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Montgomery v. Lovin Oven Catering Suffolk, Inc.

United States District Court, D. South Carolina, Florence Division

December 20, 2016

JENNIFER HOPE MONTGOMERY, PATRICK MONTGOMERY, DONNA P. WASHINGTON, BRITTANY MCROY, on behalf of themselves and all other similarly situated, Plaintiffs,
v.
LOVIN' OVEN CATERING SUFFOLK, INC., 21 MAIN NORTH BEACH, LLC, CINZIA, LLC, WILLIAM RILEY, GERARD SCOLLAN, and MATTHEW SCOLLAN, Defendants.

          ORDER

          R. Bryan Harwell United States District Judge

         Currently pending before this Court is Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). [ECF #51]. Both parties have had the opportunity to extensively brief the issues raised in the motion to dismiss, and this Court has thoroughly considered all pleadings filed in this case.[1]

         Factual Background and Procedural History

         Plaintiff Jennifer Hope Montgomery filed this lawsuit on August 13, 2015 against Defendants Lovin' Oven Catering Suffolk, Inc., 21 Main North Beach, LLC, William Riley, Gerard Scollan, and Matthew Scollan alleging violations of the minimum wage requirements of the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq. (“FLSA”), violation of the overtime provisions of the FLSA, unlawful “kick-backs” in violation of the FLSA, unlawful retaliation in violation of the FLSA, and violations of the South Carolina Payment of Wages Act, SC Code Ann. § 41-10-10 et. seq. (the “Wage Act”). [ECF #1]. The lawsuit is filed as a collective action under the FLSA and pursuant to Federal Rule of Civil Procedure 23. [ECF #1].

         Defendants filed both an Answer and a Motion to Dismiss Complaint on September 30, 2015. [ECF #10; #12]. Plaintiff Jennifer Montgomery filed her First Amended Complaint on December 11, 2015, adding Donna P. Washington and Brittany McRoy as plaintiffs and a cause of action for wrongful termination on behalf of Donna P. Washington. [ECF #23].

         Defendants filed a Motion to Dismiss the First Amended Complaint on December 23, 2015. [ECF #27].[2] On January 28, 2016, Plaintiffs filed a Motion to Amend the First Amended Complaint. [ECF #39]. The motion sought to add Patrick Montgomery as a named plaintiff, add causes of action for wrongful termination and FLSA retaliation on behalf of Jennifer Hope Montgomery, and add a cause of action for FLSA retaliation on behalf of Donna P. Washington. [ECF #39]. Plaintiffs then filed a Second Motion to Amend the First Amended Complaint on February 17, 2016. [ECF #41]. This motion sought to add Patrick Montgomery as a named plaintiff, add causes of action for wrongful termination and FLSA retaliation on behalf of Jennifer Hope Montgomery, add a cause of action for FLSA retaliation on behalf of Donna P. Washington, and add The Scalise Group, LLC, Cinzia, LLC, The Spa at North Beach, LLC, MS North Beach, LLC, and Sam L. Scalise as defendants. [ECF #41]. The Parties entered into a Consent Order to allow Plaintiff to include these Patrick Montgomery as a named Plaintiff, Cinzia, LLC as a named Defendant, and individual claims for wrongful termination in violation of public policy and FLSA retaliation for Jennifer Hope Montgomery and Donna P. Washington, respectively. [ECF #43].[3]

         The allegations at issue include minimum wage and overtime violations, retention of a portion of mandatory “gratuity” that Plaintiffs believe they are entitled to, and allegations regarding retaliation and wrongful termination. Briefly stated, Plaintiffs allege they were employed by Defendants to perform a variety of services including massage therapy, nail technician services, esthetician services, and catering services. [ECF #44');">44');">44');">44, p. 3]. Plaintiffs allege that, according to Defendants, a 20% mandatory charge paid by customers represented a gratuity amount to be paid entirely to Plaintiffs. [ECF #44');">44');">44');">44, p. 8]. Plaintiffs allege that in reality, Defendants kep. 2% of the mandatory charge paid by customers. [ECF #44');">44');">44');">44, p. 8]. Plaintiffs further allege that customers were told that the 20% mandatory charge represented a tip to be paid to the employee; therefore, no additional tip was necessary. [ECF #44');">44');">44');">44, p. 8]. In other words, Plaintiffs allege that Defendants not only failed to pay minimum wages, but retained a portion of their gratuities, and when dispersed to them, still failed to pay Plaintiffs wages equal to minimum wage. [ECF #53');">53');">53');">53, p. 11]. Plaintiffs have also alleged wrongful termination and retaliation in violation of the FLSA. Defendants' Motion to Dismiss the Second Amended Complaint is now before the Court. [ECF #51].

         Standard of Review

         Defendants file its motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for “failure to state a claim upon which relief can be granted.” The purpose of such a motion is to test the sufficiency of the facts alleged in a plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion to dismiss, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The United States Supreme Court recently stated that

[t]o 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.” 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.

Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). When ruling on a motion to dismiss, the court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In considering a motion to dismiss, the factual allegations in a complaint are accepted as true, and the plaintiff is afforded the benefit of all reasonable inferences to be drawn from the allegations contained within the complaint. Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). In order to survive a motion to dismiss, a plaintiff is not required to plead facts constituting a prima facie case; however, the factual allegations “must be enough to raise a right to relief above the speculative level”. Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing Bell Atl. Corp. v.Twombly, 44');">44');">44');">44');">550 U.S. 544');">44');">44');">44, 555 (2007)).

         Discussion

         I. FLSA Minimum Wage and Overtime Violations

         A. ...


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