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Whyte v. PP&G, Inc.

United States District Court, D. Maryland

April 2, 2014

PP&G, INC., et al.


WILLIAM M. NICKERSON, Sr., District Judge.


Plaintiff Raqiya Whyte ("Whyte") worked as an exotic dancer at Norma Jean's Nite Club from approximately September 2010 through September 9, 2013. Norma Jean's Nite Club is owned and operated by Defendant PP&G, Inc. ("PP&G"), which in turn is owned by Defendant Lisa Ireland ("Ireland"). Plaintiff alleges that Defendants improperly classified her as an independent contractor, rather than an employee, and thus failed to pay her a minimum hourly wage under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"). Additionally, Plaintiff contends that she was wrongfully discharged from her employment at Norma Jean's when Defendants became aware of her involvement as a witness in a similar case against PP&G previously filed in this Court. See Unique Butler v. PP&G, Inc., Civ. No. WMN-13-430 (filed Feb. 8, 2013).

Plaintiff filed a Complaint against Defendants, on behalf of herself and all others similarly situated, alleging the following four counts: (I) Violation of Federal Fair Labor Standards Act - Minimum Wage; (II) Violation of Maryland Wage Payment and Wage Collection Law; (III) Wrongful Discharge; and (IV) Retaliation-Wrongful Discharge FLSA. Plaintiff has since voluntarily dismissed her collective action claims and Counts II and III. See ECF Nos. 17, 24, 34. Defendant PP&G filed a counterclaim, alleging that it had entered into a "contractual relationship" with Plaintiff under which she "agreed to provide entertainment services... solely as [an] independent contractor[], " agreed in consideration to permit Plaintiff to dance at Norma Jean's and accept gratuities from customers, and "reasonably relied on in good faith, and to their own detriment, the representations and the promises of... [Plaintiff's], to provide entertainment services as [an] independent contractor[]." ECF No. 35 ¶¶ 33-36. Based on those allegations, PP&G asserts claims for breach of contract and unjust enrichment.

All three parties have filed a Motion to Dismiss. Defendant PP&G's Motion to Dismiss, ECF No. 26, which sought dismissal of Count III of the Complaint, is now moot, as Plaintiff has since voluntarily dismissed Count III. Defendant Ireland filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative, a Motion for Summary Judgment under Rule 56, ECF No. 41, arguing that she is not an employer within the meaning of the FLSA.[1] Last, Plaintiff filed a Motion to Dismiss Defendant PP&G's Counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(1), ECF No. 41, arguing that this Court lacks subject matter jurisdiction over PP&G's counterclaims.[2] For the reasons stated herein, the Court determines that no hearing is necessary, Local Rule 105.6, and both Ireland's and Plaintiff's Motions to Dismiss will be denied.


Generally, in considering the sufficiency of a complaint to survive a 12(b)(6) motion to dismiss, the Court considers first whether the complaint contains "factual allegations in addition to legal conclusions." Robertson v. Sea Pines Real Estate Cos. , 679 F.3d 278, 288 (4th Cir. 2012). Specifically, a complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action, " without "further factual enhancement, " is not enough. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 557 (2007). Secondly, the 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 Twombly , 550 U.S. at 570). In order to state a plausible claim for relief, the factual allegations must "be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true." Robertson , 679 F.3d at 288 (quoting Twombly , 550 U.S. at 555).

Although a Court is limited to the allegations in a Complaint in ruling on a motion to dismiss, if matters outside the pleadings are presented to and not excluded by the Court, it may treat the motion to dismiss as a motion for summary judgment under Federal Rule of Civil Procedure 56. See Fed.R.Civ.P. 12(d). The purpose of summary judgment is to dismiss claims and defenses that lack evidentiary support. Celotex Corp. v. Catrett , 477 U.S. 317, 323-24 (1986). Accordingly, the Court will grant a motion for summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. In ruling on a motion for summary judgment, all facts and inferences will be drawn in the light most favorable to the non-moving party. Evans v. Techs. Applications & Serv. Co. , 80 F.3d 954, 958 (4th Cir. 1996).

In ruling on a motion to dismiss a counterclaim for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), the burden rests on the defendant/counter-plaintiff to establish jurisdiction by a preponderance of the evidence. Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982). Where the factual basis for subject matter jurisdiction is challenged, "the district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine dispute of material fact exists." Richmond, Fredericksburg & Potomac R.R. Co. v. United States , 945 F.2d 765, 768 (4th Cir. 1991) (citing Trentacosta v. Frontier Pacific Aircraft Indus. , 813 F.2d 1553, 1558 (9th Cir. 1987)).


A. Ireland's Motion to Dismiss

Defendant Ireland seeks dismissal of the claims against her in their entirety, or, in the alternative, summary judgment in her favor. Presently pending against Ireland are Counts I and IV of the First Amended Complaint, which each assert violations of the FLSA. Ireland asserts that, because she does not control day to day operations at Norma Jean's and does not play a role in hiring or firing employees, [3] she is not an "employer" as that term is defined in the FLSA, and thus cannot be held liable thereunder.

The FLSA defines an employer, in relevant part, as "any person acting directly or indirectly in the interest of an employer in relation to an employee...." 29 U.S.C. § 203(d). The definition of "employer" is "very broadly cast, " and, as a result, courts have "found an employment relationship for purposes of the Act far more readily than would be dictated by common law doctrines." Shultz v. Falk , 439 F.2d 340, 344 (4th Cir. 1971) (citations omitted).

The "determination of whether an employer-employee relationship exists does not depend on isolated factors but rather upon the circumstances of the whole activity.'" Gionfriddo v. Jason Zink, LLC , 769 F.Supp.2d 880, 890 (D. Md. 2011) (quoting Rutherford Food Corp. v. McComb , 331 U.S. 772, 730 (1947)). To determine whether an individual or entity is an employer, courts generally look to the economic reality of the relationship between the parties, including whether the individual has the authority to hire and fire employees, supervises and controls work schedules or employment conditions, determines the rate and method of payment, and maintains employment records. Caseres v. S & R Mgmt. Co., Civ. No. 12-cv-01358-AW, 2012 WL 5250561, at *3 (D. Md. Oct. 24, 2012) (quoting Khalil v. Subway at Arundel Mills Office Park, Inc., Civ. No. CCB-09-158 , 2011 WL 231793, at *2 (D. Md. Jan. 24, 2011)). Courts have also looked to "the person's job description, his or her financial interest in the enterprise, and whether or not the individual exercises control over the employment relationship." Gionfriddo , 769 F.Supp.2d at 890. ...

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