270 F. Supp. 3d 39
D.D.C.
2017

Osсar MURCIA, et al., Plaintiffs, v. A CAPITAL ELECTRIC CONTRACTORS, INC., et al., Defendants.

Civil Action No. 16-2065 (RDM)

United States District Court, District of Columbia.

Signed 09/05/2017

RANDOLPH D. MOSS, United States District Judge

awards fees as requested by Ms. Sarceno Reyes and shown in the following table:

AttorneyHours BilledHourly RateTotal
Ms. Lombardo3.1$440$1364
Ms. Lombardo0.9$460$414
Mr. Lieberman1.3$440$572
Mr. Lieberman0.3$460$138
Mr. Garcia1.1$295$324.50
Mr. Garcia0.7$310$217
Mr. Garcia1.9$325$617.50
Total$3647

C. Award of Costs

Ms. Sarceno Reyes requests that the Court reimburse her for $500.94 in costs, including the filing fee, process server, and postage. Pl.‘s Mot. at 6, ECF No. 14. The Court finds that these costs аre reasonable and compensable under the FLSA. See 29 U.S.C. § 216 (“The court in such an action shall ... allow [an award of] costs of the action.“). The Court therefore will award Ms. Sarceno Reyes $500.94 in costs.

IV. CONCLUSION

For the foregoing reasons, Plaintiff‘s motion for default judgment is GRANTED. An order consistеnt with this Memorandum Opinion is separately and contemporaneously issued.

USAO Laffey Matrix, https://www.justice.gov/usao-dc/file/889176/download. Similarly, the LSI Laffey matrix provided that a lawyer with two years of experience could bill $343 in 2016, and the USAO Laffey matrix provided such a lawyer, could bill 2016, $315 in LSI Lаffey Matrix, http://www.laffeymatrix.com/see.html; USAO Laffey Matrix, https://www.justice.gov/usao-dc/file/889176/download. Therefore both Ms. Lombard and Mr. Lieberman billed somewhat below the maximum Laffey rate for lawyers with their experience. If Mr. Garcia billed slightly above, which is possible depending on when he began practicing law, the Court finds that is a harmless error in light of Ms. Lombard and Mr. Lieberman‘s rates.

2016. Dkt. 1-2 at 3 (Compl. ¶ 6). Defendants timely removed the action to this Court pursuant to 28 U.S.C. § 1441, Dkt. 1, and now move to dismiss for improper venue and failure to state a claim, Dkt. 8. For the reasons explаined below, the Court will deny that motion.

Matthew B. Kaplan, The Kaplan Law Firm, Arlington, VA, for Plaintiffs.

Susan Laiken Kruger, Rani V. Rolston, Alan Lescht & Associates, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

For purposes of the pending motion, the Court must accept Plaintiffs’ allegations as true. See Wood v. Moss, — U.S. —, 134 S.Ct. 2056, 2065-67 & n.5, 188 L.Ed.2d 1039 (2014) (Rule 12(b)(6)); Laukus v. United States, 691 F.Supp.2d 119, 125 (D.D.C. 2010) (Rule 12(b)(3)).

According to the complaint, Defendant A Capital Electric Contractors, Inc., is a Virginia еlectrical contractor that engages in “construction[-]related work in the Washington, D.C. metropolitan area.” Dkt. 1-2 at 3 (Compl. ¶ 4). Defendant Olga Gonzalez is the “principal owner” of A Capital and serves as its president. Id. (Compl. ¶ 5). Plaintiffs, in turn, “were formerly employed by Defendants to perform electrical work.” Dkt. 1-2 at 2 (Compl. ¶ 3). Each Plaintiff “worked for Defendant[s] at some point ... from early 2013 through the first half of 2016.” Dkt. 1-2 at 3 (Compl. ¶ 6). Gonzalez “supervis[ed] ... each Plaintiff and largely determined the hours that each Plaintiff worked.” Id. (Compl. ¶ 5).

Each of Plaintiffs’ claims turns on the allegation that “Defendants regularly, intentionally and knowingly employed each Plaintiff in excess of forty hours per week but failed to pay each Plaintiff at a[n] ... overtime rate” of time-and-a-half. Id. (Compl. ¶ 6). As a result, Plaintiffs allege, Defendants violated the Fair Labor Standards Act (“FLSA“), 29 U.S.C. § 207 (Count I), and the D.C. Minimum ‍‌‌‌‌​‌‌​​​‌​‌​‌‌​​‌​‌‌​‌​‌‌‌‌​‌​​‌​​‌​​‌‌‌‌​‌​​‌‍Wage Revision Act (“DCMWRA“), D.C. Code § 32-1001(c) (Count II). Moreover, because Defendants did not pay these overdue overtime wages at the time that each Plaintiff ceased to work for Defendants, Plaintiffs assert that Defendants also violated the D.C. Wage Payment and Collectiоn Law (“DCWPCL“), D.C. Code § 32-1303 (Count III). Finally, Plaintiffs allege similar violations under Maryland (Count IV) and Virginia (Count V) law, “to the extent [those laws] appl[y] to Defendants’ conduct.” Dkt. 1-2 at 7 (Compl. ¶¶ 27, 30); see Md. Code Ann., Lab. & Empl. § 3-505; Va. Code Ann. § 40.1-29. Plaintiffs seek damages, including liquidated damages, attorney‘s fees and expenses, and an injunction barring “Defendant[s] from further violations of labor laws.” Id. at 8 (Compl. Demand).

Defendants removed the action to this Court pursuant to 28 U.S.C. § 1441 and, then, promptly moved to dismiss for improper venue, see Fed. R. Civ. P. 12(b)(3), and for failure to state a claim, see Fed. R. Civ. P. 12(b)(6).1 Dkt. 8.

II. LEGAL STANDARD

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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible if the plaintiff pleads “factual content that allows the сourt to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although “detailed factual allegations” are not required, the complaint must contain “more than labels and conclusions, [or] a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. The Court must “assume [the] veracity” of “well-pleaded factual allegations,” Iqbal, 556 U.S. at 679, and must “grant [the] plaintiff the benefit of all inferences that can be derived from the facts alleged,” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal quotation marks omitted). The Court, howevеr, need not accept “a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678.

A similar standard governs a defendant‘s motion to dismiss for improper venue. The Court must “accept[] the plaintiff‘s well-pled factual allegations regarding venue as truе;” must “draw[] all reasonable inferences from those allegations in the plaintiff‘s favor;” and must “resolve[] any factual conflicts in the plaintiff‘s favor.” Darby v. U.S. Dep‘t of Energy, 231 F.Supp.2d 274, 276 (D.D.C. 2002). The plaintiff, however, “bears the burden of establishing that venue is proper,” Varma v. Gutierrez, 421 F.Supp.2d 110, 113 (D.D.C. 2006) (citation omitted), and must offer more than mere legal conclusions.

III. ANALYSIS

A. Venue

Defendants first argue that the Court must dismiss Plaintiffs’ complaint on the ground that venue is improper in the District of Columbia. In particular, they contend that ”28 U.S.C. § 1391(b) governs venue.” Dkt. 8-1 at 3. That provision limits venue to judicial districts where “any defendant resides, if all defendants are residents of the State ‍‌‌‌‌​‌‌​​​‌​‌​‌‌​​‌​‌‌​‌​‌‌‌‌​‌​​‌​​‌​​‌‌‌‌​‌​​‌‍in which the district is located;” where “a substantial part of the events or omissions giving rise to the claim occurred;” or where “any defendant is subject to the court‘s personal jurisdiction” if “there is no district in which [the] action may otherwise be brought.” 28 U.S.C. § 1391(b). Relying on § 1391(b), Defendants arguе that Plaintiffs have failed to allege sufficient facts to show that a substantial portion of their uncompensated work occurred in the District of Columbia. Dkt. 8-1 at 3. They are incorrect on both the facts and the law.

As an initial matter, Plaintiffs have alleged that “[a] substantial portion of [the] work” that they performed on behalf of Defendants occurred at “construction sites in the District of Columbia.” Dkt. 1-2 at 2-3 (Compl. ¶¶ 3-4). Despite Defendants’ assertion to the contrary, that is not a mere legal conclusion; although the word “substantial” appears in § 1391 and hаs been given meaning by the courts, “the [C]ourt must treat the complaint‘s factual allegations—including mixed questions of law and fact—as true and [must] draw all reasonable inferences therefrom in the plaintiff‘s favor.” Smith v. United States, 121 F.Supp.3d 112, 117 (D.D.C. 2015) (quoting Epps v. U.S. Capitol Police Bd., 719 F.Supp.2d 7, 13 (D.D.C. 2010)). As the Supreme Court has explained, the federal rules do “not rеquire ‘detailed factual allegations,’ but [do] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Here, Plaintiffs’ reliance on a legal term of art—“substantial“—does not deprive their allegation of sufficient factual content to survive a motion to dismiss. Defendants have access to the relevant evidence, moreover, and are free to bring an early motion for summary judgment if they can show that Plaintiffs’ allegation is factually incorrect.

More importantly, Defendants’ theory is wrong as a matter of lаw. They rely exclusively on 28 U.S.C. § 1391, the general venue statute. That provision applies to “civil actions brought in district courts of the United States.” 28 U.S.C. § 1391(a)(1). But this action was not brought in federal court; rather, it was brought in D.C. Superior Court and removed here by Defendants. “[B]ecause this is a removed action,” § 1391 “has no application to this case.” Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665 (1953). Instead, venue is governed by 28 U.S.C. § 1441, which applies to removed actions. Id. That statute “expressly provides that the proper venue of a removed action is ‘the district court of the United States for the district and division embracing the place where such action is pending.‘” Id. at 666 (quoting 28 U.S.C. § 1441(a)).

Applying § 1441(a), venue lies exclusively in this Court. Plaintiffs brought their claims in D.C. Superior Court, and Defendants chose to remove the case to federal court. Under those сircumstances, § 1441(a) provided Defendants with a single option—to remove the case to this Court, which constitutes “the district and division embracing the place where” Plaintiffs’ suit was brought. 28 U.S.C. § 1441(a). “It therefore is immaterial that the federal court to which the action [was] removed“—that is, this Court—might “nоt have been a proper venue if the action originally had been brought [here].” 14C Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Joan E. Steinman, Federal Practice and Procedure § 3732 at 618-21 (2009); see also Kotan v. Pizza Outlet, Inc., 400 F.Supp.2d 44, 46 (D.D.C. 2005); Translinear, Inc. v. Republic of Haiti, 538 F.Supp. 141, 144 (D.D.C. 1982).

The Court will, accordingly, deny Defendants’ ‍‌‌‌‌​‌‌​​​‌​‌​‌‌​​‌​‌‌​‌​‌‌‌‌​‌​​‌​​‌​​‌‌‌‌​‌​​‌‍motion to dismiss for improper venue.

B. Failure To State a Claim

Defendants аlso move to dismiss for failure to state a claim, Dkt. 8-1 at 4-5. Their argument is twofold. First, Defendants contend that Plaintiffs have failed to state a claim under the FLSA, 29 U.S.C. § 207, and the DCMWRA, D.C. Code § 32-1003(c), because they have not adequately alleged that they were “employees” of Defendants under those statutes. Dkt. 8-1 аt 4. Second, they argue that Plaintiffs have also failed to state a claim under the D.C., Maryland, or Virginia wage payment laws because their FLSA and DCMWRA claims fail, and they have not alleged that they sustained “any unpaid wages other than unpaid overtime compensation.” Id. at 5. As explained below, the Court is unpersuaded.

The FLSA provides that “no employer shall employ any of his employees ... for a workweek longer than [40] hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than [1.5] times thе regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). The DCMWRA similarly requires “employer[s]” to compensate “employee[s]” at 1.5 times the employee‘s normal rate for work performed in excess of 40 hours. D.C. Code § 32-1003(c). Thus, under both statutes, the requirement to pay overtime wages is keyed to the plaintiff‘s classification as an “employee.” Because the DCMWRA uses “language very similar to the FLSA,” the federal and D.C. statutes are “construed consistently” such that “determinations of employer or employee status under the FLSA apply equally under the [DCMWRA].” Perez v. C.R. Calderon Constr., Inc., 221 F.Supp.3d 115, 138 (D.D.C. 2016); see also Gainor v. Optical Soc‘y of Am., Inc., 206 F.Supp.3d 290, 297 (D.D.C. 2016); Galloway v. Chugach Gov‘t Servs., Inc., 199 F.Supp.3d 145, 148-49 (D.D.C. 2016); Thompson v. Linda & A. Inc., 779 F.Supp.2d 139, 146 (D.D.C. 2011).

Under the FLSA and DCMWRA, the term “employee” means “any individual employed by an employer.” 29 U.S.C. § 203(e)(1); see D.C. Code § 32-1002(2). An “employer,” in turn, means “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d); see D.C. Code § 32-1002(3). These definitions are “necessarily ... broad ... in accordаnce with the remedial purpose[s] of the [a]ct[s].” Morrison v. Int‘l Programs Consortium, Inc., 253 F.3d 5, 10 (D.C. Cir. 2001) (quoting Brock v. Superior Care, Inc., 840 F.2d 1054, 1058 (2d Cir. 1988)).

To determine “employee” status, the Court must examine the “economic reality” between the parties, Goldberg v. Whitaker House Co-op, Inc., 366 U.S. 28, 33 (1961), and in particular “the extent to which typical employer prerogatives govern the relationship between the putative employer and employee,” Henthorn v. U.S. Dep‘t of Navy, 29 F.3d 682, 684 (D.C. Cir. 1994). Thus, among other things, the Court must consider “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Morrison, 253 F.3d at 11 (quoting Henthorn, 29 F.3d at 684). No factor is dispositive, however, and the Court must “look at the totality of the circumstances.” Id.

A company‘s officers and owners, moreover, may at times be liаble under the FLSA and DCMWRA. See Ventura v. Bebo Foods, Inc., 738 F.Supp.2d 1, 5 (D.D.C. 2010). This is because both acts impose liability on “employers,” and an “employer” is defined to include ‍‌‌‌‌​‌‌​​​‌​‌​‌‌​​‌​‌‌​‌​‌‌‌‌​‌​​‌​​‌​​‌‌‌‌​‌​​‌‍“any person” who is “acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d); D.C. Code § 32-1002(3). “The overwhelming weight of authority is that a corporate officer with operational control of a corporation‘s covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages.” Ventura v. L.A. Howard Constr. Co., 134 F.Supp.3d 99, 102 n.1 (D.D.C. 2015) (quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983)). In assessing whether an individual should be considered an “employer” for purposes of the FLSA and DCMWRA, courts apply the four factors, discussed above, as well as “the ownership interest of the corporate officer.” Bebo Foods, 738 F.Supp.2d at 5. Thus, “an individual who exercises operational control over an employee‘s wages, hours, and terms of еmployment [may] qualif[y] as an ‘employer.‘” Guevara v. Ischia, Inc., 47 F.Supp.3d 23, 26 (D.D.C. 2014).

For present purposes, the Court concludes that Plaintiffs have adequately alleged that they were “employees” of both A Capital and Gonzalez. They allege, for example, that they were “employed by Defеndants to perform electrical work,” Dkt. 1-2 at 2 (Compl. ¶ 3); that Gonzalez was their “supervisor” and that she “largely determined the hours that each Plaintiff worked,” id. at 3 (Compl. ¶ 5); and that Gonzalez is the “president and principal owner of A Capital.” Id. (Compl. ¶ 5). These allegations, althоugh thin, are sufficient to survive a motion to dismiss. Their sufficiency is perhaps best captured by comparison to the case Defendants cite in support of their motion. In Bonilla v. Power Design Inc., 201 F.Supp.3d 60 (D.D.C. 2016), for instance, the Court dismissed an FLSA/DCMWRA claim brought against a general contractor, where the comрlaint alleged that the plaintiff‘s work was directed by a subcontractor, and where the complaint “failed to allege any facts indicative of the economic reality prevailing between” the plaintiff and the general contractor. Id. at 63 (emphasis added). Here, in contrast, Plaintiffs have alleged that they were subject to the supervision of Gonzalez and that she set their hours. Ideally, a complaint of this type would contain greater detail, but the Court nonetheless concludes that it includes enough—and barely enough—to statе a claim.

Defendants also move to dismiss Plaintiffs’ claims under the D.C., Maryland, and Virginia wage payment laws. See D.C. Code § 32-1303; Md. Code Ann., Lab. & Empl. § 3-505; Va. Code Ann. § 40.1-29. Their argument, however, is entirely dependent upon their contention that Plaintiffs have failed to state a claim under the FLSA and the DCMWRA. Put in their own words, Defendants contend that “[t]he [c]omplaint‘s failure to state a claim for unpaid overtime necessarily defeats [their] claim[s] under the [various] wage payment laws.” Dkt. 8-1 at 5. Because the Court has rejected the premise of this argument, the conclusion necessarily fails as well.2

The Court, accordingly, will deny Defendants’ motion to dismiss for failure to state a claim.

CONCLUSION

Defendants’ motion to dismiss for improper venue and failure to state a claim, Dkt. 8, is hereby DENIED.

SO ORDERED.

RANDOLPH D. MOSS

United States District Judge

Notes

1
Defendants assert that “[b]y filing this motion, [they] do not waive [personal] jurisdiction or any other defense.” Dkt. 8-1 at 1 n.1. The Federal Rulеs of Civil Procedure, however, define the scope of any such waiver, and a party may not avoid waiver by mere pronouncement. See Fed. R. Civ. P. 12(h); Gilmore v. Palestinian Interim Self-Gov‘t Auth., 843 F.3d 958, 964 (D.C. Cir. 2016).
2
Because Defendants’ motion is limited to this narrow ground, the Court will not consider whether the relief ‍‌‌‌‌​‌‌​​​‌​‌​‌‌​​‌​‌‌​‌​‌‌‌‌​‌​​‌​​‌​​‌‌‌‌​‌​​‌‍available for failure to pay overtime wages is limited to that provided in the overtime wage laws. But see Thompson v. Digicon Corp., 107 F.Supp.3d 49 (D.D.C. 2015); Driscoll v. George Washington Univ., 938 F.Supp.2d 19 (D.D.C. 2013).
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