United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY
STEPHEN J. MURPHY, III United States District Judge
Raymond Hill, Chris Piotter, Ranson Kelly, Phil Piotter, and
Robert States sued Defendants Meda Painting and Refinishing,
Inc. ("MPR"), Viking Painting, LLC
("Viking"), and Michael A. Meda ("Meda")
under the Fair Labor Standards Act ("FLSA"), 29
U.S.C. § 201 et seq. Before the Court is Defendants'
motion to dismiss or for summary judgment. For the following
reasons, the Court will grant the motion in part and deny the
motion in part.
and MPR are paint contractors owned by Meda and based in
Grosse Pointe Farms, Michigan. Plaintiffs worked for MPR as
residential painters for various lengths of time between June
2012 and November 2014. Plaintiffs claim Defendants hired and
supervised them, provided them with equipment, and controlled
every aspect of their work, including schedules, payment
rates, customer billing rates, project deadlines, appropriate
dress attire, and acceptable on-the-job behavior. ECF 1
¶¶ 17-20. They claim Defendants forced them
"to sign waivers, under coercion of termination, stating
that they only worked 30 hours" per week-when they
typically logged more than 40-and calculated overtime pay
using the regular hourly rate. Id. ¶¶
23-25. Additionally, Hill claims he was terminated after
providing the Department of Labor with testimony about
Defendants' wage and hour violations. Id.
Rule of Civil Procedure 12(b)(6) provides for dismissal of a
complaint for failure to state a claim upon which relief can
be granted. The Court may only grant a Civil Rule 12(b)(6)
motion to dismiss if the allegations are not "sufficient
'to raise a right to relief above the speculative level,
' and to 'state a claim to relief that is plausible
on its face.'" Hensley Mfg. v. ProPride,
Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007)). In evaluating the motion, the Court presumes the
truth of all well-pled factual assertions. Bishop v.
Lucent Techs., 520 F.3d 516, 519 (6th Cir. 2008).
Moreover, the Court must draw every reasonable inference in
favor of the non-moving party. Dubay v. Wells, 506
F.3d 422, 427 (6th Cir. 2007). But a "pleading that
offers 'labels and conclusions' or 'a formulaic
recitation of the element of a cause of action will not
do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555).
Rules 12(b)(6), 12(d), and 56
outset, the Court must determine the proper standard to
employ as it reviews Defendants' motion and the attached
exhibits, which include affidavits from Meda and nonparty
Brian Williams, ECF 33-2, 33-3; "Independent Contractor
Agreements, " "Independent Contractor Statements,
" "Sole Proprietor Statements, " and W-9 tax
forms for each Plaintiff, ECF 33-4, 33-5, 33-6, 33-7,
33-8; a list of "OCC Jobsite Safety Rules,
" ECF 33-9; and screen shots of websites and social
media postings pertaining to Kelly and Hill, ECF 33-10,
primarily move to dismiss the complaint under Rule 12(b)(6),
so the Court must first decide whether it is proper to
consider these exhibits as part of a Rule 12(b)(6) motion. A
court may consider "public records, items appearing in
the record of the case and exhibits attached to
defendant's motion to dismiss so long as they are
referred to in the [c]omplaint and are central to the claims
contained therein." Bassett v. NCAA, 528 F.3d
426, 430 (6th Cir. 2008). Here, the complaint refers to
waivers Defendants allegedly forced Plaintiffs to sign
regarding the number of hours worked weekly, but it is not
clear whether any of the exhibits attached to Defendants'
motion are the same as or substantially similar to those
waivers. Thus, it would be improper for the Court to consider
them in the context of a Rule 12(b)(6) motion.
Defendants invite the Court to construe the motion as one for
summary judgment under Rule 56-by way of Rule 12(d)-if the
Court believes that is the proper posture to consider the
exhibits. When, as here, "matters outside the pleadings
are presented to and not excluded by the court, " Rule
12(d) allows a court to construe a motion to dismiss under
Rule 12(b)(6) as a motion for summary judgment under Rule 56.
Fed.R.Civ.P. 12(d). Courts are afforded broad discretion when
making this decision, but should do so with "great
caution and attention to the parties' procedural rights,
" giving the parties notice of the changed status of the
motion so the parties have a opportunity to respond with
material pertinent to the motion. Tackett v. M & G
Polymers, USA, LLC, 561 F.3d 478, 487 (6th Cir. 2009).
the Court has not given Plaintiffs notice, Plaintiffs have
submitted declarations of their own, and discovery has yet to
begin. It is simply too early in the proceedings to consider
materials outside the pleadings that are more properly
exchanged, addressed, and developed during discovery and
subsequent motion practice. The Court therefore declines to
convert the motion, and declines to consider the exhibits
attached to both parties' briefs. See, e.g.,
Marks One Car Rental, Inc. v. Auto Club Grp. Ins.
Co., 55 F.Supp.3d 977, 981 n.3 (E.D. Mich. 2014) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
and finding a request for summary judgment premature when
plaintiffs have submitted affidavits and discovery has yet to
begin); Mincey v. Univ. of Cincinnati, No.
1:11-CV-300-HJW, 2012 WL 1068167, at *2 (S.D. Ohio Mar. 29,
2012) ("[T]he parties have not had a reasonable
opportunity for discovery, and the Court will not consider
any matters outside the pleadings at this early stage of the
proceedings."). The Court will, however, deny the motion
without prejudice to the extent it seeks summary judgment.
Defendants will of course still have the opportunity to move
for summary judgment after the parties have had an
opportunity to engage in discovery.
Defendants' Arguments for Dismissal
determined the appropriate standard of review, the Court must
now decide whether Plaintiffs' allegations sufficiently
serve as a factual basis for an inference of wrongdoing.
Defendants contend that the Court should dismiss the
complaint because Plaintiffs are not "employees"
within the meaning of the statute, Plaintiffs' factual
allegations are insufficient, and-as to Viking, in