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Gabriel F. Martinez v. Victor F. Petrenko and Icecode

December 14, 2012

GABRIEL F. MARTINEZ
v.
VICTOR F. PETRENKO AND ICECODE, LLC



ORDER

Gabriel F. Martinez brought suit against his former employer, IceCode, LLC, and Victor Petrenko, who founded IceCode and served as Chairman of the Board, seeking payment of wages, overtime compensation, severance benefits, and damages for wrongful termination under state law and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a). Petrenko filed a motion to dismiss for lack of subject matter jurisdiction or in the alternative to dismiss for failure to state a claim under the FLSA and a motion for judgment on the pleadings. When Martinez failed to file an answer to Petrenko's counterclaims, Petrenko moved for default. Martinez objects to all of Petrenko's motions.

I. Motion to Dismiss

In his motion to dismiss, Petrenko asserts that the court

lacks subject matter jurisdiction and, alternatively, moves to dismiss Martinez's FLSA claim and asks the court to decline supplemental jurisdiction over the state claims. Martinez objects to dismissing his FLSA claim and asserts that the FLSA claim provides a basis for subject matter jurisdiction.

A. Subject Matter Jurisdiction

A motion to dismiss for lack of subject matter jurisdiction is brought pursuant to Federal Rule of Civil Procedure 12(b)(1). In considering a motion to dismiss for lack of subject matter jurisdiction, the court "accept[s] the well-pled factual allegations in the complaint as true and make[s] all reasonable inferences in favor of the plaintiff." Downing/Salt Pond Partners, L.P. v. Rhode Island & Providence Plantations, 643 F.3d 16, 17 (1st Cir. 2011). In addition, for purposes of determining subject matter jurisdiction, the court may consider other materials, including materials that contradict allegations in the complaint. Id.

Petrenko contends that diversity jurisdiction, under 28 U.S.C. § 1332, is lacking because both Martinez and IceCode are Vermont citizens.*fn1 Martinez does not dispute the lack of diversity jurisdiction.

Martinez bases federal question jurisdiction, pursuant to 28 U.S.C. § 1331, on his FLSA claim. Petrenko argues that the FLSA claim was "made solely for the purpose of obtaining jurisdiction and is 'wholly insubstantial and frivolous.'"*fn2 Martinez objects to the motion on the ground that an FLSA claim cannot be resolved by a motion to dismiss.

Petrenko's motion presents a procedural tangle. Motions under Rule 12(b)(1) and Rule 12(b)(6) are distinct and are considered under different standards. Alberto San, Inc. v. Consego de Titulares del Condominio San Alberto, 522 F.3d 1, 3 (1st Cir. 2008). All motions under Rule 12(b), however, are to be filed "before pleading if a responsive pleading is allowed." Petrenko filed his answer to Martinez's complaint on the same day, and before, he filed the motion to dismiss. Therefore, under the plain terms of Rule 12(b), the motion to dismiss is untimely.

Even if the motion were considered, however, it lacks merit. "It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject matter jurisdiction, i.e., the courts' statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998). To confer jurisdiction, the federal claim need only be colorable. Alberto San, Inc., 522 F.3d at 3. Therefore, "[d]ismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Steel, 523 U.S. at 89.

Petrenko argues that Martinez did not allege facts to show a claim under the FLSA. Petrenko challenges the conclusory nature of Martinez's allegations and asserts that Martinez has not alleged either individual or enterprise coverage under the FLSA. For purposes of subject matter jurisdiction, however, Martinez has alleged a colorable federal claim under the FLSA. See Alberto San, Inc., 522 F.3d at 3.

B. Failure to State a Claim

That part of the motion brought pursuant to Rule 12(b)(6) is also procedurally incorrect because Petrenko filed his answer before moving to dismiss. Fed. R. Civ. P. 12(b). In addition, Petrenko filed his own affidavit, along with eight additional exhibits to support the motion. The ...


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