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Wesley v. Accessible Home Care

United States District Court, E.D. Kentucky, Central Division, Lexington

September 26, 2018



          Danny C. Reeves, United States District Judge

         Defendant Accessible Home Care (“AHC”) has filed a motion to dismiss Plaintiff Misty Wesley's (“Wesley”) Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. [Record No. 33] AHC's motion to dismiss will be denied because its Rule 68 offer of judgment does not moot Wesley's claim under the FLSA.


         Pro se Plaintiff Wesley has a history of abusive and vexatious litigation in this Court. As a result, she is required to obtain Court authorization before instituting new civil matters.[1" name="FN1" id= "FN1">1][See Record No.1 (E.D. Ky. General Order 07-06, Feb. 14, 2017).] Wesley was permitted to proceed with the present case against the defendant on the single claim that she was not paid a proper minimum wage and overtime compensation under the Fair Labor Standards Act (“FLSA”) while AHC employed her as a “live-in” caregiver. [Record No. 7]

         Despite this Court's admonition that Wesley could only proceed on her minimum-wage and overtime claims under the FLSA, she filed a Complaint which mirrored her original application to the Court. [Record No. 10] It contains a plethora of claims which, as the Court has already explained, are not supported by the facts or law. [See Record No. 7.] These extraneous claims include: “Forced Labor Condition RICO, ” an appeal of the denial of unemployment benefits, defamation, harassment, concealment, misrepresentation, hostile work environment, “Equal Pay Act, ” retaliation under “Title VII, ” the ADEA, the ADA, and GINA. [Record No. 10] She also suggests that the defendant violated the Federal Tort Claims Act, the Electronic Fund Transfer Act, and committed unfair business practices. Id. Wesley demands $150, 000.00 for lost wages, pain, and suffering as a result of these alleged violations.

         AHC made Wesley an offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure on August 9, 2018. [Record No. 31-1] The offer consisted of a monetary judgment in the amount of $1, 500.00 to compensate Wesley for all overtime wages allegedly owed under the FLSA. AHC also agreed to the injunctive relief Wesley sought, i.e., it would respond neutrally to any employment reference requests and it would not discuss this lawsuit with third parties. Id. Wesley rejected the offer of judgment and demanded $150, 000.00 for claims including “negative references under retaliation Section 4 of 42 U.S.C. 1981(a).” [Record No. 35] Wesley also advised the defendant that it “could be sued again after this case file.”[2] Id.

         AHC was permitted to tender the $1, 500.00 offer of judgment to the Clerk of Court, who deposited it into the Court's registry. [Record No. 41] AHC filed a motion to dismiss under Rule 12(b)(1), arguing that Wesley's complaint is moot in light of the offer of judgment, which it contends fully satisfies her FLSA claim. [Record Nos. 31, 33, 41]


         A motion to dismiss under Rule 12(b)(1) can attack jurisdiction on its face, in which case all of the plaintiff's allegations must be considered true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). In resolving a factual issue under Rule 12(b)(1), the plaintiff's allegations have no presumptive truthfulness, and the Court has discretion to consider affidavits and documents. Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012).

         A party seeking to invoke the jurisdiction of the federal courts must establish standing under Article III of the United States Constitution. Daubenmire v. City of Columbus, 507 F.3d 383 (6th Cir. 2007). The core elements of standing are a legally recognized injury, caused by the defendant, that is capable of legal or equitable redress. Parsons v. U.S. Dept. of Justice, 1 F.3d 701');">801 F.3d 701, 710 (6th Cir. 2015) (citing Lujan v. Defenders of Wildlife, 504 U.S. 560-61 (1992)). If a party lacks standing, she may not bring her suit in federal court. Id. (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).

         Additionally, a party must maintain a live controversy throughout the action. See Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). If a case no longer presents a live controversy, it becomes moot and the court lacks jurisdiction to resolve the underlying dispute. Id. A case becomes moot when interim relief or events deprive the court of the ability to redress the plaintiff's injuries. Int'l Union, United Auto, Aero, Agr. & Implement Workers of Am. v. Dana Corp., 18');">697 F.2d 718, 721 (6th Cir. 1983).


         The United States Supreme Court has provided guidance for determining when a Rule 68 offer of judgment may moot a plaintiff's claim. In Genesis Healthcare Corporation v. Symczyk, 569 U.S. 66 (2013), Laura Symczyk filed a collective action on behalf of herself and similarly situated employees for Genesis Healthcare's alleged violation of the FLSA. When Genesis Healthcare answered the complaint, it simultaneously served upon Symczyk a Rule 68 offer of judgment, which included $7, 500.00 for unpaid wages, in addition to “such reasonable attorneys' fees, costs, and expenses . . . as the Court may determine.”[3] Id. at 69. Genesis Healthcare stipulated that if Symczyk did not accept the offer within 10 days, it would be deemed withdrawn. Genesis Healthcare, 569 U.S. at 69-70.

         Symczyk failed to respond within 10 days, and Genesis Healthcare moved to dismiss for lack of subject matter jurisdiction. Id. at 70. Symczyk objected, arguing that Genesis was trying to inappropriately eliminate her, and thus the suit, before the collective-action process could unfold. Id. The district court concluded that no other plaintiffs had joined the suit and the Rule 68 offer of ...

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