United States District Court, E.D. Michigan, Southern Division
Marion Lea Graham, et al., individually and on behalf of similarly situated persons, Plaintiffs,
The Word Enterprises Perry, LLC et al., Defendants.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' FIRST
AMENDED COMPLAINT [# 31]
GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE
before the Court is Plaintiff's First Amended Complaint
against Defendant alleging violations of the Federal Labor
Standards Act (“FLSA”) and the Michigan Workforce
Opportunity Wage Act (“WOWA”). Pending before the
Court is Defendants' Kevin Dittrich and Dittrich
Investments II, Inc.'s Motion to Dismiss Plaintiffs'
First Amended Complaint. Dkt. No. 31. For the reasons
discussed below, the Court will grant in part and deny in
part Defendants' Motion to Dismiss.
case is a companion to another case before this Court,
McFarlin v. The Word Enterprises, et al., case No.
16-cv-12536 (“McFarlin”). Defendant Kevin
Dittrich is an owner of Defendant Dittrich Investments, II,
Inc. (“Dittrich II”). Dkt. No. 31, pg. 13 (Pg. ID
480). Defendant Mr. Dittrich has been an owner of several
Hungry Howie's franchise stores in Michigan through his
Dittrich II company. Id. The named Plaintiffs in
this complaint are former delivery drivers at a Hungry
Howie's store in Durand, Michigan. Dkt. No. 28, pgs. 5-6
(Pg. ID 347-46). The Durand store was previously owned in
part by Mr. Dittrich through Dittrich II. Dkt. No. 31, pg. 13
(Pg. ID 480). The named Plaintiffs did not opt-in to the
McFarlin case and are not members of the certified Rule 23
class in McFarlin. Id. Defendants require pizza
delivery drivers to use and maintain their personal vehicles
to make pizza deliveries. Dkt. No. 28, pg. 9 (Pg. ID 351).
Defendants pay delivery drivers a cash wage that is below the
federal and state minimum wages, and take a tip credit to get
drivers' salaries to equal the exact minimum wage. See
Id. at pg. 21 (Pg. ID 363). Delivery drivers incur
costs for gas, repair, maintenance, depreciation, and other
expenses while driving their cars to make deliveries.
Id. at pg. 9 (Pg. ID 351). Plaintiffs allege that
with vehicle expenses, they are paid wages below the federal
and state minimum wages. Id. at pg. 21, 25 (Pg. ID
January 15, 2018, Plaintiffs brought their complaint on
behalf of themselves and all similarly-situated individuals.
Dkt. No. 1. On April 26, 2018, Plaintiffs filed their First
Amended Complaint. Dkt. No. 28. Defendants Mr. Dittrich and
Dittrich II filed the present Motion to Dismiss on May 10,
2018. Dkt. No. 31. On May 15, 2018, the remaining Defendants
filed a Response and Request for Concurrent Relief. Dkt. No.
33. The Motion requests that the Court grant the non-moving
Defendants the same relief as it grants Mr. Dittrich and
Dittrich II. Id. at pg. 2 (Pg. ID 532). The
Plaintiffs responded in opposition to Defendants' Motion
to Dismiss on May 31, 2018. Dkt. No. 35. In their response,
Plaintiffs also asserted that this Court should not grant
concurrent relief to the non-moving Defendants because the
non-moving Defendants are required to file a separate motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6).
Id. at pg. 5 n.1 (Pg. ID 541). Defendants filed a
reply on June 5, 2018. Dkt. No. 36.
Rule of Civil Procedure 12(b)(6) governs motions to dismiss.
The court must construe the complaint in favor of the
plaintiff, accept the allegations of the complaint as true,
and determine whether plaintiff's factual allegations
present plausible claims. See Fed.R.Civ.P. 12(b)(6). To
survive a motion to dismiss, a complaint must “allege
enough facts to make it plausible that the defendant bears
legal liability.” Agema v. City of Allegan, 826 F.3d
326, 331 (6th Cir. 2016). The facts need to make it more than
“merely possible that the defendant is liable; they
must make it plausible.” Id. “Bare
assertions of legal liability absent some corresponding facts
are insufficient to state a claim.” Id. A
claim will be dismissed “if the facts as alleged are
insufficient to make a valid claim or if the claim shows on
its face that relief is barred by an affirmative
defense.” Riverview Health Inst., LLC v. Med. Mut. Of
Ohio, 601 F.3d 505, 512 (6th Cir. 2010). The district court
generally reviews only the allegations set forth in the
complaint in determining whether to grant a Rule 12(b)(6)
motion to dismiss, however “matters of public record,
orders, items appearing in the record of the case, and
exhibits attached to the complaint, also may be taken into
account.” Amini v. Oberlin College, 259 F.3d 493, 502
(6th Cir. 2001). Documents attached to a defendant's
“motion to dismiss are considered part of the pleadings
if they are referred to in the plaintiff's complaint and
are central to her claim.” Id.
Motion brings three grounds on which they argue this Court
should dismiss Plaintiffs' First Amended Complaint.
First, Defendants argue that Plaintiffs lack standing to
bring Count I because the Durand store where Plaintiffs
worked is not a party to Count I. Dkt. No. 31, pg. 20 (Pg. ID
487). Second, Defendants argue that Counts I and II fail to
state a claim that Defendants are unable to take a tip credit
up to the minimum wage. Id. Third, Defendants argue
that the remainder of Count II fails to state a claims
because unreimbursed automobile expenses are not factored
into the minimum wage under WOWA. Id.
named Plaintiffs in this action are former delivery drivers
who worked at the Hungry Howie's store in Durand,
Michigan. Dkt. No. 28, pgs. 5-6 (Pg. ID 347-46). However,
Count I of Plaintiffs' complaint excludes the Durand
location, where Plaintiffs worked, from its list of Defendant
stores. Id. at pg. 13-14 (Pg. ID 355-56). Therefore,
Defendants argue that Plaintiffs lack standing to bring Count
I of their complaint because Plaintiffs excluded themselves
from Count I. Dkt. No. 31, pg. 21 (Pg. ID 488). Plaintiffs
assert that they have standing to bring Count I because they
allege that all of the Defendants are a single enterprise
and/or joint employer. Dkt. No. 35, pg. 11 (Pg. ID 547).
establish standing, a plaintiff must allege an “(1) an
injury-in-fact, which is (2) fairly traceable to the
defendant's challenged conduct, and that in turn is (3)
likely redressable by a favorable judicial decision.”
Duncan v. Muzyn, 885 F.3d 422, 427 (6th Cir. 2018).
Defendants presumably assert that Plaintiffs cannot meet
elements two or three because the Durand Defendants are not
in the complaint. See Dkt. No. 31, pg. 22 (Pg. ID 488).
Because Plaintiffs allege that Defendant stores are a single
enterprise and/or joint employers, this Court finds that
Plaintiffs have standing. The Sixth Circuit recognizes the
single employer doctrine. Under this doctrine, courts can
treat multiple interrelated companies as a single employer.
Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d
990, 993 (6th Cir. 1997). Thus, as joint employers, all of
the Defendants would constitute a single employer. Therefore,
the injuries Plaintiffs sustained from the Durand store are
injuries that Plaintiffs sustained from any/all of the
stores. Accordingly, Plaintiffs' complaint alleges an
injury that is traceable to Defendants' conduct.
as joint employers, Defendant stores would be jointly and
severally liable for FLSA violations. See 29 C.F.R. §
791.2(a) (stating that “all joint employers are
responsible, both individually and jointly, for compliance
with all of the applicable provisions of the [FLSA],
including the overtime provisions, with respect to the entire
employment for the particular workweek.”); Kis v.
Covelli Enters., Inc., No. 4:18-cv-54; 4:18-cv-434, 2018 WL
2227782, at *2 (N.D. Ohio May 16, 2018) (stating that
“joint employers are usually jointly and severally
liable for FLSA violations”); LeMaster v. Alt.
Healthcare Sols., Inc., 726 F.Supp.2d 854, 864 (M.D. Tenn.
2010) (holding that joint employers were jointly and
severally liable for FLSA violations). Consequently,
Plaintiffs' allegations against any of the Defendant
stores is an allegation for which the Durand store will be
liable. Therefore, this Court will ...