United States District Court, E.D. Louisiana
ORDER AND REASONS
ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.
IS HEREBY ORDERED that Tomorrow Telecom, Inc.'s
Motion to Dismiss (Doc. #9) is DENIED.
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.
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
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.
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
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.
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
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 ...