Case: 18-14391 Date Filed: 06/11/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-14391 Non-Argument Calendar ________________________
D.C. Docket No. 3:17-cv-01430-HES-JRK
J. L. NIEMAN,
Plaintiff-Appellant,
versus
NATIONAL CLAIMS ADJUSTERS, INC., DAVID P. IERULLI,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 11, 2019)
Before MARCUS, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-14391 Date Filed: 06/11/2019 Page: 2 of 7
J. Nieman, proceeding pro se, appeals the district court’s order granting
National Claims Adjusters, Inc.’s (“National”) and David Ierulli’s (collectively
“defendants”) motion to dismiss for failure to state a claim. On appeal, Nieman
argues that the district court erred in dismissing his federal claims for failure to pay
and retaliatory discharge under the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 203 et seq., and for civil tax fraud under 26 U.S.C. § 7434. In support, he argues
that he was the defendants’ employee, rather than an independent contractor, and
because that determination was central to his claims, he argues that the district
court erred in holding otherwise.
We review de novo a district court’s grant of a motion to dismiss under Fed.
R. Civ. P. 12(b)(6) for failure to state claim, “accepting the allegations in the
complaint as true and construing them in the light most favorable to the plaintiff.”
Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Similarly, whether a person is
an employee or independent contractor under the FLSA is a question of law that
we review de novo. Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1310 (11th
Cir. 2013). In his complaint, the plaintiff must state a plausible claim for relief,
requiring the plaintiff to plead factual content “that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where the well-pleaded facts of the
2 Case: 18-14391 Date Filed: 06/11/2019 Page: 3 of 7
complaint do not show more than a “mere possibility of misconduct,” the plaintiff
has not shown a plausible claim for relief. Id. at 679.
The protections of the FLSA extend only to “employees.” Scantland, 721
F.3d at 1311. An “employee” is “any individual employed by an employer.” 29
U.S.C. § 203(e)(1). An “employer” is “any person acting directly or indirectly in
the interest of an employer in relation to any employee.” Id. § 203(d). The term
“employ” means “to suffer or permit to work.” Id. § 203(g). The FLSA does not
cover “independent contractors.” See Scantland, 721 F.3d at 1311. To determine
whether a person is an employee or independent contractor for purposes of the
FLSA, courts look to the “economic reality” of the relationship between the
alleged employee and employer and whether that relationship demonstrates
dependence. Id. The economic reality inquiry is not governed by the “label” put
on the relationship by the parties or the contract that controls their relationship. Id.
Merely putting an “independent contractor” label on the alleged employee does not
take him from the protections of the FLSA. Id.
Several factors guide the economic reality inquiry, namely: “(1) the nature
and degree of the alleged employer’s control as to the manner in which the work is
to be performed; (2) the alleged employee’s opportunity for profit or loss
depending upon his managerial skill; (3) the alleged employee’s investment in
equipment or materials required for his task, or his employment of workers;
3 Case: 18-14391 Date Filed: 06/11/2019 Page: 4 of 7
(4) whether the service rendered requires a special skill; (5) the degree of
permanency and duration of the working relationship; [and] (6) the extent to which
the service rendered is an integral part of the alleged employer’s business.” Id. at
1311-12. While these factors are important, the overarching focus of the inquiry is
economic dependence, or in other words, whether the individual is “in business for
himself” or is “dependent upon finding employment in the business of others.” Id.
at 1312. Additionally, 26 U.S.C. § 7434 provides that a person may bring a civil
action for damages against a person who willfully files a fraudulent information
return with respect to payments purportedly made to any other person. 26 U.S.C.
§ 7434.
As a general rule, an amended complaint supersedes any prior complaint and
nullifies its exhibits. See Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th
Cir. 2016). In ruling on a motion to dismiss, a district court is not permitted to
consider exhibits attached to an earlier complaint “that a plaintiff has expressly
disavowed or rejected as untrue in a subsequent amended complaint.” Id.
Here, as an initial matter, we do not reach Nieman’s argument that the
defendants improperly referenced his independent contractor agreement because
the district court did not consider the agreement in reaching its decision and the
fact that the parties labeled Nieman an “independent contractor” in the agreement
does not influence our holding. Further, we consider the exhibits attached to
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Nieman’s original complaint in reaching our decision because Nieman refers to
them in his amended complaint, thereby incorporating them by reference.
Construing the allegations in the complaint in the light most favorable to
Nieman, the district court did not err in dismissing Nieman's complaint on the
ground that Nieman was an independent contractor, rather than an employee.
Using the six factors to guide the economic reality inquiry, the first, third, fourth,
and fifth factors favor independent contractor status while the second and sixth
factors do not weigh in favor of either. The first factor—control—weighs in favor
of independent contractor status because Nieman controlled when he started work
for National and for how long, how many assignments he took from National, and
when he received those assignments. In other words, he controlled his schedule.
He admitted in his complaint that after he began receiving assignments from
Brown, he set up his own appointments and inspections. He also controlled the
geographic location within which he took assignments. Although he alleged that
National controlled the software that he used, the methods by which he completed
his reports, and in some ways, how he performed the job, he ultimately controlled
how and when he completed the assignments and whether he would take on more
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Case: 18-14391 Date Filed: 06/11/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-14391 Non-Argument Calendar ________________________
D.C. Docket No. 3:17-cv-01430-HES-JRK
J. L. NIEMAN,
Plaintiff-Appellant,
versus
NATIONAL CLAIMS ADJUSTERS, INC., DAVID P. IERULLI,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(June 11, 2019)
Before MARCUS, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-14391 Date Filed: 06/11/2019 Page: 2 of 7
J. Nieman, proceeding pro se, appeals the district court’s order granting
National Claims Adjusters, Inc.’s (“National”) and David Ierulli’s (collectively
“defendants”) motion to dismiss for failure to state a claim. On appeal, Nieman
argues that the district court erred in dismissing his federal claims for failure to pay
and retaliatory discharge under the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 203 et seq., and for civil tax fraud under 26 U.S.C. § 7434. In support, he argues
that he was the defendants’ employee, rather than an independent contractor, and
because that determination was central to his claims, he argues that the district
court erred in holding otherwise.
We review de novo a district court’s grant of a motion to dismiss under Fed.
R. Civ. P. 12(b)(6) for failure to state claim, “accepting the allegations in the
complaint as true and construing them in the light most favorable to the plaintiff.”
Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Similarly, whether a person is
an employee or independent contractor under the FLSA is a question of law that
we review de novo. Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1310 (11th
Cir. 2013). In his complaint, the plaintiff must state a plausible claim for relief,
requiring the plaintiff to plead factual content “that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where the well-pleaded facts of the
2 Case: 18-14391 Date Filed: 06/11/2019 Page: 3 of 7
complaint do not show more than a “mere possibility of misconduct,” the plaintiff
has not shown a plausible claim for relief. Id. at 679.
The protections of the FLSA extend only to “employees.” Scantland, 721
F.3d at 1311. An “employee” is “any individual employed by an employer.” 29
U.S.C. § 203(e)(1). An “employer” is “any person acting directly or indirectly in
the interest of an employer in relation to any employee.” Id. § 203(d). The term
“employ” means “to suffer or permit to work.” Id. § 203(g). The FLSA does not
cover “independent contractors.” See Scantland, 721 F.3d at 1311. To determine
whether a person is an employee or independent contractor for purposes of the
FLSA, courts look to the “economic reality” of the relationship between the
alleged employee and employer and whether that relationship demonstrates
dependence. Id. The economic reality inquiry is not governed by the “label” put
on the relationship by the parties or the contract that controls their relationship. Id.
Merely putting an “independent contractor” label on the alleged employee does not
take him from the protections of the FLSA. Id.
Several factors guide the economic reality inquiry, namely: “(1) the nature
and degree of the alleged employer’s control as to the manner in which the work is
to be performed; (2) the alleged employee’s opportunity for profit or loss
depending upon his managerial skill; (3) the alleged employee’s investment in
equipment or materials required for his task, or his employment of workers;
3 Case: 18-14391 Date Filed: 06/11/2019 Page: 4 of 7
(4) whether the service rendered requires a special skill; (5) the degree of
permanency and duration of the working relationship; [and] (6) the extent to which
the service rendered is an integral part of the alleged employer’s business.” Id. at
1311-12. While these factors are important, the overarching focus of the inquiry is
economic dependence, or in other words, whether the individual is “in business for
himself” or is “dependent upon finding employment in the business of others.” Id.
at 1312. Additionally, 26 U.S.C. § 7434 provides that a person may bring a civil
action for damages against a person who willfully files a fraudulent information
return with respect to payments purportedly made to any other person. 26 U.S.C.
§ 7434.
As a general rule, an amended complaint supersedes any prior complaint and
nullifies its exhibits. See Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th
Cir. 2016). In ruling on a motion to dismiss, a district court is not permitted to
consider exhibits attached to an earlier complaint “that a plaintiff has expressly
disavowed or rejected as untrue in a subsequent amended complaint.” Id.
Here, as an initial matter, we do not reach Nieman’s argument that the
defendants improperly referenced his independent contractor agreement because
the district court did not consider the agreement in reaching its decision and the
fact that the parties labeled Nieman an “independent contractor” in the agreement
does not influence our holding. Further, we consider the exhibits attached to
4 Case: 18-14391 Date Filed: 06/11/2019 Page: 5 of 7
Nieman’s original complaint in reaching our decision because Nieman refers to
them in his amended complaint, thereby incorporating them by reference.
Construing the allegations in the complaint in the light most favorable to
Nieman, the district court did not err in dismissing Nieman's complaint on the
ground that Nieman was an independent contractor, rather than an employee.
Using the six factors to guide the economic reality inquiry, the first, third, fourth,
and fifth factors favor independent contractor status while the second and sixth
factors do not weigh in favor of either. The first factor—control—weighs in favor
of independent contractor status because Nieman controlled when he started work
for National and for how long, how many assignments he took from National, and
when he received those assignments. In other words, he controlled his schedule.
He admitted in his complaint that after he began receiving assignments from
Brown, he set up his own appointments and inspections. He also controlled the
geographic location within which he took assignments. Although he alleged that
National controlled the software that he used, the methods by which he completed
his reports, and in some ways, how he performed the job, he ultimately controlled
how and when he completed the assignments and whether he would take on more
or less of them, showing that he was essentially “in business for himself.” See
Scantland, 721 F.3d at 1312.
5 Case: 18-14391 Date Filed: 06/11/2019 Page: 6 of 7
The third factor—alleged employee’s investment in equipment and materials
for the work—weighs in favor of independent contractor status. Nieman had his
own home office, a laptop, and iPad for field work and was equipped with a
vehicle, ladder, measuring tools, digital voice and photographic equipment, and
“other similar tools of the trade.” It appears that the only “tool” that National
provided was the Xactimate software, and even then, it is not clear whether
Nieman had this software before he began work for National, or whether National
paid for and provided it to him. The fourth factor—whether the service required a
special skill—also weighs in favor of independent contractor status because his job
required a license. The fifth factor—the degree of permanency and duration of the
working relationship—weighs in favor of independent contractor status because
Nieman alleged that National engaged him to handle claims arising from Hurricane
Irma and acknowledged that he was hired for a “special project.”
Further, looking to the overall economic reality of the parties’ working
relationship, it is also significant that Nieman completed work for another
company after he responded to National’s initial advertisement and looked for and
interviewed for other jobs while he was still engaged with National, which shows
that he was not economically dependent on National. As to the second factor—the
employee’s opportunity for profit or loss depending on his managerial skill—and
the sixth factor—the extent to which the service rendered is an integral part of the
6 Case: 18-14391 Date Filed: 06/11/2019 Page: 7 of 7
alleged employer’s business—Neiman did not state many facts in his complaint
that would support his claim for employee status. Therefore, when all the factors
are viewed in the light most favorable to Nieman, four of the six factors weigh
strongly in favor of independent contractor status. Thus, Nieman was an
independent contractor, not an employee, under the FLSA, and to the extent that he
argues that National committed tax fraud for falsely representing to the IRS that he
was an independent contractor, that argument fails for the same reason.
Accordingly, the district court correctly dismissed his federal claims.
AFFIRMED.