United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ, COVINGTON, UNITED STATES DISTRICT
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.
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).
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).
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.
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
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).
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  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
(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