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Maki v. Neptune Construction Group, Inc.

United States District Court, M.D. Florida, Tampa Division

May 22, 2018

TODD MAKI, Plaintiff,
v.
NEPTUNE CONSTRUCTION GROUP, INC., a Florida corporation and CATHERINE MESSANA, Defendants.

          ORDER

          VIRGINIA M. HERNANDEZ, COVINGTON, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court upon consideration of Defendants Neptune Construction Group, Inc., and Catherine Messana's Motion to Dismiss First Amended Complaint for Improper Venue or, in the Alternative, to Transfer Venue (Doc. # 29), filed on April 27, 2018. Plaintiff Todd Maki responded on May 21, 2018. (Doc. # 41). For the reasons that follow, the Motion is denied.

         I. Background

         Maki initiated this action on January 30, 2018, alleging violations of the overtime and retaliation provisions of the Fair Labor Standards Act (FLSA) against his former employer Neptune Construction, Neptune Construction's owner Raymond Orlando, and another Neptune Construction employee, Messana. (Doc. # 1). Then, on April 13, 2018, Maki filed his Amended Complaint, asserting FLSA claims against only Neptune Construction and Messana. (Doc. # 24).

         In the Amended Complaint, Maki alleges that he worked as an office helper for Neptune Construction - though he never mentions where this office was located - and was never paid overtime. (Id. at 4-8). When he demanded both overtime pay and liquidated damages, Orlando fired Maki. (Id. at 2, 8). Messana, Neptune Construction's Controller and Director of Human Resources, informed Maki that he had been terminated. (Id. at 2).

         According to Maki, venue is proper in the Middle District of Florida because Neptune Construction's “principal place of business [is] in Pinellas County” and Neptune Construction “keeps an office for the transaction of its customary business in Pinellas County.” (Id. at 2). The Complaint states that Messana is a “citizen of the State of Florida, and resides in Pinellas County, Florida.” (Id. at 3). Additionally, Maki alleges “some of the acts that gave rise to Maki's claims occurred in Pinellas County, Florida (for example, he was informed that [Neptune Construction] terminated him from [its] Pinellas County office by [] Messana, its Controller).” (Id. at 2).

         Neptune Construction and Messana filed their Motion to Dismiss First Amended Complaint for Improper Venue, or in the Alternative, to Transfer (Doc. # 29) on April 27, 2018. In support, they attach the declarations of Orlando, Messana, and another Neptune Construction employee, George Somers Reid. (Doc. # 29-1; Doc. # 29-2; Doc. # 29-3). Neptune Construction and Messana contend venue is improper in the Middle District of Florida because Maki worked for, and was fired from, Neptune Construction in Hawaii. Maki filed his response in opposition on May 21, 2018. (Doc. # 41). The Motion is now ripe for review.

         II. Legal Standard

         Federal Rule of Civil Procedure 12(b)(3) allows a defendant to move to dismiss an action for improper venue. “The district court of a district in which is filed a case lying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a).

         “The FLSA does not contain an exclusive venue provision, so questions concerning whether a particular judicial district is appropriate for a lawsuit are governed by the general venue statute found at [28] U.S.C. § 1391.” Wildstein v. Cheyenne Holdings, Inc., No. 6:16-cv-336-Orl-41TBS, 2016 WL 7366892, at *3 (M.D. Fla. Aug. 9, 2016), report and recommendation adopted, No. 6:16-cv-336-Orl-41TBS, 2016 WL 7338516 (M.D. Fla. Dec. 19, 2016). Venue is proper if the district in which the suit was filed is:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal ...

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