Estep et al v. United States Department of Commerce

Filing 24

MEMORANDUM OPINION AND ORDER granting defendant's 15 MOTION to Dismiss to the extent that it seeks dismissal of plaintiffs' claims under the West Virginia Wage Payment and Collection Act; granting plaintiffs' 17 MOTION to t ransfer this case to the United States Court of Federal Claims; and denying as moot the residue of defendant's motion to dismiss, wherein it seeks dismissal of the Kentucky plaintiffs' FLSA claims for improper venue. Signed by Judge John T. Copenhaver, Jr. on 12/29/2011. (cc: attys; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RICHARD ESTEP and
JAMES RUNYON and
LAUREL HUDDLESTON and
SHERIDAN MARTIN and
SHERRI YOUNG,
Plaintiffs,
v.

Civil Action No. 2:11-cv-00456

UNITED STATES DEPARTMENT OF COMMERCE,
Defendant.

MEMORANDUM OPINION AND ORDER

Pending are defendant’s motion to dismiss, filed
October 31, 2011, and plaintiffs’ motion to transfer, filed
November 16, 2011.

I.

This action, arising under the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201 et seq., and the West Virginia
Wage Payment and Collection Act, W. Va. Code § 21-5-1 et seq.,
was commenced by the five named plaintiffs as an individual
action as well as a proposed collective action under 29 U.S.C.
§ 216(b).

Plaintiffs Richard Estep, James Runyon, and Sheridan

Martin (the “Kentucky plaintiffs”) reside in the state of
Kentucky.

Plaintiffs Laurel Huddleston and Sherri Young (the

“West Virginia plaintiffs”) are residents of Kanawha County,
West Virginia.

Each plaintiff was employed by defendant, the United
States Department of Commerce, for various lengths of time
between November 2007 and September 2010, in connection with the
decennial census.

Plaintiffs allege that during this time they

were required to work between 20 to 40 hours of weekly overtime,
but were compensated for only six hours of overtime per week, in
contravention of the federal and state wage statutes.

The

complaint does not specify the amount of unpaid wages to which
plaintiffs believe they are entitled.

Defendant now moves to dismiss plaintiffs’ state law
claims (consisting of those claims brought under the West
Virginia Wage Payment and Collection Act) for lack of
jurisdiction, and the Kentucky plaintiffs’ FLSA claims for
improper venue.

Specifically, defendant argues that 1) it is

entitled to sovereign immunity from suits for violations of
state law, and 2) the Tucker Act, which establishes district
court jurisdiction for FLSA claims against the government,
permits the Kentucky plaintiffs to file suit only in the federal
district in which they reside or in the United States Court of
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Federal Claims.

See 28 U.S.C. § 1402.

Plaintiffs respond by

conceding dismissal of their state law claims, and moving to
transfer this action to the Court of Federal Claims.

(Pl.’s

Resp. 2).

Accordingly, it is ORDERED that defendant’s motion to
dismiss, to the extent that it seeks dismissal of plaintiffs’
claims under the West Virginia Wage Payment and Collection Act,
be, and it hereby is, granted.

II.

Though both parties seem to agree that this litigation
should proceed in the Court of Federal Claims, they cannot agree
on how to get there.

Plaintiffs contend that this action may

simply be transferred.

Defendants counter that, inasmuch as no

transfer statute is applicable, plaintiffs’ claims must be
dismissed without prejudice and re-filed in an appropriate
forum.

The court construes plaintiffs’ motion to transfer
this action to the Court of Federal Claims as a motion pursuant
to 28 U.S.C. § 1631,1 which provides that

1

In their motion to transfer, plaintiffs fail to assert a
statutory basis for their request. However, in response to
(cont.)
3

[w]henever a civil action is filed in a court . . .
and that court finds that there is a want of
jurisdiction, the court shall, if it is in the
interest of justice, transfer such action or appeal to
any other such court in which the action or appeal
could have been brought at the time it was filed or
noticed, and the action or appeal shall proceed as if
it had been filed in or noticed for the court to which
it is transferred on the date upon which it was
actually filed in or noticed for the court from which
it is transferred.
28 U.S.C. 1631.

Thus, section 1631 permits transfer only when

three conditions are met.

First, the transferor court must lack

subject matter jurisdiction.

Second, at the time the case was

filed, it must also have been capable of being brought in the
transferee court.

Third, the proposed transfer must be “in the

interest of justice.”

Id.

Section 1631 requires a court to

“determine both that it lacks jurisdiction and that the

defendant’s motion to dismiss, plaintiffs cite 28 U.S.C.
§§ 1404(a) and 1406(a), as well as Saraco v. United States, 61
F.3d 863, 863-64 (Fed. Cir. 1995), in which the district court
transferred a case to the Court of Federal Claims pursuant to 28
U.S.C. § 1631. Sections 1404(a) and 1406(a) both provide for
transfer from a district court to any other “district or
division” where the case could have originally been brought.
Inasmuch as the Federal Circuit has held that the Court of
Federal Claims is not a “district or division” for purposes of
sections 1404(a) and 1406(a), plaintiffs cannot demonstrate a
basis for transfer pursuant to either of those statutes, leaving
only section 1631. See Fisherman’s Harvest, Inc. v. PBS & J,
490 F.3d 1371, 1378 (“We hold that [28 U.S.C. § 1404(a)] does
not provide for a transfer from a district court to the Court of
Federal Claims.”).

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transferee court possesses jurisdiction.”

Fisherman’s Harvest,

Inc., v. PBS & J, 490 F.3d 1371, 1374 (Fed. Cir. 2007).2

The second and third requirements are easily satisfied
in this case.

As to the second requirement, all parties agree

that when plaintiffs’ complaint was filed in this court, it
could also have been brought in the Court of Federal Claims.

As

to the third prerequisite, the court concludes that a transfer
to the Court of Federal Claims, inasmuch as it would allow the
claims of the West Virginia plaintiffs and the Kentucky
plaintiffs to be litigated in one forum, would appropriately
reflect the “interest of justice.”

Determining whether this case meets the remaining
requirement for a section 1631 transfer -- that the transferor
court (this court) lacks subject matter jurisdiction over the
plaintiffs’ claims -- requires a more detailed inquiry.

It is

plaintiffs’ duty to plead the basic facts establishing a court’s
subject matter jurisdiction.

Fed R. Civ. P. 8(a)(1).

In FLSA

claims against the government, jurisdiction can be established
2

Pursuant to 28 U.S.C. § 1295(a)(2) the Federal Circuit has
exclusive appellate jurisdiction over all Tucker Act claims
filed in the United States district courts. Further, 28 U.S.C.
§ 1292(d)(4)(A) vests the Federal Circuit with exclusive
jurisdiction over interlocutory appeals from a district court
order granting or denying, in whole or in part, a motion to
transfer an action to the United States Court of Federal Claims
pursuant to section 1631.
5

solely under the Tucker Act.
863, 865 (Fed. Cir. 1995).

Saraco v. United States, 61 F.3d
Though the “Little” Tucker Act

conveys concurrent jurisdiction to federal district courts for
claims not exceeding $10,000, 28 U.S.C. § 1346(a)(2), the “Big”
Tucker Act requires that any claim for more than $10,000 be
litigated in the Court of Federal Claims.
§ 1491(a)(1).

28 U.S.C.

Consequently, jurisdiction in this court is

proper only if plaintiffs have asserted a claim for $10,000 or
less.

In this case, the complaint is silent with respect to
the amount of damages sought.3

Yet, if it is incumbent upon

plaintiffs to establish the court’s jurisdiction over its
claims, then in the context of the “Little” Tucker Act,
plaintiffs must affirmatively state a claim for less than
$10,000.

See Leveris v. England, 249 F.Supp.2d 1, 4 (D. Me.

2003) (failure to establish amount of claim resulting in no
jurisdiction under “Little” Tucker Act).

3

It is not possible for

For the first time, in their motion to transfer,
plaintiffs state that “it is anticipated that plaintiffs’ claims
will exceed [$10,000].” (Pl.’s Mot. to Trans. 1). Had this
statement appeared in the complaint (and supposing it had some
basis in fact), it would have been obvious that the court lacked
jurisdiction under the Tucker Act. Ordinarily, however, when a
plaintiff simply fails to allege facts upon which jurisdiction
can be based, the court may not go beyond the allegations of the
complaint. Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009).
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the court, upon the facts properly before it, to do anything but
speculate as to the amount of unpaid wages potentially owed
plaintiffs.

Therefore, in the absence of any allegation that

their claims are for $10,000 or less, plaintiffs have -- to
their advantage, as it turns out -- failed to establish subject
matter jurisdiction in this court.

Accordingly, the court finds that, inasmuch as: 1)
this court lacks subject matter jurisdiction over plaintiffs’
FLSA claims; 2) this case, at the time of filing, could have
been brought in the Court of Federal Claims; and 3) transfer of
this case to the Court of Federal Claims would be “in the
interest of justice,” then, pursuant to section 1631, this case
should be so transferred.

III.

For the foregoing reasons, the court ORDERS that
plaintiffs’ motion to transfer this case to the United States
Court of Federal Claims be, and it hereby is, granted; and it is
further ORDERED that the residue of defendant’s motion to
dismiss, wherein it seeks dismissal of the Kentucky plaintiffs’
FLSA claims for improper venue, be, and it hereby is, denied as
moot.

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The Clerk is directed to transmit copies of this
written opinion and order to all counsel of record and any
unrepresented parties.
ENTER:

December 29, 2011

John T. Copenhaver, Jr.
United States District Judge

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