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Williams v. Imeni

United States District Court, E.D. North Carolina, Western Division

May 23, 2017

SANDRA WILLIAMS, KAREN WISE, SUE ELLEN GARCIA, and TOMAS SECUNDINO, Plaintiffs,
v.
ERFAN IMENI, HASSAN FATHALIZADEH, and IMENI CORPORATION, Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         This matter is before the court on defendant Imeni Corporation's motion to dismiss (DE 26) and plaintiffs' partial motion to dismiss. (DE 34). Also before the court is plaintiffs' motion to file amended complaint. (DE 40). In this posture, the issues raised are ripe for ruling. For the following reasons, the court denies defendant's motion to dismiss and grants plaintiffs' partial motion to dismiss. The court also grants plaintiffs' motion to file amended complaint.

         BACKGROUND

         Plaintiffs initiated this action on June 24, 2016, asserting claims against defendants under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216 et seq., for violations of minimum wage and overtime provisions. Plaintiffs are former employees of defendants who worked at defendants' Subway restaurant in Goldsboro, North Carolina.

         Proceeding pro se, defendants answered plaintiffs' complaint on July 21, 2016. On August 25, 2016, defendant Imeni Corporation (“Imeni Corp.”), through counsel, filed an answer to plaintiffs' complaint, which included counterclaims against plaintiffs Williams and Wise.[1]Defendant asserts counterclaims against Williams and Wise for conversion, fraud, unfair and deceptive trade practices, and breach of contract. Defendant also asserts against plaintiff Williams claims for wrongful interference with contract, negligence, gross negligence, abuse of process, and malicious prosecution.

         On September 9, 2016, defendant filed the instant motion to dismiss. Defendant Imeni Corp. seeks dismissal of plaintiffs' complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). On October 3, 2016, plaintiffs filed the instant partial motion to dismiss, pursuant to Rule 12(b)(6), seeking to dismiss defendant's counterclaims against Williams and Wise.

         Thereafter, plaintiffs filed the instant motion to file amended complaint. The proposed complaint seeks to add claims against defendants for unlawful retaliation under the FLSA and violation of the North Carolina Wage and Hour Act (“NCWHA”), N.C. Gen. Stat. § 95-25.1 et s e q ., in the event the court finds defendants exempt from the FLSA. Defendants filed no response to the motion to amend. In their motion, plaintiffs note that defendants object to addition of a retaliation claim.

         STATEMENT OF FACTS

         The facts alleged in the complaint may be summarized as follows.[2] Defendants are in the business of operating a Subway restaurant in Goldsboro, North Carolina. (DE 1 ¶ 79). Defendants Erfan Imeni (“Imeni”) and Hassan Fathalizadeh (“Fathalizadeh”) co-own defendant Imeni Corp. (Id. ¶ ¶ 73-74). Plaintiffs are former employees of defendants. Plaintiff Williams was shift leader and shift supervisor at defendants' Subway restaurant, and plaintiffs Wise, Garcia and Secundino were food service workers. (Id. ¶ ¶ 10, 31, 43, 65). At all relevant times herein, plaintiffs were paid by the hour as non-exempt employees. (Id. ¶ ¶ 78, 86).

         During plaintiffs' terms of employment, defendants routinely deducted hours from plaintiff's paychecks each pay period. (Id. ¶ 33). On average, defendants deducted two to seven hours from plaintiffs each pay period. (Id. 87). When plaintiffs noticed that their paychecks were inaccurate, Williams confronted Imeni. According to plaintiffs, when Williams confronted Imeni, he told her “that he did not know whose hours he was taking from, but that he was doing it to save money.” (Id. ¶ 89). Defendants have also failed to compensate plaintiffs for time they were required to attend mandatory store meetings. (Id. ¶¶ 92-93).

         DISCUSSION

         A. Standard of Review

         1. Motion to Dismiss

         A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of the complaint but “does not resolve contests surrounding the facts, the merits of a claim or the applicability of defenses.” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). A complaint states a claim if it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v . Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “ Asking for plausible grounds . . . does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” required to prove the claim. Twombly, 550 U.S. at 556. In evaluating the complaint, “[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff, ” but does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[, ] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd., v. Consumeraffiars.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).

         A Rule 12(b)(1) motion challenges the court's subject matter jurisdiction and the plaintiff bears the burden of showing that federal jurisdiction is appropriate when challenged by the defendant. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Such motion may either 1) assert the complaint fails to state facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction, apart from the complaint. Bain, 697 F.2d at 1219. Under the former assertion, the moving party contends that the complaint “simply fails to allege facts upon which subject matter jurisdiction can be based.” Id. In that case, “the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Id. “[T]he facts alleged in the complaint are assumed true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). When the defendant challenges the factual predicate of subject matter jurisdiction, a court “is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The nonmoving party “must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists.” Id.

         2. Motion to Amend

         Leave to amend must be freely given when justice so requires, and will be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile. See Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). “[T]he grant or denial of an opportunity to amend is within the discretion of the [d]istrict [c]ourt.” Foman v. Davis, 371 U.S. 178, 182 (1962).

         B. Analysis

         1. Defendants' ...


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