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Dimingo v. Midnight Xpress, Inc.

United States District Court, S.D. Florida

January 16, 2018

Eduardo E. Dimingo, Plaintiff,
v.
Midnight Xpress, Inc. and others, Defendants.

          ORDER ON DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT

          Robert N. Scola, Jr. United States District Judge

         Plaintiff Eduardo Dimingo brings this suit for violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), alleging that the Defendants failed to pay him overtime wages. This matter is before the Court on the Defendants' Motion to Dismiss Plaintiff's First Amended Complaint with Prejudice, or, in the Alternative, Motion for Summary Judgment (ECF No. 28). For the reasons set forth below, the Court grants in part the Defendants' motion to dismiss, and denies the Defendants' alternative motion for summary judgment.

         1. Background

         The Court dismissed the Plaintiff's original complaint because it did not contain sufficient factual allegations to establish coverage under the FLSA. (Order, ECF No. 24.) The Plaintiff subsequently filed his First Amended Complaint, alleging that Defendants Midnight Xpress, Inc., JR Trucks Corp., APR Trucking, Inc., and United Transport Logistics, Inc. jointly employed him as a security guard from September 9, 2014 through July 28, 2017. (First Am. Compl. ¶¶ 3-6, 13, ECF No. 26.) The Plaintiff also alleges that Defendants Yanel Martinez and Anatella Martinez were “a corporate officer and/or owner and/or manager of the Defendant Corporations, ” and were also the Plaintiff's joint employers. (Id. ¶¶ 8-9.) The Plaintiff's job was to “guard the premises, including the said products that were regularly delivered to states outside of Florida, to prevent theft and other potential criminal activity.” (Id. ¶ 16.) The First Amended Complaint asserts both individual and joint enterprise coverage. (Id. ¶¶ 17-19.)

         The Defendants have moved to dismiss the First Amended Complaint, arguing that the Plaintiff has again failed to adequately allege coverage under the FLSA. In the alternative, the Defendants argue that they are entitled to summary judgment because the allegations in the First Amended Complaint establish that the Plaintiff is exempt from the FLSA because he is subject to the jurisdiction of the Secretary of Transportation.

         2. Motion to Dismiss

         A. Legal Standard

         Federal Rule of Civil Procedure 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff's claim is and the ground upon which it rests.” Fed.R.Civ.P. 8(a). The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quotations and citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). For purposes of Rule 12(b)(6), a court generally may not look beyond the pleadings, which includes any information attached to a complaint. U.S. ex. Rel. Osheroff v. Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015) (internal citations omitted).

         B. Analysis

         The FLSA requires an employer to pay an employee “an overtime wage of one and one-half times his regular rate for all hours he works in excess of forty hours per week.” See Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011); see also 29 U.S.C. § 207(a). “In order to be eligible for FLSA overtime, however, an employee must first demonstrate that he is ‘covered' by the FLSA.” Josendis, 662 F.3d at 1298. This requires a showing that the jurisdictional prerequisite of “interstate commerce” exists in a given case, a showing that may be made one of two ways--enterprise coverage or individual coverage. Id. The Court will first address enterprise coverage, and will then address individual coverage.

         1. Enterprise Coverage

         An employee may show that his employer is subject to enterprise coverage by demonstrating that: (1) the employer has two or more employees regularly and recurrently engaged in commerce or in the production of goods for commerce, or has two or more employees regularly and recurrently handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and (2) the employer is an enterprise whose annual gross volume of sales made or business done is not less than $500, 000. Scott v. K.W. Max Investments, Inc., 256 Fed.Appx. 244, 248 (11th Cir. 2007); Diaz v. Jaguar Rest. Grp., LLC, 649 F.Supp.2d 1343, 1346 (S.D. Fla. 2009). In order to establish enterprise coverage, “[t]wo nominally separate businesses can be considered a joint enterprise.” Gonzalez v. Old Lisbon Restaurant & Bar L.L.C., 820 F.Supp.2d 1365, 1368 (S.D. Fla. 2011) (Goodman, Mag. J.). If a joint enterprise is found to exist, several employers may be simultaneously liable for the same FLSA violations. Attai v. Delivery Dudes, LLC, No. 15-62522, 2016 WL 828816, at *4 (S.D. Fla. Mar. 3, 2016) (Bloom, J.) (citations omitted). In order to establish joint enterprise coverage, a plaintiff must allege facts demonstrating that two or more businesses: (1) performed related activities, (2) through unified operation or common control, (3) for a common business purpose. Gonzalez, 820 F.Supp.2d at 1368 (citations omitted); see also Donovan v. Easton Land & Development, Inc., 723 F.2d 1549, 1551 (11th Cir. 1984) (citations omitted).

         The First Amended Complaint alleges that “[w]ith respect to the $500, 000 threshold, Plaintiff intends to stack income to fullest extent allowable by law, under a joint enterprise theory . . .” (First Am. Compl. ¶ 19.) In support of the joint enterprise theory, the Plaintiff alleges that he received paychecks from Defendant Midnight Xpress, Inc. in 2014 and 2015, United Transport Logistics, Inc. in 2015 and 2016, JR Trucking Corp. in 2016, and APR Trucking, Inc. in 2016 and 2017. (Id. ¶ 14.) The Plaintiff alleges that Defendants Anatella and Yanel Martinez “regularly signed the Plaintiff's checks during the relevant period in relation to the various companies, ” and Yanel Martinez “held himself out as the owner of all of the companies.” (Id. ΒΆΒΆ 14, 19.) Finally, the Plaintiff alleges that the ...


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