United States District Court, E.D. North Carolina, Western Division
SANDRA WILLIAMS, KAREN WISE, SUE ELLEN GARCIA, and TOMAS SECUNDINO, Plaintiffs,
ERFAN IMENI, HASSAN FATHALIZADEH, and IMENI CORPORATION, Defendants.
W. FLANAGAN United States District Judge.
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.
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
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.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
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.
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.
facts alleged in the complaint may be summarized as
follows. 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).
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.
Standard of Review
Motion to Dismiss
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
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
Motion to Amend
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