United States District Court, E.D. Pennsylvania
July 13, 2004.
KEVIN D. BRICKER
STOUCHSBURG NURSERY AND GARDEN CENTER, INC.
The opinion of the court was delivered by: BRUCE KAUFFMAN, District Judge
MEMORANDUM AND ORDER
Plaintiff Kevin D. Bricker brings this action against Defendant
Stouchsburg Nursery and Garden Center, Inc., alleging violations
of the federal Fair Labor Standards Act, 29 U.S.C. § 201, et
seq. ("FLSA") (Count I), and the Pennsylvania Wage Payment and
Collection Law, 43 Pa. Cons. Stat. § 260.1, et seq. (Count II).
Now before the Court is Defendant's Motion to Dismiss the
Complaint for lack of subject matter jurisdiction and failure to
state a claim upon which relief can be granted. For the reasons
stated below, the Motion will be denied.
Plaintiff was employed by Defendant from June 1, 2001 through
August 24, 2003. (Compl. at ¶ 5). He contends that he is entitled
to overtime and vacation pay under the FLSA and the state Wage
Payment and Collection Law. Id. at ¶¶ 16-18, 22-23. Defendant
responds that Plaintiff was a salaried managerial employee and
therefore is not entitled to overtime under the FLSA. Motion to
Dismiss at 5. Defendant also contends that it is not covered by
the FLSA because it does not have in excess of $500,000 in annual
gross sales. Id. at 7.
The Court's jurisdiction is based on the existence of a federal
question, pursuant to 28 U.S.C. § 1331. There is no diversity of
citizenship. II. Legal Standard
A. Federal Rule of Civil Procedure 12(b)(1)
In considering a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the
Court must distinguish between motions that attack the complaint
on its face and those that attack the existence of subject matter
jurisdiction in fact. Mortensen v. First Fed. Sav. & Loan
Assoc., 549 F.2d 884, 891 (3d Cir. 1977). A facial attack is
considered under the same standard as a motion to dismiss under
Rule 12(b)(6); all well-pleaded allegations in the complaint are
taken to be true. Id. If the attack is factual, however,
Plaintiff's allegations are not presumed to be true. Id.;
Fortuna's Cab Service v. City of Camden, 269 F. Supp.2d 562,
564 (D.N.J. 2003). The Court may look beyond the pleadings and
make its own determination as to whether it has the power to hear
the action. Cestonaro v. United States, 211 F.3d 749, 752 (3d
Cir. 2000). Further, the Plaintiff bears the burden of proving
that jurisdiction does in fact exist. Mortensen, 549 F.2d at
B. Federal Rule of Civil Procedure 12(b)(6)
When deciding a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), the Court may look only to the facts
alleged in the complaint and its attachments. Jordan v. Fox,
Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.
1994). The Court must accept as true all well-pleaded allegations
in the complaint and view them in the light most favorable to the
plaintiff. Angelastro v. Prudential-Bache Sec., Inc.,
764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be granted
only when it is certain that no relief could be granted under any
set of facts that could be proved by the plaintiff. Ransom v.
Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). III. Analysis
A. Subject Matter Jurisdiction
The FLSA provides that "[a]ny employer who violates the
provisions of section 206 or section 207 of this title [which
govern minimum wage and overtime] shall be liable to the employee
or employees affected." 29 U.S.C. § 216(b). To prove a violation
of either § 206 or § 207, Plaintiff must demonstrate, inter
alia, that Defendant is an enterprise engaged in commerce,
defined as having annual gross sales of not less than $500,000.
29 U.S.C. § 203(s)(i)(A). Defendant, Stouchsburg Nursery and
Garden Center, Inc., argues that it has been in existence only
since its incorporation on July 1, 2003; that it is a separate
entity from its predecessor, Stouchsburg Nursery; and that, if
the sales figures for the two entities are not aggregated, it has
annual gross sales of under $250,000. Defendant thus submits that
it is not subject to the FLSA and that the Court therefore lacks
jurisdiction over the subject matter of this action.
Defendant incorrectly casts this issue as one of jurisdiction.
"A district court has federal question jurisdiction in any case
where a plaintiff with standing makes a non-frivolous allegation
that he or she is entitled to relief because the defendant's
conduct violated a federal statute." Growth Horizons, Inc. v.
Delaware County, 983 F.2d 1277, 1281 (3d Cir. 1993). Legal
insufficiency of a federal claim does not deprive the federal
court of jurisdiction. "[D]ismissal for lack of jurisdiction is
not appropriate merely because the legal theory alleged is
probably false, but only because the right claimed is `so
insubstantial, implausible, foreclosed by prior decisions of this
Court, or otherwise completely devoid of merit as not to involve
a federal controversy.'" Kulick v. Pocono Downs Racing Ass'n,
816 F.2d 895, 899 (3d Cir. 1987) (quoting Oneida Indian Nation
v. County of Oneida, 414 U.S. 661, 666 (1974)). See also 2 Moore's Federal Practice § 12.30, at 12-36 (3d ed. 2000)
("Subject matter jurisdiction in federal-question cases is
sometimes erroneously conflated with a plaintiff's need and
ability to prove the defendant bound by federal law asserted as a
predicate for relief a merits-related determination.").
In the instant case, the question of whether Defendant
corporation and its predecessor entity are a single "enterprise
engaged in commerce" for purposes of the FLSA goes to the merits
of the case, not the Court's jurisdiction. Defendant's status as
an enterprise is an element of the claim that Plaintiff must
prove, just like Plaintiff's status as an employee and
Defendant's failure to compensate him at the proper rate for
overtime work. Plaintiff's allegations are not so "completely
devoid of merit" that the Court must dismiss without entertaining
the claim. Accordingly, the Court will not dismiss the Complaint
for lack of subject matter jurisdiction.
B. Failure to State a Claim
Defendant next moves to dismiss Plaintiff's claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) on the ground that
Plaintiff has not stated a claim upon which relief can be
granted. Defendant argues that Plaintiff is exempt from the FLSA
minimum wage and overtime provisions because he was a salaried
employee and worked in an executive capacity. However, at this
stage of the proceedings, the Court must accept as true all
well-pleaded allegations in the complaint and view them in the
light most favorable to the plaintiff. Angelastro, 764 F.2d at
944. The question of whether Plaintiff actually was a salaried
executive is appropriately resolved on summary judgment or at
trial. Assuming the facts as pled to be true, Plaintiff's
Complaint clearly states a cause of action under the FLSA.
Accordingly, the claims will not be dismissed under Fed.R. Civ.
P. 12(b)(6). IV. Conclusion
This Court has jurisdiction over the subject matter of this
action, and Plaintiff's Complaint will not be dismissed for
failure to state a claim. An appropriate Order follows. ORDER
AND NOW, ____ this day of July, 2004, upon consideration of
Defendant's Motion to Dismiss the Complaint (docket no. 4) and
Plaintiff's response thereto, it is ORDERED that the Motion is
DENIED for the reasons stated in the accompanying Memorandum.
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