Bramlett v. Blue Ridge Pawn, LLC et al

Filing 14

MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on March 8, 2018. (ca)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA

3/8/2018

LYNCHBURG DIVISION
SHANE R. BRAMLETT,
Plaintiff,

CASE NO. 6:18-cv-00023

v.
BLUE RIDGE PAWN, LCC AND PETER T.
SIMOPOULOS,
Defendants.

MEMORANDUM OPINION

JUDGE NORMAN K. MOON

In this unpaid overtime case under the Fair Labor Standards Act, the defendants (“the
pawn shop”) moved to dismiss for lack of jurisdiction. The motion presents a factual challenge
to jurisdiction. See 24th Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624, 629 (4th
Cir. 2016) (permitting consideration of facts outside the complaint in such circumstances). The
pawn shop submitted an affidavit from its owner stating that its annual gross sales were less than
$200,000 during the relevant time period. From that, the pawn shop contends that it is beyond
the FLSA’s reach, because it must be “engaged in commerce or in the production of goods for
commerce,” 29 U.S.C. § 207(a)(1), meaning it must have an “annual gross volume of sales . . .
not less than $500,000.”

Id. § 203(s)(1)(A)(ii).

The pawn shop further asserts that this

$500,000-annual-sales precondition goes to jurisdiction rather than the merits, citing Ergashov v.
Glob. Dynamic Trans., LLC, 680 F. App’x 161, 163 (4th Cir. 2017).1
The pawn shop’s argument ignores the statutory text.

The $500,000 annual sales

requirement (known as “enterprise coverage”) is not the only way an employer falls within the
FLSA’s scope. The statute is worded in the disjunctive to include “individual coverage”:
1

The plaintiff disputes that the precondition is jurisdictional rather than substantive.
Because the distinction makes no difference to the resolution of this motion, the Court assumes
without deciding that the precondition is jurisdictional.

[N]o employer shall employ any of his employees who [1] in any workweek is
engaged in commerce or in the production of goods for commerce, or [2] is
employed in an enterprise engaged in commerce or in the production of goods for
commerce, for a workweek longer than forty hours unless such employee receives
compensation for his employment in excess of the hours above specified at a rate
not less than one and one-half times the regular rate at which he is employed.
29 U.S.C. § 207(a)(1) (emphasis added). The plaintiff’s response brief pointed out this omission.
The pawn shop made no effort to address the deficiency in its reply, despite having cited to a
case, Ergashov, that discussed the alternative ways of satisfying the FLSA. In any event, it’s
apparent that, on the present record, the plaintiff satisfies the individual coverage clause of §
207(a)(1). “[C]overage under the FLSA is construed liberally to apply to the furthest reaches
consistent with congressional direction.” U.S. Dep’t of Labor v. N.C. Growers Ass’n, 377 F.3d
345, 350 (4th Cir. 2004). In both his complaint and affidavit, the plaintiff states that he regularly
bought and sold merchandise over the Internet from and to States outside the Commonwealth of
Virginia. This is enough to show that he “engaged in commerce” during a workweek.2 The
motion to dismiss thus will be denied. The Clerk shall send a copy of this opinion to counsel.
8th
Entered this _____ day of March, 2018.

2

See 29 C.F.R. § 776.10(b) (finding individual coverage applies to employees “whose
activities are connected with the receipt or distribution of goods across State lines,” or “whose
work involves the continued use of the interstate mails, telegraph, telephone or similar
instrumentalities for communication across State lines,” such as to place “orders for goods or
services”); id. § 776.9 (employees are “engaged in commerce” when “doing work involving or
related to the movement of persons or things” between States); Opinion Letter Fair Labor
Standards Act (FLSA), 1999 WL 1002373, at *1 (Mar. 5, 1999) (“Such employees include those
who regularly handle interstate mail and telephone calls, engage in banking or credit card
transactions, or receive or handle goods or materials from or destined for out-of-state sources.”);
Wirtz v. Wardlaw, 339 F.2d 785, 787 (4th Cir. 1964); Alonso v. Garcia, 147 F. App’x 815, 816
(11th Cir. 2005); Foster v. Gold & Silver Private Club, Inc., No. 7:14CV00698, 2015 WL
8489998, at *6 (W.D. Va. Dec. 9, 2015); Shelton v. Inn at Trivium, No. 6:08CV00040, 2009 WL
1255465, at *2 (W.D. Va. May 6, 2009).
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