Opinion
Case No. 3:11-cv-377-J-32MCR.
July 19, 2011
ORDER
This case is before the Court on Defendants', Z.O.E Enterprises of Jax, Inc., and William Smolios, Motion to Dismiss (Doc. 9) regarding the threshold issue of the applicability of the Fair Labor Standards Act ("FLSA"). Plaintiff filed a response in opposition. (Doc. 10).
I. Background
On April 12, 2011, Plaintiff filed a complaint seeking relief under the FLSA for unpaid overtime compensation. (Doc. 1). Plaintiff was an hourly employee working as a shift manager at a Dairy Queen in Duval County, Florida owned by Defendants. (Id. at 1). Plaintiff had worked for the Defendants for several years and left their employment in July 2010. (Id.). Plaintiff worked both the opening and closing shifts. (Id. at 3). Plaintiff's job duties while working the opening shift from 9 A.M. to 5 P.M., included preparing the restaurant to open, and finishing any duties left from the previous day. (Id.). When working the night shift, Plaintiff was required to ensure that all equipment and machines were properly turned off and cleaned, as well as clean and close the Dairy Queen. (Id.).
Plaintiff filed this action alleging that Defendants did not pay Plaintiff for all hours worked and that Plaintiff was not paid one and one-half times her regular rate for all hours worked in excess of forty (40) per work week in violation of FLSA, 29 U.S.C. § 207(a)(1). (Doc. 1 at 1, 3). Plaintiff alleges that she was required to arrive at 8 A.M. when working the opening shift, but was not allowed to clock in until 9 A.M., and that when working the closing shift, she was required to clock out at 11:30 P.M. even though she continued working to clean and close the Dairy Queen past that time. (Id.)
Plaintiff has alleged jurisdiction of her claims pursuant to § 1331 under the FLSA. (Id. at 2). Plaintiff claims Defendants were an enterprise covered by the FLSA because Defendants had two or more employees handling goods in interstate commerce and earned more than $500,000 in gross sales annually. (Id.) Defendants have moved to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, claiming their business does not qualify under the "enterprise" or "individual" coverage provisions of the FLSA. (Doc. 9 at 2). In the alternative, both parties seek a declaratory judgment pursuant to 28 U.S.C. §§ 2201- 2202. (Docs. 1, 9).
II. Discussion
Under Federal Rule of Civil Procedure 12(b)(1), "when a defendant properly challenges subject matter jurisdiction . . . the district court is free to independently weigh facts, and `may proceed as it never could under Rule 12(b)(6) or Fed.R.Civ.P. [Rule] 56.'" Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003) (citations omitted). If jurisdiction is found to be lacking, the Court cannot proceed at all; its sole remaining duty is to state that it lacks jurisdiction and dismiss the case. See Steel Co. v. Citizens for a Better Env't., 523 U.S. 83, 94 (1998).
The Eleventh Circuit has cautioned however, "[t]hat that the district court should only rely on Rule 12(b)(1) `[i]f the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff's cause of action.'" Turicos v. Delicias Hispanas Corp., 275 F.App'x 879, 880 (11th Cir. 2008) (quotations omitted). If a jurisdictional challenge does implicate the merits of the underlying claim, "the proper course of action for the district court is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case." Id. "[J]urisdiction becomes intertwined with the merits of a cause of action when `a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief.'" Id.
In Turicos, an Eleventh Circuit FLSA case involving a factual attack on jurisdiction, the Court held that the Rule 56 standard, and not the Rule 12(b)(1) standard, must be used when dealing with a jurisdictional matter "that is intertwined with the merits of the cause of action." Id. The Court in Turicos noted that the same operative facts determined whether the Plaintiff can sue under the FLSA statute, and the scope of the statute's coverage. Id.
In Turicos, the district court granted a defendant's motion to dismiss in which the defendant asserted that the plaintiff, a restaurant worker, could not establish the required jurisdictional facts necessary to satisfy the FLSA. The Eleventh Circuit reversed and remanded for a Rule 56 summary judgment analysis instead of the Rule 12(b)(1) analysis. Turicos, 275 F.App'x at 882.
Here, as in Turicos, the sections of the FLSA that provide substantive relief, primarily § 207 in this case, are intertwined with and dependent on § 203 of the FLSA, which defines the scope of enterprise coverage under the FLSA. Thus, to engage in a Rule 12(b)(1) analysis at this stage of the proceeding would be inappropriate and premature. While Turicos calls for summary judgment analysis under Rule 56, that analysis is also premature at this juncture since there has been no discovery or other evidence for the Court to review. Likewise, it is premature to consider declaratory relief pursuant to 28 U.S.C. §§ 2201- 2202. Accordingly, it is hereby
Moreover, Defendants did not assert any separate legal arguments as to why declaratory relief would be an appropriate alternative. (Doc. 9 at 4).
ORDERED:
1. Defendants', Z.O.E Enterprises of Jax, Inc., and William Smolios, Motion to Dismiss (Doc. 9) is DENIED without prejudice and Defendants may reassert their arguments at a later time in these proceedings.
2. Defendants shall file their answers no later than August 15, 2011 and the parties shall also confer and file their case management report (form is attached) no later than August 15, 2011. DONE AND ORDERED at Jacksonville, Florida. UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION Plaintiff(s), v. Case No. Defendant(s).
_________________________________________CASE MANAGEMENT REPORT
The parties have agreed on the following dates and discovery plan pursuant to Fed.R.Civ.P. 26(f) and Local Rule 3.05(c): DEADLINE OR EVENT AGREED DATE Mandatory Initial Disclosures (pursuant to Fed.R.Civ.P. 26(a)(1)) Certificate of Interested Persons and Corporate Disclosure Statement Motions to Add Parties or to Amend Pleadings Disclosure of Expert Reports Discovery Deadline Dispositive and Daubert Motions Trial Term Begins must not Estimated Length of Trial Jury/Non-Jury Mediation mandatory All Parties Consent to Proceed Before Magistrate Judge all [Court recommends 30 days after CMR meeting] [all parties are directed to complete and file the attached] Plaintiff: Defendant: [Court recommends 5 months before trial to allow time for dispositive motions to be filed and decided; all discovery must be commenced in time to be completed before this date] [Court requires 4 months or more before trial term begins] (month, year) [Local Rule 3.05(c)(2)(E) sets goal of trial within 1 year of filing complaint in most Track Two cases, and within 2 years in all Track Two cases; trial term be less than 4 months after dispositive motions deadline (unless filing of such motions is waived). Trials before the District Judge will generally be set on a rolling trial term toward the beginning of each month, with a Final Pretrial Conference to be set by the Court the preceding month. If the parties consent to trial before the Magistrate Judge, they will be set for a date certain after consultation with the parties] [trial days] Deadline: Mediator: Address: Telephone: [Mediation is in most Track Two cases; Court recommends either 2-3 months after CMR meeting, or just after discovery deadline; if the parties do not so designate, the Court will designate the mediator and the deadline for mediation. A list of certified mediators is available on the Court's website and from the Clerk's Office.] Yes____ No____ If yes, the parties shall complete and counsel and/or unrepresented parties shall execute the attached Form AO-85.I. Meeting of Parties
Lead counsel shall meet in person or, upon agreement of all parties, by telephone. (If all parties agree to conduct the case management conference by telephone, they may do so without filing a motion with the Court.) Pursuant to Local Rule 3.05(c)(2)(B) or (c)(3)(A), a meeting was held on ___________________ (date) at _______________ (time) and was attended by: Name Counsel for (if applicable) _______________________________________ _________________________________ _______________________________________ _________________________________ _______________________________________ _________________________________II. Preliminary Pretrial Conference
Local Rule 3.05(c)(3)(B) provides that preliminary pretrial conferences are mandatory in Track Three cases. Track Two cases: Parties (check one) [__] request [__] do not request a preliminary pretrial conference before entry of a Case Management and Scheduling Order in this Track Two case. Unresolved issues to be addressed at such a conference include:_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
III. Pre-Discovery Initial Disclosures of Core Information
Fed.R.Civ.P. 26(a)(1)(A) — (D) Disclosures
The parties (check one) [__] have exchanged [__] agree to exchange information described in Fed.R.Civ.P. 26(a)(1)(A) — (D) on or by _______________ (date).
IV. Agreed Discovery Plan for Plaintiffs and Defendants
A. Certificate of Interested Persons and Corporate Disclosure Statement
This Court makes an active effort to screen every case in order to identify parties and interested corporations in which the assigned judge may be a shareholder, as well as for other matters that might require consideration of recusal. Therefore, each party, governmental party, intervenor, non-party movant, and Rule 69 garnishee shall file and serve within fourteen (14) days from that party's first appearance a Certificate of Interested Persons and Corporate Disclosure Statement using the attached mandatory form. No party may seek discovery from any source before filing and serving a Certificate of Interested Persons and Corporate Disclosure Statement. All papers, including emergency motions, are subject to being denied or stricken unless the filing party has previously filed and served its Certificate of Interested Persons and Corporate Disclosure Statement. Any party who has not already filed and served the required certificate is required to do so immediately . Each party has a continuing obligation to file and serve an amended Certificate of Interested Persons and Corporate Disclosure Statement within eleven days of 1) discovering any ground for amendment, including notice of case reassignment to a different judicial officer; or 2) discovering any ground for recusal or disqualification of a judicial officer. A party should not routinely list an assigned district judge or magistrate judge as an "interested person" absent some non-judicial interest.
B. Discovery Plan/Deadline
The parties shall not file discovery materials with the Clerk except as provided in Local Rule 3.03. The Court encourages the exchange of discovery requests on diskette. See Local Rule 3.03(e). In propounding and responding to discovery, the parties are directed to consult and comply with the Federal Rules of Civil Procedure, the Local Rules of the United States District Court for the Middle District of Florida, and the Middle District of Florida's Discovery Handbook. Each party shall timely serve discovery requests so that the rules allow for a response prior to the discovery deadline. The Court may deny as untimely all motions to compel filed after the discovery deadline. In addition, the parties agree as follows: _______________________________________________________
_________________________________________________________________
C. Confidentiality Agreements/Motions to File Under Seal
Whether documents filed in a case may be filed under seal is a separate issue from whether the parties may agree that produced documents are confidential. The Court is a public forum, and disfavors motions to file under seal. The Court will permit the parties to file documents under seal only upon motion and order entered under Local Rule 1.09.
The parties may reach their own agreement (without Court endorsement) regarding the designation of materials as "confidential." The Court discourages unnecessary stipulated motions for a protective order. The Court will enforce appropriate stipulated and signed confidentiality agreements. See Local Rule 4.15. Each confidentiality agreement or order shall provide, or shall be deemed to provide, that "no party shall file a document under seal without first having obtained an order granting leave to file under seal on a showing of particularized need." With respect to confidentiality agreements, the parties agree as follows: ______________________________________________________
_________________________________________________________________
D. Disclosure or Discovery of Electronically Stored Information and Assertion of Claims of Privilege
Pursuant to Fed.R.Civ.P. 26(f)(3), the parties have made the following agreements regarding the disclosure and discovery of electronically stored information as well as the assertion of claims of privilege or protection of trial preparation materials after production:
_________________________________________________________________
_________________________________________________________________
V. Mediation
Absent a Court order to the contrary, the parties in every case will participate in Court-annexed mediation as detailed in Chapter Nine of the Court's Local Rules. The parties have agreed on a mediator from the Court's approved list of mediators as set forth in the table above, and have agreed to the date stated in the table above as the last date for mediation. The list of mediators is available from the Clerk, and is posted on the Court's web site at www.flmd.uscourts.gov. If the parties do not so designate, the Court will designate the mediator and the deadline for mediation.
VI. Requests for Special Handling
Requests for special consideration or handling (requests may be joint or unilateral):
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Date: _____________________
Signature of Counsel (with information required by Local Rule 1.05(d)) and Signature of Unrepresented Parties.
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
I hereby disclose the following pursuant to this Court's interested persons order:1.) the name of each person, attorney, association of persons, firm, law firm, partnership, and corporation that has or may have an interest in the outcome of this action — including subsidiaries, conglomerates, affiliates, parent corporations, publicly-traded companies that own 10% or more of a party's stock, and all other identifiable legal entities related to any party in the case:
[insert list]
2.) the name of every other entity whose publicly-traded stock, equity, or debt may be substantially affected by the outcome of the proceedings:
[insert list]
3.) the name of every other entity which is likely to be an active participant in the proceedings, including the debtor and members of the creditors' committee (or twenty largest unsecured creditors) in bankruptcy cases:
[insert list]
4.) the name of each victim (individual or corporate) of civil and criminal conduct alleged to be wrongful, including every person who may be entitled to restitution:
[insert list]
I hereby certify that, except as disclosed above, I am unaware of any actual or potential conflict of interest involving the district judge and magistrate judge assigned to this case, and will immediately notify the Court in writing on learning of any such conflict. Pro Se
[Date] _____________________________ [Counsel of Record or Party] [Address and Telephone] [Certificate of Service]