Gilbert v. Freshbikes, LLC et al
Filing
24
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/9/14. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
AMANDA GILBERT
:
v.
:
Civil Action No. DKC 14-0609
:
FRESHBIKES, LLC, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this Title
VII and Fair Labor Standards Act (“FLSA”) case are two motions
filed
by
Defendants:
Fed.R.Civ.P.
Freshbikes
(1)
12(b)(1),
Franchising,
a
(2),
motion
and
LLC,
to
(6)
dismiss
filed
Freshbikes
pursuant
by
Mosaic,
to
Defendants
LLC,
and
Freshbikes2, LLC, (ECF Nos. 11 and 13); and (2) a motion to
transfer venue to the United States District for the Eastern
District of Virginia pursuant to 28 U.S.C. § 1404(a) filed by
Defendants Freshbikes Franchising, LLC, Freshbikes Mosaic, LLC,
Freshbikes2, LLC, and Freshbikes, LLC
(ECF Nos. 12 and 13).
The issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
following reasons, both motions will be denied.
For the
I.
Background
A.
Factual Background
The following facts are set forth in the complaint.
No. 1).
There are four Freshbikes entities, each named as a
defendant:
Mosaic,
(ECF
(1)
LLC,
Freshbikes
(3)
Franchising,
Freshbikes2,
LLC,
LLC,
and
(4)
(2)
Freshbikes
Freshbikes,
LLC.
Each Freshbikes entity, except for Freshbikes Franchising, owns
and
operates
(Freshbikes2),
a
bicycle
Fairfax,
retailer
—
Virginia
in
Bethesda,
(Freshbikes
Maryland
Mosaic),
Arlington, Virginia (Freshbikes).
(ECF No. 1 ¶¶ 4-8).
Freshbikes
Mr.
and
retailer
is
owned
separately incorporated.
Plaintiff
Amanda
by
Scott
McAhren
as
part-time
Each
and
is
Id.
Gilbert
worked
a
sales
associate at the Bethesda store operated by Freshbikes2 from May
2010 until February 2012.
(Id. at ¶ 21).
February
split
2012,
Plaintiff
her
time
Between fall 2011 and
working
between
the
Freshbikes2 Bethesda store and the Freshbikes Arlington store
after Mr. McAhren asked her if she preferred to work more hours.
Id.
In February 2012, Plaintiff accepted a full time sales
associate position at the Arlington store and left the Bethesda
store.
(Id. at ¶ 25).
She worked solely in Arlington until she
was terminated in November 2012.
Plaintiff
alleges
that
(Id. at ¶¶ 25, 67).
when
she
worked
at
the
Bethesda
store, the store’s assistant manager told her that “this company
2
is not very good for women.”
(Id. at ¶ 22).
She claims that
the store manager and other male co-workers at the Bethesda
store
regularly
made
“sexually
derogatory
comments” in her presence to refer to women.
and
offensive
(Id. at ¶ 23, 24).
Plaintiff alleges that her male co-workers and supervisors at
the Arlington store also frequently made sexually derogatory and
offensive comments in her presence either directed at her or
regarding
other
women.
(Id.
at
¶
30).
Furthermore,
they
allegedly made repeated comments regarding Plaintiff’s sex life
and
directed
sexual
innuendos
at
her.
(Id.
at
¶
31-33).
Plaintiff asserts that one co-worker twice “used a pole to lift
up [her] skirt in front of other male employees,” (Id. at ¶ 35),
and another co-worker sent her a threatening text message after
she complained to her supervisors about the harassment (Id. at ¶
38).
Plaintiff states that while she complained repeatedly to
the Arlington store manager Jason Walder and to Mr. McAhren, who
was
frequently
at
the
store,
(Id.
at
¶
29),
the
offensive
comments did not stop and no employee was ever reprimanded for
the comments or conduct.
(Id. at ¶ 64).
Plaintiff further contends that she was repeatedly passed
over for promotions that were instead given to less qualified
male employees, (Id. at ¶¶ 52-54), and was continually denied
the opportunity to build bikes, an important skill in the store,
“even though similarly situated male employees were given the
3
same opportunity.”
(Id. at ¶ 48).
Plaintiff also asserts that
although she regularly worked 50 hours a week at the Arlington
store, she was not paid overtime for any time spent working more
than 40 hours a week.
(Id. at ¶¶ 26, 97).
On November 19, 2012, Plaintiff spoke with Mr. McAhren who
told Plaintiff that “she could either resign or he [McAhren]
would have to terminate [her].”
(Id. at ¶ 65).
When Plaintiff
stated that she would not resign, Mr. McAhren terminated her
employment on November 23, 2012.
B.
(Id. at ¶ 67).
Procedural Background
Plaintiff
filed
a
charge
with
the
United
States
Equal
Employment Opportunity Commission (“EEOC”) on May 20, 2013.
On
December 6, 2013, Plaintiff was issued a right to sue letter by
the EEOC.
(ECF No. 1-1).
Plaintiff commenced this action on March 4, 2014 against
Defendants, asserting jurisdiction under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq., and the Fair
Labor Standards Act, 29 U.S.C. §§ 201 et seq.
14).
(ECF No. 1 ¶¶ 1,
On March 26, 2014, three of the Defendants filed a motion
to dismiss for lack of subject matter jurisdiction, lack of
personal jurisdiction, and for failure to state a claim.
Nos. 11 and 13).
(ECF
Freshbikes Franchising and Freshbikes Mosaic
argue that they were never Plaintiff’s employer and that they
are
Virginia
LLCs
with
no
contacts
4
to
Maryland.
Id.
Freshbikes2 argues that Plaintiff’s Title VII claims against it
are
time
barred
and
that
the
events
giving
rise
to
the
retaliation claim and the FLSA claim occurred when Freshbikes2
was no longer Plaintiff’s employer.
Id.
All four Defendants
also filed a motion to transfer venue to the Eastern District of
Virginia on March 26.
both
motions
Defendants
on
(ECF Nos. 12 and 13).
April
Freshbikes
21
(ECF
No.
Franchising,
18,
Plaintiff opposed
19).
On
15,
Mosaic,
Franchising
May
and
Freshbikes2 replied in support of the motion to dismiss.
No. 22).
Defendant Freshbikes also filed a reply in support of
the motion to transfer venue on May 15.
II.
(ECF
(ECF No. 23).
Analysis
A.
Subject Matter Jurisdiction
1.
Standard of Review
Motions to dismiss for lack of subject matter jurisdiction
are
governed
Generally,
by
Federal
“questions
of
Rule
of
subject
Civil
matter
Procedure
12(b)(1).
jurisdiction
must
be
decided ‘first, because they concern the court’s very power to
hear the case.’”
Owens–Illinois, Inc. v. Meade, 186 F.3d 435,
442 n.4 (4th Cir. 1999) (quoting 2 James Wm. Moore, et al.,
Moore’s
plaintiff
Federal
bears
Practice
the
§
burden
12.30[1]
of
(3d
proving
ed.
that
1998)).
subject
jurisdiction properly exists in federal court.
B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
5
The
matter
See Evans v.
In deciding
a Rule 12(b)(1) motion, the court “may consider evidence outside
the pleadings” to help determine whether it has jurisdiction
over the case before it.
Richmond, Fredericksburg & Potomac
R.R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991); see also
Evans, 166 F.3d at 647.
Such a motion should only be granted
“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.
Plaintiff has invoked federal question jurisdiction as the
jurisdictional basis of this action.
Pursuant to 28 U.S.C. §
1331, “district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties
of the United States.”
Generally, whether any of a plaintiff’s
claims “arise under” federal law is determined by application of
the well-pleaded complaint rule.
Shop
Supermarket
Co.,
595
Ali v. Giant Food LLC/Stop &
F.Supp.2d
618,
621
(D.Md.
2009)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust,
463 U.S. 1 (1983)).
According to the well-pleaded complaint
rule, “federal jurisdiction exists only when a federal question
is presented on the face of the plaintiff’s properly pleaded
complaint.”
2.
Caterpillar Inc. v. Williams, 482 U.S. 386 (1987).
While
Analysis
Defendants
state
that
they
bring
the
motion
to
dismiss under Federal Rule of Civil Procedure 12(b)(1), they do
6
not specify in the motion why subject matter jurisdiction is
lacking.
Defendants
employer
under
assumes
that
assert
either
this
that
Title
is
the
VII
they
or
basis
were
the
for
not
FLSA,
Plaintiff’s
and
their
the
subject
court
matter
challenge.
Subject
matter
jurisdiction
in
this
case
is
based
on
federal question, as the claims are brought under two federal
statutes:
divided
Title
on
VII
whether
and
the
the
FLSA.
defendant’s
Courts
status
were
as
previously
“employer”
as
defined by Title VII was an issue implicating subject matter
jurisdiction
or
an
plaintiff’s claim.
961
(11th
Cir.
issue
implicating
the
merits
of
the
Compare Scarfo v. Ginsberg, 175 F.3d 957,
1999)
(“Whether
the
appellees
constitute
an
“employer” within the definition of Title VII is a threshold
jurisdictional issue.”), with Sharpe v. Jefferson Distrib. Co.,
148 F.3d 676, 677 (7th
without
the
fifteen
Cir. 1998) (holding that a defendant
employee
minimum
under
Title
VII
was
a
“failure to meet a statutory requirement” rather than an issue
with jurisdiction).
The Supreme Court of the United States
created a bright line rule in Arbaugh v. Y&H Corp., 546 U.S.
500, 515 (2006), however, when it held that employer status for
purposes
of
Title
VII
liability
related
adequacy of the claim and not jurisdiction.
to
the
substantive
The Court explained
that “when Congress does not rank a statutory limitation on
7
coverage as jurisdictional, courts should treat the restriction
as nonjurisdictional in character.”
Although
employee
Arbaugh
involved
requirement
generalized
to
“employer.”
for
other
Id. at 516.
Title
VII’s
employers,
elements
of
statutory
its
Title
holding
VII’s
fifteen
can
be
definition
of
See Price v. Waste Management, Inc., No. ELH-13-
02535, 2014 WL 1764722, at *5 (D.Md. Apr. 30, 2014) (stating
that a Rule 12(b)(1) motion is not the proper mechanism to bring
a
defense
regarding
one’s
status
as
an
“employer”);
Murphy-
Taylor v. Hofmann, 968 F.Supp.2d 693, 724 (D.Md. 2013) (“[A]
defendant’s
plaintiff
qualification
constitutes
plaintiff’s
claim
for
Defendants’
motion
as
a
the
substantive
relief,
to
“employer”
not
dismiss
a
for
of
a
“element
jurisdictional
lack
of
Title
of
VII
[the]
issue.”).
subject
matter
jurisdiction is therefore misplaced as to Title VII, and the
question
of
their
status
as
Plaintiffs’
employer
is
better
suited to a Rule 12(b)(6) analysis, as the question implicates
the merits of Plaintiff’s claim.
The
purposes
question
of
of
liability
FLSA
matter jurisdiction.
a
defendant’s
also
status
does
as
not
“employer”
implicate
for
subject
The FLSA defines “employer” as “any person
acting directly or indirectly in the interest of an employer in
relation to an employee.”
defined
as
“any
29 U.S.C. § 203(d).
individual
employed
8
by
an
An “employee” is
employer,”
id.
§
203(e)(1), and “employ” means “to suffer or permit to work,”
id. § 203(g).
As discussed above, the Supreme Court held in Arbaugh that
“when Congress does not rank a statutory limitation on coverage
as
jurisdictional,
courts
should
nonjurisdictional in character.”
treat
the
restriction
as
Arbaugh, 546 U.S. at 516. This
decision has been applied to other labor statutes, such as the
Family
Medical
Leave
Act
(“FMLA”),
in
deciding
that
a
defendant’s status as “employer” under these statutes relates to
the
substantive
jurisdiction.
merits
of
the
plaintiff’s
claim
rather
than
See Sadowski v. U.S. Postal Serv., 643 F.Supp.2d
749, 751 (D.Md. 2009) (applying the Arbaugh decision to the FMLA
and analyzing the defendant’s contention of “employer” status as
challenging
complaint
the
substantive
rather
than
sufficiency
subject
matter
of
the
plaintiff’s
jurisdiction);
see
also
Minard v. ITC Deltacom Commc’ns. Inc., 447 F.3d 352, 356 (5th
Cir.
2006)
(“In
light
of
the
Supreme
Court’s
decision
in
Arbaugh, we conclude that the definition section of the FMLA . .
. is a substantive ingredient of a plaintiff’s claim for relief,
not a jurisdictional limitation.”).
Courts in other jurisdictions have applied Arbaugh to FLSA
claims.
2007)
See Chao v. Hotel Oasis, Inc., 493 F.3d 26, 33 (1st Cir.
(holding
that
the
FLSA’s
$500,000
annual
dollar
value
limitation is an element of the plaintiff’s claim rather than a
9
jurisdictional requirement); Diaz v. Ming & Kent, Inc., No. C
09-05774
RS,
2010
WL
890040,
at
*2
(N.D.Cal.
Mar.
8,
2010)
(holding that a defendant’s status as an “enterprise engaged in
commerce” and a plaintiff as an “employee” of that enterprise
were
“substantive
ingredients”
of
a
meritorious
FLSA
claim
rather than elements of subject matter jurisdiction); Rodriguez
v. Diego’s Rest., Inc., 619 F.Supp.2d 1345, 1348 (S.D.Fla. 2009)
(holding that individual or enterprise coverage is an element of
the
plaintiff’s
persuasive.
claim).
The
analysis
in
these
cases
is
Consequently, whether a defendant is an employer as
defined by the FLSA is an element of the plaintiff’s meritorious
FLSA claim and does not implicate subject matter jurisdiction.
B.
Failure to State a Claim
1.
Standard of Review
Defendants’ argument that the complaint fails to state a
plausible claim for relief is governed by Fed.R.Civ.P. 12(b)(6).
The purpose of a motion to dismiss under Rule 12(b)(6) is to
test the sufficiency of the complaint.
See Presley v. City of
Charlottesville,
(4th
464
F.3d
480,
483
Cir.
2006).
A
plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).
Fed.R.Civ.P.
“Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief.”
10
Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 n.3 (2007).
That showing must
consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”
Ashcroft v. Iqbal,
556 U.S. 662, 678
(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light
most
favorable
to
the
plaintiff.
See
Harrison
v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).
In evaluating the complaint, unsupported legal
allegations need not be accepted.
See Revene v. Charles Cnty.
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
Legal conclusions
couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, see United Black Firefighters v.
Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
2.
Analysis
a.
Title VII
As discussed above, Defendants Freshbikes Franchising and
Freshbikes
entities
Mosaic
from
argue
Freshbikes
primarily
and
that
Freshbikes2
Plaintiff’s “employers” under Title VII.
11
they
are
and
separate
were
not
Due to the ambiguity
of the term “employer” under the Act, courts have fashioned a
variety of tests by which a defendant who does not directly
employ the plaintiff may still be the plaintiff’s “employer”
under Title VII.
See Hukill v. Auto Care, Inc., 192 F.3d 437,
442 (4th Cir. 1999), abrogated on other grounds by Arbaugh v. Y &
H Corp., 546 U.S. 500 (2006).
One such test, the “integrated-
employer test,” seeks to determine whether two separate entities
can be considered a “single employer” for Title VII purposes.
See id.; Tasciyan v. Med. Numerics, 820 F.Supp.2d 664, 671-72
(D.Md. 2011); Watson v. CSA, Ltd., 376 F.Supp.2d 588, 594 (D.Md.
2005).
Under
this
test,
the
court
may
find
that
separate
companies are “so interrelated that they constitute a single
employer.”
Hukill, 192 F.3d at 442.1
The integrated-employer test involves four elements: “(1)
common
management;
(2)
interrelation
between
operations;
(3)
centralized control of labor relations; and (4) degree of common
ownership/financial control.”
Romano
v.
U-Haul
Int’l,
233
Hukill, 192 F.3d at 442; see also
F.3d
1
655,
665
(1st
Cir.
2000)
The court in Hukill analyzed the “integrated employer”
test in terms of subject matter jurisdiction, but, as discussed
supra, the Supreme Court later held in Arbaugh that the question
of whether a defendant constitutes an “employer” under Title VII
is not jurisdictional.
Compare Hukill, 192 F.3d at 442, with
Arbaugh, 546 U.S. at 515.
The integrated employer test,
however, is still used by courts in this district.
See
Tasciyan, 820 F.Supp.2d at 671 (applying the integrated employer
test to determine whether an employer had the requisite fifteen
employees under Title VII).
12
(recognizing
that
the
majority
of
courts
have
applied
the
“integrated-enterprise test” when determining whether a single
employer exists under Title VII); Laurin v. Pokoik, No. 02 CIV.
1938
(LMM),
2004
(acknowledging
WL
that
513999,
courts
at
*4
have
(S.D.N.Y.
applied
the
Mar.
four
15,
2004)
factors
to
Title VII claims). While “control of labor operations is the most
critical
factor
factor,”
is
courts
conclusive.”
Armbruster
v.
Quinn,
have
acknowledged
Hukill,
192
F.2d
1332,
711
F.3d
that
at
1338
“no
442;
(6th
single
see
Cir.
also
1983),
abrogated on other grounds by Arbaugh v. Y & H Corp., 546 U.S.
500
(2006)
(“All
four
criteria
need
not
be
present
in
all
cases.”)2; Laurin, 2004 WL 513999, at *4 (“No one factor is
controlling, and not every factor is required.”).
Whether
employer
is
separate
a
entities
fact-intensive
can
be
inquiry.
joined
See
as
a
single
Tasciyan,
820
F.Supp.2d at 672 (“The integrated employer test necessitates a
fact-intensive
(“Whether
inquiry.”);
entities
question of fact.”).
can
be
Laurin,
joined
as
2004
WL
a
single
513999,
employer
at
is
*4
a
Therefore, “it is ordinarily inappropriate
for courts to apply the integrated employer test at the motion
to dismiss stage.”
Tasciyan, 820 F.Supp.2d at 672; cf. Murphy-
2
Armbruster was also abrogated on the ground that it
identified the fifteen employee requirement as a jurisdictional
element, but its application of the four factor test is still
viable. See Armbruster, 711 F.2d at 1335, 1337.
13
Taylor, 968 F.Supp.2d at 727 (confirming that whether an entity
is plaintiff’s employer “is not appropriate for resolution as a
pure matter of law, before discovery”).
In deciding the common management element, courts look to
whether the separate corporations share a common manager who
runs day-to-day operations and has the authority to hire and
fire employees.
See Hukill, 192 F.3d at 443; Baker v. Stuart
Broad. Co., 560 F.2d 389, 392 (8th Cir. 1977) (finding common
management and ownership where the same individual was president
of both corporations and ran day-to-day operations).
The second
element - interrelation between operations – can also be shown
through
evidence
operations
and
of
a
through
common
employee
See Hukill, 192 F.3d at 443.
labor
operations
–
is
manager
shown
who
transfers
runs
day-to-day
between
locations.
The third factor - control of
when
a
single
party
employment decisions across multiple corporations.
controls
See id. at
444 (finding no centralized control of labor relations when the
company had “no power to hire, fire, or supervise employees” at
the allegedly related companies).
Employment decisions include
the power to hire, fire, supervise, and set employee schedules.
Id.
The last element – common ownership – is shown when one
individual owns and has financial control over the different
enterprises.
See Watson, 376 F.Supp.2d at 598.
14
Plaintiff
has
alleged
sufficient
facts
to
survive
Defendants’ motion to dismiss on the question of whether the
four
Freshbikes
entities
are
a
“single
employer.”
First,
Plaintiff has alleged that Mr. McAhren has the authority to fire
employees at the Arlington location, (ECF No. 1 ¶ 67), and that
he “spent a considerable amount of time at the Arlington store,”
(Id. at ¶ 29).
element.
transfer
These facts go toward the common management
Second,
between
by
store
alleging
an
locations,
incident
(ECF
of
No.
1
an
¶¶
employee
21,
25),
Plaintiff has met the interrelation between operations element.
Third, Plaintiff has alleged sufficient facts to suggest that
there is some centralized control of labor relations under Mr.
McAhren,
Arlington
who
and
asked
Plaintiff
Bethesda
Arlington store.
to
stores
split
and
who
her
time
fired
between
her
from
the
the
(ECF No. 1 ¶¶ 21, 67). Fourth, with respect to
common ownership, Plaintiff’s allegation that Scott McAhren owns
all the Freshbikes store locations meets the fourth element of
the “single employer” test.
(ECF No. 1 ¶ 8).
In sum, Plaintiff
has alleged sufficient facts to survive the motion to dismiss on
the question of Freshbikes’ single employer status under Title
VII at this preliminary stage of the proceedings.
b.
FLSA
Defendants Freshbikes Franchising, Freshbikes Mosaic, and
Freshbikes2 similarly move to dismiss the FLSA claim, arguing
15
that they were not Plaintiff’s “employers” as defined by the Act
at
the
time
of
the
events
giving
rise
to
the
FLSA
claim.
Defendant Freshbikes2 argues that the claim is based on a time
period
that
Arlington
Plaintiff
office
Plaintiff’s
and
worked
that
“employer.”
exclusively
(ECF
No.
13,
the
was
Freshbikes2
for
therefore
at
8).
Freshbikes
not
Freshbikes
Franchising and Freshbikes Mosaic argue that they were never
Plaintiff’s “employer” as defined by the Act.
(Id. at 5-6).
Plaintiff responds that the FLSA claim is applicable to all
Defendants because all four Freshbikes entities are effectively
the “same enterprise” under the FLSA.
The
FLSA
determining
employs
when
two
a
different
separate
(ECF No. 19).
test
than
entities
enterprise for purposes of liability.
Title
constitute
VII
a
for
single
See Roman v. Guapos III,
Inc., 970 F.Supp.2d 407, 414 (D.Md. 2013).
The term “employer”
under
broadly
the
FLSA
is
generally
“interpreted
to
achieve
Congress’s intent to provide a remedy to employees for their
employers’ wage and hour violations.”
Pearson v. Prof’l 50
States Prot., LLC, No. RDB-09-3232, 2010 WL 4225533, at *3 (D.Md.
Oct. 26, 2010); see also Schultz v. Capital Int’l Sec., Inc.,
466 F.3d 298, 304 (4th Cir. 2006) (articulating that the FLSA
should be interpreted broadly).
is not limitless.
The scope of the FLSA, however,
See Benshoff v. City of Virginia Beach, 180
F.3d 136, 140 (4th Cir. 1999).
16
For two separate entities to
constitute
a
“single
enterprise”
under
the
FLSA,
they
must
conduct: “(1) related activities, (2) performed under unified
operations or common control, and (3) for a common business
Brock v. Hamad, 867 F.2d 804, 806 (4th Cir. 1989); see
purpose.”
also
Martin
v.
Deiriggi,
985
F.2d
129,
133
(4th
Cir.
1992)
(applying the three elements to determine a “single enterprise”
for FLSA purposes).
Related activity in claims involving retail businesses can
be shown if the retailing is done for a “common purpose,” even
when
it
“involv[es]
different
goods
at
different
locations.”
Martin, 985 F.2d at 133 (citing 29 C.F.R. § 779.207).
Related
activity can also be shown if the businesses perform similar
functions,
clientele.
such
as
serving
similar
products
to
similar
See Gionfriddo v. Jason Zink, LLC, 769 F.Supp.2d
880, 892 (D.Md. 2011); see also Donovan v. Grim Hotel Co., 747
F.2d 966, 970 (5th Cir. 1984) (finding that five hotels located
in
different
cities
and
operated
by
separate
corporate
defendants satisfied the “related activities” element because
they “operated in the same or a similar manner, . . . [and]
loosely
operated
under
the
[same]
name”).
The
second
requirement – common control – exists “where total ownership is
vested in a single person.”
Brock, 867 F.2d at 807.
The third requirement - a common business purpose - can be
shown through activities that are directed at the “same business
17
objective” or at “similar objectives in which the group has an
interest.”
Brock, 867 F.2d at 807.
This common purpose must be
more than just the common goal to make a profit, see Martin, 985
F.2d at 134 (“A joint profit motive is insufficient to support a
finding
of
common
unified
operation,
business
purpose.”),
related
activity,
but
factors
such
interdependency,
and
as
a
centralization of ownership or control can all indicate a common
business
Martin,
purpose.
985
F.2d
See
at
Donovan,
133
747
(“[T]here
F.2d
is
a
at
971;
close
see
also
relationship
between the ‘related activities’ and ‘common business purpose’
criteria for FLSA enterprise coverage.”).
Plaintiff has alleged sufficient facts to suggest that the
four Freshbikes’ entities satisfy the elements of the “single
enterprise” test under the FLSA at this preliminary stage of the
proceedings.
First,
the
facts
alleged
support
the
“related
activities” element, as all three retailers sell bicycles and
related gear, cater to similar clientele, and operate loosely
under the “Freshbikes” name.
(ECF No. 1 ¶¶ 8, 9).
Second,
Plaintiff has alleged sufficient facts to show that the four
entities share common control under owner Mr. McAhren.
¶ 8).
(Id. at
Third, the facts may also support a “common business
purpose” because of the alleged centralization of ownership and
related
activity.
Plaintiff’s
18
allegations
are
sufficient
at
this stage to survive Defendants’ motion to dismiss on this
issue.
c.
Related Defenses
Defendants Freshbikes Franchising, Freshbikes Mosaic, and
Freshbikes2 further move to dismiss for failure to state a claim
by
raising
a
variety
of
additional
issues
that
cannot
be
resolved until the status of the four Defendants as “single
employer” or “single enterprise” is determined under both Title
VII and the FLSA.
As to the Title VII claim, Freshbikes2 argues
that Plaintiff filed her claim with the EEOC more than 300 days
after her departure from the Bethesda store, thereby rendering
the claim time barred.
(ECF No. 13, at 7).
Plaintiff asserts
that she did not terminate her employment at Freshbikes2 but
instead transferred from one location to another within the same
company.
Title VII provides that “a charge must be filed within 180
or
300
days
occurred.’”
‘after
the
alleged
unlawful
employment
practice
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
117 (2002) (citing 42 U.S.C. § 2000e–5(e)(1)). In a deferral
jurisdiction, such as Maryland, the limitations period is 300
days.
See
42
U.S.C.
F.Supp.2d at 713.
§
2000e–5(e)(1);
Murphy-Taylor,
968
Plaintiff alleges she suffered a hostile work
environment, and such an allegation implicates the continuing
violation doctrine.
The doctrine provides that “all acts which
19
constitute the [Title VII] claim are part of the same unlawful
employment practice,” and “[i]t does not matter, for purposes of
[Title VII], that some of the component acts of the hostile work
environment fall outside the statutory time period.”
536 U.S. at 117, 122.
Morgan,
A plaintiff therefore “can recover for
acts occurring even beyond that [time] period, as long as at
least a portion of the hostile work environment occurred within
the relevant limitations period.”
White v. BFI Waste Servs.,
LLC, 375 F.3d 288, 292-93 (4th Cir. 2004) (citing Morgan, 536
U.S. at 122).
Plaintiff
Arlington
has
stores
discrimination.
discrimination
alleged
that
perpetuate
both
sexual
the
Bethesda
harassment
(ECF No. 1 ¶¶ 22-24, 31-33, 43).
is
part
of
an
“unlawful
and
and
the
gender
Whether this
employment
practice”
depends on whether the two entities are a single employer under
Title VII, as discussed above.
a
“single
employer,”
and
If both Freshbikes entities are
Plaintiff’s
move
to
the
Arlington
retailer was simply a transfer within that same company, the
harassment was a “continuing violation” under Title VII.
The
EEOC filing would therefore be timely and could encompass the
conduct
at
Freshbikes2
the
Bethesda
survives
location.
dismissal,
Thus,
pending
the
claim
resolution
against
on
the
question of whether the two entities are a “single employer”
under Title VII.
20
Second,
retaliation
Freshbikes2
claim.
also
moves
Freshbikes2
to
argues
dismiss
that
Plaintiff’s
Plaintiff
left
Freshbikes2 voluntarily in February 2012 when she became a fulltime
employee
argues
that
Freshbikes,
at
the
because
it
Arlington
store.
is
a
not
was
it
her
employer
Freshbikes2
distinct
terminated from the Arlington store.
further
corporation
when
Plaintiff
(ECF No. 13, at 7).
from
was
If
Freshbikes2 and Freshbikes constitute a single employer under
Title VII, however, Plaintiff may bring a claim against that
single employer for retaliation.
The question of Defendants’
single employer status has not yet been determined as discussed
above; therefore, it is inappropriate to rule on the matter at
the motion to dismiss stage.
at
727-28
(denying
a
Cf. Murphy-Taylor, 968 F.Supp.2d
motion
to
dismiss
Title
VII
claims,
including a retaliation claim, after determining that employer
status
is
a
fact-bound
question
better
suited
for
summary
judgment filed after discovery).
For reasons stated above, Defendants’ motion to dismiss the
Title VII and FLSA claims will be denied.
C.
Personal Jurisdiction
1.
Standard of Review
Defendants also move to dismiss Plaintiffs’ complaint for
lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2).
When
a
court’s
power
to
exercise
21
personal
jurisdiction
is
challenged by a motion under Rule 12(b)(2), “the jurisdictional
question is to be resolved by the judge, with the burden on the
plaintiff
ultimately
preponderance
of
to
the
prove
grounds
evidence.”
for
jurisdiction
Carefirst
of
Md.,
by
Inc.
a
v.
Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.
2003) (citation omitted).
A federal district court may exercise
personal jurisdiction over a non-resident defendant “if (1) an
applicable state long-arm statute confers jurisdiction and (2)
the
assertion
of
that
jurisdiction
constitutional due process.”
is
consistent
with
Nichols v. G.D. Searle & Co., 991
F.2d 1195, 1199 (4th Cir. 1993).
Maryland’s long-arm statute,
Md.Code Ann., Cts. & Jud. Proc. § 6–103, authorizes the exercise
of personal jurisdiction to the limits permitted by the Due
Process Clause of the Fourteenth Amendment.
See ALS Scan, Inc.
v. Digital Service Consultants, Inc., 293 F.3d 707, 710 (4th Cir.
2002); Base Metal Trading, Ltd. v. OJSC “Novokuznetsky Aluminum
Factory,”
inquiry
283
for
established
F.3d
the
208,
court
“minimum
212–13
is
(4th
whether
contacts”
Cir.
2002).
the
defendant
with
Maryland
Thus,
the
purposefully
such
that
maintenance of the suit does not offend “traditional notions of
fair
play
and
substantial
justice.”
Int’l
Shoe
Co.
v.
Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer,
311
U.S.
457,
463
(1940)).
See
22
also
Burger
King
Corp.
v.
Rudzewicz, 471 U.S. 462, 474 (1985); Base Metal Trading, Ltd.,
283 F.3d at 213.
2.
Analysis
Defendants
Freshbikes
Franchising
and
Freshbikes
Mosaic
argue that they are both Virginia corporations that have never
conducted business in the state of Maryland.
response,
Plaintiff
reiterated
(ECF No. 13).
Freshbikes’
single
In
employer
status and the existence of the store in Bethesda, Maryland.
(ECF No. 19, at 7).
When jurisdiction turns on disputed facts, the court “may
defer ruling pending receipt at trial of evidence relevant to
the jurisdictional question.”
676 (4th Cir. 1989).
Combs v. Bakker, 886 F.2d 673,
When the court, however, rules “on the
basis only of motion papers, supporting legal memoranda and the
relevant allegations of a complaint, the burden on the plaintiff
is simply to make a prima facie showing . . . in order to
survive the jurisdictional challenge.”
Id.
In deciding whether
the plaintiff has met her burden, the court “must construe all
relevant pleading allegations in the light most favorable to the
plaintiff,
assume
credibility,
and
draw
the
inferences for the existence of jurisdiction.”
most
favorable
Id.
For the reasons discussed above, it is premature to rule on
the issue of personal jurisdiction.
If all four Freshbikes
entities are a “single employer” under Title VII or a “single
23
enterprise” under the FLSA, personal jurisdiction is satisfied
because
Freshbikes2
is
incorporated
in
Maryland
sufficient minimum contacts with the jurisdiction.
and
has
Therefore,
construing all pleading allegations in the light most favorable
to Plaintiff, it is inappropriate to dismiss at this time for
lack of personal jurisdiction.
D.
Venue Transfer
1.
Standard of Review
Defendants
U.S.C.
§
have
1404(a)
to
also
moved
the
to
Eastern
transfer
District
venue
of
under
Virginia.
28
A
plaintiff may properly bring a federal diversity action in “a
judicial district in which a substantial part of the events or
omissions
giving
1391(a)(2).
rise
to
the
claim
occurred.”
28
U.S.C.
§
Section 1404(a) provides: “For the convenience of
parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or
division where it might have been brought.”
To prevail on a
motion to transfer venue under section 1404, “the defendant must
show
by
a
preponderance
of
the
evidence
that
the
proposed
transfer will better and more conveniently serve the interests
of the parties and witnesses and better promote the interests of
justice.”
Helsel v. Tishman Realty Constr. Co., 198 F.Supp.2d
710, 711 (D.Md. 2002) (internal quotation omitted).
24
See also
Lynch
v.
Vanderhoef
Builders,
237
F.Supp.2d
615,
617
(D.Md.
2002); Dicken v. United States, 862 F.Supp. 91, 92 (D.Md. 1994).
In
deciding
a
motion
to
transfer
venue
under
section
1404(a), the court must “weigh in the balance a number of casespecific factors.”
22, 29 (1988).
Stewart Org., Inc. v. Ricoh Corp., 487 U.S.
The host of convenience factors a court should
consider include, inter alia, “(1) the plaintiff’s choice of
forum; (2) relative ease of access to sources of proof; (3)
availability of compulsory process for attendance of unwilling
witnesses, and the cost of obtaining attendance of willing and
unwilling witnesses; . . . [and (4)] avoidance of unnecessary
problems with conflicts of laws.”
Brown v. Stallworth,
235
F.Supp.2d 453, 456 (D.Md. 2002) (quoting Choice Hotels Int’l,
Inc. v. Madison Three, Inc., 23 F.Supp.2d 617, 622, n.4 (D.Md.
1998) (internal citations omitted)).
The burden is on the moving party to show that transfer to
another
forum
is
proper.
See
Cross
v.
Fleet
Reserve
Pension Plan, 383 F.Supp.2d 852, 856 (D.Md. 2005).
Ass'n
In addition,
“deference is generally given to a plaintiff’s choice of forum,”
CoStar Realty Info., Inc. v. Meissner, 604 F.Supp.2d 757, 773
(D.Md.
2009),
and
that
choice
“should
rarely
be
disturbed,”
Collins v. Straight, 748 F.2d 916, 921 (4th Cir. 1984).
deference is not limitless, however, and can be overcome.
Lynch, 237 F.Supp.2d at 617.
25
This
See
2.
Analysis
All
Defendants
moved
District of Virginia.
to
transfer
venue
to
the
Eastern
Defendants argue that Virginia is a more
appropriate forum because it is more convenient for the parties
and
witnesses
and
because
a
substantial
part
of
the
events
giving rise to the claim occurred at a Virginia retailer.
Defendants name several witnesses who reside in Virginia,
and they emphasize the Virginia location of the store where most
of the events giving rise to the claim occurred.
9).
(ECF No. 1, at
Plaintiff emphasizes that Bethesda houses another store
where the alleged events occurred and that a number of witnesses
live
in
Maryland.
(ECF
No.
18,
convenience factor appears neutral.
the
interest
of
justice
would
be
at
5).
Therefore,
the
Defendants also argue that
better
served
in
Virginia
because travel for witnesses would be less expensive and because
there would be less delay in proceeding to trial.
at 10).
(ECF No. 13,
Neither party would be greatly inconvenienced if the
action were to continue in either forum, however, because of the
close proximity between the transferor and transferee forums.
Defendants’
arguments
regarding
convenience
of
the
parties,
convenience of the witnesses, ease of access to evidence, and
inconvenience due to travel do not overcome their heavy burden.
The facts therefore do not support a transfer of venue.
26
III. Conclusion
For the foregoing reasons, the motions to dismiss and to
transfer venue will be denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
27
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