United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION & ORDER
GREG N. STIVERS, District Judge.
This matter is before the Court on Century Mortgage Company's Motion to Dismiss. (DN 8). This motion is ripe for a decision, and for the reasons stated below, Century's Motion to Dismiss is DENIED.
On December 9, 2014, Plaintiffs Natalie Back, John Hishmeh, and Heather Walker ("Plaintiffs") filed a Collective and Class Action Complaint alleging that Defendant Century Mortgage Company ("Century") had violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, and the Kentucky Wages and Hours Act ("KWHA"), KRS 337.010-337.994. (Compl., DN 1). Plaintiffs allege that Century failed to pay loan mortgage officers and loan processors overtime compensation when they had worked in excess of 40 hours in a week, failed to pay loan mortgage officers minimum wage or greater, misclassified loan mortgage officers as exempt from provisions of the FLSA governing minimum wages and overtime compensation, and failed to record accurately and preserve records of hours worked by employees. (Compl., DN 1 at 13-15).
On January 26, 2015, Century filed a Motion to Dismiss and Motion for Sanctions and Motion in the Alternative to Place the Case in Abeyance Pending the Final Ruling of the United States Supreme Court in Perez v. MBA. (DN 8).
On February 20, 2015, Plaintiffs filed their response. (DN 11). Century did not file a reply. Accordingly, Century's motion to dismiss is ripe for ruling.
This Court has jurisdiction over Plaintiffs' FLSA claim as the Court has "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. As to Plaintiffs' KWHA claim, this Court has jurisdiction over that claim as well, as the Court has "supplemental jurisdiction over all other claims that are so related to claims in the action within [the Court's] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a).
III. STANDARD OF REVIEW
Motions pursuant to Fed.R.Civ.P. 12(b)(6) require the Court "to construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief." Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998) (citation omitted).
A. 216(b) Consents
The FLSA dictates that any collective action pursued against employers who have allegedly violated its provisions is an "opt-in" action, i.e., an individual must consent in writing to become a party to the action and that consent must be filed with the Court. 29 U.S.C. § 216(b). Century argues that because Plaintiffs did not file their 216(b) consents at the same time as the complaint, they have failed to successfully pursue the proper form for a collective action pursuant to the FLSA. (DN 8-2 at 2-3). Plaintiffs filed their 216(b) consents on February 9, 2015, two weeks after Century filed its motion to dismiss and two months after Plaintiffs filed their complaint. (DN 10; DN 10-1; DN 10-2; DN 10-3).
Plaintiffs argue that they need not have filed their 216(b) consents with the complaint, that filing them at a later date is appropriate, and that because the consents have been filed Century's argument for dismissal due to the lack of consents is moot. (DN 11 at 3-4). On this point, it is well-settled that 216(b) consents may be filed following the filing of the complaint, with the understanding that "the action is not deemed commenced with respect to each individual plaintiff until his ...