United States District Court, D. South Carolina, Florence Division
Jacinda Gardner, individually and on behalf of all others similarly situated, Plaintiff,
Country Club, Inc. d/b/a Masters Gentlemen’s Club, Defendant.
ORDER AND OPINION
Howe Hendricks United States District Judge
matter is before the Court on Defendant’s motion to
dismiss or, in the alternative, for summary judgment. (ECF
No. 87). For the reasons set forth below, the motion is
AND PROCEDURAL HISTORY
Jacinda Gardner is a former dancer at Defendant, the Country
Club, Inc. d/b/a Master’s Gentlemen’s Club, a
strip club in Myrtle Beach, South Carolina (the
“Club"). On December 4, 2013, Plaintiff filed this
civil action on behalf of herself and “all similarly
situated employees" at the Club for overtime
compensation and other relief against Defendant. Plaintiff
alleges that Defendant violated the Fair Labor Standards Act
(“FLSA"), 29 U.S.C. §§ 201, et
seq. and the South Carolina Payment of Wages Act
(“SCPWA"), SC Code Ann. §§ 41-10-10,
September 8, 2014, Plaintiff moved for conditional class
certification and judicial notice pursuant to 216(b) of the
FLSA, class certification under Fed.R.Civ.P. 23, and summary
judgment. Defendant moved for summary judgment on September
15, 2014. On September 30, 2015, this Court issued a text
order denying in substantial part Defendant’s motion
for summary judgment, partially granting Plaintiff’s
motion for summary judgment, granting Plaintiff’s
motion for class certification and judicial notice, and
denying Plaintiff’s motion for class certification
under Rule 23 with leave to refile. Relevant to this motion,
the Court found that Plaintiff’s SCPWA claims were
largely preempted by federal law, but that Plaintiff’s
SCPWA claim for deductions from tips was not preempted.
Defendant filed a motion for reconsideration on October 8,
2015, which the Court denied on December 3, 2015.
October 29, 2015, Defendant moved for dismissal and/or
summary judgment on Plaintiff’s remaining SCPWA claim
for improper deductions. (ECF No. 87.) Defendant argues the
claim should be dismissed for failure to state a claim upon
which relief can be granted and that summary judgment is
proper because there is no genuine issue of material fact
that Defendant did not pay Plaintiff any wages. Because the
Court finds that the issue presented is purely a question of
law, consideration of summary judgment is inappropriate here.
Accordingly, the Court will only consider Defendant’s
motion under Rule 12(b)(6).
plaintiff’s complaint should set forth “a short
and plain statement . . . showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 8
“does not require ‘detailed factual allegations,
’ but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To show that the plaintiff is “entitled to
relief, " the complaint must provide “more than
labels and conclusions, " and “a formulaic
recitation of the elements of a cause of action will not
do." Twombly, 550 U.S. at 555. In considering a
motion to dismiss under Rule 12(b)(6), the Court
“accepts all well-pled facts as true and construes
these facts in the light most favorable to the plaintiff . .
. ." Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
Inc., 591 F.3d 250, 255 (4th Cir. 2009).
survive a Rule 12(b)(6) motion to dismiss, a complaint must
state “a plausible claim for relief."
Iqbal, 556 U.S. at 679. “The plausibility
standard is not akin to a ‘probability requirement,
’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads
facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the
line between possibility and plausibility of entitlement to
relief.’" Id. (quoting Twombly,
550 U.S. at 557). Stated differently, “where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]’-‘that the
pleader is entitled to relief.’" Id.
(quoting Fed.R.Civ.P. 8(a)). Still, Rule 12(b)(6) “does
not countenance . . . dismissals based on a judge’s
disbelief of a complaint’s factual allegations."
Colon Health Centers of Am., LLC v. Hazel, 733 F.3d
535, 545 (4th Cir. 2013) (quoting Neitzke v.
Williams, 490 U.S. 319, 327 (1989)). “A plausible
but inconclusive inference from pleaded facts will survive a
motion to dismiss . . . ." Sepulveda-Villarini v.
Dep’t of Educ. of Puerto Rico, 628 F.3d 25, 30
(1st Cir. 2010) (Souter, J.).
brings a claim for improper deduction of wages under the
SCPWA, alleging that:
Due to Defendant’s policy of deducting amounts from the
tips of Plaintiff and the S.C. Class to offset business
expenses, Plaintiff and the S.C. Class were subject to
improper deductions from their compensation. Specifically,
Defendant unlawfully withheld and diverted monies from the
compensation earned by Plaintiff and the S.C. Class for
business expenses of Defendant, including, but not limited
to, the cost of employing other workers, in direct violation
of the [SC]PWA.
Defendant has set, reduced, withheld and/or diverted the
wages of Plaintiff and the S.C. Class Members without
providing advance notice of such amounts, and absent any