have treated the issue as
jurisdictional – possibly without having been presented with
pertinent appellate decisions.

In any event, in light of the

Supreme Court decision in Arbaugh v. Y & H Corp., 546 U.S. 500
(2006) and the First Circuit decision in Chao v. Hotel Oasis,
Inc., 493 F.3d 26 (1st Cir. 2007), this Court concludes that the
issue is not jurisdictional.

Thus, the instant motion, pursuant

to Rule 12(b)(1) of the Federal Rules of Civil Procedure shall
be denied on procedural grounds.

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Additionally, after Defendants' filed their dismissal
motion, the Plaintiffs filed the Amended Complaint [Document
11], which eliminated Olymbos Properties, LLC and George
Vasiliades as named defendants. Hence, the arguments in the
dismissal motion related to those defendants in particular are
moot.
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Accordingly Defendants' Motion to Dismiss [Document 10] is
DENIED WITHOUT PREJUDICE to the Defendants' ability to contend
at trial that Plaintiffs failed to prove the gross revenue
element of their FLSA claims.

SO ORDERED, this Monday, August 12, 2013.

/s/__________
Marvin J. Garbis
United States District Judge

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