MIAH v. EXCEL BUSINESS ENTERPRISE, LLC et al
MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 3/2/2015. 3/3/2015 ENTERED AND COPIES E-MAILED.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EXCEL BUSINESS ENTERPRISE, LLC. :
MEMORANDUM OPINION 1
The defendant has filed a Motion for Judgment on the Pleadings under Fed. R. Civ.
P. 12(c). Doc. No. 10. The plaintiff has filed a response. Doc. No. 11. Defendant contends
that Count I of the First Amended Complaint fails to allege facts establishing a violation
of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. Doc. No. 10-1 at 6. I agree.
While the Complaint alleges that the defendant was an “employer” and the plaintiff an
“employee” under the Act, more than that is required to establish liability under the Act.
I will dismiss Count I without prejudice and grant leave to the plaintiff to file an
amended complaint. The defendant also asks that the pendent state claims – Counts II
and III – be dismissed, since the federal claim is dismissed. I will deny the motion with
respect to Counts II and III, given that plaintiff has been granted leave to amend.
I. Standard of Review
Federal Rule of Civil Procedure 12(c) permits a party to file a motion for judgment on
the pleadings after the pleadings have been closed. Defendant had this case removed
from the Court of Common Pleas of Montgomery County by Notice of Removal filed
May 14, 2014, and filed an answer on July 3, 2014. Doc. Nos. 1, 2. The case proceeded to
The parties have consented to my jurisdiction. Doc. No. 9.
arbitration. Doc. No. 4-7. Defendant won the arbitration. Doc. No. 10-1 at 1.
The standard governing a Rule 12(c) motion is the same as that under Rule
12(b)(6). See Spruill v. Gillis, 372 F.3d 218, 223 n. 2 (3d Cir. 2004). Well-pleaded factual
allegations are accepted as true; such allegations are construed in the light most
favorable to the nonmoving party. See DiCarlo v. St. Mary Hosp., 530 F.3d 255, 262-63
(3d Cir. 2008). I must disregard any unsupported conclusory statements. Id at 263.
A plaintiff’s obligation to state a claim for relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint “does not need
detailed factual allegations,” but “factual allegations must be enough to raise a right to
relief above the speculative level . . . on the assumption that all of the allegations in the
complaint are true (even if doubtful in fact).” Id. (citations omitted). This “simply calls
for enough facts to raise a reasonable expectation that discovery will reveal evidence of”
the necessary element. Id. at 556.
The Court of Appeals has made clear that after Ashcroft v. Iqbal, 556 U.S. 662
(2009) “conclusory or ‘bare-bones’ allegations will no longer survive a motion to
dismiss: ‘threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.’ To prevent dismissal, a complaint must set out
‘sufficient factual matter’ to show that the claim is facially plausible.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 556 U.S. at 678. In Fowler
the Court of Appeals set forth a two part-analysis for reviewing motions to dismiss in
light of Twombly and Iqbal:
First, the factual and legal elements of a claim should be
separated. The District Court must accept all of the
complaint’s well-pleaded facts as true, but may disregard
any legal conclusions. Second, a District Court must then
determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a “plausible claim
Id. at 210-11, quoting Iqbal, 556 U.S. at 679. The Court explained that “a complaint
must do more than allege the plaintiff’s entitlement to relief. A complaint has to ‘show’
such an entitlement with its facts.” Id. (citing Phillips v. Cnty. of Allegheny, 515 F.3d
224, 234-35 (3d Cir. 2008) (“[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has
not ‘show[n]’–‘that the pleader is entitled to relief.’”) Iqbal, 556 U.S. at 679, (quoting
Fed. R. Civ. P. 8(a)(2)).
Under 29 U.S.C. § 207 (“Maximum Hours”) an employer must pay time-and-ahalf for more than 40 hours a week only if the employee is  “engaged in commerce or
in the production of goods for commerce, or  is employed in an enterprise engaged in
commerce or in the production of goods for commerce[.]” 29 U.S.C. § 207(a)(1).
Alternatively, the obligation attaches if the employer is an “enterprise engaged in
commerce or in the production of goods for commerce[.]” Id. An “enterprise engaged in
commerce or in the production of goods for commerce” is defined in 29 U.S.C. §
203(s)(1) as one that has “employees engaged in commerce or in the production of
goods for commerce, or that has employees handling, selling, or otherwise working on
goods or materials that have been moved in or produced for commerce by any person,”
and “whose annual gross volume of sales made or business done is not less than
$500,000” (emphasis supplied). 29 U.S.C. § 203(s)(1)(A)(i)-(ii). Section 216(b) of the
Act provides employees with a damages remedy against an employer who violates
That a business is an “employer” under the Act, and the plaintiff is an
“employee,” is not enough to support liability. The employee either must be “engaged in
commerce,” or in “the production of goods for commerce,” or the employer must be an
“enterprise engaged in commerce or in the production of goods for commerce[.]” 29
U.S.C. § 207(a)(1). Facts showing these elements are not alleged in the Complaint, so the
Complaint is insufficient, under Twombly, Iqbal and Fowler. Under the circumstances
it seems appropriate to enter an order dismissing Count I of the Complaint without
prejudice and permitting Plaintiff to file an amended Complaint within 14 days.
Defendant has also moved for judgment on Plaintiff’s pendent state claims, based
on the dismissal of the federal claim – Count I - that conferred federal jurisdiction in the
first place. Doc. No. 10 at 5. The exercise of supplemental jurisdiction over state claims
does not depend on the survival and success of a federal claim. Even if the federal claim
is dismissed, a federal court has power to enter judgment on related state claims. United
Mine Workers of Am. v. Gibbs, 383 U.S. 715, 728-29 (1966). 2 Where a federal claim is
dismissed before trial the district court should ordinarily decline to decide the pendent
state claims “unless considerations of judicial economy, convenience, and fairness to the
parties provide an affirmative justification for doing so.” Borough of W. Mifflin v.
Lancaster, 45 F.3d 780, 789 (3d Cir. 1995) (citations omitted). Where the federal claims
proceed to trial, the same considerations normally counsel retention of jurisdiction
“over state claims based on the same nucleus of operative facts unless the district court
can point to some substantial countervailing consideration.” Id.
28 U.S.C. § 1367 now controls supplemental jurisdiction, having superseded Gibbs, but
section 1367(c), dealing with pendent state claims, codified the factors identified in
Gibbs. See Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995).
Given the fact that plaintiff is granted leave to amend, it would be both a waste of
time and unfair to send the case back to state court at defendant’s behest, especially
where the case was removed to federal court by defendant in the first place. I will deny
the defendant’s motion with respect to Counts II and III.
For the reasons stated, I will grant Defendant’s motion for judgment as to Count
I, without prejudice, and grant Plaintiff leave to file an amended complaint within 14
days. I will deny Defendant’s motion for judgment as to Counts II and III, the pendent
/s/ Richard A. Lloret
RICHARD A. LLORET
U.S. MAGISTRATE JUDGE
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