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Pagan v. New Wilson's Meats

September 4, 2009

KENNETH PAGAN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
THE NEW WILSON'S MEATS, INC. ET AL. DEFENDANTS.



The opinion of the court was delivered by: Jones, J.

MEMORANDUM

I. Procedural History

On January 23, 2008, Kenneth Pagan (hereinafter "Plaintiff") filed a Class Action Complaint in the Philadelphia Court of Common Pleas, in which he, on behalf of himself and others similarly situated, sought redress for underpayment of minimum wages and overtime pay against The New Wilson's Meats, Inc., Wilson's Outlet II, Inc., Wilson's Famous Blue Ribbon Meats, Inc., Dean Kanefsky, and Leonard Kanefsky (hereinafter "Defendants").*fn1 The matter was removed to Federal Court, after which time Defendants Wilson's Outlet II, Inc. and Leonard Kanefsky filed an Answer to Plaintiff's Complaint (Doc. No. 2), while Defendants The New Wilson's Meats, Inc., Wilson's Famous Blue Ribbon Meats, Inc. and Dean Kanefsky (hereinafter "Moving Defendants"), filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Doc. No. 3) Inasmuch as Moving Defendants had not yet filed an Answer to Plaintiff's Complaint, their Motion was assessed in the context of a facial challenge to standing and was denied by the Honorable James T. Giles on August 19, 2008. (Doc. No. 12) Moving Defendants subsequently filed their Answer to Plaintiff's Complaint (Doc. No. 13) and shortly thereafter, brought the instant Motion. Several months later, the case was reassigned to this Judge. Each party was provided with an opportunity to submit supplemental briefing in the form of a Reply and Surreply, and a hearing was held regarding the matter on April 29, 2009.

II. Discussion

A. Standing

It is well-settled that:

Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction - its very power to hear the case - there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. N.J. 1977).

Additionally, "[i]n making this assessment, 'the court [is] not confined to allegations in the plaintiff's complaint, but [may] consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction.'" James S. v. School District of Philadelphia, 559 F. Supp. 2d 600, 611 (E.D. Pa. 2008)(citation omitted). Lastly, under Rule 12(b)(1), a '[f]actual evaluation may occur at any stage of the proceedings, from the time the answer has been served until after the trial has been completed." Mortensen at 891.

In this case, Moving Defendants argue that since Plaintiff was only an employee of Wilson's Outlet II, Inc. and Leonard Kanefsky, he lacks standing to bring suit against the entities of The New Wilson's Meats, Inc. and Wilson's Famous Blue Ribbon Meats, Inc., and can similarly not sustain a claim against Dean Kanefsky, as an alleged "employer." (Defs.' Second Mot. to Dismiss, 4.) In support of same, counsel for Defendants submit affidavits by Dean Kanefsky and Howard A. Drossner. Dean Kanefsky's Affidavit states in pertinent part that he and his brother, Leonard Kanefsky, are the "sole owners of 100% of the issued and outstanding stock of Wilson Outlet II and The New Wilson's Meats, Inc.." (Defs.' Second Mot. to Dismiss, Ex. B, ¶ 18.) The Affidavit further avers that for accounting purposes, both companies are completely separate corporate entities and that although Dean Kanefsky is the President and Treasurer of Wilson's Outlet II, Inc., he "[p]erforms no operational functions or activities for Wilson Outlet II, Inc., all of which functions are performed by Leonard Kanefsky." (Defs.' Second Mot. to Dismiss, Ex. B, ¶ 20.) In that same vein, Dean Kanefsky states that he has "[n]o involvement whatsoever in the day-to-day activities of Wilson Outlet II, Inc., nor [does he] have any involvement in any employment or payroll activities of Wilson Outlet II, Inc.." (Defs.' Second Mot. to Dismiss, Ex. B, ¶ 20.) With regard to Mr. Drossner's Affidavit, he avers that his firm does the accounting for Wilson's Outlet II, Inc. and New Wilson's Meats, Inc. and that both entities are accounted for separately. (Defs.' Second Mot. to Dismiss, Ex. C, ¶¶ 1-3.) Mr. Drossner further states that Wilson's Famous Blue Ribbon Meats, Inc. is a defunct company and has not been "[a]n active and functioning entity for many years." (Defs.' Second Mot. to Dismiss, Ex. B, ¶ 4.)

Plaintiff refutes these averments by presenting documentation to establish not only that Wilson Outlet II, Inc. and New Wilson's Meats, Inc. are owned by the same two individuals, Dean and Leonard Kanefsky, but that they shared the website of The New Wilson's Blue Ribbon Meats, on which they appeared and advertised together until after commencement of the instant lawsuit. (Pl.'s Br. in Opp'n to Defs.' Second Mot. to Dismiss, 3-4, Ex. D; Tr. 16:17-21, April 29, 2009.) Additionally, Plaintiff has provided this Court with documentation from the Pennsylvania Department of State, showing that Defendant Dean Kanefsky is President of The New Wilson's Meats, Inc., is President and Treasurer of Wilson's Outlet II, Inc., and is Vice President of Wilson's Famous Blue Ribbon Meats, Inc., which, contrary to Defendants' assertion, does appear to be an "active" corporation. (Pl.'s Br. in Opp'n to Defs.' Second Mot. to Dismiss, 3-4, Ex. C; Tr. 16:22-25; 17:1-12, April 29, 2009.) Further, counsel for Plaintiff has provided an affidavit by Plaintiff, in which he avers that during the course of his employment at Wilson's Outlet II, Defendant Dean Kanefsky asked him to perform job duties at Wilson's Outlet II and "directly supervised" him with regard to those duties. (Pagan Aff. ¶ 4.) In that same vein, Plaintiff states that Dean Kanefsky supervised him in his employment at Wilson's Outlet II, "several times per month" and met with him "[a]fter [he] had completed the job duties to make sure that the tasks had all been done." (Pagan Aff. ¶ 4.) Finally, Plaintiff has submitted a copy of the Collective Bargaining Unit Agreement between "New Wilson, Inc., Wilson Outlet II, Inc. and United Food & Commercial Workers Union Local 152." (Tr. 19:23-24, 20:1-14, April 29, 2009, Ex. P-2.) Said Agreement was negotiated on behalf of both entities for the employees of both entities, by the manager of Dean Kanefsky's store - - New Wilson's Meats, Inc.. (Tr. 19:23-25, 20:1-14, April 29, 2009.) Additionally, said document collectively refers to New Wilson, Inc. and Wilson Outlet II, Inc. as the "Employer" - not "Employers."

In their Reply to Plaintiff's Opposition, Moving Defendants do not directly address the averments set forth in Pagan's Affidavit but instead, summarily claim once again that Plaintiff "was never employed by New Wilson's, Wilson's Famous or Dean Kanefsky and therefore has no standing to file and prosecute a case against them, and that Plaintiff was never subject to the control of Dean Kanefsky." (Defs.' Reply Br. 3-4.) However, they do properly point out that: this Court must make an independent determination as to the veracity of Plaintiff's factual allegations; when doing so, it is not bound by Plaintiff's pleadings; and, Plaintiff has the burden of showing that jurisdiction exists. (Defs.' Reply Br. 3-4.) Defendants further remind this Court that "disputed material facts will not preclude the trial court from evaluating for itself the merits of [factual] jurisdictional claims." (Defs.' Reply Br. 3-4.)

As the Mortensen Court noted, this Court is "[f]ree to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen at 891. In addition to listening to and assessing the arguments presented at a hearing in this matter on April 29, 2009, this Court has carefully reviewed all of the documentation submitted by both parties regarding this issue. Upon doing so, this Court is unable to conclude that Plaintiff does not possess standing to bring a claim against moving Defendants. In reaching this conclusion, this Court notes that discovery remains ongoing in this case. If, at the conclusion of all discovery, an issue regarding standing still remains, the court may address same at that juncture. Id.

B. Dean Kanefsky as Plaintiff's "Employer"

In addition to the foregoing, Defendant Dean Kanefsky seeks dismissal of the claims against him "[p]ursuant to Rule 12(b)(6) or, alternatively, pursuant to Rule 56," on the basis that he cannot be deemed Plaintiff's "employer" under the federal and state ...


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