United States District Court, W.D. Louisiana, Lafayette Division
Rebecca F. Doherty Judge.
ORDER AND REASONS
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE
before the undersigned is a Rule 12(b)(6) Motion To Dismiss
and Rule 12(b)(3) Motion To Transfer Venue [Rec. Doc. 16]
filed by defendants, Travis Buquet Construction, LLC, Travis
Buquet Home Builders, LLC and Travis Buquet, and plaintiff,
Sergio Mejia's, memorandum in opposition to
Defendants' Motion [Rec. Doc. 19]. For the reasons that
follow, the Motion to Dismiss will be denied as moot and the
Motion to Transfer will be granted.
a collective action for violation of the Fair Labor Standards
Act (“FLSA”) brought by Plaintiff, individually
and on behalf of all other similarly situated installers
(collectively referred to as “Plaintiff”).
Plaintiff alleges in his Amended Complaint that he worked for
Travis Buquet Construction, LLC (“TBC”), Travis
Buquet Home Builders, LLC (“TBH”) and Travis
Buquet (“Buquet”) (collectively referred to as
“Defendants”) in Houma and Morgan City,
Louisiana, from approximately November 2011 until
approximately August 2016, as a carpenter related to building
houses and other structures. R. 14, ¶¶
6-8. Plaintiff alleges that Defendants, TBC and TBH
are owned and operated by Defendant Buquet with their
principal place of business in Houma, Louisiana. Id.
at 11. He states that TBC and TBH “are collectively a
‘single business enterprise'” and that his
paychecks were issued by TBC. Id. at ¶¶
alleges he was an “employee” of Defendants under
29 U.S.C. § 203(e). Id. at ¶ 10. He
further alleges he normally worked more than forty hours a
week-on average at least 10 hours a day Monday through Friday
and at least 7 hours a day on Saturday. Id. at ¶
25. Plaintiff alleges Defendants paid him $17.75 per
hour and that he was not paid overtime for hours he worked
over forty hours in a work week. Id. at ¶¶
seek dismissal of TBH and Buquet under Federal Rule of Civil
Procedure 12(b)(6). They assert that TBH “is simply a
holding company that owns properties upon which homes are
built” and Buquet “is one of the owners of
TBC”, but TBH and Buquet: (1) have no employees; (2) do
not engage in the construction of homes; (3) never employed
Plaintiff; and (4) never issued a check to
Plaintiff. Defendants further assert that Plaintiffs
allegation that all Defendants are a “single business
enterprise” is merely “conclusory” and does
not provide a claim against TBH or Buquet.
also seek transfer of this action to the Eastern District of
Louisiana under Rule 12(b)(3) for improper venue. In his
Opposition memorandum, Plaintiff confirms Defendants'
statement that “Plaintiff does not oppose
Defendants' Rule 12(b)(3) Motion to Transfer
Venue.” R. 16, 19.
the court should not consider challenges under Rule 12(b) (6)
until after jurisdiction and venue challenges are resolved.
Arrowsmith v. United Press Int'l., 320 F.2d 219,
221 (2d Cir.1963) (holding that it was error for district
court to dismiss action for failure to state a claim prior to
addressing challenges to personal jurisdiction and venue,
because dismissal on the former ground would be with
prejudice, while dismissal for either of the two latter
grounds would be without prejudice). Accordingly, the Court will
consider Defendant's argument of improper venue first.
12(b)(3) of the Federal Rules of Civil Procedure authorizes a
defendant to move for dismissal due to improper venue. Where,
as here, the Court rules without conducting an evidentiary
hearing, the plaintiff bears the burden of establishing a
prima facie case that the Court has jurisdiction over the
defendant. Johnston v. Multidata Sys. Int'l
Corp., 523 F.3d 602, 609 (5th Cir. 2008). In deciding
the motion, the court must accept as true all allegations in
the complaint and resolve all conflicts in favor of the
plaintiff. Braspetro Oil Services, Co. v. Modec (USA),
Inc., 240 Fed.Appx. 612, 615 (5th Cir. 2007). Unlike a
Rule 12(b)(6) motion, however, the court may consider
extrinsic evidence-including affidavits and other evidentiary
materials- in determining whether venue is proper.
Ambraco Inc. v. Bossclip B.V., 570 F.3d 233, 238
(5th Cir. 2009).
U.S.C. § 1406 states, “The district court of a
district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or
division in which it could have been brought.” Whether
or not this Court is a proper venue is determined pursuant to
28 U.S.C. § 1391. Section 1391(b) provides: “[a]
civil action may be brought in a judicial district in which a
substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is
the subject of the action is situated.”
Defendants attached to their motion a detailed report from
the Louisiana Secretary of State which provides that TBC is a
Louisiana limited liability company domiciled at 510 Bayou
Gardens Drive, Houma, Louisiana. 70364. R. 16-2, Exh.
A. Also, the factual allegations in Plaintiff's
Amended Complaint allege that Defendants are limited
liability companies organized under the laws of Louisiana
with their principal place of business in Houma, Louisiana,
R. 14, ¶ 11; Plaintiff worked in Houma and in Morgan
City, Id. at ¶ 7; and, Plaintiff
was paid with checks issued by TBC from its office in Houma.
Houma is located in the Eastern District of Louisiana. Based
on the foregoing, as well as the fact that Plaintiff does not
object to the transfer of venue, the Court finds that venue
in this case lies within the Eastern District of Louisiana.
reviewed the pleadings, the record, and the relevant law, the
Court concludes that Defendants' unopposed Motion To
Transfer Venue is merited and that venue is lacking in the
Western District of Louisiana. Therefore, the Court transfers
this case to the United States District Court for the Eastern
District of Louisiana, and declines to consider
Defendants' 12(b)(6) motion for failure to state a claim.
IT IS ORDERED that the unopposed Rule
12(b)(3) Motion To Transfer Venue filed by defendants, Travis
Buquet Construction, LLC, Travis Buquet Home Builders, LLC
and Travis Buquet [Rec. Doc. 16] is GRANTED
and this matter is TRANSFERRED to the
Eastern District of Louisiana.
IS FURTHER ORDERED that the Rule 12(b)(6) Motion To
Dismiss filed by defendants, Travis Buquet Construction, LLC,
Travis Buquet Home Builders, LLC and ...