Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pecora v. The Big M Casino Inc.

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

January 23, 2019

MICHAEL PECORA, on behalf of himself and all other similarly situated, Plaintiffs,
THE BIG M CASINO, INC. and JOHN DOES 1-10, individually, Defendant.


          R. Bryan Harwell United States District Judge

         This action arises from Plaintiff Michael Pecora's (“Pecora”) allegations that Defendants have violated 29 U.S.C. § 216(b) (the “Fair Labor Standards Act” or “FLSA”) and/or S.C. Code Ann. § 41-10-10 et seq. (the “South Carolina Payment of Wage Act” or “SCPWA”). On May 24, 2018, Pecora brought suit against his former employer, Defendant The Big M Casino, Inc. (the “Big M” or “Defendant”) for unpaid wages. Pecora has sued both in his individual capacity and on behalf of all other similarly situated putative class members. Presently before the Court is Big M's motion to dismiss Pecora's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). [ECF #8]. On August 1, 2018, Pecora filed a response to this motion. [ECF #16]. On August 8, 2018, Defendant filed its reply to Plaintiff's response. [ECF #17]. This matter is now before the Court for disposition.[1] For the following reasons, the Court dismisses Defendant's motion to dismiss.

         Factual and Procedural Background

         According to the allegations within the complaint, Pecora was employed by Big M, a casino boat cruise company, as a “dealer” and “shift supervisor” for over ten years. [ECF #1, ¶¶ 19-20, 26]. Pecora alleges that Defendants paid him and others less than the statutory minimum wag by taking the “tip credit” under the FLSA. [ECF #1, ¶ 22]. Pecora further alleges that Big M had a policy requiring dealers, including Pecora, to participate in a mandatory tip pool, and Big M would then redistribute those tips to shift supervisors. [ECF #1, ¶¶ 23-24]. Pecora further alleges that he, as well as other employees, were not paid for time spent working prior to and after the casino boat's departure and return to the dock. [ECF #1, ¶¶ 27-30]. Within the complaint, Pecora alleges violations of both the FLSA and SCPWA.

         Pecora filed this lawsuit on behalf of himself and as a collective action under the FLSA and as a Rule 23 class action to recover damages resulting from the failure to pay the proper minimum wage and failure to pay overtime wages. Specifically, Plaintiff's complaint alleges causes of action for: (1) Violation of the FLSA as an “opt-in” collective action; and (2) Violation of SCPWA as a collective class action pursuant to Rule 23 of the Federal Rules of Civil Procedure.

         Big M has now filed a motion to dismiss the state law claim for recovery of tips. Big M argues that any state law claim is preempted by the FLSA. While Big M acknowledges that this issue has previously been addressed by this Court, it argues that the issue has not been properly framed for consideration, and further, that a recent amendment to section 203(m) affects all related claims after March 23, 2018. According to Big M, the passage of the Consolidated Appropriations Act, which was effective March 23, 2018, amends section 203(m) of the FLSA and now provides a specific remedy for a violation of this section.[2] [ECF #8, pp. 8-10]. Pecora denies that it is proper to grant this motion and urges this Court to follow prior case law, including its own previous orders.


         A. Standard of Review

         Big M files its motion pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for “lack of subject-matter jurisdiction.” The plaintiff has the burden of proving federal jurisdiction is proper. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). When challenging the complaint for lack of subject matter jurisdiction under Rule 12(b)(1), the defendant may move in one of two ways: the defendant may make either a facial or a factual attack on the complaint. Bolt v. United States, No. 8:15-1936, 2015 WL 7568241, at *1 (D.S.C. Oct. 16, 2015). A facial challenge attacks the sufficiency of the allegations found on the face of the complaint, whereas a factual challenge challenges the truthfulness of the facts in the complaint. Kerns v. U.S., 585 F.3d 187, 192 (4th Cir. 2009). When considering a facial attack, the court must assume the facts in the complaint are true, similar to the standard applied when ruling on a Rule 12(b)(6) motion. Adams, 697 F.2d at 1219. When considering a factual challenge, the court may “go beyond the allegations of the complaint and in an evidentiary hearing determine if there are facts to support the jurisdictional allegations.” Id.

         Dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) is proper only if the claim is “so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.” Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277, 1280-81 (3d Cir. 1993) (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974)). “The threshold to withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(1) is thus lower than that required to withstand a Rule 12(b)(6) motion.” Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir. 1989).

         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). Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” While this standard “does not require ‘detailed factual allegations,' . . . [a] pleading that offers ‘labels and conclusions,' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Likewise, “a complaint [will not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Rather, 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).

         B. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.