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Pilkington v. Abuela's Cocina LLC

United States District Court, D. Arizona

July 23, 2019

Everett Pilkington, Plaintiff,
Abuela's Cocina LLC, et al., Defendants.



         Pending before the Court is Defendants' Motion to Dismiss Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), (“Motion to Dismiss”) (Doc. 48), Motion for Sanctions (Doc. 32), and Motion for Attorneys' Fees (Doc. 48 at 16.) The Plaintiff's First Verified Amended Complaint (“Amended 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. 36 at 2.) Defendants' Motion to Dismiss argues Amended Complaint fails to assert a viable claim under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §201-219, because Plaintiff has failed to plead necessary facts to establish either enterprise or individual coverage, and he has failed to plead necessary facts to establish Defendants were his employers. (Doc. 48 at 1-2.)

         The Court will deny Defendants' Motion to Dismiss, deny Defendants' Motion for Sanctions, and dismiss without prejudice Defendants' Motion for Attorneys' Fees.

         I. Pleading Standards for FLSA Claim

         A plaintiff is required to give a short and plain statement of the grounds for the Court's jurisdiction, a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for relief sought. Fed.R.Civ.P. 8(a)(1-3). The Supreme Court has expanded on those criteria, requiring a plaintiff also to plead sufficient alleged facts to support the claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (holding that a claim must also be more than “a formulaic recitation of the elements of a cause of action”); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that a claim must be supported by more than “mere conclusory statements.”)

         In order for the Court to have federal question jurisdiction pursuant to 28 U.S.C. §1331 and supplemental jurisdiction over the state claims within the Arizona Minimum Wage Statute and the Arizona Wage Statute pursuant to 28 U.S.C. §1367, the Plaintiff must first meet the FLSA's requirements to establish a claim.

         To establish jurisdiction under the FLSA, Plaintiff must plead that 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).

         II. Factual & Procedural History for Motion to Dismiss

         Plaintiff Everett Pilkington alleges he was not paid for two weeks of full-time work as lead production cook at Abuela's Cocina, LLC (“Abuela's”) between around February 11, 2018 and February 25, 2018. (Doc. 36 at 9-10.) Plaintiff's original Complaint was dismissed by the Court with leave to amend for lack of subject matter jurisdiction. (Doc. 22.) Plaintiff had failed to allege sufficient facts to support his claim that he satisfied the requirements of individual coverage or that Defendants satisfied the requirements of enterprise coverage in order to establish federal question jurisdiction under the FLSA. Id.

         Defendants named in Amended Complaint are Abuela's, Jorge Alvarez, David Aldecoa, John Aldecoa, and Brother John's. (Doc. 36.) To cure the defects of the original complaint, Plaintiff alleges that Defendants David and John Aldecoa were employers of Plaintiff at Defendant Alvarez's restaurant, Abuela's, and that the Aldecoa's restaurant, Brother John's BBQ, LLC (“Brother John's”), was under common control with Abuela's. Id. at 7. Defendants David Aldecoa, John Aldecoa, and Brother John's filed another Motion to Dismiss (Doc. 48), contending that Plaintiff had not cured the defects of his original Complaint and his alleged facts continued to be insufficient to support subject matter jurisdiction under the FLSA. Defendants also asserted that, regardless of the Court's jurisdiction, the Amended Complaint should be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6) because Plaintiff could not properly allege the Aldecoas had been his employers. (Doc. 48 at 11.)

         III. Motion to Dismiss

         i) Subject Matter Jurisdiction

         A motion to dismiss challenging subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) may be “facial” or “factual.” See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack contends the allegations of a complaint are “insufficient on their face to invoke federal jurisdiction.” Id. Comparatively, a factual attack is one which challenges the truth of the allegations which would invoke federal jurisdiction. Id. The allegations of a complaint are taken as true when a court considers a facial attack. Courthouse News Service v. Plant, 750 F.3d 776, 780 (9th Cir. 2014). Regarding a factual attack on federal jurisdiction, a 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).

         In the instant case, Defendants' Motion to Dismiss both factually and facially attacks the jurisdiction of the Court based on the Amended Complaint. Facially, Defendants assert that Plaintiff has not pleaded sufficient facts alleging that Plaintiff was engaged in commerce (for individual coverage) or pleaded sufficient facts to allege that Defendants were engaged in commerce (for enterprise coverage). Factually, Defendants deny Plaintiff's assertion that Abuela's and Brother John's were under common control, ...

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