Martinez v. Petrenko et al

Filing 20

///ORDER granting 18 Motion for Default as to Counterclaims against Martinez; denying without prejudice 8 Motion for Judgment on the Pleadings; denying without prejudice 9 Motion to Dismiss. Clerk of court to enter a default against the plaintiff as to the counterclaims pleaded in the answer. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Gabriel F. Martinez
v.

Civil No. 12-cv-331-JD

Victor F. Petrenko
and IceCode, LLC
O R D E R
Gabriel F. Martinez brought suit against his former
employer, IceCode, LLC, and Victor Petrenko, who founded IceCode
and served as Chairman of the Board, seeking payment of wages,
overtime compensation, severance benefits, and damages for
wrongful termination under state law and the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 207(a).

Petrenko filed a motion to

dismiss for lack of subject matter jurisdiction or in the
alternative to dismiss for failure to state a claim under the
FLSA and a motion for judgment on the pleadings.

When Martinez

failed to file an answer to Petrenko’s counterclaims, Petrenko
moved for default.

Martinez objects to all of Petrenko’s

motions.

I.

Motion to Dismiss
In his motion to dismiss, Petrenko asserts that the court

lacks subject matter jurisdiction and, alternatively, moves to
dismiss Martinez’s FLSA claim and asks the court to decline
supplemental jurisdiction over the state claims.

Martinez

objects to dismissing his FLSA claim and asserts that the FLSA
claim provides a basis for subject matter jurisdiction.

A.

Subject Matter Jurisdiction

A motion to dismiss for lack of subject matter jurisdiction
is brought pursuant to Federal Rule of Civil Procedure 12(b)(1).
In considering a motion to dismiss for lack of subject matter
jurisdiction, the court “accept[s] the well-pled factual
allegations in the complaint as true and make[s] all reasonable
inferences in favor of the plaintiff.”

Downing/Salt Pond

Partners, L.P. v. Rhode Island & Providence Plantations, 643 F.3d
16, 17 (1st Cir. 2011).

In addition, for purposes of determining

subject matter jurisdiction, the court may consider other
materials, including materials that contradict allegations in the
complaint.

Id.

Petrenko contends that diversity jurisdiction, under 28
U.S.C. § 1332, is lacking because both Martinez and IceCode are
Vermont citizens.1

Martinez does not dispute the lack of

diversity jurisdiction.
Martinez bases federal question jurisdiction, pursuant to 28
U.S.C. § 1331, on his FLSA claim.

Petrenko argues that the FLSA

claim was “made solely for the purpose of obtaining jurisdiction
1

Because IceCode is a limited liability company, its
citizenship is determined by the citizenship of its members.
D.B. Zwirn Special Opportunities Fund, L.P. v. Mehrotra, 661 F.3d
124, 125 (1st Cir. 2011).
2

and is ‘wholly insubstantial and frivolous.’”2

Martinez objects

to the motion on the ground that an FLSA claim cannot be resolved
by a motion to dismiss.
Petrenko’s motion presents a procedural tangle.

Motions

under Rule 12(b)(1) and Rule 12(b)(6) are distinct and are
considered under different standards.

Alberto San, Inc. v.

Consego de Titulares del Condominio San Alberto, 522 F.3d 1, 3
(1st Cir. 2008).

All motions under Rule 12(b), however, are to

be filed “before pleading if a responsive pleading is allowed.”
Petrenko filed his answer to Martinez’s complaint on the same
day, and before, he filed the motion to dismiss.

Therefore,

under the plain terms of Rule 12(b), the motion to dismiss is
untimely.
Even if the motion were considered, however, it lacks merit.
“It is firmly established in our cases that the absence of a
valid (as opposed to arguable) cause of action does not implicate
subject matter jurisdiction, i.e., the courts’ statutory or
constitutional power to adjudicate the case.”

Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 89 (1998).

To confer

jurisdiction, the federal claim need only be colorable.
San, Inc., 522 F.3d at 3.

Alberto

Therefore, “[d]ismissal for lack of

subject-matter jurisdiction because of the inadequacy of the

2

Although Petrenko did not provide a citation to authority
for the quote, it appears that he intended to quote Bell v. Hood,
327 U.S. 678, 682-83 (1946).
3

federal claim is proper only when the claim is so insubstantial,
implausible, foreclosed by prior decisions of this Court, or
otherwise completely devoid of merit as not to involve a federal
controversy.”

Steel, 523 U.S. at 89.

Petrenko argues that Martinez did not allege facts to show a
claim under the FLSA.

Petrenko challenges the conclusory nature

of Martinez’s allegations and asserts that Martinez has not
alleged either individual or enterprise coverage under the FLSA.
For purposes of subject matter jurisdiction, however, Martinez
has alleged a colorable federal claim under the FLSA.

See

Alberto San, Inc., 522 F.3d at 3.

B.

Failure to State a Claim

That part of the motion brought pursuant to Rule 12(b)(6) is
also procedurally incorrect because Petrenko filed his answer
before moving to dismiss.

Fed. R. Civ. P. 12(b).

In addition,

Petrenko filed his own affidavit, along with eight additional
exhibits to support the motion.
under Rule 12(b)(6).

II.

The motion cannot be considered

Fed. R. Civ. P. 12(d).

Motion for Judgment on the Pleadings
On the same day that he filed the motion to dismiss and his

answer, Petrenko filed a motion for judgment on the pleadings.
In support of the motion, Petrenko argues that Martinez’s claim
under RSA chapter 275 fails because IceCode is a limited
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liability company and veil piercing does not apply, that the
breach of contract claim fails because Petrenko was not a party
to the contract, that the FLSA claim fails because Martinez did
not allege sufficient facts, that the wrongful termination claim
fails because only IceCode had authority to terminate Martinez,
and that the intentional misrepresentation claim is not pleaded
with sufficient particularity.

Martinez objects, arguing that

the veil-piercing doctrine supports his claim under RSA chapter
275 and his breach of contract and wrongful termination claims.
He argues that a claim under the FLSA can never be dismissed at
the pleading stage and that he adequately pleaded intentional
misrepresentation.
Another procedural anomaly arises with respect to this
motion.

A motion for judgment on the pleadings may be filed

after the pleadings are closed but early enough in the proceeding
so as not to delay trial.

Fed. R. Civ. P. 12(c).

Because

Petrenko asserted counterclaims against Martinez in the answer
filed on the same day as the motion for judgment on the
pleadings, the pleadings were not closed at the time the motion
was filed.

See Sovereign Bank v. Sturgis, 863 F. Supp. 2d 75,

79-80 (D. Mass. 2012).

In fact, Martinez still has not filed an

answer to the counterclaims.
on the pleadings is premature.

Therefore, the motion for judgment
See id.

Further, Petrenko relies on his affidavit, submitted with
the motion to dismiss, to support dismissal of the FLSA claim for
5

purposes of the motion for judgment on the pleadings.

As in the

case of a motion to dismiss, a motion for judgment on the
pleadings cannot be decided based on matters outside the
pleadings.

Fed. R. Civ. P. 12(d).

Therefore, even if it were

timely filed, the motion for judgment on the pleadings as to at
least the FLSA claim is not properly presented.3
Given the apparent need for evidentiary support, the motion
would be more properly filed as a motion for summary judgment.4

III.

Motion for Default
Petrenko moves for entry of default against Martinez on the

ground that Martinez failed to file an answer or otherwise
respond to Petrenko’s counterclaims within the time allowed.

“A

party must serve an answer to a counterclaim or crossclaim within
21 days after being served with the pleading that states the
counterclaim or crossclaim.”

Fed. R. Civ. P. 12(a)(1)(B).

3

If, as Petrenko urges, the FLSA claim is dismissed, the
only claim over which the court has original jurisdiction would
no longer be in the case. See § 1331; 28 U.S.C. § 1367(c)(3).
In that event, at this early stage of the litigation, district
courts generally decline supplemental jurisdiction over the state
law claims. See, e.g., Marrero-Gutierrez v. Molina, 491 F.3d 1,
7 (1st Cir. 2007). For that reason, to the extent Petrenko
challenges the viability of the FLSA claim, that should be
decided before considering the merits of the state law claims.
4

At one place in his reply, Petrenko refers to the motion as
one for summary judgment. See Document no. 16 at 3.
6

Petrenko filed his answer to the complaint, which includes two
counterclaims against Martinez, on October 31, 2012.
Martinez has not filed an answer to the counterclaims.

In

his objection to the motion for entry of default, Martinez
contends that he was not required to file an answer because
Petrenko “closed” the pleadings by filing a motion for judgment
on the pleadings.

Martinez is mistaken.

Pleadings are listed in Federal Rule of Civil Procedure
7(a).

A motion is not a pleading.

As is explained above in the

context of Petrenko’s motion for judgment on the pleadings, the
pleadings are not closed for purposes of Rule 12(c) until answers
are filed, including answers to counterclaims.
Supp. 2d at 79-80.

Sovereign, 863 F.

Therefore, a motion for judgment on the

pleadings cannot and does not close the pleadings or obviate the
requirement for an answer.5
“When a party against whom a judgment for affirmative relief
is sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must enter
the party’s default.”

Fed. R. Civ. P. 55(a).

5

Because Martinez

Martinez, who is represented by counsel, misinterpreted the
standard of review in Conto v. Concord Hosp., Inc., 2000 WL
36935, at *1 (D.N.H. Sept. 10, 1999). There, the court explained
that because the defendant filed its answer on the same day that
it filed a motion to dismiss, the pleadings were closed, and the
motion was treated as a motion for judgment on the pleadings
under Rule 12(c). No issue of counterclaims was raised in that
case.
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did not file an answer within the time allowed, entry of default
on the counterclaims is required.

Conclusion
For the foregoing reasons, Petrenko’s motion to dismiss
(document no. 9) and motion for judgment on the pleadings
(document no. 8) are denied without prejudice to other,
procedurally appropriate, motions that may address subject matter
jurisdiction or the merits of Martinez’s claims.
Petrenko’s motion for entry of default (document no. 18) is
granted.
The clerk of court shall enter a default against the
plaintiff as to the counterclaims pleaded in the answer (document
no. 7).
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
December 14, 2012
cc:

Benjamin T. King, Esq.
Martha Van Oot, Esq.

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