United States District Court, N.D. West Virginia
RICHARD E. UNDERWOOD, Plaintiff,
DONALD S. MITCHELL and WENDI MITCHELL, d/b/a STEVE MITCHELL ELECTRICAL CONTRACTING, LLC and STEVE MITCHELL ELECTRICAL CONTRACTING, LLC, a West Virginia limited liability company, Defendants.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION TO DISMISS
FREDERICK P. STAMP, JR., UNITED STATES DISTRICT JUDGE
Richard E. Underwood (“Underwood”), filed his
complaint (ECF No. 1) against defendants Donald S. Mitchell
and Wendi Mitchell d/b/a Steve Mitchell Electrical
Contracting, LLC and Steve Mitchell Electrical Contracting,
LLC on June 20, 2017. This action is brought to recover from
defendants overtime compensation, liquidated damages, and the
costs and reasonable attorney's fees under the provisions
of 29 U.S.C. § 216(b).
Donald S. Mitchell, Wendi Mitchell, and Steve Mitchell
Electrical Contracting, LLC, filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure
12(b)(6) (ECF No. 3) on August 25, 2017, “on
the basis that the Court lacks subject matter jurisdiction
over the matters asserted in Plaintiff's Complaint
against Defendants.” ECF No. 3 at 1. Defendants assert
that the two prong “enterprise test” used to
determine coverage under 29 U.S.C. § 207(a)(1)
[“FLSA”] is not met in the case at hand. ECF No.
3 at 2.
Court entered an order (ECF No. 8) on September 26, 2017,
scheduling a status conference and oral argument on
defendants' motion. The parties then filed a joint
stipulation (ECF No. 9) stating that they shall not file a
response or file an answer until the Court directs them to do
so. ECF No. 10.
the status conference, and at the parties' joint request,
this Court entered an order (ECF No. 12) establishing a
schedule for a 90-day jurisdictional discovery period to
consider subject matter jurisdiction. The parties filed a
joint stipulation (ECF No. 15) extending the deadline for
plaintiff to respond to defendants' motion to dismiss to
January 30, 2018 and for defendants to reply to February 13,
2018. This Court entered an order approving the stipulation
(ECF No. 16).
filed a response in opposition (ECF No. 19) to
defendants' motion to dismiss and asserts that, upon
review of pertinent case law, plaintiff believes that the
motion to dismiss improperly frames the issue of enterprise
and individual coverage under the Federal Labor Standards Act
(“FLSA”) as “jurisdictional.” ECF No.
19 at 3. Plaintiff asserts that, under Arbaugh,
enterprise and individual coverage are not
jurisdictional issues, but rather, elements of the
plaintiff's claim, and thus, the motion to dismiss should
be denied. Id. Plaintiff contends that
defendants' financial documents and assertions present
inaccuracies and contrary factual assertions, and thus, the
issues present are more appropriate for a factfinder to weigh
in determining the ultimate triable issues in this case
rather than a motion to dismiss. ECF No. 19 at 12. Plaintiff
concludes by stating that should defendants' motion to
dismiss be converted to a motion for summary judgment,
plaintiff should be permitted additional discovery to prove
his claims and investigate, as only limited discovery on the
issue of jurisdiction has been conducted to date. ECF No. 19
filed a reply (ECF No. 20) on February 15, 2018, two days
after the ordered deadline of February 13, 2018, which was
approved by this Court after stipulation by the parties.
Defendants assert that plaintiff cannot meet the second prong
of enterprise coverage under the FLSA which requires an
employer be an enterprise whose annual gross volume of sales
made or business done is not less than $500, 000.00 because
“[t]here is nothing that has been produced that even
hints that Defendant's annual revenues ever exceeded even
$350, 000.00.” ECF No. 20 at 4. Defendants also assert
that although individuals who are not employed by a covered
enterprise may nevertheless be individually covered, the
plaintiff in this case “is not working for an
instrumentality of interstate commerce, he is an electrician
employed by an electrical contractor” who was not
regularly engaging in interstate commerce. ECF No. 20 at 5.
Lastly, defendants contend that “the [s]tatute of
limitations in this action is two years. 29 USC Section
255” and “[a]s such the averments of
Plaintiff's Affidavit should be disregarded.” ECF
No. 20 at 7.
assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
a court must accept all well-pled facts contained in the
complaint as true. Nemet Chevrolet, Ltd v.
Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir.
2009). However, “legal conclusions, elements of a cause
of action, and bare assertions devoid of further factual
enhancement fail to constitute well-pled facts for Rule
12(b)(6) purposes.” Id. (citing Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). This Court also
declines to consider “unwarranted inferences,
unreasonable conclusions, or arguments.” Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26
(4th Cir. 2009).
often been said that the purpose of a motion under Rule
12(b)(6) is to test the formal sufficiency of the statement
of the claim for relief; it is not a procedure for resolving
a contest about the facts or the merits of the case. 5B
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (3d ed. 1998). The
Rule 12(b)(6) motion also must be distinguished from a motion
for summary judgment under Federal Rule of Civil Procedure
56, which goes to the merits of the claim and is designed to
test whether there is a genuine issue of material fact.
Id. For purposes of the motion to dismiss, the
complaint is construed in the light most favorable to the
party making the claim and essentially the court's
inquiry is directed to whether the allegations constitute a
statement of a claim under Federal Rule of Civil Procedure
8(a). Id. § 1357.
complaint should be dismissed “if it does not allege
‘enough facts to state a claim to relief that is
plausible on is face.'” Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Facial plausibility is established once the
factual content of a complaint ‘allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Nemet
Chevrolet, 591 F.3d at 256 (quoting Iqbal, 556
U.S. at 678). Detailed factual allegations are not required,
but the facts alleged must be sufficient “to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
Court has construed the complaint in the light most favorable
to Underwood for the purposes of this motion to dismiss. In
doing so, this Court finds that the complaint makes
sufficient factual allegations against the defendants to
survive the Rule 12(b)(6) motion to dismiss. Without
considering the merits of the allegations, or the
“jurisdictional discovery” produced to date, this
Court finds that the complaint states a claim for relief that
is sufficient on its face, which is all that is required to
survive a motion to dismiss under Rule 12(b)(6). This Court
agrees with the ...