Ventura v. Bebo Foods, Inc.

• Decision Date: 02 February 2009
• Docket Number: No. 08-00621 (RCL).,08-00621 (RCL).
• Citation: 595 F.Supp.2d 77
• Parties: Jesus VENTURA, et al., Plaintiffs, v. BEBO FOODS, INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

595 F.Supp.2d 77

Jesus VENTURA, et al., Plaintiffs, v. BEBO FOODS, INC., et al., Defendants.

Civil Action No. 08-00621 (RCL).

United States District Court, District of Columbia.

February 2, 2009.

COPYRIGHT MATERIAL OMITTED

Denise Marie Clark, Washington, DC, for Plaintiffs.

Philip B. Zipin, The Zipin Law Firm LLC, Silver Spring, MD, for Defendants.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

This matter comes before the Court on defendants' "Motion to Dismiss or, in the Alternative, to Transfer" [9, 10]. Upon full consideration of the motion, the oppositions and replies thereto, the applicable law, and the entire record herein, the Court finds, for the reasons set forth below, that defendants' motion will be DENIED.

I. BACKGROUND

Plaintiffs are former restaurant wait staff and bussers who commenced this action against defendant Roberto Donna ("Donna") and various restaurants/companies he owns and operates.¹ Plaintiffs allege violations of state and federal law governing wage payment and overtime obligations of employers under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), District of Columbia Wage Payment and Collection Act, D.C.Code § 32-1303 et seq. ("DCWP & CA"), and Equal Pay Act, 29 U.S.C. § 206 ("EPA"). Specifically, named plaintiffs contend that they were not paid overtime compensation, were not always paid the minimum wage, and in some instances were not paid any wages due to the issuance of paychecks that either bounced, were void or were otherwise impossible to cash. (Compl. ¶¶ 1, 46-54, 59-61.) Plaintiffs further allege that female bussers were denied equal pay to that of male bussers. (Id. ¶¶ 55-58.) According to plaintiffs, these violations began as early as February 1992 during their employment at the Donna-operated Galileo Restaurant ("Galileo") in Washington, D.C. (Id. ¶ 25.) The violations allegedly continued until at least February 2008, after plaintiffs were transferred in October 2006 to defendant Donna's newly-opened BEBO Trattoria Restaurant ("BEBO Trattoria") in Arlington, Virginia due to the closure of Galileo for renovations. (Id. ¶ 33-34.)

On April 11, 2008, plaintiffs filed the complaint [1] in this matter, and later filed a four-count amended complaint [4] on May 29, 2008, which added no new causes of action, but styled the case as a collective and class action. Defendants argue plaintiffs' claims fail and dismissal is appropriate based on various theories including lack of personal jurisdiction, improper venue, and failure to state a claim upon which relief can be granted. In the alternative to dismissal, defendants request transfer of the action to the United States District Court for the Eastern District of Virginia.

II. ANALYSIS

1. Proper Party Status of Defendants BEBO Trattoria and Galileo

Defendants challenge the inclusion of BEBO Trattoria and Galileo as defendants in this action, arguing they are trade names rather than legal entities capable of being sued and therefore should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs respond by asserting that both parties can be sued in their "doing business capacity" because they are qualifying "employers" as that term is broadly defined and loosely construed under both the FLSA and DCW & HL. In the alternative, plaintiffs have requested the opportunity to amend the complaint caption to correct what is essentially a misnomer of identified defendants.

The parties' filings, affidavits, and exhibits relating to this issue have conclusively established that: (1) Donna is Principal for defendant corporations BEBO Foods and RD Trattoria; (2) RD Trattoria is "doing business as" BEBO Trattoria Restaurant; and (3) Donna owns/operates BEBO Foods, BEBO Trattoria Restaurant and Galileo Restaurant. (Donna Aff. ¶ 2; Pls.' Opp'n Ex. 1-2.) Furthermore, plaintiffs' opposition indicates that a recent review of District of Columbia bankruptcy petitions has revealed Galileo is a trade name for District of Columbia corporation SER, Inc. ("SER"), and therefore is named in the complaint in its "doing business as" capacity. Plaintiffs further state that their diligent review of D.C. corporation listings did not reveal Galileo as a trade name for corporate entity SER at the time of the filing of their previous complaint, and note that plaintiffs' paychecks were not issued under the name of that corporation. Defendants do not deny the connection between SER and Galileo, or refute plaintiffs' contentions that Galileo is not listed as a trade name with the District of Columbia.

Defendants are correct in noting the axiom that trade names are not juridical entities capable of being sued. Evans v. Washington Center for Internships and Academic Seminars, 587 F.Supp.2d 148 (D.D.C.2008); American Society for the Prevention of Cruelty to Animals v. Ringling Brothers and Barnum & Bailey Circus, 502 F.Supp.2d 103, 105 fn. 2 (D.D.C. 2007); Snowden v. CheckPoint Check Cashing, 290 F.3d 631, 634 (4th Cir.2002). Because BEBO Trattoria and Galileo have been identified as trade names of corporations, they can be dismissed without prejudice as proper defendants in the complaint. However, the specific circumstances involved in this case convince the Court to grant plaintiffs leave to amend the case caption to correct the named defendants and designate the restaurant trade names in their "doing business" capacity with respect to the corporate defendants.

Plaintiffs' first amended complaint included both the known corporate defendants and the names of the restaurants under which those companies were "doing business as"—i.e. the actual places of business where plaintiffs worked. However, these designated corporation/restaurant defendants are not separate and distinct legal entities, but rather a single entity with two names. Here, either or both of the corporate or "doing business as" restaurant defendants—aliases for the same legal entity—were identified in the complaint and provided with effective notice and service of the charges against them. As such, amendment of plaintiffs' complaint caption is in order to reflect that the corporate/restaurant defendants are in fact one and the same defendant for purposes of this lawsuit.

Based on the recent discovery of SER as the corporate entity behind Galileo, the intertwined associations between Donna and all of the corporate/restaurant parties appearing in the complaint, and the lack of any prejudice to the parties given actual notice to all of the originally named "defendants," including Galileo Restaurant, the Court grants plaintiffs leave under Federal Rule of Civil Procedure 15(a)(2) to amend the complaint caption to reflect proper legal entities capable of being sued. The amended caption will therefore reflect "SER, Inc. d/b/a Galileo Restaurant" as a properly named defendant. Likewise, the Court grants plaintiff leave sua sponte to further amend the complaint caption to substitute "RD Trattoria, Inc. d/b/a BEBO Trattoria Restaurant" in place of those separately named defendants.

2. Personal Jurisdiction Over Defendants Donna and RD Trattoria

Defendants also contend that claims against non-resident defendants Donna and RD Trattoria, Inc. ("RD Trattoria") (now established to be "d/b/a BEBO Trattoria Restaurant") should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction under the District of Columbia long-arm statute. Plaintiffs respond that the allegations in their complaint and the affidavit of Ms. Elizabeth Scott clearly establish the jurisdictional reach of this Court over these defendants. In the alternative, plaintiffs request they be allowed jurisdictional discovery in order to further support personal jurisdiction over these defendants.

Rule 12(b)(2) "authorizes a motion to dismiss based upon the traditional defense that the court lacks jurisdiction over the defendant's person, which raises a question as to whether the controversy or defendant has sufficient contact with the forum to give the court the right to exercise judicial power over defendant." 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1351 (1969). For this Court to exercise personal jurisdiction over a non-resident defendant, service of process must be authorized by the forum's long-arm statute and comport with the Due Process Clause of the Fourteenth Amendment. FC Inv. Group LC v. IFX Markets, Ltd., 529 F.3d 1087, 1095 (D.C.Cir.2008) (citing GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C.Cir.2000)). In the District of Columbia, in keeping with longstanding Supreme Court precedent, "personal jurisdiction exists when the defendant has purposely established minimum contacts with the forum state and when the exercise of jurisdiction comports with the `traditional notions of fair play and substantial justice.'" Wiggins v. Equifax, Inc., 853 F.Supp. 500, 502 (D.D.C. 1994) (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 107, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)).

Purposeful availment thus stands as a touchstone of personal jurisdiction analysis, and the plaintiff "must allege some specific facts evidencing purposeful activity by [d]efendants in the District of Columbia by which they invoked the benefits and protections of its laws." Novak-Canzeri v. Saud, 864 F.Supp. 203, 205 (D.D.C.1994). Plaintiffs may discharge this burden with a prima facie showing that the requirements of the District of Columbia long-arm statute have been met. Jones v. City of Buffalo, 901 F.Supp. 19, 21 (D.D.C.1995). The imposition of such a burden on plaintiffs excepts personal jurisdiction analysis from the general rule that all allegations must be taken as true for purposes of ruling on a motion to dismiss. See United States v. Philip Morris, Inc., 116 F.Supp.2d 116, 120 fn. 4 (D.D.C.2000). Indeed, courts may consider outside evidence to make factual determinations in disposing of a ...