Saman v. LBDP, Inc. et al
Filing
16
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 11/7/12. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ROSA SAMAN
:
v.
:
Civil Action No. DKC 12-1083
:
LBDP, INC., et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution is a partial
motion to dismiss filed by Defendants LBDP, Inc., Edward S.
Sokvary, and Lee Un Yong.
(ECF No. 9).
The issues are fully
briefed and the court now rules pursuant to Local Rule 105.6, no
hearing being deemed necessary.
For the reasons that follow,
the motion will be granted.
I.
Background
According
to
the
complaint,
Plaintiff
Rosa
Saman
was
employed by Defendant LBDP, Inc., d/b/a La Baguette de Paris
(“LBDP”),
from
discharged
on
approximately
August
February
2012.
25,
23,
At
2009,
all
until
relevant
she
was
times,
Defendants Edward S. Sokvary and Lee Un Yong were “officers” and
“controlling shareholders” of LBDP, who “created, maintained and
administered” its employment policies, had “the power to hire
and
fire
employees,”
controlled
payroll responsibilities.”
scheduling,
(ECF No. 1 ¶ 3).
and
“handle[d]
Plaintiff alleges
that, throughout her employment, she “typically work[ed] between
55-65
hours
per
week
and
sometimes
was
required
to
work
in
excess of 100 hours per week,” but “Defendants refused to pay
[her] at the rate of one-and-one half (1½) times her regular
rate of pay for hours worked per week in excess of forty (40).”
(Id. at ¶¶ 12, 15).
By Plaintiff’s estimate, she is “owed at
least $16,000 in overtime wages.”
(Id. at ¶ 15).
The complaint further recites that, on or about February
17,
2012,
“while
working
at
Defendant
LBDP’s
Silver
Spring
location, [Plaintiff] was assaulted, harassed, and threatened by
Victor Lopez, the spouse of another LBDP employee.”
16).
She
District
applied
Court
of
for
a
temporary
Maryland
for
restraining
Montgomery
(Id. at ¶
order
County,
in
the
which
was
granted on February 22, and a hearing was scheduled for February
29.
On February 25, Plaintiff “was notified by Defendant Lee
that her employment . . . would be immediately terminated if she
continued with the peace order proceedings.”
When
Plaintiff
refused
to
dismiss
the
“immediately terminated [her] employment.”
Plaintiff
commenced
this
action
on
(Id. at ¶ 19).
proceedings,
Ms.
Lee
2012,
by
(Id.).
April
10,
filing a complaint alleging that Defendants failed to pay her
overtime wages in violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201 et seq. (count one), the Maryland
Wage and Hour Law, Md. Code Ann., Lab. & Empl. §§ 3-401 et seq.
2
(count two), and the Maryland Wage Payment and Collection Law,
Md. Code Ann., Lab. & Empl. §§ 3-501 et seq. (count three), and
wrongfully terminated her employment in violation of Md. Code
Ann., Cts. & Jud. Proc. §§ 3-501 et seq. (count four).
11,
Defendants
filed
a
partial
motion
to
dismiss,
On May
seeking
dismissal of count three, pursuant to Fed.R.Civ.P. 12(b)(6), and
count four, pursuant to Fed.R.Civ.P. 12(b)(1).
(ECF No. 9).
Plaintiff filed a notice of voluntary dismissal as to count
three (ECF No. 12), but opposed dismissal of count four (ECF No.
13).
II.
Defendants filed papers in reply.
(ECF No. 15).
Standard of Review
Defendants
challenge
subject
matter
Plaintiff’s wrongful termination claim.
burden
of
proving
that
exists in federal court.
subject
jurisdiction
The plaintiff bears the
matter
jurisdiction
properly
See Evans v. B.F. Perkins Co., a Div.
of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999).
considering
a
Rule
over
12(b)(1)
motion,
the
court
“may
In
consider
evidence outside the pleadings” to help determine whether it has
jurisdiction over the case before it.
Richmond, Fredericksburg
& Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991); see also Evans, 166 F.3d at 647.
The court should grant
such a motion “only if the material jurisdictional facts are not
in dispute and the moving party is entitled to prevail as a
matter of law.”
Richmond, 945 F.2d at 768.
3
III. Analysis
Federal
jurisdiction
in
this
case
is
predicated
on
the
federal claim presented in count one of Plaintiff’s complaint,
alleging
diversity
violation
of
the
FLSA.
jurisdiction
are
not
As
met,
the
the
requirements
court
may
for
exercise
supplemental jurisdiction over Plaintiff’s state law claims only
if they are “so related to claims in the action within [the
court’s] original jurisdiction that they form part of the same
case
or
controversy
Constitution.”
under
Article
III
28 U.S.C. § 1367(a).
of
the
United
States
Defendants do not contend
that count two, alleging violation of the Maryland Wage and Hour
Law,
falls
jurisdiction.
wrongful
question,
outside
the
scope
of
the
court’s
supplemental
They do, however, challenge jurisdiction over the
termination
then,
is
claim
whether
presented
in
Plaintiff’s
count
wrongful
four.
The
termination
claim is sufficiently related to the FLSA claim over which the
court has original jurisdiction.
Judge Motz identified the general principles governing this
issue in Williams v. Long, 558 F.Supp.2d 601, 604 (D.Md. 2008):
As Judge Vratil of the United States
District Court for the District of Kansas
has stated, “[s]everal courts have rejected
the
notion
that
the
employer-employee
relationship
single-handedly
creates
a
common nucleus of operative fact between the
FLSA claim and peripheral state law claims.”
Wilhelm v. TLC Lawn Care, Inc., No. 07-2465,
2008 WL 640733, at *3 (D.Kan. March 6, 2008)
4
(citing Lyon v. Whisman, 45 F.3d 758, 762-64
(3d
Cir.
1995)
(where
the
employment
relationship is the only link between the
FLSA claim and state law claims, no common
nucleus of operative fact exists and Article
III bars supplemental jurisdiction); Rivera
v. Ndola Pharmacy Corp., 497 F.Supp.2d 381,
395
(E.D.N.Y.
2007)
(an
employment
relationship
is
insufficient
to
create
common nucleus of operative fact where it is
the sole fact connecting the FLSA claim to
state law claims); Hyman v. WM Fin. Servs.,
Inc., No. 06-CV-4038, 2007 WL 1657392, at *5
(D.N.J.
June
7,
2007)
(exercising
supplemental jurisdiction over state law
claims unrelated to the FLSA claim “would
likely
contravene
Congress’s
intent
in
passing FLSA”); Whatley v. Young Women’s
Christian Assoc. of Nw. La., Inc., No. 06423, 2006 WL 1453043, at *3 (W.D.La. May 18,
2006)
(a
general
employer-employee
relationship
does
not
create
a
common
nucleus of operative fact between the FLSA
claim and state claims)).
According
because,
unlike
to
the
Plaintiff,
instant
Williams
case,
it
is
distinguishable
involved
“state
law
counterclaims against plaintiffs in a collective action under
the FLSA.”
(ECF No. 13, at 3 (emphasis in original)).
While
this is certainly a distinction, it is one without substance.
Indeed, most of the cases cited in Williams – and, by extension,
Wilhelm – were not collective actions, nor were the state law
claims presented as counterclaims.
See Lyon, 45 F.3d at 763
(finding “Article III bars federal jurisdiction” over state law
claims where the plaintiff’s “FLSA claim involved very narrow,
well-defined factual issues about hours worked” and her “state
5
law contract and tort claims” involved her employer’s “alleged
underpayment of a bonus and its refusal to pay the bonus . . .
if [the plaintiff] started looking for another job”); Rivera,
497 F.Supp.2d at 394 (dismissing state law claims where “the
only
factual
link
between
plaintiff’s
claims
of
sexual
harassment[,] . . . unlawful retaliation, negligent retention
and
supervision
of
a
supervisor,
intentional
infliction
of
emotional distress, and battery . . . and the FLSA overtime
claim is that the underlying events occurred during the course
of plaintiff’s employment[.]”); Whatley, 2006 WL 1453043, at *3
(dismissing
state
law
claims
where
“the
only
nexus
between
Plaintiff’s FLSA claim and her state-law claims for invasion of
privacy, conversion of personal property, intentional infliction
of
emotional
distress
and
negligent
infliction
of
distress is the employer-employee relationship”).
emotional
Plaintiff has
not attempted to distinguish those cases, nor does there appear
to be a basis for doing so.
Plaintiff argues that the instant case is “more akin to
McFarland
(E.D.Va.
v.
Virginia
2007).”
Retirement
(Id.
at
4).
Services,
477
While
is
it
F.Supp.2d
true
that,
727
in
McFarland, the court exercised supplemental jurisdiction over
the
plaintiff’s
state
law
wrongful
termination
claim
where
federal jurisdiction was predicated on an FLSA claim, there is
no
indication
that
the
defendants
6
in
that
case
challenged
subject matter jurisdiction.
raised
the
issue
sua
Rather, it appears that the court
sponte
to
satisfy
itself
that
it
had
jurisdiction to decide the Rule 12(b)(6) motion before it.
The
court
the
concluded,
plaintiff’s
without
“state
any
substantive
claims
[for
analysis,
wrongful
that
discharge
and
retaliation] plainly arise from the same ‘case or controversy’
as her federal [FLSA] claim, for both the [FLSA] claim and the
state claims arise from the same set of facts, and it would be
unreasonable to require that [the plaintiff] pursue her claims
in two separate judicial proceedings.”
at 732.
McFarland, 477 F.Supp.2d
As support for this conclusion, the McFarland court
cited White v. County of Newberry, S.C., 985 F.2d 168, 171 (4th
Cir. 1993), a case in which the Fourth Circuit found that a
state law claim of inverse condemnation was sufficiently related
to
a
federal
Response,
claim
Compensation
under
and
the
Comprehensive
Liability
Act
Environmental
because
both
claims
“revolve[d] around a central fact pattern,” namely the “alleged
hazardous waste contamination caused by the County.”
F.2d at 172.
presented
White, 985
It is unclear how the wrongful termination claim
in
McFarland
involved
the
same
facts
as
the
plaintiff’s FLSA claim, nor is it clear how McFarland supports
the exercise of supplemental jurisdiction in the instant case.
Based on McFarland, Plaintiff argues that “[i]t would be
unreasonable
to
require
[her]
to
7
pursue
her
claims
in
two
separate
proceedings.”
(ECF
misses the critical point.
No.
13,
at
4).
This
argument
If Plaintiff’s state law wrongful
termination and federal FLSA claims do not share a “‘common
nucleus
of
ordinarily
operative
be
fact’
expected
to
such
try
that
the
[Plaintiff]
claims
in
one
would
judicial
proceeding,” White, 985 F.2d at 171 (quoting United Mine Workers
v. Gibbs, 383 U.S. 715, 725 (1966)), the court lacks subject
matter jurisdiction over the state law claim.
The question of
whether a court may exercise supplemental jurisdiction, pursuant
to 28 U.S.C. § 1367(a), is decidedly different from whether it
chooses to do so, pursuant to § 1367(c).
The latter question
involves the exercise of discretion; the former does not.
See
Shahriar v. Smith & Wollensky Restaurant Group, Inc., 659 F.3d
234, 245 (2d Cir. 2011) (“Where section 1367(a) is satisfied, the
discretion
only
if
to
decline
founded
1367(c).”
supplemental
upon
(emphasis
an
in
jurisdiction
enumerated
original;
is
category
internal
available
of
subsection
marks
omitted));
Milan Express, Inc. v. Averitt Express, Inc., 208 F.3d 975, 980
(11th
Cir.
between
a
2000)
(“Section
federal
court’s
1367
.
power
.
to
.
reflects
exercise
a
dichotomy
supplemental
jurisdiction, § 1367(a), and its discretion not to exercise such
jurisdiction, § 1367(c)”).
Here,
the
burden
is
on
Plaintiff
to
demonstrate
sufficient nexus between her state and federal claims.
8
a
Because
she
has
failed
to
meet
that
burden,
Defendants’
motion
to
dismiss her wrongful termination claim will be granted.1
IV.
Conclusion
For the foregoing reasons, Defendants’ partial motion to
dismiss will be granted.
A separate order will follow.
________/s/_________________
DEBORAH K. CHASANOW
United States District Judge
1
Defendants filed a motion requesting an extension of time
to answer the complaint until ten days after the instant opinion
and accompanying order are issued.
(ECF No. 10).
While one
district court has held that a partial motion to dismiss does
not stay the time for filing a responsive pleading addressing
counts not challenged in the motion, Gerlach v. Michigan Bell
Telephone Co., 448 F.Supp. 1169, 1174 (E.D.Mich. 1978), that
decision has been heavily criticized. See Tingley Systems, Inc.
v. CSC Consulting, Inc., 152 F.Supp.2d 95, 122 (D.Mass. 2001)
(“Since the issuance of the Gerlach decision, no court has
relied on its reasoning or followed its rulings.”).
The vast
majority of courts have found it “best to stall the proceedings
on all counts until after the court rules on the Rule 12(b)(6)
motion.”
Godlewski v. Affiliated Computer Servs., Inc., 210
F.R.D. 571, 572 (E.D.Va. 2002).
This court will follow the
majority
approach.
Accordingly,
Defendants’
motion
for
extension of time was unnecessary.
9
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