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Burton v. Appriss, Inc.

United States District Court, Sixth Circuit

November 19, 2013

APPRISS, INC., Defendant.


CHARLES R. SIMPSON, III, Senior District Judge.

This matter is before the court on the motion of Defendant Appriss, Inc. ("Appriss") to dismiss Plaintiff Angela Burton's ("Burton") complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or, alternatively, to dismiss Burton's state-law claim. (DN 4). Burton has filed a response to Appriss' motion (DN 6), to which Appriss has replied (DN 7). Fully briefed, the matter is now ripe for adjudication. The court must deny Appriss' motion to dismiss (DN 4) at this time because formal discovery may produce evidence supporting Burton's claims.


Burton was formerly employed as an Account Manager for Appriss' Information Services Group in Louisville, Kentucky. Burton alleges that her duties as an Account Manager included "promoting sales of Defendant's products, specifically Methcheck, to individual customers of Defendant." In addition, Burton alleges that she was responsible for upselling her assigned customers and managing their accounts. Burton contends that after she terminated her employment with Appriss, Appriss failed to pay her overtime compensation for time worked in excess of 40 hours per week, in violation of the provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206 and 207, and the Kentucky Wages and Hours Act ("KWHA"), KRS § 337.285.[1] In addition to recovery of unpaid overtime compensation, Burton seeks to recover liquidated damages, prejudgment interest, and attorney's fees and costs.

Burton purports to bring a collective action under the FLSA, 29 U.S.C. §§ 201, et seq., and a Rule 23 class action under the KWHA, KRS §§ 337.010, et seq. The proposed class would include "[a]ll present and former Account Managers of Appriss, Inc., who were not paid overtime compensation for time worked in excess of forty (40) hours per week or were not compensated for time worked" (hereinafter, the "Class Members"). Burton's complaint requests that the court certify this action as a class action pursuant to Rule 23 and, in accordance with 29 U.S.C. § 216(b), issue notice to all persons who are presently, or have at any time in the three years preceding the filing of this action, been employed by Appriss in the position of Account Manager.

Burton filed the case in this court, asserting federal subject matter jurisdiction pursuant to 28 U.S.C. § 1331 over the FLSA claims and supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) over the KWHA claims. The parties have not yet engaged in formal discovery. Appriss now seeks to dismiss Burton's complaint pursuant to Rule 12(b)(6) for failure to state a claim or, in the alternative, to dismiss Burton's claims arising under the KWHA.


A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). During the pleading stage, the plaintiff must provide factual allegations that are "enough to raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must "construe the complaint in the light most favorable to plaintiff" and "accept all well-pled factual allegations as true[.]" Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (internal marks omitted) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009); League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)). Yet, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, " and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft, 556 U.S. at 678 (citation omitted). "[T]o survive a motion to dismiss, the complaint must contain either direct or inferential allegations respecting all material elements" of the offense. In re Travel Agent Comm'n Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009) (citation omitted).

As a general rule, a district court may not consider matters outside the pleadings when ruling on a Rule 12(b)(6) motion to dismiss without converting the motion into one for summary judgment. J.P. Silverton Indus. L.P. v. Sohm, 243 F.App'x 82, 86-87 (6th Cir. 2007); see Fed.R.Civ.P. 12(d). However, "when a document is referred to in the complaint and is central to the plaintiff's claim, " a defendant "may submit an authentic copy [of the document] to the court to be considered on a motion to dismiss, and the court's consideration of the document does not require conversion of the motion to one for summary judgment." Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999) (quotation omitted). If a motion to dismiss is converted to a motion for summary judgment, "all parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d).

If a defendant asserts an affirmative defense, its Rule 12(b)(6) motion to dismiss should be granted only where that affirmative defense clearly prevents all conceivable recovery on the underlying claim. Jones v. Bock, 549 U.S. 199, 215 (2007). Dismissal is only appropriate where the affirmative defense appears on the face of the complaint, and there is no dispute that the plaintiff's action is barred by the defense. See Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012) (finding that "a plaintiff generally need not plead the lack of affirmative defenses to state a valid claim").


Burton contends that Appriss violated several provisions of the FLSA and the KWHA by failing to compensate her and the Class Members for overtime hours worked while in its employ. "The FLSA requires overtime pay for each hour worked in excess of forty hours per week[.]" Foster v. Nationwide Mut. Ins. Co., 710 F.3d 640, 642 (6th Cir. 2013); 29 U.S.C. § 207(a)(1). The KWHA imposes this same overtime pay requirement on employers. KRS § 337.285. Employers who violate these provisions are liable to their employees in the amount of the unpaid overtime compensation owed, in addition to liquidated damages and reasonable attorney's fees. 29 U.S.C. § 216(b); KRS § 337.385.

Certain categories of employees are excluded from this overtime compensation requirement. For example, employers do not have to pay overtime wages to persons employed in a "bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1); KRS § 337.010(2)(a). "An employer may raise a plaintiff's status as an exempt employee as an affirmative defense to claims brought under the FLSA." Orton v. Johnny's Lunch Franchise, LLC, 668 F.3d 843, 846-47 (6th Cir. 2012) (citation omitted). However, "exemptions to the FLSA's overtime provisions are to be narrowly construed against the employers seeking to assert them, " and the employer bears the ...

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