United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
matter is before the Court on Defendant Preferred
Service's motion to dismiss, or, in the alternative, for
a more definite statement. For the reasons set forth below,
the Court grants in part and denies in part the motion.
alleges he was employed by Defendant Premier V.T.L and
Defendant Preferred Service in 2016. Plaintiff alleges
Defendants never paid him for mileage or overtime and that
they made improper deductions from his paychecks. He filed
the present action in Charleston County Court of Common
Pleas, asserting claims for violation of the South Carolina
Payment of Wages Act, the Fair Labor Standards Act
("FLSA"), conversion, and unjust enrichment on
April 4, 2018. Preferred removed on May 9, 2018. When filing
the notice of removal, Preferred included Premier's
pro se "Consent to Removal." That consent
is ineffective because an LLC may not appear pro se,
but the lack of consent does not appear to effect removal
jurisdiction because it does not appear that Premier has been
served. See 28 U.S.C. § 1446(b)(2)(A).
12(b)(6) of the Federal Rules of Civil Procedure permits the
dismissal of an action if the complaint fails "to state
a claim upon which relief can be granted." Such a motion
tests the legal sufficiency of the complaint and "does
not resolve contests surrounding the facts, the merits of the
claim, or the applicability of defenses. . . . Our inquiry
then is limited to whether the allegations constitute 'a
short and plain statement of the claim showing that the
pleader is entitled to relief" Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)
(quotation marks and citation omitted). In a Rule 12(b)(6)
motion, the Court is obligated to "assume the truth of
all facts alleged in the complaint and the existence of any
fact that can be proved, consistent with the complaint's
allegations." E. Shore Mkts., Inc. v. J.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
However, while the Court must accept the facts in a light
most favorable to the non-moving party, it "need not
accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Id.
survive a motion to dismiss, the complaint must state
"enough facts to state a claim to relief that is
plausible on its face." BellAtl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although the
requirement of plausibility does not impose a probability
requirement at this stage, the complaint must show more than
a "sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A complaint has "facial plausibility"
where the pleading "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id.
Under Rule 12(e) of the Federal Rules of Civil Procedure,
A party may move for a more definite statement of a pleading
to which a responsive pleading is allowed but which is so
vague or ambiguous that the party cannot reasonably prepare a
response .... If the court orders a more definite statement
and the order is not obeyed within 14 days after notice of
the order or within the time the court sets, the court may
strike the pleading or issue any other appropriate order.
Fed. R. Civ. P. 12(e). Whether a motion for a more definite
statement should be granted is "generally left to the
district court's discretion." Hodgson v. Va.
Baptist Hosp., 482 F.2d 821, 824 (4th Cir. 1973).
makes three arguments in favor of dismissal. First, Preferred
argues the complaint fails to allege a sufficient employment
relationship between Plaintiff and Preferred because it
alleges both Defendants employed Plaintiff without explaining
the relationship between the two Defendants or their
respective relationships with Plaintiff. While the Court does
not expect Plaintiff to have detailed knowledge of
Defendants' business arrangements before discovery,
Plaintiff must have had some reason for naming two different
companies as Defendants, and Defendants are entitled to know
what that reason is. Plaintiff provides a reason in its
opposition to the motion to dismiss: "Although
Plaintiffs payment documents indicate Plaintiff was employed
by Premier, agents of his employer company identified
themselves to Plaintiff as Preferred employees." (Dkt.
No. 5.) But factual allegations may not be made in an
opposition to a motion to dismiss. Frederico v. Home
Depot, 507 F.3d 188, 201-02 (3d Cir. 2007) ("It is
axiomatic that a complaint may not be amended by the briefs
in opposition to a motion to dismiss."). The Court
therefore grants the alternative relief of a more definite
statement regarding what allegations are made regarding which
also argues the FLSA preempts conversion and unjust
enrichment claims. The Fourth Circuit has held that common
law claims cannot be used to enforce the FLSA. Anderson
v. Sara Lee Corp., 508 F.3d 181, 194 (4th Cir. 2007).
Plaintiff responds that his conversion and unjust enrichment
claims seek only enforcement of rights not created by the
FLSA, while his FLSA claim seeks recovery of overtime pay.
Cf. Manning v. Boston Med. Ctr. Corp., 725 F.3d 34,
55 (1st Cir. 2013) ("[I]nsofar as these common law
claims sought to recover overtime pay, they were preempted
because they conflicted with the FLSA's comprehensive
remedial scheme" and so the "state law claims are
accordingly limited to the recovery of straight-time'
pay, i.e., unpaid wages for non-overtime hours at
her regular hourly rate."). But that is not at all clear
from the complaint. (See, e.g., Dkt. No. 1 -1
¶¶ 29, 31.) The Court therefore orders a more
definite statement regarding what exactly Plaintiff seeks to
recover under each asserted cause of action.
Preferred argues failure to pay wages cannot support a claim
for conversion under South Carolina law. That is correct.
Owens v. Zippy Mart of S.C, Inc.,234 S.E.2d 217,
218 (1977). Plaintiff concedes that "if Defendants were
to initially owe and fail to pay funds but nothing more, the
law in this state would not support a cause of action for
conversion, " but argues conversion applies here because
Plaintiff was terminated in retaliation for seeking unpaid
wages. (Dkt. No. 5 at 5-6.) That argument is unavailing. The
termination did not change the fact that "[t]he
relationship between the parties was one of creditor and
debtor, " which is insufficient to support a conversion
claim. Owens, 234 S.E.2d ...