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Dixon v. Open Hands Nurseing Agency LLC

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

November 14, 2018

Bryan Dixon, Plaintiff,
v.
Open Hands Nurseing Agency, LLC and James Holmes, Defendant.

          ORDER

          R. BRYAN HARWELL UNITED STATES DISTRICT JUDGE

         Plaintiff filed a Complaint against Defendants on August 11, 2');">2017, alleging violations of the Fair Labor Standards Act, as amended 2');">29 U.S.C. § 2');">201 et seq. (the “FLSA”).This matter is before the Court on a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment filed on June 2');">20, 2');">2018 by Defendants Open Hands Nurseing Agency, LLC (“Open Hands”) and James Holmes, pursuant to Federal Rules of Civil Procedure 12');">2(b)(1), 12');">2(b)(5) and 56. [ECF #15');">15]. On August 6, 2');">2018, Plaintiff filed his Response in Opposition to the Motion. [ECF #2');">21]. Defendants filed a Reply on August 13');">3, 2');">2018. [ECF #2');">22');">2]. The Court has had the opportunity to thoroughly review the pleadings of record and consider arguments of counsel.[1" name="FN1" id= "FN1">1] This Court now issues the following Order.

         Background

         According to the allegations within the Complaint, Open Hands is a home healthcare provider service for individuals living outside of nursing homes, such as individuals living at a residence or in the community. [ECF #1, ¶ 6]. Defendant James Holmes is the owner of Open Hands. [ECF #15');">15, 2');">2');">p. 2');">2');">2');">2');">p. 2');">2]. Since November 2');">2014');">14, Plaintiff Bryan Dixon alleges he worked as a nurse assistant for Open Hands. [ECF #1, ¶¶ 4-5]. As alleged in the Complaint, Defendant Holmes is an individual “substantially in control of the terms and conditions of Plaintiff&#3');">39;s work” and therefore also an employer of Plaintiff as defined by the FLSA. [ECF #1, ¶¶ 7-8]. Plaintiff alleges that Defendants repeatedly and willfully violated the FLSA by failing to compensate Plaintiff for overtime wages. [ECF #1, ¶¶ 15');">15-16]. Defendants filed an Answer on November 6, 2');">2017, denying these claims and asserting numerous defenses including defenses based upon Federal Rules of Civil Procedure 12');">2(b)(1) through 12');">2(b)(6). [ECF #9, 1');">p. 1');">1');">p. 1]. Discovery ended on June 5, 2');">2018. On June 2');">20, 2');">2018, Defendants filed their Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. [ECF #15');">15]. The Motion alleges several grounds for dismissal of the lawsuit and/or for summary judgment. Defendants argue that dismissal of the lawsuit is appropriate because Plaintiff has not properly served Defendants. [ECF #15');">15]. Alternatively, Defendants argue that summary judgment is appropriate because Plaintiff has not proven that the FLSA applies to these Defendants, and even if the FLSA did apply, Plaintiff does not state a claim for relief under the FLSA, and further, that the claim is time-barred. [ECF #15');">15]. Plaintiff filed a response on August 6, 2');">2018 arguing that the Motion should not be granted. [ECF #2');">21]. Defendants filed a reply on August 13');">3, 2');">2018. [ECF #2');">22');">2]. Defendants state within their Motion that Plaintiff did not convene any depositions or engage in any meaningful discovery to support the allegations provided for in the Complaint. [ECF #15');">15, 2');">2');">p. 2');">2');">2');">2');">p. 2');">2]. Plaintiff filed as evidence Defendants&#3');">39; Initial Disclosures, an affidavit prepared by Plaintiff, and the Affidavits of Service with their response. [ECF #2');">21]. Defendants have produced several tax documents, an independent contractor agreement, and a document from the Secretary of State&#3');">39;s website. [ECF #15');">15]. These documents are the only evidence in the record upon which the Parties have to rely in making arguments for and against summary judgment. This Court will now consider Defendants&#3');">39; Motion.

         Discussion

         I. Dismissal Based on Alleged Improper Service

         Defendants argue that Plaintiff&#3');">39;s Complaint must be dismissed pursuant to Rules 12');">2(b)(1) and Rule (b)(5) because Plaintiff has not filed any affidavits of service proving that Defendants were properly served within ninety (90) days after the filing of the Complaint, and that in any case, service was improper. Attached to Plaintiff&#3');">39;s response are the Affidavits of Service. [ECF #2');">21-3');">3]. Plaintiff argues that Defendants waived any claim of improper service, and further, that Defendants had actual notice of this lawsuit; therefore Plaintiff argues this case should not be dismissed due to alleged improper service.

         Rule 12');">2(b)(1) is an affirmative defense asserting that the court lacks subject-matter jurisdiction to hear one or more claims. When a Rule 12');">2(b)(1) motion is raised challenging the factual basis for subject matter jurisdiction, the burden of proving the existence of subject matter jurisdiction is on the plaintiff. Adams v. Bain, 97 F.2');">2d 12');">213');">3');">697 F.2');">2d 12');">213');">3, 12');">219 (4th Cir. 1982');">2). A court may consider evidence by affidavit, depositions, or live testimony without converting a motion to dismiss to one for summary judgment. Id. A Rule 12');">2(b)(5) motion is appropriate when a defendant argues as a defense to a claim that there was insufficient service of process. The plaintiff bears the burden of proving adequate service once a motion to dismiss for insufficient service of process has been filed. Scott v. Md. State Dep. of Labor, 3');">3 Fed.Appx. 2');">299');">673');">3 Fed.Appx. 2');">299, 3');">304 (4th Cir. 2');">2016); see generally Howe v. Embassy of Italy, 3');">3d 2');">26');">68 F.Supp.3');">3d 2');">26, 3');">30 (D.D.C. 2');">2014');">14) (citing 4A Wright & Miller § 1083');">3).

         Under Federal Rule of Procedure 4(m), a defendant must be served within ninety (90) days after a complaint has been filed. Federal Rule of Procedure 4(1) requires that proof of service be made to the court unless service has been waived.[2');">2" name="FN2');">2" id= "FN2');">2">2');">2] Here, though initially the Affidavits were not a part of the record, a review of these documents now made a part of the record show that within ninety days, service was attempted on the Defendants, defective or not. Assuming service has not been waived, service is accomplished upon an individual defendant by delivering a copy of the summons and complaint to the individual personally; leaving a copy at the individual&#3');">39;s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. Fed.R.Civ.P. 4(e)(2');">2). Service is accomplished upon a corporate defendant by delivering a copy of the summons and the complaint to an officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of the summons and complaint to the defendant. Fed.R.Civ.P. 4(h)(1)(b). Service may also be accomplished on either an individual or corporate defendant by following the state law for service in the state where the district court is located. Fed. R. Civ. P.4(e)(1).[3');">3" name="FN3');">3" id="FN3');">3">3');">3] Here, there is no evidence that either Defendant expressly waived service. Further, Defendants raised 12');">2(b)(1) and 12');">2(b)(5) defenses in their Answer.[4]

         In reviewing the affidavits of service, it appears that on September 2');">21, 2');">2017, a summons and complaint for “Francena Holmes” was personally served on her at 162');">29 South Center Road, Darlington, South Carolina. [ECF #2');">21-3');">3, 2');">2');">p. 2');">2');">2');">2');">p. 2');">2]. Francena Holmes is listed as the registered agent for Open Hands on the summons provided by Plaintiff. [ECF #4]. The address listed where Francena Holmes was served is the address Plaintiff provided on the summons as the location of Defendant Open Hands. [ECF #4]. This same information matches the information shown online at the South Carolina Secretary of State website for Defendant Open Hands. [ECF #15');">15-2');">2, 1');">p. 1');">1');">p. 1]. This affidavit appears to be technically incorrect in that, rather than listing Defendant Open Hands as the “person” to be served, the affidavit is incorrectly filled out as if personal service was made upon the registered agent at the business address, rather than service upon a corporation via the registered agent. Still, it evidences the fact that the registered agent was served at the corporate location with the lawsuit. See Morrel v. Nationwide Mut. Fire Ins. Co., 188 F.3');">3d 2');">218');">188 F.3');">3d 2');">218, 2');">22');">23');">3-2');">22');">24 (4th Cir. 1999) (explaining the long standing rule that service of process is not legally defective simply because the complaint misnames the defendant in some insignificant way); United States v. A.H. Fischer Lumber Co., 162');">2 F.2');">2d 872');">2, 873');">3 (4th Cir. 1947) (noting that if process names a defendant “in such terms that every intelligent person understands who is meant . . . it has fulfilled its purpose”). Moreover, in reviewing the second affidavit of service, it appears that on September 2');">21, 2');">2017, a summons and complaint for James Holmes was served on an individual named Sharon Allen, apparently the agency director for Open Hands. [ECF #2');">21-3');">3, p. 3');">3]. Thus, the affidavits of service reflect the fact that both the registered agent and an “agency director” for Open Hands were served with a summons and complaint at Open Hands&#3');">39;s business location. Defendant Open Hands does not dispute that Ms. Allen is the agency director for Open Hands, nor does Open Hands dispute Francena Holmes is the registered agent.

         Although required to properly name parties under Rule 4 of the Federal Rules of Civil Procedure, the Fourth Circuit has recognized that failure to comply with Rule 4 will not mandate dismissal where a party has received actual notice of a lawsuit and the party has not been prejudiced by the technical defect. See Smith v. South Carolina Community Bank, No. 3');">3:13');">3-003');">34, 2');">2013');">3 WL 40563');">310, at *3');">3 (D.S.C. Aug. 9, 2');">2013');">3) (citing Karlsson v. Rabinowitz, 3');">318 F.2');">2d 666');">3');">318 F.2');">2d 666, 668-69 (4th Cir. 1963');">3)); Fields v. Norfolk and Southern Ry. Co., 92');">24 F.Supp.2');">2d 702');">2');">92');">24 F.Supp.2');">2d 702');">2, 708 (S.D.W.V. 2');">2012');">2). Defendant Open Hands does not dispute it received actual notice of the lawsuit, or provide any argument to suggest it has been prejudiced by any alleged technical defect in the service documents. Accordingly, this Court finds that with respect to Open Hands, a review of the Affidavits of Service show that Plaintiff substantially complied with the requirements of Rule 4, and that Defendant Open Hands received actual notice of the complaint. However, neither affidavit of service evidences any indication that the individual defendant, Defendant James Holmes was served either personally or by a person of suitable age and discretion at his residence. The affidavits of service shows that the summons for James Holmes was served upon the agency director of Open Hands. [ECF #2');">21-3');">3]. This does not constitute sufficient evidence to determine that Defendant Holmes received legally sufficient notice of this lawsuit. Therefore, this Court finds that it lacks jurisdiction over Defendant Holmes, and this lawsuit must be dismissed without prejudice as to Defendant James Holmes. Fed.R.Civ.P. 4(m) (“If a defendant is not served within 90 days after the complaint is filed, the court . . . must dismiss the action without prejudice.”).

         II. Plaintiff&#3');">39;s FLSA claim for overtime wages

         Defendants argue that summary judgment is appropriate as to Plaintiff&#3');">39;s claim under the FLSA because Plaintiff has failed to establish: (1) that there is coverage under the FLSA; (2');">2) that an employer-employee relationship exists as defined by the FLSA; and (3');">3) that there is a cognizable claim for overtime wages. In response, Plaintiff argues that Defendant has not met its burden to establish that summary judgment is appropriate as to any coverage issues under the FLSA and has failed to establish a lack of an employer-employee relationship. Further, Plaintiff argues that the evidence supports a finding that he has established that he has a cognizable FLSA claim. This Court will address each argument in turn.

         Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes the showing, however, the opposing party must respond to the motion with “specific facts showing there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). When no genuine issue of any material fact exists, summary judgment is appropriate. Shealy v. Winston, 92');">29 F.2');">2d 1009');">92');">29 F.2');">2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Id. However, “the mere existence of some alleged factual dispute between the parties ...


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