Johnson v. AFASSCO, Inc.

CourtDistrict Court, D. Nevada
DecidedJanuary 6, 2021
Docket3:20-cv-00292
StatusUnknown

This text of Johnson v. AFASSCO, Inc. (Johnson v. AFASSCO, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. AFASSCO, Inc., (D. Nev. 2021).

Opinion

1 2 3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * * 6 KEVIN JOHNSON, Case No. 3:20-cv-00292-LRH-WGC

7 Plaintiff, ORDER

8 v.

9 AFASSCO, INC.,

10 Defendant.

11 12 Defendant AFASSCO, Inc. (“Afassco”) moves this Court to dismiss Plaintiff Kevin 13 Johnson’s Complaint (ECF No. 3) and for sanctions (ECF No. 7). Johnson opposed both motions 14 (ECF Nos. 5 & 8) and Afassco replied (ECF Nos. 6 & 9). For the reasons contained within this 15 Order, the Court grants Afassco’s motion to dismiss and denies its motion for sanctions. 16 I. BACKGROUND 17 From February 5, 2018, to March 4, 2019, Johnson was employed by Afassco as a Sales 18 Manager at its Orrville, Ohio facility. ECF No. 1 ¶¶ 14, 17. Johnson alleges that he was hired as a 19 salaried employee, and if he worked over 40 hours per week, he did not receive overtime. Id. ¶ 14. 20 However, if he worked less than 40 hours per week, he was paid an hourly rate. Id. Johnson filed 21 suit against Afassco in the Northern District of Ohio, Eastern Division, on September 4, 2019, 22 alleging that this conduct violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, 23 and Ohio law, Ohio Revised Code §§ 4112.02, 4111.10, and 4113.15, and that he is owed unpaid 24 overtime of $28,160.16, liquidated damages, and attorney’s fees and costs. ECF No. 3-2.1 25

1 The Court takes judicial notice of the court filings and Ohio District Court’s Order (ECF Nos. 3-2; 3-3; 26 3-4; & 3-5) pursuant to Federal Rule of Evidence 201(b) and because those proceedings are in direct relation 27 to the matters before the Court here. See U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (internal quotation marks and citation omitted) (taking judicial notice of 1 Afassco filed a motion to dismiss for improper venue pursuant to Federal Rules 12(b)(3) 2 and 12(b)(6), arguing that Johnson’s employment contract contained the following forum selection 3 clause, requiring that the dispute be heard in Nevada State court:

4 This agreement shall be governed by the substantive law of the State of Nevada. Any legal actions, including but not limited to suits or claims will be tried in the 5 State of Nevada, the counties of Douglas and Carson City. 6 ECF No. 3-3 at 20. The Ohio Court agreed with Afassco, and found that the forum selection clause 7 was “enforceable and applicable to this FLSA case. The mandatory language of [the] clause 8 specifies that the state courts of Douglas County, Nevada, or Carson City, Nevada, are the 9 exclusive forum where either party shall bring suit related to the employment agreement;” and that 10 “Plaintiff was a willing participant to the instant agreement.” ECF No. 3-4 at 9. Accordingly, the 11 Ohio Court dismissed the case without prejudice so that Johnson could refile his case in the 12 appropriate forum. Id. at 10. The parties agree that this ruling was not appealed. 13 Johnson filed the instant action in this federal court on May 15, 2020, alleging that 14 Afassco’s conduct violated the FLSA and Nevada labor law, Nevada Revised Statutes §§ 608.018, 15 608.060, and 608.115. ECF No. 1. Afassco filed the pending motion to dismiss, arguing that 16 Johnson is precluded from bringing his action in this federal court because the Ohio Court already 17 determined that the appropriate forum is the Nevada State courts of Douglas County and Carson 18 City based on the forum selection clause. ECF No. 3. Afassco also moves for sanctions against 19 plaintiff’s attorney, pursuant to Federal Civil Procedure Rule 11, arguing that the attorney knew 20 the prior suit had been dismissed by the Ohio Court and filed this suit in federal court even after 21 knowing that the appropriate forum was the Nevada State courts of Douglas County and Carson 22 City. ECF No. 7. Plaintiff’s attorney has provided to the Court that Johnson died on September 9, 23 2020. ECF No. 13-1. Because FLSA claims survive the death of a plaintiff, the Court shall rule 24 on the merits of the pending motions. See Acebal v. United States, 60 Fed. Cl. 551, 556-57 (Fed. 25 Cl. 2004) (“We conclude that decedents’ cause of action under both the FLSA and FEPA survive 26 to the representatives of their estates.”). 27 /// 1 II. LEGAL STANDARD 2 A. Motion to Dismiss Pursuant to Federal Civil Procedure Rule 12(b)(6) 3 A party may seek the dismissal of a complaint under Federal Rule of Civil Procedure 4 12(b)(6) for failure to state a legally cognizable cause of action. See FED. R. CIV. P. 12(b)(6) 5 (stating that a party may file a motion to dismiss for “failure to state a claim upon which relief can 6 be granted”). To survive a motion to dismiss for failure to state a claim, a complaint must satisfy 7 the notice pleading standard of Federal Rule 8(a). See Mendiondo v. Centinela Hosp. Med. Ctr., 8 521 F.3d 1097, 1103 (9th Cir. 2008). Under Rule 8(a)(2), a complaint must contain “a short and 9 plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). 10 Rule 8(a) does not require “detailed factual allegations”; however, a “pleading that offers only 11 ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” is 12 insufficient and fails to meet this broad pleading standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 13 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 14 To sufficiently allege a claim under Rule 8(a)(2), viewed within the context of a 15 Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as 16 true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 17 570). A claim has facial plausibility when the pleaded factual content allows the court to draw the 18 reasonable inference, based on the court’s judicial experience and common sense, that the 19 defendant is liable for the alleged misconduct. See id. at 678-679 (stating that “[t]he plausibility 20 standard is not akin to a probability requirement, but it asks for more than a sheer possibility that 21 a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with 22 a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement 23 to relief.” (internal quotation marks and citations omitted)). Further, in reviewing a motion to 24 dismiss under 12(b)(6), the court accepts the factual allegations in the complaint as true. Id. 25 Conversely, a motion to enforce a forum selection clause is considered a motion to dismiss 26 for improper venue pursuant to Federal Civil Procedure Rule 12(b)(3). Argueta v. Banco 27 Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996); FED. R. CIV. P. 12(b)(3). Once venue is 1 RealNetworks, Inc., 291 F.Supp.2d 1157, 1160 (E.D. Cal. 2003) (citation omitted). On a motion 2 made pursuant to 12(b)(3), “the pleadings need not be accepted as true, and the court may consider 3 facts outside of the pleadings.” Murphy v. Schneider National, Inc.,

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Johnson v. AFASSCO, Inc., Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-afassco-inc-nvd-2021.