United States District Court, D. Arizona
HONORABLE RANER C. COLLINS, SENIOR UNITED STATES DISTRICT
before the Court is Defendants' Motion to Dismiss
Pursuant to Rules 12(b)(1) and 12(b)(6), FRCP and Motion for
Attorneys' Fees (Doc. 16.) The Complaint asserts the
Court has federal question jurisdiction over this matter
under the Fair Labor Standards Act with supplemental
jurisdiction over all state claims. (Doc. 1 at 1-2.)
Motion to Dismiss argues that Plaintiff's Complaint fails
assert a viable claim under the Fair Labor Standards Act
because he has failed to plead necessary facts to establish
either enterprise or individual coverage. Therefore, one of
the elements of his FLSA claim is inadequate, and the Court
has no federal jurisdiction over the matter. Plaintiff
counters that (1) he has properly pleaded the elements of an
FLSA claim; (2) it is too early in the proceedings to
determine whether the basis for the FLSA has been met; and
(3) the issue is not proper for a motion to dismiss.
Furthermore, Plaintiff argues that Defendants' Motion to
Dismiss should be denied because Defendants did not meet and
confer about the motion prior to filing, in direct violation
of a Court order.
Fair Labor Standards Act
establish a claim for a violation of the FLSA, a plaintiff
must plead: (1) defendants employed plaintiff; (2) plaintiff
is employed by an enterprise engaged in commerce
(“enterprise coverage”), or plaintiff “is
engaged in commerce or in the production of goods for
commerce” (“individual coverage”); and (3)
defendants failed to pay plaintiff minimum wage. 29 U.S.C.
§ 206(a). Enterprise coverage occurs only when an
employer's “annual gross volume of sales made or
business done is not less than $500, 000.” 29 U.S.C.
§ 203(s)(1)(ii). Furthermore, to establish individual
coverage, the plaintiff's work must involve interstate
commerce. Mitchell v. C.W.Vollmer & Co., 349
U.S. 427, 429 (1955) (“The test is whether the work is
so directly and vitally related to the functioning of an
instrumentality or facility of interstate commerce as to be,
in practical effect, a part of it, rather than isolated,
local activity.”) But in general, simple food
preparation does not qualify as interstate commerce. See
e.g., Yan v. Gen. Pot, Inc., 78 F.Supp.3d 997, 1003
(N.D. Cal. 2015); Martinez v. Palace, 414 Fed.
App'x 243, at *2 (11th Cir. 2011); Dean v. Pacific
Bellwether, LLC, 996 F.Supp.2d 1044, 1048; Joseph v.
Nichell's Caribbean Cuisine, Inc., 862 F.Supp.2d
1309, 1313 (S.D. Fla. 2012).
jurisdiction of the Federal Courts is limited; district
courts may only hear cases permitted by the Constitution and
Congress. See Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994). The burden of
establishing jurisdiction falls on the party asserting it.
Id.; see also, In re Wilshire Courtyard,
729 F.3d 1279, 1284 (9th Cir. 2013).
ruling on a challenge to subject matter jurisdiction, the
district court is ordinarily free to hear evidence regarding
jurisdiction and to rule on that issue prior to trial,
resolving factual disputes where necessary.”
Thornhill Publishing Co. v. General Telephone Corp.,
594 F.2d 730, 733 (9th Cir. 1979).
Factual v. Facial Challenge to Jurisdiction
a 12(b)(1) motion challenging subject matter jurisdiction may
be “facial” or “factual.” See
Safe Air for Everyone v. Meyer, 373 F.3d 0135, 1039 (9th
Cir. 2004). “In a facial attack, the challenger asserts
that the allegations contained in a complaint are
insufficient on their face to invoke federal jurisdiction. By
contrast, in a factual attack, the challenger disputes the
truth of the allegations that, by themselves, would otherwise
invoke federal jurisdiction” Id. In a facial
attack, the allegations included in the complaint are taken
as true. Courthouse News Service v. Planet, 750 F.3d
776, 780 (9th Cir. 2014). Such is not the case in a factual
attack on jurisdiction, wherein “the district court may
review evidence beyond the complaint without converting the
motion to dismiss into a motion for summary judgment. . . .
[and t]he court need not presume the truthfulness of the
plaintiff's allegations.” Safe Air, 373
F.3d at 1039 (internal quotation marks and citation omitted).
Indeed in this instance, “[n]o 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.” Thornhill, 594 F.2d at 733.
Motion to Dismiss both factually and facially attacks the
jurisdiction of this Court based on the Complaint. Facially,
Defendants assert that Plaintiff has not pleaded facts
alleging that Plaintiff was engaged in commerce (for
individual coverage), but only pleaded that Defendants were
engaged in commerce, which is not sufficient. Factually,
Defendants claim that Plaintiff's assertion that
Defendants' gross income is over $500, 000.00 is false.
In support, Defendants' Motion to Dismiss attached a
Summary of Revenue accounting document that indicates
Abuela's grossed merely $308, 738.99 in its three months
in business. The jurisdictional issue and the factual attack
permit the Court to consider this extrinsic evidence.
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). While Rule 8 does not
require detailed factual allegations, “it demands more
than an unadorned, the defendant unlawfully- harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “[A] complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Id. (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. The
complaint must contain more than “a statement of facts
that merely creates a suspicion [of] a legally cognizable
right of action.” Bell Atlantic Corp., 550
U.S. at 555. A pleading must have both a cognizable legal
theory and sufficient facts supporting the cognizable claim.
SmileCare Dental Group v. Delta Dental Plan of Calif.,
Inc., 88 F.3d 780, 783 (9th Cir. 1996). Furthermore,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
“Determining whether a complaint states a plausible
claim for relief [is] . . . a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at
Enterprise Coverage: $500, ...