Raykovitz v. Electrical Builders, Inc., No. 1:2019cv00137 - Document 54 (S.D. Ga. 2020)

Court Description: ORDER granting in part and denying in part 20 Motion to Dismiss. Defendants' Motion to Dismiss is granted as to Plaintiff's collective allegations and those are dismissed without prejudice. Defendants' Motion to Dismiss as to Plaint iff's individual allegations and to transfer are denied. This action shall remain in this Court. Only Plaintiff's individual FLSA claim remains. (Terminating 35 Motion to Certify Class.) Signed by Chief Judge J. Randal Hall on 08/21/2020. (jlh)

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Raykovitz v. Electrical Builders, Inc. Doc. 54 FiLEO ! . I I COURT U.S.OIST' AUGUSlA OlV. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA ^ .* 0.0! 20 AL'G 2 1 Pi1 0- I AUGUSTA DIVISION FRANK RAYKOVITZ, Individually and for Others Similarly * Situated, * Plaintiff, * V. CV 119-137 * * ELECTRICAL BUILDERS, INC., * Defendant. ORDER Before the ("Defendant") (Doc. Court motion is to Defendant dismiss For the following 20.) Electrical or, alternatively, reasons. Inc.'s Builders, transfer. Defendant's motion is GRT^TED IN PART and DENIED IN PART. I. BACKGROUND Defendant, headquartered in St. Cloud, Minnesota, claims to be the nation's contractor. omitted).) if premier industrial electrical welding (Compl., Doc. 1, SI.SI 9, 16 (internal quotation marks From September 2018 until May 2019, Plaintiff worked for Defendant as W n an Electrical Field Engineer and Superintendent at its Plant Vogtle location in Waynesboro, Georgia. 19.) and (Id. 17- In this capacity. Plaintiff "wrote the work packages and overs[aw] the installation of cabling for nuclear plants. ft (Id. Dockets.Justia.com i 20.) (Offer Defendant hired Plaintiff to work for $65i per hour. of Employment, Doc. 20-2.) W While working for Defendant, Plaintiff provides that n w [he] routinely regularly worked over [forty] hours in a week. n worked [sixty] to [ninety] hours per week. and. \\ [he] [i]f [he] worked fewer than [forty] hours in a week, he was only paid for the hours worked. ff (Compl., Slf 23-25. ) Plaintiff earned \\ the same hourly rate for the hours he worked over [forty] in a work week. // straight time is generally referred to as receiving (See id. On which for overtime. 26, 30.) August claiming n 22, Defendant 2019, Plaintiff filed the present action failed to pay [Plaintiff] and other workers like him[] overtime as required by the Fair Labor Standards Act (['] FLSA[']) ."2 (Id. SI 1.) Plaintiff originally brought this suit (Id. at 1; see individually and for others similarly situated.^ On July 10, 2020, Plaintiff filed a notice that he also id. SI 1.) only intends to pursue his individual claims against 1 Plaintiff alleges his hourly rate spanned from $55 to $75. SI 27.) (Compl. Defendant counters that the lowest it paid Plaintiff was $65. (Def.'s Mot. to Dismiss, Doc. 20, at 7 n.l.) For reasons discussed in Section III(A)(1), infra, the Court may examine certain external exhibits, and those exhibits reveal Plaintiff's pay ranged from $65 to $75 per hour. (See Offer of Employment, The Court analyzes the Doc. 20-2, at 2; see generally Pay Stubs, Doc. 20-4. ) motion to dismiss assuming Plaintiff's lowest hourly rate was $65. 2 Under the FLSA, a qualified employee must be paid "not less than one and onehalf times the regular rate at which he is employed" for hours worked above forty in a week. 29 U.S.C. § 207(a)(1). This "time-and-a-half" pay structure is generally referred to as "overtime." See, e.g. , Bautista Hernandez v. Tadala's Nursery, Inc. 34 F. Supp. 3d 1229, 1235, 1240 (S.D. Fla. 2014). 3 Two employees filed notices of consent (Docs. 17, 48), but both later withdrew their consents. (Docs. 49, 51.) 2 N\ [Defendant]"; he does not intend to seek to represent a collective "4 through this action. (Notice of Withdrawal of Collective Action Allegations, Doc. 52; see also Notice of Mootness, Doc. 53, '31 10; Notice of Withdrawal of Mot. for Conditional Certification, Doc. It is improper to withdraw a portion of the claims in a 50.) See Perry v. Schumacher Grp, of La., complaint in this manner. 891 F.3d 954, 958 (11th Cir. 2018). motion to dismiss, the Court Given, however, the pending treats withdrawal of his opposition to Plaintiff's of Defendant's motion to dismiss unopposed. Defendant's motion to as a Defendant's motion to dismiss Plaintiff's collective action allegations. PART notices dismiss Finding this portion the Court GRANTS IN as to Plaintiff's collective action allegations. The Court now analyzes Defendant's pending motion to dismiss or, alternatively, motion to transfer with respect to Plaintiff's remaining individual claim. Plaintiff filed a response (Pl.'s Resp. Opp'n Mot. to Dismiss, Doc. 25), and Defendant filed a reply (Def.'s Reply Supp. Mot. to Dismiss, Doc. 34). Defendant's motion is apt for consideration. ^ To this end, Plaintiff withdrew his motion to conditionally certify a class (Mot. to Conditionally Certify Class, Doc. 35). (Notice of Withdrawal of Mot. for Conditional Certification.) The Clerk is DIRECTED to TERMINATE Plaintiff's motion to conditionally certify a class (Doc. 35). 3 II. LEGAL STANDARD A. Motion to Dismiss and Extrinsic Documents Under must Federal \\ contain Rule of Civil Procedure a short and plain statement of the claim showing tr so that the defendant has that the pleader is entitled to relief fair notice tr a complaint 8(a)(2), Bell of both the claim and the supporting grounds. Atl. Corp. V. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). n Although "detailed factual allegations \\ are not required. Rule 8 demands more than an unadorned, the-defendant-unlawfully-harmed- me accusation. // Ashcroft V. Iqbal, (quoting Twombly, 550 U.S. at 555). a formulaic recitation will not do. U.S. 662, (2009) Furthermore, a plaintiff's of the elements of of a cause action r/ Twombly, 550 U.S. at 555. \\ To survive a Rule must 678 requires more than labels and conclusions. pleading obligation and 556 contain 12(b)(6) motion to dismiss. sufficient factual matter, accepted a complaint 'state a claim to relief that is plausible on its face. 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). true,^ as f ft to Iqbal, A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 5 The court must accept all well-pleaded facts in the complaint as true and construe all reasonable inferences therefrom \\ in the light most favorable to Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. are not entitled 2006) (citation omitted). Conclusory allegations, however, the plaintiff. to an assumption of truth — legal conclusions must be supported by factual allegations. n Randall v. Scott 610 F.3d 701, 709-10 (11th Cir. 2010). 4 n Id. defendant is liable for the misconduct alleged. The court may not reasonably infer the defendant is liable when the wellpleaded facts fail to misconduct. II more than show the mere possibility of Id. at 679; see Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1265 (11th Cir. 2012) ("[FJactual allegations must be enough to raise a right to relief above the speculative level.") (citation omitted). Moreover, when considering a motion to dismiss pursuant to Rule 12(b)(6), the district court generally may not consider of the complaint without materials outside of the four corners See Speaker v. converting it into a motion for summary judgment. U.S. Dep't of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010); Day v. Taylor, But a court may consider 400 F.3d 1272, 1275-76 (11th Cir. 2005). a to document the attached to plaintiff's challenged. // a motion claim, to dismiss and (2) W its if it is (1) central authenticity SFM Holdings, Ltd, v. Banc of 7\m. is not Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010); accord Fin. Sec. Assurance, Inc. V. Stephens, Inc., 500 F.3d 1276, 1285 (11th Cir. 2007) (considering document attached to motion to dismiss because [was] referred to in the complaint, plaintiff's] . . . claim, . . . and its authenticity"). 5 it [was] neither central party to it [the challenge[d] B. Transfer Under 28 \\ U.S.C. § 1404(a), For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where ft it might have been Relevant brought. factors for deciding motion to transfer include: (1) the convenience of the witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) a the forum'' s familiarity with the governing law; weight accorded a plaintiff's choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances. Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.l (11th Cir. 2005). Generally, a plaintiff's choice of forum is accorded considerable weight under a section 1404(a) analysis. Weintraub v. Advanced Corr. Healthcare, Inc., 161 F. Supp. 3d 1272, 1284 (N.D. Ga. 2015) (citing SME Racks, Inc, v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1100-01 (11th Cir. 2004) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) ) . Where a forum selection clause governs the dispute, a however, court must deem the private-interest factors to weigh entirely in favor of the preselected forum. Atl. Marine Constr. Co. v. U.S. // Dist. Court for the W. Dist. That is so because of Tex., 571 U.S. 49, 64 (2013). 6 [w]hen a parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or or witnesses, for Id. their pursuit of the litigation. III. their DISCUSSION The Court analyzes Defendant's motion as to its (A) request to dismiss and (B) alternative request to transfer. A. Motion to Dismiss In deciding Defendant's motion to dismiss. the Court begins by analyzing whether it may consider certain extrinsic documents. 1. Extrinsic Documents Defendant attaches several exhibits to its motion: Plaintiff's offer of employment; Plaintiff's time sheets (Time Sheets, Doc. 20-3); and Plaintiff's pay stubs. central to Plaintiff's ELSA overtime claim Each document is which revolves around Plaintiff's rate of pay, the hours he worked, and the compensation he received for those hours. Plaintiff not only fails to dispute the authenticity of these exhibits, but also cites to the offer of employment and time sheets in his response. Mot. to Dismiss, at 4-5.) (PI.'s Resp. Opp'n Thus, the Court considers these exhibits in ruling on Defendant's motion to dismiss. 7 2. Dismissal to A plaintiff's burden rr state a claim of a FLSA violation Sec'y of Labor v. Labbe, 319 F. App'x [is] quite straightforward. \\ 761, 763 (11th Cir. 2008). The elements that must be shown are n simply a failure to pay overtime compensation. . . Id. (finding complaint alleged stated plaintiff was a a claim covered under the employer FLSA and when' it alleged the employer repeatedly failed to pay overtime over a specific period). survive must a show motion to dismiss that (1) he is a FLSA overtime employed by the claim, the To a plaintiff defendant. (2) the defendant engaged in interstate commerce, and (3) the defendant n failed to pay him . . . overtime Freeman wages. v. Key Largo Volunteer Fire & Rescue Dep't, Inc., 494 F. App'x 940, 942 (11th Cir. 2012) (citing Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1277 n.68 (11th Cir. 2008)). There is little dispute that Plaintiff meets the elements of his prima facie case: Plaintiff is employed by Defendant (Compl., 16; PI.'s Resp. Employment, at Opp'n 2)); Mot. to Dismiss, at Defendant engaged in 4 (citing Offer interstate of commerce (Compl., 55 13, 16); and Defendant failed to pay him overtime wages and, instead, paid him straight time for overtime (Compl, 55 2426; Pl.'s Resp. Opp'n Mot. to Dismiss, at 5 (citing Time Sheets).) Defendant should be mainly argues dismissed that because Plaintiff's Plaintiff 8 is individual an exempt FLSA claim employee. (Def.'s Mot. to Dismiss, at 7-10.) W Plaintiff was exempt as one Specifically, Defendant argues employed in a bona fide executive. rr administrative[,] compensated" Plaintiff \\ or professional (Id. employee. 7. ) at and capacity According to a highly Defendant, // (Id. at fails to allege he was a non-exempt employee. 10. ) The Parties agree that an employee's exempt status is an affirmative defense and, generally, an affirmative defense will not support a motion to dismiss because a plaintiff is \\ required to negate an affirmative defense in [his] complaint. n not La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (citation omitted); (Pl.'s Resp. Opp'n Mot. to Dismiss, 34; Def.'s Reply Supp. Mot. to Dismiss, at 2-3.) Dismissal based on an affirmative defense can be proper but only if the defense w // clearly appears on the face of the complaint. Kennedy Inc., No. 8:15-CV-2009-T-30TBM, 2015 WL Lambiase 8324568, v. at DPT *2 (M.D. Fla. Dec. 9, 2015) (quoting Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984)); (see also Pl.'s Resp. Opp'n Mot. to Dismiss, 3-4; Def.'s Reply Supp. Mot. to Dismiss, at 2-3.) Defendant, as the employer, carries the burden of proof to show an FLSA exemption applies to Plaintiff. V. Brennan, 417 U.S. 188, 196-97 (1974). Corning Glass Works Further, the Court must \\ narrowly construe exemptions to the FLSA overtime requirement. Morgan, 551 F.3d at 1269. 9 ff At the outset, the Court finds Plaintiff's salary 29 activates the highly compensated employee exemption. level C.F.R. § 541.601(a), (b) (2016); s^ 29 U.S.C. § 213(a)(7) (2018). Parties agree. (Pl.'s Resp. Opp'n Mot. to Dismiss, at 4; Reply Supp. Mot. to Dismiss, at 3.) whether Defendant shows the The Def.'s As such, the Court focuses on highly compensated exemption is satisfied.^ Under the highly compensated exemption, an employee is exempt \\ if he receives the designated salary level as his rr compensation and he \\ total annual customarily and regularly performs any one or more of the exempt duties or responsibilities of an executive. // administrative[,] or professional A prior version of the regulation covered Plaintiff while Defendant. C.F.R. Total annual compensation" requires the § 541.601(a) (1) (2016). ® 29 employee. See 29 C.F.R. § 541.601(a)(2) (June 8, 2020) . he worked for As such, the Court applies the version of the regulation applicable to Plaintiff's claim, which 29 C.F.R. § 541.601(b) designated the requisite salary level as $134,004. From August 26, 2018, (2016) (effective Dec. 1, 2016, through Dec. 31, 2019) . to May 22, 2019, Plaintiff earned $167,175 in gross pay (Pay Stubs); thus. Plaintiff's total annual compensation while working for Defendant exceeded the See 29 C.F.R. § 541.601(b)(3) (2016). It is common for requisite amount. employees to earn more than the minimum defined within the FLSA; overtime cases generally turn on the defined duties of an employee and whether the employer's method of compensation is consistent with payment on a salary basis." Garrett Reid Krueger, Comment and Note, Straight-Time Overtime and Salary Basis: Reform of the Fair Labor Standards Act, 70 Wash. L. Rev. 1097, 1101 (1995). ^ "A high level of compensation is a strong indicator of an employee's exempt status." 29 C.F.R. § 541.601(c) (2016). As such, the regulation provides that "a highly compensated employee will qualify for exemption if the employee customarily and regularly performs any one or more of the exempt duties or responsibilities of an executive, administrative), ] or professional employee. // Id. For the reasons contained herein, the Court finds Defendant has failed to prove either the salary-basis or duties elements required under the highly compensated juncture, exemption. that Consequently, Plaintiff is exempt Defendant as professional. 10 an also cannot executive, prove, at this administrator, or \\ employee to be § 541.602."8 paid on a salary . . . basis as set forth in Thus, Defendant 29 C.F.R. § 541.601(b)(1) (2016). proves Plaintiff is an exempt highly compensated employee if it shows Plaintiff (1) was paid on a salary basis and (2) performed Inc., 825 F.3d 1264, 1271 (11th V. IBEX Enq'q Servs., Pioch one or more of the requisite duties. Cir. 2016) (citing 29 C.F.R. §§ 541.600, 541.602, 541.700). a. Salary-Basis Test \\ An employee is paid on a receives each pay salary basis" when he "regularly period[,] . . a predetermined amount constituting all or part of the employee's compensation, which amount is not subject to reduction because of variations in the // quality or quantity of Earnings § 541.602(a). the work computed on an hourly necessarily violate the salary basis requirement. § 541.604(b). And payments in addition to the \\ inconsistent with payment on a 29 performed. salary basis; basis See C.F.R. do 29 C.F.R. salary are [t]he not not regulation prohibits only 'reductions' due to 'variations in the quality or quantity of the work performed. r ff Acs V. Detroit Edison Co., 444 F.3d 763, 768 (6th Cir. 2006) (emphasis omitted) (quoting 29 C.F.R. § 541.118(a) (prior version of section 541.602)). ® Total annual compensation may also be satisfied if paid on a fee basis, but no party suggests Defendant paid Plaintiff § 541.601(b) (1) (2016). 11 on a fee basis. 29 C.F.R. For the reasons stated previously,9 the Court Plaintiff was paid at a rate of $65 to $75 per hour. \\ complaint states he was // \\ an hourly employee, // he work[ed] to [Defendant] on a regular basis. // rr \\ than [forty] hours in a week, a week, Plaintiff's reported the hours \\ was not guaranteed was only paid for the hours worked" even if "fewer a salary. in assumes // and \\ regularly worked over [forty] hours [r]ather than receiving time[-]and[-a-]half as required by the FLSA," was paid "the same hourly rate for the hours If he worked over [forty] in a work week. (Compl., Hi 6, 21-24, 26, 30.) Defendant cites to one of Plaintiff's \\ reflecting n Hourly two payment Salary types pay stubs from 2019 Direct n and \\ ST apparently to show Plaintiff was guaranteed a salary for fifteen hours of work not subject to deductions. (Def.'s Reply Supp. Mot. to Dismiss, at 3 (citing Pay Stubs, at 33).) Although true that being guaranteed pay for fifteen hours may potentially satisfy the salary-basis requirement, the available evidence shows the fifteen-hour salary pay began on March 25, 2019; there is no evidence of any guaranteed fifteen hours of pay prior to March 25th. 40. ) (Compare Pay Stubs, at 2-30, with id. at 31, 33, 35-38, Furthermore, the pay stubs reveal no designated fifteen-hour s See, supra, note 1. 12 salary pay when Plaintiff worked 82.50 hours from April 1, 2019, (Pay Stubs, at 32.) to April 7, 2019. In general, Plaintiff's pay stubs reflect pay in proportion (See generally Pay Stubs.) to the hours worked. Most importantly. when Plaintiff's pay stubs show his pay was subject to reductions Plaintiff worked less than forty hours from September 2, 2018, to September 8, 2018, he received payment in accordance with the reduced hours. As such. Defendant (Pay Stubs, at 3 (38 hours).i°) fails to carry its burden, at this stage, to prove Plaintiff was paid on a salary basis. Duties b. The highly Court now \\ turns to the duties test. compensated executive, Test employee administrator or regularly regularly directs the work performs An professional. [wjhose primary duty is management of two . . As stated above, a . ; or more a duty executive of is an one [w]ho customarily and other employees; and [w]ho has the authority to hire or fire other employees or whose suggestions and recommendations particular weight. administrator office 10 or Defendant Reply Supp. is // one non-manual 29 \\ [on those matters] C.F.R. § directly related to states Plaintiff "never worked less than Mot. to Dismiss, at 3; see also id. at Defendant provided reflect at than forty hours, as cited. least one 13 . . are given 541.100 (a) (2)- (4) . [wjhose primary duty is work . occasion where the performance the management An of or [forty] hours" (Def. 's 4) , but the Pay Stubs Plaintiff worked less general business . ; operations . . and [w]hose primary duty includes the exercise of discretion and independent judgment with "11 29 C.F.R. § 541.200 (a) (2) respect to matters of significance. (3). As discussed Defendant's above, affirmative Plaintiff defenses is in not his required complaint to Defendant as Defendant (See Def.'s Mot. to Dismiss, at 8.) seems to suggest. counter wishes the Court to dismiss Plaintiff's complaint for not including more detail duties w about entailed. // what he did for [Defendant] and what his job (Id.) Plaintiff's complaint avers he is ft for Electrical Field Engineer and superintendent \\ Defendant an and wrote the work packages and overs[aw] the installation of cabling for nuclear plants. w w nonexempt" and n According to Plaintiff, these job duties are fatal to [Defendant]'s claim that [Plaintiff] // failed to allege he was not exempt from the FLSA. Opp'n Mot. to Dismiss, at 5.) (PI.'s Resp. Defendant counters that \\ [s]everal federal [c]ourts of [a]ppeal have agreed that work package planners perform nonexempt, administrative duties exempt from the FLSA's overtime protections. and consequently are n (Def.'s Reply Supp. Mot. to Dismiss, at 4-5.) Defendant's cited cases were decided on summary judgment and contemplated numerous facts gathered during discovery reflecting 11 The Court declines to analyze whether Plaintiff satisfies the professional exemption because Defendant fails to offer evidence or argument supporting that position. 14 (See id. at 5. ) the plaintiffs' daily duties. It is also unknown to the Court whether Plaintiff's primary duties reflect those of \\ a work package members of resources the teams In addition, planner. executive, live and operations work in Defendant provides, leadership, All human and [Defendant] Minnesota. . makes all decisions regarding project staffing, compensation, and All payroll and other employment determinations in Minnesota. other employment-related records are created and controlled by our // (Def.'s human resources personnel located here in Minnesota. Mot. to Plaintiff is apparently at least not Dismiss, at 3-4.) part of that group of executives and administrators because he worked out of Plant Vogtle in Georgia. Given the limited facts currently before the Court, Defendant fails to carry its burden of showing it is clear from Plaintiff's complaint that he is an exempt employee. B. Motion to Transfer As an alternative request. Defendant argues the Court should transfer 22. ) this action to the District of Minnesota. (Id. at 19- Defendant argues the Parties signed a forum selection clause designating the United States District Court for the District of Minnesota as the proper forum. issue for the enforceable, Court is rather, not (Id. at 19, 20-21.) The whether the forum selection whether it action. 15 is applicable to initial clause is the present 1. Existence of an Applicable Forum Selection Clause The forum selection clause cited by Defendant is contained within \\ the Nondisclosure, and Nonsolicitation, Non[]compete Agreement" entered into and separately signed by the'Parties, which "12 ("Restrictive Covenant the Parties refer to as the "Agreement. II Agreement, Doc. 20-5, at 2, 5, 6.) \\ specifies that it covers The forum n [t]his Agreement. selection clause (Id. SI 8.2. ) There is no overt mention of the Restrictive Covenant Agreement or forum selection clause applying to a separate employment agreement or the general employment relationship between the Parties. Defendant argues Plaintiff's FLSA claim triggers the forum selection clause due to the following language: Any dispute arising under or in connection with this Agreement or related to any matter which is the subject of this Agreement shall be subject to the exclusive jurisdiction of the state and/or federal courts in the State \\ argues, of Minnesota. n (Id.) On that language. Defendant The Agreement pertains to any matter connected or related n to [Plaintiff]'s 'employment relationship' with [Defendant]. (Def.'s Reply Supp. Mot. to Dismiss, at 14.) Defendant, as the proponent of the forum selection clause. draws a conclusory line from the Restrictive Covenant Agreement to 12 The Court may analyze the Restrictive Covenant Agreement to address the motion to transfer venue. See, e.q., Daoud Inv. Holdings, Inc, v. Cole, No. 15-62014CIV-COHN/SELTZER, 2015 WL 12743767, at *1, *2 (S.D. Fla. Oct. 30, 2015) (analyzing the parties forum selection clause in deciding motion to transfer venue). 16 It the entire employment relationship. current FLSA Covenant dispute is an connection Although Agreement. Agreement -I in is express \\ Covenant the [Plaintiff], to Agreement is the condition // employment is of with obvious // the how the Restrictive [Restrictive Covenant] [Defendant]'s offer purpose [Defendant's] not of the desire[] to of Restrictive protect and safeguard the legitimate interests of its business including, but not limited to [Defendant]'s goodwill with its customers, trade // secrets, customer information, and confidential To that end, the subject (Restrictive Covenant Agreement, at 1.) of the information. Covenant Agreement is explicitly protecting Restrictive Defendant's trade secrets, intellectual property, and customers. Furthermore, \\ provides: the integration [T]his Agreement understanding among the hereof Covenant (id. provision embodies within the the entire Agreement agreement and parties relative to the subject matter 8.1); once again, reinforcing that the Restrictive Agreement is limited to the above-outlined subject matter. Seemingly recognizing Plaintiff's complaint fails to trigger the Restrictive Covenant Agreement, Defendant offers that it intends to bring a counterclaim raising breach of the noncompete agreement. a (Def.'s Reply Supp. Mot. to Dismiss, at 14.) noncompete claim could trigger 17 the Restrictive Although Covenant Agreement, as this action currently stands, the Court finds no reason why the forum selection clause applies. 2. Transfer Under 28 U.S.C. § 1404 Sans a forum selection clause, the Court analyzes Defendant's request to transfer under 28 U.S.C. § 1404. As stated above. because no forum selection clause applies. Plaintiff's choice of forum is given considerable Defendant, weight. as the party seeking transfer, carries the burden of showing the factors favor the move. In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989). According to \\ the circumstances (Def.'s Mot. to Dismiss, at 21.) Specifically, Defendant, n support transfer. Plaintiff IS Southern District a citizen of [T]he and totality resident Georgia IS of of no Florida, more majority of Minnesota. Minnesota Defendant the relevant (Id.) law travel to so convenient // [Plaintiff] . . . to \\ // than any other. witnesses and documents (Id.) are [t]he for The within Lastly, Minnesota courts are more familiar with pertaining to non-compete agreements under which intends to bring a breach of non-compete counterclaim. ff (Id. at 21, 22.) It is true that Plaintiff must travel regardless of whether the Court transfers venue. Given, however, that Florida borders Georgia, the Court disagrees with Defendant that travelling to Georgia is no more convenient for Plaintiff than Minnesota. Defendant's second As to argument, it is likely that Georgia — where 18 Defendant worked — and where Minnesota Defendant makes its employment and administrative decisions — both house witnesses and Third, documents. there is no current an individual district court FLSA in As acknowledged claim. Minnesota is no better analyzing the factors Plaintiff by Defendant, a suited to address (Id. at 22.) Plaintiff's federal claim than this Court. After that The pending claim is limited breached the non-compete agreement. to claim Defendant raises to support transfer, the Court finds Defendant fails to carry its burden of showing the totality of the circumstances weighs in favor of transfer. IV. IT IS HEREBY ORDERED, CONCLUSION Defendant's motion to or. dismiss alternatively, transfer (Doc. 20) is GRANTED IN PART and DENIED IN Defendant's motion to dismiss is GRANTED as to Plaintiff's PART. collective action allegations, and those allegations are DISMISSED WITHOUT PREJUDICE. individual action FLSA allegations SHALL claim Defendant's motion to dismiss as to Plaintiff's remain remains. in and this to transfer Court. Lastly, the venue is DENIED. Only Plaintiff's individual Court DIRECTS the Clerk TERMINATE Plaintiff's motion for conditional certification. 35. ) 19 This to (Doc. s-r ORDER ENTERED at Augusta, Georgia, thi / day of August, 2020. J. RANDAL HALL,/CHIEF JUDGE ^NITED iBTATES DISTRICT COURT SWTii8RN 20 DISTRICT OF GEORGIA

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