Molina Roman v. Guapos III, Inc. et al, No. 8:2012cv02821 - Document 33 (D. Md. 2013)

Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/6/13. (sat, Chambers)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : RAUL MOLINA ROMAN, ET AL. : v. : Civil Action No. DKC 12-2821 : GAUPOS III, INC., ET AL. : MEMORANDUM OPINION Presently pending and ready for review in this wage and hour law case are two motions filed by Defendants: (1) a motion to dismiss all claims against Defendants Hector Rincon; Hector Rincon, Jr.; Guapo s Bethesda, Inc.; Guapo s Restaurant, Inc.; Guapo s of Fair Lakes, Inc.; and Guapos of Virginia, Inc. (ECF No. 27),1 and (2) a motion for a protective order. (ECF No. 19). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be granted in part and denied in part. Defendants motion for a protective order will be granted. I. Background The following complaint. facts (ECF No. 25). are alleged in the second amended There are five Guapo s restaurants, each separately incorporated and each a Defendant in this case. 1 Defendants Guapos III, Inc. and Fidel Rincon did not move to dismiss the claims against them. Plaintiffs are three individuals who either were or are employed currently as busboys or waiters at the Guapo s restaurant in Gaithersburg, Maryland, which is incorporated as Guapos III, Inc. ( Gaithersburg Guapo s ). (Id. ¶¶ 49-51). Plaintiffs contend that they worked between forty (40) and seventy-seven (77) hours a week at the Gaithersburg Guapo s. (Id. ¶¶ 49-51). They do not allege that they have worked at any other Guapo s. They allege that Guapo s paid the Plaintiff waiters $2.63 per hour for the first forty hours per week worked, which was subsequently amended to $3.63 per hour on or about November 1, 2012. Plaintiff busboys were paid $3.85 per hour for the first forty weeks worked. any rate after Additionally, the Plaintiffs allege that they were not paid first Plaintiffs forty allege hours. that (Id. Defendants ¶¶ took 52-53). a tip credit from their wages without providing the proper notice. (Id. ¶¶ 54-55).2 Plaintiffs allege that these actions were taken by Defendants intentionally, willfully, and in bad faith. (Id. ¶ 58). Plaintiffs also name three individuals as Hector Rincon, Hector Rincon, Jr., and Fidel Rincon. Defendants: Plaintiffs allege that Hector Rincon is the President and primary owner of all Guapo s. (Id. ¶ 10). Plaintiffs allege, on information and 2 A tip credit occurs when the tips earned by an employee is credited against the employer s obligation to pay the employee the minimum wage. 2 belief that Mr. Rincon, as the President and primary owner of all Guapo s, otherwise had the discipline power to: hire, Plaintiffs; fire, control suspend, and Plaintiffs work schedule; and set and determine or had the power to set the rate and method of Plaintiffs pay. (Id. ¶ 10). Plaintiffs allege, on information and belief, that Defendant Hector Rincon, Jr. was the co-owner Rincon, Jr. and manager allegedly of had the the Gaithersburg same powers regards to the Gaithersburg Guapo s. allege that Defendant Gaithersburg Guapo s. the day-to-day include: work incorporation, at single contend enterprise was the Plaintiffs; schedules; all (Id. ¶ 11). Rincon and employees rate and method of pay. Plaintiffs his the Mr. father in Plaintiffs manager of the Fidel Rincon allegedly was in charge of operations supervising employees Fidel as Guapo s. five that that, Guapo s is Gaithersburg Guapo s, to setting and controlling setting and determining (Id. ¶ 12). despite their corporations headed by are Hector assistance from various Rincon family members. separate run Rincon as a with The complaint alleges that all Guapo s serve substantially the same food and beverage under a common name and logo; advertise on a common website; use a common bookkeeper, payroll system, and employment model; and are represented by a common defense counsel. 19, 22, 40). 3 (Id. ¶¶ II. Procedural History On March 11, 2013, Plaintiffs filed their second amended complaint. (ECF No. 25). Plaintiffs contend that Defendants willfully, intentionally, and in bad faith failed to pay them the minimum wage and overtime for hours worked in violation of the Fair Labor Standards Act ( FLSA ), 29 U.S.C. §§ 201 et seq., and the Maryland Wage and Hour Law ( MWHL ), Md. Code, Lab. & Empl. §§ 3-401 et seq. behalf of employees themselves of They bring an FLSA collective action on and Defendants all . . current . employed and former during tipped the period September 20, 2009 through the present who were subject to Defendants policy of not compensating employees the minimum wage and not compensating them at the overtime rate for time worked beyond forty (40) hours a week. (Id. ¶ 42). Plaintiffs also bring a class action for Defendants MWHL violations on behalf of Defendants tipped employees employed in Maryland. (Id. ¶¶ 30-39). All Defendants except Fidel Rincon and Guapos III, Inc., moved to dismiss the claims against them for lack of subject matter jurisdiction and failure to state a claim. No. 27). Plaintiffs Defendants replied. opposed the (ECF No. 32). motion (ECF No. 29), (ECF and Defendants have also filed a motion for a protective order to preclude Plaintiffs from taking a deposition of Guapo s Bethesda, Inc.; Guapo s Restaurant, Inc.; Guapo s of Fair Lakes, Inc.; and Guapo s of Virginia, Inc. 4 (ECF No. 19). Plaintiffs opposed the motion (ECF No. 26), and Defendants replied. (ECF No. 29). III. Standard of Review The arguments raised by Defendants in the motion to dismiss lack of subject matter jurisdiction and failure to state a claim implicate different standards of review. First, the motion to dismiss for lack of subject matter jurisdiction is governed by Generally, Federal questions Rule of of Civil subject matter Procedure jurisdiction 12(b)(1). must be decided first, because they concern the court s very power to hear the case. Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999) (quoting 2 James Wm. Moore, et al., Moore s Federal Practice § 12.30[1] (3d ed. 1998)). The Plaintiff always bears the burden of proving that subject matter jurisdiction properly exists in federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int l Corp., 166 F.3d 642, 647 (4th Cir. 1999). In considering a Rule 12(b)(1) motion, the court evidence may consider outside the pleadings to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647. The court should grant such a motion only if the material jurisdictional facts are not in dispute and the moving party is 5 entitled to prevail as a matter of law. Richmond, 945 F.2d at 768. Second, Defendants arguments that the complaint fails to state a plausible claim of relief are governed by Federal Rule of Civil Procedure 12(b)(6). The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A plaintiff s complaint need only satisfy the standard of Rule 8(a), which requires a short and plain statement of the claim showing that the Fed.R.Civ.P. 8(a)(2). rather than a blanket pleader is entitled to relief. Rule 8(a)(2) still requires a showing, assertion, of entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must consist of more than a formulaic recitation of the elements of a cause of action or naked assertion[s] devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). At this stage, all well-pleaded allegations in a complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In evaluating the complaint, unsupported legal 6 allegations need not be accepted. Revene v. Comm rs, 882 F.2d 870, 873 (4th Cir. 1989). Charles Cnty. Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). IV. Analysis Defendants contend that Plaintiffs have failed to establish subject matter sufficiently employer jurisdiction to for allege purposes because that of their Defendants the FLSA and complaint fails were Plaintiffs MWHL. Plaintiffs respond that, despite the separate incorporation of each Guapo s restaurant, they have made sufficient allegations of common ownership and practices to constitute a single employer for FLSA purposes. Plaintiffs further contend that Hector Rincon and Hector Rincon, Jr. controlled enough of the characteristics of Plaintiffs employment to constitute an employer. For the reasons that follow, the court will grant the motion to dismiss for Defendants Guapos Bethesda, Inc.; Guapo s Restaurant, Inc.; Guapo s of Fair Lakes, ( Corporate Defendants ). dismiss for Defendants Inc.; and Guapo s Virginia, Inc. The court will deny the motion to Hector Rincon ( Individual Defendants ). 7 and Hector Rincon, Jr. A. Corporate Defendants The FLSA mandates payment of a minimum wage for covered employees and payment at the overtime rate for each hour worked in excess of forty per week. See Schultz v. Capital Intern. Sec. Inc., 466 F.3d 298, 304 (4th Cir. 2006) (citing 29 U.S.C. §§ 206(a)(1), 207(a)(1)). The MWHL similarly requires that employers pay the applicable minimum wage to their employees and, in [§§ 3 415 and 3 420 of the Labor and Employment Article], that they pay an overtime wage of at least 1.5 times the usual hourly wage for each hour over 40 that the employee works during one workweek. (2003). Friolo v. Frankel, 373 Md. 501, 513 Indeed, [t]he requirements under the MWHL mirror those of the federal law; as such, Plaintiffs claim under the MWHL stands FLSA. or falls on the success of their claim under the Turner v. Human Genome Science, Inc., 292 F.Supp.2d 738, 744 (D.Md. 2003). As the party invoking federal jurisdiction, Plaintiffs bear the burden of establishing standing under Article III of the Constitution. Cir. 2010). McBurney v. Cuccinelli, 616 F.3d 393, 410 (4th As the United States Court of Appeals for the Fourth Circuit explained in McBurney: The irreducible constitutional minimum of standing requires (1) an injury in fact a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical; (2) causation a fairly traceable connection between the plaintiff s 8 injury and the complained-of conduct of the defendant; and (3) redressability a likelihood that the requested relief will redress the alleged injury. 616 F.3d at 402 (quoting Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, 102-03 (1998) (quotation marks omitted). Plaintiffs have clearly alleged a sufficient injury-in-fact: the failure properly to be compensated for hours worked. At issue is whether those injuries can be traced to the conduct of the Corporate Defendants decision. context and could be redressed by a favorable Neither party disputes that liability in the FLSA requires relationship. the existence of an employer-employee See 29 U.S.C. § 206(a) ( Every employer shall pay to each of his employees . . . wages at the following rates); 29 U.S.C. § 207(a) ( [N]o employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess . . . at a rate not less than one and one-half times the regular rate at which he is employed. ). Therefore, Plaintiffs injuries are only traceable to, and redressable by, those who employed them. The Act defines employer as any person acting directly or indirectly in the interest of an employer in relation to an employee. 29 U.S.C. § 203(d). defined any as individual An employee, in turn, is employed by an employer, id. § 203(e)(1), and employ means to suffer or permit to work. 9 Id. § 203(g). Consistent with these broad definitions, [t]he Supreme has Court employer Quinteros and v. instructed employee Sparkle courts expansively Cleaning, Inc., to construe under 532 the the terms FLSA. F.Supp.2d 762, See 768 (D.Md. 2008) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992); Rutherford Food Corp., 331 U.S. 722, 730 (1947)). Separate persons or entities that share control over an individual worker may be deemed joint employers under the FLSA. Schultz, 466 F.3d at 305. Pursuant to 29 C.F.R. § 791.2(b): Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee s services, as, for example, to interchange employees; (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. (footnotes omitted). Where the alleged relationship does not fit readily into one of these three examples, 10 courts are to consider the economic realities of the relationship between the employee and the putative examining the suggested that employer. economic courts Schultz, realities, in this derived from other circuits. 466 the F.3d at circuit look In Circuit Fourth 304. has to other tests See Schultz, 466 F.3d at 306 n.2 (advising courts that it may be useful to consider the factors listed in Bonnette v. Calif. Health & Welfare Agency, 704 F.2d 1465 (9th Cir. 1983), and Zheng v. Liberty Apparel Co., 355 F.3d (2d Cir. 2003) relationship exists 61 to determine within the whether meaning a of joint the employment Act and the regulation). To that end, courts in this district have largely applied some variation Bonnette: (1) of the following authority to four hire factors and fire laid out employees; in (2) authority to supervise and control work schedules or employment conditions; (3) authority to determine the rate and method of payment; and (4) maintenance of employment records. Caseres 5250561, v. at S&R Mgmt. *3 (D.Md. Co., Oct. LLC, 24, No. See, e.g., 12-cv-1358-AW, 2012); Khalil v. 2012 WL Subway at Arundel Mills Office Park, Inc., No. CCB-09-158, 2011 WL 231793, at *2 (D.Md. Jan. 24, 2011); Jacobson v. Comcast Corp., 740 F.Supp.2d 683, 689-92 (D.Md. 2010); Jackson v. Mayor and City Council of Baltimore City, No. JFM-08-3103, 2009 WL 2060073, at **3-7 (D.Md. July 14, 2009). While these factors are useful in 11 examining the question, the determination of joint-employment must be based upon the circumstances of the whole activity. Quinteros, 532 F.Supp.2d at 775 (quoting Bonnette, 704 F.2d at 1470) (quotation marks omitted). Plaintiffs the make Guapo s but Guapo s corporations no allegation Gaithersburg had any that Guapo s, authority they nor worked that over at these their any other employment conditions, rate and method of payment, or employment records. Plaintiffs allege that [n]otwithstanding that each Guapo s restaurant location is a separate legal entity, the operations of each Guapo s controlled and business. Guapo s restaurant operated as (Id. ¶ 15). restaurants is a centrally and close-[k]nit commonly single family Plaintiffs further allege that all share common characteristics, such as substantially similar food and beverage; a common logo, website, bookkeeper, corporate payroll officers, system, all and defense ultimately patriarch, Defendant Hector Rincon. 41). counsel; reporting to and the similar family (ECF No. 25 ¶¶ 19-22, 40- Plaintiffs argue, therefore, that the multiple Guapo s corporations are similar enough that they collectively operate as a single enterprise employer, thereby making all Guapo s restaurants the employer of Plaintiffs and severally liable for all FLSA and MWHL violations. ¶¶ 13, 24). jointly and (ECF No. 25 To support their contention of the existence of a 12 single enterprise provide employer numerous case in the citations Defendants motion to dismiss. FLSA in context, their (ECF No. 29). Plaintiffs opposition to They argue that these cases demonstrate that single integrated enterprise is a valid doctrine of FLSA liability, separate from the joint employer doctrine articulated at 29 C.F.R. § 791.2. Unfortunately for Plaintiffs, most of the cases they cite as support for their position concern who is an employer for purposes of other employment laws, such as Title VII, the National Labor Relations Act ( NLRA ), or the Family Medical Leave Act ( FMLA ). 1995) (NLRA); Thomas See Vance v. NLRB, 71 F.3d 486 (4th Cir. v. BET Sound-Stage Restaurant/Brettco, Inc., 61 F.Supp.2d 448 (D.Md. 1999) (Title VII); Glunt v. GES Exposition Servs., 123 F.Supp.2d 847 (D.Md. 2000) (FMLA). None of these cases are interpreting the FLSA, and Plaintiffs are incorrect to argue that what is good for the Title VII goose is good for the FLSA gander. See Arculeo v. On-Site, 425 F.3d 193, 197 (2d Cir. 2005) ( Notwithstanding the same label and some core similarities between [ single integrated employer and joint employer ], the doctrines different contexts. ). predicated on an might differ significantly in As discussed above, FLSA liability is employer-employee relationship. Plaintiffs must allege in their complaint sufficient facts that each of the other Guapo s corporations is their employer, either singularly 13 or jointly with the Gaithersburg Guapo s. They have failed to do this, and even acknowledge in their complaint that they have only ever worked for the Gaithersburg Guapo s. Plaintiffs also cite to a handful of cases that have applied the single integrated enterprise theory of liability in the FLSA context as a means of including employers who did not employ the distinguished. plaintiff. Some of these cases can be Two involve the relationship between a parent and subsidiary, which does not describe the situation between Guapo s Gaithersburg and the other Guapo s corporations. See Lindberg v. UHS of Lakeside, LLC, 761 F.Supp.2d 752 (W.D.Tenn. 2011); Takacs 33117265 v. (S.D.Ohio Hahn Jan. Auto. 4, Corp., 1999). No. C-3-95-404, Furthermore, in 1999 such WL a situation, the widely adopted Bonnette economic realities test would be more appropriate to analyze whether the parent company was an employer. See, e.g., In re Enterprise Rent-a-Car Wage & Hour Employment Practices Litigation, 683 F.3d 462, 468-70 (3d Cir. 2012). There are four cases cited by Plaintiffs that have allowed a plaintiff to hold a defendant liable for FLSA violations despite the fact that the defendant was in no way plaintiff s employer - because the defendant was part of what was variously called a single enterprise, single integrated enterprise, or single employer. Jackson v. Art of Life, Inc., 836 F.Supp.2d 14 226 (E.D.Pa 2011); Addison v. Reitman Blacktop, Inc., 283 F.R.D. 74 (E.D.N.Y. 2011); Anderson v. Theriault Tree Harvesting, No. 08-330-B-W, 2010 WL 323530 (D.Me Jan. 20, 2010); Prendergast v. Fundamental Long Term Care Holdings, LLC, 2009 U.S. Dist. LEXIS 130695 (D.NM Aug. 13, 2009). These cases were also not applying established concepts of FLSA liability, but instead transferring concepts from the contexts of labor relations and employment discrimination to the FLSA s employer-employee relationship. These cases are not binding and Plaintiffs have not provided, nor has the court uncovered, one federal appellate case applying the single integrated enterprise scope of FLSA liability. concept to determine the Instead, every circuit has applied some variation of the Bonnette test, which correctly evaluates the relationship between employee between employer and non-employer.3 and alleged employer, not This court elects to follow that well-worn path. Cavallaro v. UMass Memorial Health Care, Inc., a recent case from the United States District Court for the District of Massachusetts, is similar to the facts before the court. No. 0940152-FDS, 2013 WL 360405 (D.Mass. Jan. 28, 2013). 3 Plaintiff While the FLSA does extend coverage to enterprises, 29 U.S.C. §203(r), the finding of an enterprise is relevant only to the issue of coverage. Liability is based on the existence of an employer-employee relationship. Cornell v. CF Center, th LLC, 410 F.App x 265, 267 (11 Cir. 2011) (quoting Patel v. Wargo, 803 F.2d 632, 637 (11th Cir. 1986)); Chao v. A-One Medical Servs., Inc., 346 F.3d 908, 917 (9th Cir. 2003) (same). 15 was a registered nurse who worked at the UMass Memorial Medical Center ( UMass ). behalf of UMass, 13,000 its corporate She brought an FLSA collective action on similarly subsidiary medical officers, organizations situated which with hourly facilities, she common employees alleged membership, and against individual were related governing bodies, trustees, officers, and benefit plans, that had a centralized payroll system, centralized website, and system-wide employeebenefit plans, Cavallaro alleged compensate overseen that plaintiff Cavallaro did employed all her, not but by the and alleged single multiple the allege a that hospitals they of defendants collective that Board were for Trustees. failed hours other part worked. than of to a UMass single, integrated enterprise, and thus constituted a joint employer who is liable under the FLSA. Id. at **2-3. The court found that plaintiff lacked standing because she failed to satisfy requirements. factors to employer. no basis Id. the at determine traceability *4. The whether the court other and redressability applied the hospitals Bonnette were her The court found that plaintiff s complaint provided for finding that an employer-employee relationship existed and therefore plaintiff lacked standing to assert claims against all the corporate defendants except UMass, her actual employer. Id. at *8. 16 Similar to Cavallaro, Plaintiffs allege that a multi-entity enterprise is operating as a cohesive unit whose policies have violated the FLSA. But the Plaintiffs in this case have the same fatal flaw as Ms. Cavallaro: they have not demonstrated the required employer-employee relationship necessary to establish that their injuries are fairly traceable to the Corporate Defendants, nor that a favorable decision against the Corporate Defendants Cavallaro, would 2013 redress WL Plaintiffs 360405, at *4 alleged ( Inclusion injuries. of class allegations does not relieve a plaintiff of the requirement that she allege that she personally suffered an injury, fairly traceable to the challenged action of the defendants. ) (citing Warth v. Seldin, 422 U.S. 490, 502 (1975)). Nor can Plaintiffs bring suit against the other Guapo s based on the composition of a future collective. Plaintiffs worked only at the Gaithersburg Guapo s, but are bringing an FLSA collective employed by the action five on behalf Guapo s of all tipped corporations. employees Presumably, the other four Guapo s corporations would be the FSLA employer of some of the putative plaintiffs. But this prediction will not satisfy the requirement that Plaintiffs standing against all defendants. currently demonstrate Plaintiffs cannot use putative plaintiffs to bring in Defendants that are not the employer of the named Plaintiffs under the 17 prediction that a future collective of uncertain composition will include employees of these Defendant employers. See Lucas v. BMS Enters., Inc., No. 3:09-CV-2159-D, 2010 WL 2671305, at *3 (N.D. Tex. July 1, 2010) (in an FLSA case, [P]laintiffs allege standing to sue the . . . defendants on the basis that members of the putative class were employed by those defendants, and accordingly suffered the same injury as did plaintiffs. That basis is inadequate to allege standing. ); see also Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013) ( When the case is a class action lawsuit, the named class representatives must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified (quoting members of the class to which they belong. Blum v. Yaretsky, 457 U.S. 991, 1001 n.13 (1982)). Therefore, Plaintiffs lack standing as to the Corporate Defendants and their motion to dismiss will be granted.4 B. Individual Defendants It is well settled that an individual may qualify as an employer and face liability under the FLSA. the Supreme Court found that an In Falk v. Brennan, individual qualified as an employer under the FLSA because the defendant had extensive managerial responsibilities and 4 substantial control of the Because of the similarities between the FLSA and the MWHL, the MWHL claim stands or falls on the success of their claim under the FLSA. Turner, 292 F.Supp.2d at 744 (D.Md. 2003). Therefore, Plaintiffs MWHL claim against the Corporate Defendants will also be dismissed. 18 terms and conditions of the work of [plaintiff] employees. 414 U.S. 190, 195 (1973); see also Brock v. Hamad, 867 F.2d 804, 808 n.6 (4th Cir. 1989) (finding a manager was liable for FLSA violations as an employer because he hired and directed the employees who worked for the enterprise. ); Pearson v. Prof l 50 States Protection, LLC, No. RDB-09-3232, 2010 WL 4225533, at *4 (D.Md. Oct. 26, 2010) (collecting cases). employer context, reality of determining an courts generally individual s As in the corporate look at in the Gionfriddo liability. status v. Jason the economic workplace Zink, before LLC, 769 F.Supp.2d 880, 890 (D.Md. 2011) (citing Schultz, 466 F.3d at 304; Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961)). This economic reality includes a number of factors, such as the person s job description, his or her financial interest in the enterprise, and whether or not the individual exercises control over the employment relationship. Gionfriddo, 769 F.Supp.2d at 890 (citing Baystate Alt. Staffing v. Herman, 163 F.3d 668, 675 (1st Cir. 1998)). Courts factors to in this district determine have whether an also applied individual the Bonnette constitutes an employer. See Iraheta v. Lam Yuen, LLC, No. DKC-12-1426, 2012 WL at 5995689, 231793, at *2. *3 (D.Md. Nov. 29, 2012); Khalili, 2011 WL No single factor is dispositive; rather, the totality of the circumstances must be considered. See, e.g., 19 Speert v. Proficio Mortg. Ventures, LLC, No. JKB 10 718, 2011 WL 2417133, at *3 (D.Md. June 11, 2011). An individual s status as a high-level corporate shareholder or officer does not automatically impart employer liability to that individual, as individual liability is dictated by the economic reality of the employment relationship. Caseres, 2012 WL 5250561, at *3 (quoting Pearson, 2010 WL 4225533, at *4). In their complaint, Plaintiffs allege that Hector Rincon was at all times during Plaintiffs employment period . . . the President and primary owner of the Guapo Restaurants. (ECF No. 25 ¶ 10). He is alleged to operate and control all Guapo s restaurants as owner. the the family (Id. ¶ 16). power to Plaintiffs ; and common substantial It is further alleged that Mr. Rincon had: hire, the patriarch fire, power suspend, to control and otherwise the work discipline schedule of Plaintiffs ; and set and determined or had the power to set the rate and method of complaint alleges business decisions pay that of he made Plaintiffs. is at ultimately all Guapo s (Id. ¶ 10). responsible restaurants for and The the is assisted to this end by family members including Hector Rincon, Jr. (Id. ¶ 17). Hector Rincon, Sr. and the Rincon family cabal, together control and otherwise exert total influence over all Guapo s. (Id. ¶ 18). 20 In regards to Hector Rincon, Jr., Plaintiffs allege that he is co-owner and manager of the Gaithersburg Guapo s and that he has the same powers as his father to discipline, control work schedules, and set rate and method of pay, but only at the Gaithersburg Guapo s. (Id. allegations, Plaintiffs do ¶ not 11). make Other any than specific these allegations with respect to actions undertaken by Hector Rincon and Hector Rincon, Jr. in their individual capacities. The remainder allegations of of FLSA the complaint violations makes against all the following Defendants as a collective: failing to provide employees proper notice of the fact that Defendants impermissibly were compensating taking a tip Plaintiffs credit and thereby than the minimum less wage; and failing to pay overtime for hours worked in excess of forty (40) per week. Viewing the (Id. ¶¶ 52-58). complaint in the light most favorable to Plaintiff, it will be presumed that these allegations against the Defendants collective apply equally to Hector Rincon and Hector Rincon, Jr. in their individual capacities. See Iraheta, 2012 WL 5995689, at *3 (in ruling on a Rule 12(b)(6) motion seeking dismissal of an individual FLSA defendant, court will presume that collectively Caseres, 2012 all also WL allegations applies 5250561, equally at *4 5 21 made to against individual (same); defendants defendants); Prof'l 50 States Protection, LLC, 2010 WL 4225533, at *4 (same). Construed as such, these allegations state a plausible claim for relief that Hector Rincon and Hector Rincon, Jr. are individually liable as employers for violating the overtime provisions of the FLSA and the MWHL. will be denied to the extent it and minimum wage Thus, Defendants' motion seeks dismissal of the individual defendants. C. Protective Order As the court against the Corporate protective 30(b)(6) order to deposition is dismissing Defendants, preclude of all of Defendants Plaintiffs Guapo s Plaintiffs from Bethesda, claims motion for a taking a Rule Inc.; Guapo s Restaurant, Inc.; Guapo s of Fair Lakes, Inc.; and Guapo s of Virginia, Inc. will be granted. V. Conclusion For the foregoing reasons, the motion to dismiss filed by Defendants will be granted in part and denied in part. motion for a protective order will be granted. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 22 The

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