Eberline v. Media Net LLC et al

Filing 31

ORDER denying 10 Motion to Dismiss Signed by Chief District Judge Louis Guirola, Jr on 07/10/2013 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
STEVEN EBERLINE, on behalf of himself
and all other similarly situated employees
v.

PLAINTIFF
CAUSE NO. 1:13CV100-LG-JMR

MEDIA NET LLC, JOHN ATEEQ,
and MYKHAYLO KALYN

DEFENDANTS

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
BEFORE THE COURT is the Motion to Dismiss [10] filed by the
defendants Media Net LLC, John Ateeq, and Mykhaylo Kalyn in this lawsuit filed
pursuant to the Fair Labor Standards Act. The defendants argue that the plaintiff
Steven Eberline’s contract with the defendants contradicts his assertion that he was
an employee, not an independent contractor. In the alternative, the defendants
argue that Eberline’s claims against the individual defendants John Ateeq and
Mykhaylo Kalyn should be dismissed, because Eberline is improperly attempting to
pierce the corporate veil. Upon reviewing the submissions of the parties and the
applicable law, the Court finds that the Motion to Dismiss should be denied.
FACTS
In his First Amended Complaint, Eberline asserts that he was employed by
the defendants from about June 2010 to March 2011 as a satellite television
installer and/or technician. The defendant Media Net LLC is a limited liability
company that supplies technical and installation services to DirecTV, a satellite
television service provider. Eberline claims that Ateeq and Kalyn are owners and
managing operators of Media Net.

Eberline alleges that the defendants intentionally misclassified him as an
independent contractor in an effort to avoid paying him overtime. He also alleges
that the defendants failed to accurately record and/or preserve records of hours
worked by the plaintiff and other employees.
The defendants have filed the present Motion to Dismiss pursuant to Fed. R.
Civ. P. 12(b)(6). Eberline has filed a separate Motion for Class Certification [12],
and another Media Net employee, Chester McCoy, has filed a Notice reflecting that
he consents to join this action as a plaintiff.
DISCUSSION
In order to survive a motion to dismiss filed pursuant to Fed. R. Civ. P.
12(b)(6), a complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “This standard ‘simply calls
for enough facts to raise a reasonable expectation that discovery will reveal
evidence of’ the necessary claims or elements.” In re S. Scrap Material Co., LLC,
541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S. at 556). In Twombly,
the Court held that “heightened fact pleading of specifics” is not required, but
“[f]actual allegations must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Twombly, 550 U.S. at 555, 570. However, a court should not
accept conclusory allegations, unwarranted factual inferences, and legal conclusions

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as true. In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir.
2010). “When matters outside the pleadings are presented to and not excluded by
the district court, the district court must convert a motion to dismiss into a motion
for summary judgment.” Burns v. Harris Cnty. Bail Bond Bd., 139 F.3d 513, 517
(5th Cir. 1998).
In support of their Motion to Dismiss, the defendants submitted an unsigned
and undated installer’s agreement as well as a payment schedule. In support of
their reply, the defendants submitted an installer’s agreement and addendum that
were signed by Chester McCoy but not Media Net. The only document produced
that pertains to Eberline is an addendum to installer’s agreement that he signed.
The defendants claim that these documents contradict the allegations made in
Eberline’s First Amended Complaint.
The Court finds that these documents should be excluded from consideration,
because these documents were not attached to or referenced in Eberline’s
Complaint.1 Furthermore, the Court finds that agreements that were not signed by
Eberline are irrelevant to his claims, in the absence of an affidavit or other
testimony reflecting that he signed an agreement containing those terms. Finally,
it should be noted that the Fifth Circuit has previously held that a person was an

1

The defendants argue that Eberline should have mentioned the installer’s
agreement in his First Amended Complaint, and that this lawsuit should be
considered a breach of contract action rather than a Fair Labor Standards Act case.
However, this Court cannot require a plaintiff to assert certain claims or allegations
in his complaint, as long as he has complied with the Federal Rules of Civil
Procedure.
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employee pursuant to the Fair Labor Standards Act, even where the employee had
signed a contract stating that he was an independent contractor. Robicheaux v.
Radcliff Material, Inc., 697 F.2d 662, 667 (5th Cir. 1983); see also Usery v. Pilgrim
Equip. Co., 527 F.2d 1308, 1315 (5th Cir. 1976) (“Neither contractual recitations nor
subjective intent can mandate the outcome in these cases.”). As a result, the
defendants’ argument that the terms of the installer agreement warrant dismissal
of this lawsuit is without merit.
This Court must next consider the individual defendants’ argument that
Eberline is improperly attempting to pierce the corporate veil. Eberline correctly
notes that the Fair Labor Standards Act governs who can be joined as a defendant
in this case. The Fifth Circuit has held that courts must apply an economic reality
test in order to determine whether an individual or entity is an “employer” that can
be held liable under the Fair Labor Standards Act. Martin v. Spring Break ‘83
Prods., LLC, 688 F.3d 247, 251 (5th Cir. 2012). Pursuant to the economic reality
test, a court must question whether the individual or entity “(1) possessed the
power to hire and fire employees; (2) supervised or controlled employee work
schedules or conditions of employment; (3) determined the rate or method of
payment; and (4) maintained employee records.” Id. In his First Amended
Complaint, Eberline alleges that the individual defendants were owners and
managing operators who were responsible for the alleged intentional
misclassification of Eberline. As a result, the Court finds that there are sufficient

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allegations concerning the individual defendants to state a claim against them
pursuant to the Fair Labor Standards Act.
CONCLUSION
For the foregoing reasons, the Court finds that the defendants’ Motion to
Dismiss is denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion to
Dismiss [10] filed by the defendants Media Net LLC, John Ateeq, and Mykhaylo
Kalyn is DENIED.
SO ORDERED AND ADJUDGED this the 10th day of July, 2013.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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