United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING PLAINTIFF'S REQUEST FOR LEAVE TO
AMEND COMPLAINT AND DENYING DEFENDANT'S MOTION TO DISMISS
FOR LACK OF JURISDICTION AND/OR IMPROPER VENUE
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' Motion to Dismiss for Lack of
Jurisdiction and/or Improper Venue or, in the Alternative, to
Transfer Venue (Docket Entry (“D.E.”) #20, #21)
and Plaintiff's request to amend his Complaint to cure
any deficiencies therein (D.E. #22). The parties have
consented to the jurisdiction of the United States Magistrate
Judge. (D.E. #28). For the reasons set forth herein,
Plaintiff's request to amend his Complaint is hereby
GRANTED and Defendants' Motion to Dismiss for Lack of
Jurisdiction and/or Improper Venue or, in the Alternative, to
Transfer Venue, is hereby DENIED.
October 10, 2018, Plaintiff Dale White (“White”
or “Plaintiff”) filed a Complaint alleging
violations of the Fair Labor Standards Act, 29 U.S.C. §
216(b) (“FLSA”). (Compl. ¶ 1). Plaintiff
alleges that he resides in Desoto County,
Mississippi. Plaintiff alleges that Defendant Mow It
Right, LLC (“Mow It Right”) is a Mississippi
limited liability company organized pursuant to the
Mississippi Limited Liability Company Act. (Id.
¶ 3). Plaintiff alleges that, upon information and
belief, Defendants Chris and Melinda Fowler (the
“Fowlers”) reside in Desoto County, Mississippi.
(Id.) Plaintiff alleges that Mow It Right and the
Fowlers are all subject to this Court's jurisdiction
through the Tennessee Long Arm Statute and may be served with
process through their registered agent, who is located in
Olive Branch, Mississippi. (Id.)
alleges that the Court has jurisdiction over the subject
matter of this Complaint because the claims asserted arise
under a federal statute, conferring federal question
jurisdiction under 28 U.S.C. § 1332. (Id.
¶ 4). Plaintiff further alleges that venue is proper
“as the injuries claimed in this Complaint took place
within the geographic jurisdiction of this Court.”
(Id. ¶ 5).
alleges that Defendants hired him as a mower on or about
April 2011. (Id. ¶ 6). Plaintiff alleges that
his job duties “were to mow yards as directed by
Defendants, drive a work truck as directed by Defendants, and
provide maintenance and support over the off-season.”
(Id. ¶ 8). Plaintiff alleges that his work was
jointly directed and controlled by all Defendants who, upon
information and belief, also had joint power to hire and
fire, jointly set pay rates, and were jointly responsible for
maintaining employment records. (Id. ¶ 16).
Defendants' Motion to Dismiss
filed the instant motion seeking one of three
remedies-dismissal for lack of personal jurisdiction;
dismissal for improper venue; or, a transfer of venue to the
United States District Court for the Northern District of
Mississippi. Defendants filed this motion pursuant to Rule
12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure
and 28 U.S.C. § 1404(a) or § 1406. Defendants argue
that the Complaint “lacks even a single factual
allegation as to where Plaintiff performed the duties of his
employment and where he received payment for his work.”
(Def.'s Memo. In Support of Mot. for Summ. J.
(“Def.'s Memo.”) at 2).
support of the instant motion, Defendants have filed
declarations of the Fowlers as well as those of five other
employees-Kaylee Fowler, Michael Key, Amanda Howe, Anthony
Tuggles, and Allen Whaley. The declarations provided
demonstrate as follows. Chris and Melinda Fowler live in
Desoto County, Mississippi, and Mow It Right has only one
office and physical location in Olive Branch, DeSoto County,
Mississippi. (Def.'s Memo. at 2 (citing C. Fowler Decl.
¶¶ 1-2; M. Fowler Decl. ¶¶ 1-2; K. Fowler
Decl. ¶ 2; M. Key Decl. ¶ 2; M. Key Decl. ¶ 3;
A. Howe Decl. ¶ 3; A. Tuggles Decl. ¶ 3; A. Whaley
¶ 3)). Mow It Right “provides lawn care services
in DeSoto County, Mississippi and Shelby County,
Tennessee.” (C. Fowler Decl. ¶ 5; M. Fowler Decl.
¶ 5; K. Fowler Decl. ¶ 3; M. Key Decl. ¶ 3; A.
Howe ¶ 3; A. Tuggles Decl. ¶ 3; A. Whaley ¶
Right's records “show that over the course of
Plaintiff's employment . . . approximately 90 percent of
the lawn-cutting work Plaintiff did for Mow It Right was
performed in Desoto County, Mississippi.” (Id.
(citing C. Fowler & M. Fowler Decl's. ¶ 7; K.
Fowler, A. Whaley, A. Tuggles, A. Howe, M. Key & A.
Tuggles Decl's. ¶ 5). Mow It Right's payroll
functions are all handled at its Olive Branch, DeSoto County,
Mississippi location. Id. (citing C. Fowler & M.
Fowler Decl's. ¶ 5, 9; K. Fowler, A. Whaley, A.
Tuggles, A. Howe & M. Key Decl's. ¶ 7).
Plaintiff's paychecks, like the paychecks of all Mow It
Right employees, were issued by Mow It Right's office in
Olive Branch, Mississippi. (C. Fowler Decl. ¶ 9; M.
Fowler Decl. ¶ 9; K. Fowler Decl. ¶ 7; M. Key Decl.
¶ 7; A. Howe Decl. ¶ 7; A. Tuggles ¶ 7).
response to Defendants' Motion, Plaintiff initially
asserts that it is procedurally defective because it was
filed after the responsive pleading in this matter. Plaintiff
avers that this Court could construe the untimely Motion to
Dismiss as a motion for judgment on the pleadings under Rule
12(c) of the Federal Rules of Civil Procedure; however,
Plaintiff argues that such a motion is not an ideal vehicle
for determining whether the Court lacks personal jurisdiction
as Defendants have offered declarations outside the pleadings
in support of the motion. Plaintiffs further assert that the
motion could be construed as a motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure;
however, Plaintiff states that such a motion is premature as
further discovery should be allowed in advance of such a
motion pursuant to Rule 56(d) and that, even if the Court
were to so construe it, it should be denied.
respect to the merits of the motion, Plaintiff asserts that
this Court may exercise personal jurisdiction over Defendants
because, “[e]ven though it may [be] true that a
substantial part of the events giving rise to
plaintiff['s] claims occurred outside the [western]
district of Tennessee, ” “Plaintiff routinely
went into Tennessee when working” for Defendants.
(Pl.'s Resp. at 6, 10). Accordingly, Plaintiff argues