Devore v. Lyons, No. 3:16-cv-01083-BN

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
PartiesKERI DEVORE, Plaintiff, v. ROBERT CASEY LYONS, Defendant.
Decision Date25 October 2016
Docket NumberNo. 3:16-cv-01083-BN

KERI DEVORE, Plaintiff,

No. 3:16-cv-01083-BN


October 25, 2016


Defendant Robert Casey Lyons ("Defendant" or "Lyons") filed a motion to dismiss for lack of subject matter jurisdiction or, alternatively, for failure to state a claim upon which relief can be granted [Dkt. No. 10]. In response, Plaintiff Keri Devore ("Plaintiff" or "DeVore") filed an amended complaint [Dkt. No. 17]. Defendant then filed a supplemental motion to dismiss [Dkt. No. 28], Plaintiff filed response [Dkt. No. 30], and Defendant filed a reply [Dkt. No. 31].

For the reasons explained below, the motion to dismiss, as supplemented, is granted in part and denied in part.


Taking Plaintiff's allegations as true, as the Court must in this context, Plaintiff worked without pay for Defendant from June 27, 2014 until February 3, 2016. During this time, Plaintiff and Defendant were romantically involved. After the breakup, Plaintiff sued Defendant for compensation for that work. Defendant seeks dismissal of Plaintiff's claims primarily on the theory that Plaintiff was not an employee.

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In her original complaint, Plaintiff alleges that Defendant is a sole proprietor who operates a plumbing business under the trade name "Bunkie's Plumbing." Plaintiff alleges that she performed various duties for Defendant's business, including acting as "Lyon's 'plumber's helper,' getting tools and supplies, helping Lyons remove and install water heaters and toilets, getting heavy machinery in/out of Lyons work truck and whatever other manual labor Lyons needed to assist him in completing his work jobs. DeVore also prepared business paperwork, communicated with customers as well as First American Home Warranty (Lyon's primary supplier of work), coordinated jobs, prepared and sent invoices, tracked Lyons' mileage and schedule, prepared job quotes and called vendors as needed." Plaintiff further alleges that she "consistently worked over 40 hours per work week for Lyons' business" and that "Lyons never paid DeVore any wages for her work. ...DeVore performed the work because she and Lyons were in a romantic relationship and she wanted to support the work of her boyfriend and help him be successful. Then, when their relationship ended, DeVore was left with nothing for 83 weeks of substantial work and suffered severe financial hardship as a result. Lyons maintained all of the benefits of the free work and continued on with his business." Dkt. No. 1 at 2-3. Plaintiff sued Defendant for breach of contract, or, alternatively, quantum meruit; overtime and minimum wage violations of the Fair Labor Standards Act ("FSLA"); and violation of the Texas Minimum Wage Act. See id. at 3-4.

Defendant filed a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Federal

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Rule of Civil Procedure 12(b)(6). Defendant asserts that the Court does not have subject matter jurisdiction because his business does not meet the FLSA's $500,000 gross annual sales threshold for enterprise coverage or have two or more employees. And Defendant argues that Plaintiff fails to state a claim for which relief may be granted because she makes a judicial admission in her original complaint that she was not an employee. Dkt. No. 10.

In response, Plaintiff filed an amended complaint. In addition to the duties listed in her original complaint, Plaintiff alleges that she "would purchase tools and supplies for the business from multi-state/national/international supply stores, from which tools and supplies were procured through interstate commerce." She also alleges that "Lyons specifically told DeVore 'we need to see how we can get you paid four or five hundred dollars a week'" on a monthly basis throughout the time Plaintiff claims to have worked for Defendant. She also alleges that "[t]o customers, Lyons referred to DeVore as his 'helper.' To the home warranty company from which Lyons received the bulk of his work, he referred to DeVore as his 'office person.' Lyons told numerous friends that Devore was 'good help' and cheap labor.'" Dkt. No. 17 at 2-3. Plaintiff again sued Defendant for breach of contract or, alternatively, quantum meruit; FLSA overtime and minimum wage violations; and violation of the Texas Minimum Wage Act. See id. at 4-5.

Defendant filed a motion to stay consideration of or to strike Plaintiff's First Amended Complaint. See Dkt. No. 21. After a hearing, the Court denied the request to strike and gave Defendant additional time to answer or otherwise respond to the

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amended complaint. See Dkt. No. 27.

Defendant filed a supplemental motion to dismiss in which he incorporated his arguments in the original motion to dismiss. As to enterprise coverage, Defendant argues that his business does not meet the $500,000 amount of annual gross sales or have two or more employees. Defendant also argues that his business falls under a "mom and pop" exemption from enterprise coverage. And for individual coverage, Defendant argues that Plaintiff is not an employee, but, is either an independent contractor, volunteer, or trainee, or is exempt under the FLSA's professional, administrative, or executive exemptions. And Defendant argues that plumbing businesses can claim a complete exemption from minimum wage and overtime pay under the FLSA's exemption for outside sales employees. See Dkt. No. 28.

In her response to the supplemental motion to dismiss, Plaintiff argues that the filing of the amended complaint rendered the motion to dismiss moot because it sought dismissal of the original complaint, which was no longer a live pleading. She also argues that Defendant's supplemental motion raises issues outside the complaint that may not be considered. See Dkt. No. 30.

In his reply, Defendant argues that the Court deferred ruling on the motion to dismiss and allowed Plaintiff to file the supplemental motion to dismiss and that Plaintiff's breach of contract and quantum meruit claims are conclusory. See Dkt. No. 31.

The Court now determines that the motion to dismiss, as supplemented, is granted in part and denied in part.

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Legal Standards

I. Motion to Dismiss for Lack of Subject Matter Jurisdiction

"Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims." Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). The Court "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam).

The Court must dismiss a complaint for lack of subject matter jurisdiction "'when the court lacks the statutory or constitutional power to adjudicate the case.'" Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). The Fifth Circuit recognizes a distinction between a "facial" attack to subject matter jurisdiction, which is based solely on the pleadings, and a "factual" attack to jurisdiction, which is based on affidavits, testimony, and other evidentiary material. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981); accord Ramming, 281 F.3d at 161 ("Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by

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undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts."). Regardless of the nature of the attack, the plaintiff seeking a federal forum "constantly bears the burden of proof that jurisdiction does in fact exist." Ramming, 281 F.3d at 161. Where, as here, a defendant files a Rule 12(b)(1) motion to dismiss, the attack is presumptively facial, and the Court need look only to the sufficiency of the allegations of plaintiff's complaint, or on the complaint as supplemented by undisputed facts, all of which are presumed to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1989); Paterson, 644 F.2d at 523. On a factual attack, however, the Court "is empowered to consider matters of fact which may be in dispute," Ramming, 281 F.3d at 161, and, to oppose the Rule 12(b)(1) motion, "a plaintiff is also required to submit facts through some evidentiary method and has the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction," Paterson, 644 F.2d at 523.

Ultimately, the Court will grant a motion to dismiss "only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Home Builders Ass'n, 143 F.3d at 1010; see also Hinds v. Roper, No. 3-07-CV-0035-B, 2007 WL 3132277, at *2 (N.D. Tex. Oct. 25, 2007).

II. Motion to Dismiss for Failure to State a Claim

In deciding a Federal Rule of Civil Procedure 12(b)(6) motion, the Court must "accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007).

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To state a claim upon which relief may be granted, Plaintiffs must plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must plead those facts with enough specificity "to raise a right to relief above the speculative level." Id. at 555. "A claim has...

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