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finding sufficient interest where at least one other employee wished to join
Summary of this case from Watson v. Surf-Frac Wellhead Equip. Co.Opinion
Case No. 05-14237-CIV-MARTINEZ-LYNCH.
June 28, 2006
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
THIS CAUSE came before the Court upon Defendant's Motion to Dismiss (D.E. No. 27), filed on January 4, 2006. Plaintiff has brought suit filing a collective action complaint alleging violations of the Fair Labor Standards Act ("FLSA"), as amended by 29 U.S.C. § 216(b). Defendant has filed a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). This motion is fully briefed and ripe for adjudication. For the reasons stated herein, this motion is denied.
I. Relevant Factual and Procedural Background
On August 9, 2005, Plaintiff Larry Guerra ("Guerra") filed a collective action complaint alleging violations of the FLSA by Defendant. (D.E. No. 1). Guerra seeks recovery of overtime compensation, minimum wages, unpaid wages, and attorney's fees. Guerra seeks recovery for overtime compensation alleging that Defendant Big Johnson Concrete Pumping, Inc., ("Big Johnson Concrete") failed to comply with 29 U.S.C. §§ 201- 209 because Guerra worked overtime for Big Johnson Concrete but never received overtime compensation. Guerra also alleges that the failure to provide him with overtime compensation was willful and thus, he seeks liquidated damages pursuant to the FLSA. Guerra next seeks recovery of minimum wages alleging that Big Johnson Concrete failed to comply with Article X, Section 24 of the Florida Constitution because in his final paycheck he was paid $5.15 per hour in violation of Article X, Section 24 of the Florida Constitution, which sets the minimum wage at $6.15 per hour. Guerra also seeks recovery of unpaid wages alleging that he and Big Johnson Concrete had an agreement that he would be paid $19.00 per hour for all non-overtime hours he worked but in his final paycheck Big Johnson Concrete unilaterally reduced his pay to $5.15 per hour. Guerra also states in the Complaint that "[t]his action is intended to include each and every laborer employed by Defendant over the last three years within the State of Florida who likewise was subjected to the illegal pay practices described above." (D.E. No. 1 at 2).
On November 21, 2005, Guerra filed a Motion for an Order Permitting Court Supervised Notice to Employees of their Opt-In Rights. (D.E. No. 17). Big Johnson Concrete responded to this motion and also filed a motion to strike the affidavits Guerra attached to his motion for an order permitting court supervised notice. (D.E. No. 19). On January 3, 2006, Defendant made an offer of judgment to Guerra under Federal Rule of Civil Procedure 68 (D.E. No. 27, Ex. 1). The next day, Big Johnson Concrete filed its motion to dismiss for lack of subject matter jurisdiction. (D.E. No. 27). Magistrate Judge Lynch granted Plaintiff's Motion for an Order Permitting Court Supervised Notice to Employees of their Opt-In Rights on May 17, 2006 contingent upon the District Court's ruling on the motion to dismiss, and denied Defendant's motion to strike affidavits filed in support of Plaintiff's motion. (D.E. No. 46). The Court now considers Defendant's Motion to Dismiss (D.E. No. 27).
II. Analysis
Big Johnson Concrete has moved for the dismissal of Guerra's Complaint arguing that this Court lacks subject matter jurisdiction. Attacks on subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) come in two forms, "facial and factual." Lawrence v. Dunbar, 919 F.3d 1525, 1528-29 (11th Cir. 1990). In considering a facial attack, a court examines the complaint to determine if the "'plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations of his complaint are taken as true for purposes of the motion.'" Id. (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). In considering a factual attack, a Court examines "'the existence of subject matter jurisdiction in fact irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits are considered.'" Id. (quoting Menchaca, 613 F.2d at 511). Because the Court's power to hear the case is in question when subject matter jurisdiction is challenged in a factual attack, the Court is free to weigh the evidence and satisfy itself that jurisdiction exists. Id. (quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981)). Here, Defendant Big Johnson Concrete is asserting a factual attack on this Court's subject matter jurisdiction. Big Johnson Concrete specifically argues that this Court lacks subject matter jurisdiction because in an offer of judgment made pursuant to Federal Rule of Civil Procedure 68, Guerra was offered everything he seeks in his individual claim. In addition, at the time the offer of judgment was made, another employee, Domingo Vidales had filed a Notice of Consent to Join. Defendant states that an offer of judgment was also made to Vidales for his entire claim. (D.E. No. 27 at n. 1). The Court, however, finds Big Johnson Concrete's motion to be without merit and it will not dismiss this case for lack of subject matter jurisdiction.Article III, § 2, cl. 1, of the United States Constitution requires that a "plaintiff . . . make out a 'case and controversy' between himself and the defendant; that is, the plaintiff must allege 'a distinct and palpable injury to himself such as to 'warrant his invocation of federal-court jurisdiction.'" Nat'l Wildlife Fed. v. Dep't of Interior, 616 F. Supp. 889, 889 (D.D.C. 1984) (emphasis deleted) (quoting Warth v. Seldin, 422 U.S. 490, 498-501 (1975)). See also Al Najjar v. Ashcroft, 273 F.3d 1330, 1335 (11th Cir. 2001) (stating that "Article III of the Constitution limits the jurisdiction of the federal courts to the consideration of 'cases' and 'controversies.'"). If there is no case and controversy, the Court must dismiss a plaintiff's claim as moot. See Nat'l Advert. Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir. 2005) (stating that "[b]y its very nature, a moot suit 'cannot present an Article III case and controversy and the federal courts lack subject matter jurisdiction to entertain it.'") (quoting Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1327 (11th Cir. 2004)). Al Najjar, 273 F.3d at 1335 (stating that "[i]f events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give the plaintiff or appellant meaningful relief, then case is moot and must be dismissed."). A claim generally becomes moot when a defendant fully satisfies a plaintiff's claim for relief from an offer of judgment. See Rand v. Monsanto, 926 F.2d 596, 597-98 (7th Cir. 1991) ("Once the defendant offers to satisfy the plaintiff's entire demand, there is no dispute over which to litigate and a plaintiff who refuses to acknowledge this loses outright, under Fed.R.Civ.P. 12(b)(1), because he has no remaining stake.") (internal citation omitted). Here, Defendant has argued that because its offer of judgment offered Plaintiff his entire relief requested that his claim is now moot and should be dismissed. This Court disagrees finding that because Plaintiff filed a collective action and because he filed a motion to issue opt-in notice to similarly situated employees, which has been granted, it would be inappropriate to grant Defendant's motion to dismiss.
Plaintiff has argued that the motion to dismiss should not be granted because Defendant did not offer him the entire relief requested. Specifically, Plaintiff argues that he requested "declaratory and other non-monetary relief," which Defendant's offer of judgment did not address. (D.E. No. 28 at 1). However, upon examination of the Complaint there is no request for declaratory or non-monetary relief. Plaintiff calls attention to the first paragraph of the Complaint where he states that he "brings this action for unpaid overtime compensation, and other relief under the Fair Labor Standards Act," arguing that the vague and general statement that he was requesting "other relief' includes a request for declaratory and other non-monetary relief. The Court finds that in examining the phrase "other relief" it in no way meets even the liberal standards under Federal Rule of Civil Procedure 8 of stating "a demand for judgment for the relief the pleader seeks," in the context of a request for declaratory or other non-monetary relief. Therefore, the Court rejects this argument.
The Eleventh Circuit has never addressed the issue of the effect of an offer of judgment made to a Plaintiff in a FLSA collective action. This Court, however, finds the reasoning of several other courts which have been reluctant to dismiss a FLSA collective actions after an offer of judgment has been made to be persuasive. See Geer v. Challenge Fin. Investors Corp., No. 05-1109-JTM, 2006 WL 704933 at *3 (D. Kan. 2006); Reves v. Carnival Corp., No. 04-21861-CIV-GOLD, 2005 U.S. Dist. LEXIS 11948, at (S.D. Fla. May 25, 2005); Reed v. TJX Co., No. 04C1247, 2004 WL 241055, at *2 (N.D. Ill. 2004). In this case, Magistrate Judge Lynch has already granted the Plaintiff's Motion for an Order Permitting Court Supervised Notice to Employees of Their Opt-In Rights contingent upon this Court's ruling on this motion to dismiss. See (D.E. No. 46). In conditionally granting this motion the Court noted that "the Affidavit of Mr. Vidales shows that at least one other co-worker desires to join the suit, thereby raising the Plaintiff's contention beyond one of pure speculation." Id. at 8. Magistrate Judge Lynch also found that "Plaintiff's allegations and affidavits show that he was denied full compensation, that other hourly paid laborers of the same employer were denied full compensation in the same manner, and that there is interest amongst them to join this lawsuit." Id. at 10. Thus, Magistrate Judge Lynch found that Plaintiff's collective action was due to be certified. Id. The Court agrees with these conclusions and finds it would be inappropriate to find that Plaintiff's claim is moot when a live controversy exists as there is sufficient evidence of other similarly situated individuals in the record to certify the collective action.
The Court notes that Defendant has cited MacKenzie v. Kindred Hospitals East, L.L.C., 276 F. Supp. 2d 1211 (M.D. Fla. 2003) where the Court did dismiss a pending FLSA collective action after an offer of judgment was made; however, this Court finds MacKenzie distinguishable. In Mackenzie, the Court specifically noted that "the plaintiff has not satisfied the prerequisites for court facilitation of notice and the record lacks an evidentiary basis to designate this matter as a collective action or to compel from the defendant the confidential information of proposed potential plaintiffs." 276 F. Supp. at 1220. In this case, there is an evidentiary basis to designate this matter as a collective action.
The Court acknowledges that Defendant has made an offer of judgment to Plaintiff Guerra and to Mr. Vinales who at this time is the only other employee who has filed a notice of consent to join. However, at this time, no notice has been issued for the other potential plaintiffs and there is no guarantee that Defendant will offer full relief to any future persons who file notices of consent to join. The Court also expresses the same concern as the court in Geer and notes that "[i]t is possible for defendants to continue making offers of judgments to plaintiffs who opt in and then ask the court to consider dismissal based on the lack of subject matter jurisdiction." Geer, at *3. However, this would create a "procedural loop" for FLSA plaintiffs and this Court like the Geer court is "reluctant to allow defendants to bar the court room doors" at this point in the litigation when no answer has been filed, and when notice has not been issued to the other potential plaintiffs. See id. Furthermore, allowing Defendant's offers of judgment to moot this case is contrary to the broad remedial purpose of the FLSA and the specific purpose of section 216(b), which is to reduce the number of multiple suits filed against the same employer. See Prickett v. DeKalh Cozuzty, 349 F.3d 1294 (11th Cir. 2003) (stating that "Congress' purpose in authorizing § 216(b) class actions was to avoid multiple lawsuits where numerous employees have allegedly been harmed by a claimed violation or violations of the FLSA by a particular employer" and that the "FLSA is a remedial statute" which is construed liberally); Braunstein v. Eastern Photographic Laboratories, 600 F.2d 335 (2d Cir. 1979) (noting the "broad remedial purpose" of the FLSA in a different context). Therefore, it is hereby:
Section 216(b) permits the filing of collective FLSA actions.
ORDERED AND ADJUDGED that
1. Defendant's Motion to Dismiss (D.E. No. 27) is DENIED.
2. Plaintiff's Motion for Leave to File Surreply to Defendant's Motion to Dismiss (D.E. No. 32) is DENIED.
The Court requires no further briefing or clarification on the issue Plaintiff asked to address in this motion. See supra note 1.
DONE AND ORDERED.