Ferrer v. Atlas Piles, LLC

• Decision Date: 16 February 2022
• Docket Number: CASE NO. 21-24051-CIV-LENARD/LOUIS
• Citation: 586 F.Supp.3d 1286
• Parties: Manuel Rodriguez FERRER, Plaintiff, v. ATLAS PILES, LLC, Hammer Time Builders, Inc., Carbajal Investments 1, Inc., AC Real Estate Investments Inc., Reinaldo Aquit, and Alberto Carbajal, Defendants.
• Court: U.S. District Court — Southern District of Florida

586 F.Supp.3d 1286

Manuel Rodriguez FERRER, Plaintiff,

v.ATLAS PILES, LLC, Hammer Time Builders, Inc., Carbajal Investments 1, Inc., AC Real Estate Investments Inc., Reinaldo Aquit, and Alberto Carbajal, Defendants.

CASE NO. 21-24051-CIV-LENARD/LOUIS

United States District Court, S.D. Florida.

Signed February 16, 2022

Toussaint Marcus Cummings, Quintairos, Prieto, Wood and Boyer, Miami, FL, Brian Howard Pollock, FairLaw Firm, Coral Gables, FL, for Plaintiff.

Vanessa D. Torres, Djebelli Torres PLLC, Coral Gables, FL, for Defendants Hammer Time Builders Inc., Carbajal Investments 1, Inc., AC Real Estate Investments Inc., Alberto Carbajal.

ORDER DENYING DEFENDANTS HAMMER TIME BUILDERS INC., CARBAJAL INVESTMENTS 1, INC., AC REAL ESTATE INVESTMENTS INC., AND ALBERTO CARBAJAL'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT (D.E. 22)

JOAN A. LENARD, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Defendants Hammer Time Builders, Inc., Carbajal Investments 1, Inc., AC Real Estate Investments Inc., and Alberto Carbajal's Motion to Dismiss Plaintiff's Complaint, ("Motion," D.E. 22), filed January 14, 2022. Plaintiff Manuel Rodriguez Ferrer filed a Response on January 28, 2022, ("Response," D.E. 25), to which Defendants did not reply. Upon review of the Motion, Response, and the record, the Court finds as follows.

I. Background

According to the Complaint, "Defendants collectively operated as Plaintiff's ‘employer(s)’ for purposes of the [Fair Labor Standards Act ("FLSA").]" (D.E. 1 ¶ 11.) "Defendants regularly employed two or more employees for the relevant time period that handled goods or materials that travelled through interstate commerce, or used instrumentalities of interstate commerce ...." (Id. ¶ 13.) "Defendants were at all times material engaged in interstate commerce in the course of their installation of foundation piles using bobcats, heavy equipment, machinery, hadn [sic] tools, parts, fluids, adhesives, lubricants, goods, materials, supplies, and equipment that have all moved through interstate commerce." (Id. ¶ 14.) "Defendants also, as part of their services, sell steel and metal piles, goods, materials, and supplies that previously traveled in interstate commerce." (Id. ¶ 15.) "Defendants also engage in interstate commerce in the course of their submission of billings and receipt of payment involving out-of-state payors." (Id. ¶ 16.) "Furthermore, Defendants obtain, solicit, exchange and send funds to and from outside of the State of Florida, regularly and recurrently use telephonic transmissions going outside of the State of Florida to conduct business, and transmit electronic information through computers, the internet, via email, and otherwise outside of the State of Florida in the course of their business." (Id. ¶ 17.) "Defendants’ annual gross revenues derived from this interstate commerce are believed to be in excess of $500,000.00 per year and/or in excess of $125,000 for each fiscal quarter during the preceding three years." (Id. ¶ 18.)

The Complaint further alleges that Plaintiff was an hourly, non-exempt employee of Defendants from about April 2019 until November or December 2020. (Id. ¶¶ 19-20, 23.) "Plaintiff regularly and routinely utilized telephones, cellular telephones, hand tools, lubricants, mechanical parts, and other goods and supplies that moved through interstate commerce." (Id. ¶ 22.) Plaintiff regularly and routinely worked more than 40 hours in a work week. (Id. ¶ 26.) "Defendants failed and refused to pay Plaintiff overtime wages calculated at time and one-half times of Plaintiff's regular hourly rate(s) of pay for all of the hours worked beyond 40 hours in a given workweek." (Id. ¶ 27.)

On November 17, 2021, Plaintiff filed the Complaint alleging, inter alia, overtime wage violations under the Fair Labor Standards Act, 29 U.S.C. § 207, against Defendants Atlas Piles, LLC, Hammer Time Builders Inc., Carbajal Investments 1, Inc., AC Real Estate Investments Inc., Reinaldo Aquit, and Alberto Carbajal.¹ (Id. ¶¶ 11-30.)

On January 14, 2022, Defendants Hammer Time Builders Inc., Carbajal Investments 1, Inc., AC Real Estate Investments Inc., and Alberto Carbajal (hereafter "Defendants") filed the instant Motion to Dismiss Plaintiff's Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and (h)(3) and for failure to state a claim pursuant to Rule 12(b)(6). (D.E. 22 at 1.) Alternatively, Defendants ask the Court to convert the Motion to Dismiss into a Motion for Summary Judgment pursuant to Rule 56. (Id. ) In support of summary judgment, Defendants attach to their Motion three affidavits executed by Defendant Alberto Carbajal, (D.E. 22-1, 22-2, 22-3), the 2019 and 2020 tax returns for Defendant Hammer Time Builders Inc., the 2019 tax returns for non-party Carbajal Investments 6, Inc., and the 2019 tax returns for Defendant AC Real Estate Investments, Inc. (D.E. 22-4.) Plaintiff filed a Response, (D.E. 25), to which Defendants did not reply.

II. Legal Standards

a. Rule 12(b)(1) & (h)(3)

Under Rule 12(b)(1), a party may move to dismiss a complaint for lack of subject matter jurisdiction. "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).

Attacks on subject matter jurisdiction come in two forms: (1) facial attacks, and (2) factual attacks. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980) ).

Facial attacks on a complaint "require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in [plaintiff's] complaint are taken as true for the purposes of the motion." Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Factual attacks challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Lawrence, 919 F.2d at 1529. This circuit has explained that in a factual attack, the presumption of truthfulness afforded a plaintiff under Federal Rule of Civil Procedure 12(b)(6) does not attach, and the court is free to weigh the evidence, stating:

[in a factual attack upon subject matter jurisdiction] the trial court may proceed as it never could under 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction—it's very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no 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.

Lawrence, 919 F.2d at 1529 (quoting Williamson v. Tucker, 645 F.2d 404, 412–13 (5th Cir. 1981) ).

Scarfo v. Ginsberg, 175 F.3d 957, 960-61 (11th Cir. 1999).

b. Rule 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a claim for "failure to state a claim upon which relief can be granted." "To survive a motion to dismiss, a complaint must contain 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Conclusory statements, assertions or labels will not survive a 12(b)(6) motion to dismiss. Id. "A claim has facial plausibility 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.; see also Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010) (setting forth the plausibility standard). "Factual allegations must be enough to raise a right to relief above the speculative level[.]" Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Additionally:

Although it must accept well-pled facts as true, the court is not required to accept a plaintiff's legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (noting "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions"). In evaluating the sufficiency of a plaintiff's pleadings, we make reasonable inferences in Plaintiff's favor, "but we are not required to draw plaintiff's inference." Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). Similarly, "unwarranted deductions of fact" in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's allegations. Id.; see also Iqbal, 129 S. Ct. at 1951 (stating conclusory allegations are "not entitled to be assumed true").

Sinaltrainal v. Coca-Cola, 578 F.3d 1252, 1260 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Auth., 566 U.S. 449, 132 S. Ct. 1702, 1706 n.2, 182 L.Ed.2d 720 (2012). The Eleventh Circuit has endorsed "a ‘two-pronged approach’ in applying these principles: 1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.’ " Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ).

Pursuant to Rule 12(d), "[i]f, on a motion under Rule 12(b)(6) ... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion."

c. Rule 56

On a motion...