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Monroe v. Tomorrow Telecom Inc.

United States District Court, E.D. Louisiana

November 7, 2017

BEONKA MONROE
v.
TOMORROW TELECOM INCORPORATED AND TOMORROW PCS, LLC

         SECTION: "S" (3)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.

         IT IS HEREBY ORDERED that Tomorrow Telecom, Inc.'s Motion to Dismiss (Doc. #9) is DENIED.

         BACKGROUND

         This matter is before the court on a motion to dismiss filed by defendant Tomorrow Telecom, Inc. Tomorrow Telecom argues that it is not subject to personal jurisdiction in Louisiana.

         Defendant, Tomorrow PCS, LLC, owns and operates cellular telephone stores in Louisiana. Plaintiff, Beonka Monroe, worked at various TPCS locations as a store manager selling cellular telephones and service plans. TPCS was formed under Louisiana law, and has an Exclusive Master Dealer Contract with MetroPCS Michigan, LLC to sell MetroPCS products exclusively in Louisiana.

         Monroe also alleges that Tomorrow Telecom has a master dealer contract with MetroPCS that permits Tomorrow Telecom to use sub-dealers to sell MetroPCS products in various states. Monroe alleges that Tomorrow Telecom sells MetroPCS products in Texas and TPCS is a sub-dealer of Tomorrow Telecom that sells MetroPCS products in Louisiana. Monroe alleges that Tomorrow Telecom and TPCS have common ownership, and that Tomorrow Telecom exercises managerial control over and issues the pay for the TPCS store managers. Monroe further alleges that Tomorrow Telecom promulgates computer software that TPCS is required to use, and that this software allows Tomorrow Telecom to track every employee's activities, including sales completed and hours worked.

         Monroe alleges that she was paid $900 semi-monthly, plus sales commissions and cash bonuses. She further alleges that she often worked in excess of 40 hours per week and did not receive overtime pay. On August 21, 2017, Monroe filed this action alleging that TPCS violated the overtime provisions of the Fair Labor Standards Act ("FLSA"), codified at 29 U.S.C. § 207(a), by failing to pay her and other similarly situated employees one-and-one-half times of their regular rate for hours worked in excess of 40 hours per week. Monroe seeks to proceed as a collective action under section 216(b) the FLSA, and to represent an opt-in class consisting of:

         All current and former Store Managers of the Defendants who are or have been employed by Defendants during the three years immediately preceding the filing of this suit as salary or non-exempt employees and who:

a. worked in excess of forty hours in any work week and failed to receive premium pay, at the rate of one-and-a-half times their regular rate of pay, for all hours worked in excess of forty in a workweek; and/or
b. were not paid the correct amount of overtime because Defendants failed to account for their sales commissions in calculating their overtime rate of pay.

         On October 4, 2017, Tomorrow Telecom filed the instant motion to dismiss arguing that it is not subject to personal jurisdiction in Louisiana because it does not own or have control over TPCS. Tomorrow Telecom argues that it does not have sufficient connections with Louisiana to subject it to either general or specific personal jurisdiction in this State.

         ANALYSIS

         Personal jurisdiction “is an essential element of the jurisdiction of a district court, without which it is powerless to proceed to an adjudication.” Ruhrgas AG v. Marathon Oil Co., 119 S.Ct. 1563, 1570 (1999). Rule 12(b)(2) of the Federal Rules of Civil Procedure provides that a defendant can move to dismiss an action against it for lack of personal jurisdiction. “The plaintiff bears the burden of establishing [personal] jurisdiction but is required to present only prima facie evidence.” Seiferth v. Helicopteros Attuneros, Inc., 472 F.3d 266, 270 (5th Cir. 2006). The allegations of the complaint, except as controverted by opposing affidavits, are taken as true and all factual conflicts are resolved in the plaintiff's favor. Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985). In resolving a motion to dismiss for lack of personal ...


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