Hutt v. Greenix Pest Control LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KENNETH HUTT,

Plaintiff, :

Case No. 2:20-cv-1108

v.

Judge Sarah D. Morrison

Chief Magistrate Judge Elizabeth

A. Preston Deavers

GREENIX PEST CONTROL,

LLC, et al., :

Defendants.

OPINION AND ORDER

Plaintiff Kenneth Hutt has styled this action as a collective action brought

under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq., as amended

(“FLSA”), and as a Rule 23 class action under state wage and hour laws. The matter

is now before the Court on the Defendants’ Motion to Dismiss the Second Amended

Complaint. (Mot. to Dismiss, ECF No. 30.) Mr. Hutt filed a Response in Opposition

to the Motion (Resp., ECF No. 34) and the Defendants have replied (Reply, ECF No.

38). While Defendants’ Motion to Dismiss was pending, Mr. Hutt filed a Motion for

Leave to file a Third Amended Complaint. (ECF No. 40.) Defendants oppose

granting Mr. Hutt such leave. (ECF No. 41.) These matters are now ripe for

decision. For the reasons that follow, Defendants’ Motion to Dismiss is GRANTED

IN PART and DENIED IN PART and Mr. Hutt’s Motion for Leave to Amend is

DENIED.

I. BACKGROUND

Mr. Hutt initiated this action with the filing of a Complaint on February 28,

2020, naming as defendants Greenix Pest Control LLC, Greenix Holdings LLC,

Matthew Flanders, Robert Nilsen, and Nilsen Ventures LLC. (ECF No. 1.) The

Complaint alleged that the claims were FLSA claims brought as a class action

under Federal Rule of Civil Procedure 23. (Id.) Defendants timely answered the

Complaint. (ECF No. 7.) Mr. Hutt then filed a First Amended Complaint (“FAC”),

clarifying that his FLSA claim (Claim I) is a collective action. (FAC, ECF No. 19.)

Allegedly “[p]ursuant to this court’s pendent jurisdiction under 28 U.S.C. § 1367,”

Mr. Hutt also added Rule 23 class action claims under the state wage and hour laws

of Ohio (Ohio Rev. Code Ann. § 4111.01, et seq.; Claim II), Illinois (820 Ill. Comp.

Stat. Ann. 115/1 et seq.; Claim III), Kentucky (Ky. Rev. Stat. Ann. § 337.010, et seq.;

Claim IV), Michigan (Mich. Comp. Laws § 408.411 et seq.; Claim V), and New Jersey

(N.J. Stat. Ann. § 34:11-56a, et seq.; Claim VI). (Id.)

Before Defendants’ deadline to move or plead in response to the FAC, Mr.

Hutt sought leave to file a Second Amended Complaint (“SAC”). (ECF No. 25). That

motion was granted, and the SAC was filed on July 28, 2020. (SAC, ECF No. 29). In

response to the SAC, Defendants filed the instant Motion to Dismiss.

II. PLAINTIFF’S ALLEGATIONS

According to the SAC, which is currently the operative pleading, Mr. Hutt

was employed as an hourly employee by Greenix Pest Control LLC “and other

Defendants.” (SAC, ¶ 1.) Mr. Hutt asserts that he and all putative FLSA

collective/Rule 23 class members (hereinafter referred to simply as the “putative

class members”) served in the position of Pest Control Technician with one or more

of the Defendants during the previous three years. (Id., ¶ 10.)

A Pest Control Technician’s daily duties included procuring chemicals and

diluting water, making calls to customers while en route to work assignments,

assessing vehicle condition and recording mileage, driving to work assignments,

and, occasionally, driving to the corporate office. (Id.) Mr. Hutt alleges that these

duties could take one to three hours per day, and that Defendants required that

they be performed “off the clock.” (Id.) Mr. Hutt further alleges that Defendants did

not permit him and the putative class members to “clock” certain time spent driving

their vehicles, cleaning their vehicles, or laundering their uniforms. (Id., ¶¶ 11–14.)

Mr. Hutt alleges that, when this additional time is added to the hours paid,

Defendants failed to pay minimum wage and overtime compensation to him and to

the putative class members, in violation of the FLSA and state wage and hour laws.

(Id., ¶¶ 17, 19.)

III. DISCUSSION

The FLSA requires employers to pay at least a specified minimum wage for

each hour worked and overtime compensation for employment in excess of forty

hours in a workweek. 29 U.S.C. §§ 206, 207(a)(1). As the statute specifies, “no

employer shall employ any of his employees . . . for a workweek longer than forty

hours unless such employee receives compensation for his employment in excess of

the hours above specified at a rate not less than one and one-half times the regular

rate at which he is employed.” 29 U.S.C. § 207(a)(1). As to minimum wage, “[e]very

employer shall pay to each of his employees . . . wages at [specified] rates . . . .” 29

U.S.C. § 206(a). “The legislative debates indicate that the prime purpose of the

legislation was to aid the unprotected, unorganized and lowest paid of the nation’s

working population[.]” Moran v. Al Basit LLC, 788 F.3d 201, 204 (6th Cir. 2015)

(quoting Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707 n.18 (1945)). The Ohio

wage and hour statute contains similar provisions to its federal counterpart (see,

e.g. Ohio Rev. Code Ann. § 4111.03), as do the statutes of Illinois (see, e.g., 820 Ill.

Comp. Stat. Ann. 105/4a), Kentucky (see, e.g., Ky. Rev. Stat. § 337.285), Michigan

(see, e.g., Mich. Comp. Laws § 408.414a), and New Jersey (see, e.g., N.J. Stat. Ann.

§ 34:11-56a4).

Defendants seek dismissal pursuant to Federal Rules of Civil Procedure

12(b)(1), (b)(2), and (b)(6) on the grounds that: (1) Mr. Hutt has failed to state a

claim under either the FLSA or Ohio wage and hour laws, and (2) this Court lacks

personal jurisdiction over the non-Ohio Defendants.1 (Mot. to Dismiss; Reply.) Mr.

Hutt argues in response that Defendants have waived any defenses regarding

pleading deficiencies or lack of personal jurisdiction. (Resp.) Mr. Hutt’s waiver

arguments are without merit, given the timing and succession of the pleadings to

date. Accordingly, the Court will address the merits of Defendants’ arguments

before addressing Plaintiff’s Motion to Amend.

1 The “non-Ohio Defendants” are all Defendants except Matthew Flanders. Although the

proposed Third Amended Complaint presents some discrepancy over Mr. Flanders’ residence, the

operative pleading represents that Mr. Flanders is a resident of Ohio.

A. The Second Amended Complaint sufficiently pleads Claims I

and II against Greenix Holdings LLC d/b/a Greenix Pest

Control LLC.

Rule 12(b)(6) authorizes dismissal of a lawsuit for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To meet this standard,

the complaint must allege sufficient facts to state a claim that is “plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering a Rule 12(b)(6) motion, a

court construes the complaint in the light most favorable to the non-moving party,

accepting as true all of plaintiff’s factual allegations. Gunasekera v. Irwin, 551 F.3d

461, 466 (6th Cir. 2009).

Nonetheless, a court must read Rule 12 in conjunction with Rule 8(a), which

requires a short and plain statement of the claim showing that the plaintiff is

entitled to relief. Ogle v. BAC Home Loans Servicing LP, 924 F. Supp. 2d 902, 907

(S.D. Ohio 2013). Thus, the pleading’s factual allegations, assumed to be true, must

do more than create mere speculation or suspicion of a legally cognizable claim; they

must show entitlement to relief. League of United Latin Am. Citizens v. Bredesen,

500 F.3d 523, 527 (6th Cir. 2007). Further, “the tenet that a court must accept as

true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. As such, while a

plaintiff is not required to set forth detailed factual allegations at the pleading

stage, the complaint must contain a basis upon which relief can be granted; a

recitation of facts intimating the “mere possibility of misconduct” will not suffice.

Id., 556 U.S. at 679. See also Fed. R. Civ. P. 8(a). A Rule 12(b)(6) dismissal is

appropriate only if “it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief.” Handy-Clay v. City

of Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (internal quotation omitted).

Here, Defendants argue that Mr. Hutt has failed to sufficiently allege (1) that

he had an employment relationship with any of the named Defendants, (2) that the

Defendants failed to pay him minimum wage or overtime, and (3) facts to support a

collective action.

1. Mr. Hutt has sufficiently alleged that Greenix Holdings

LLC d/b/a Greenix Pest Control LLC was his employer.

The FLSA defines “[e]mployer” to include “any person acting directly or

indirectly in the interest of an employer in relation to an employee.” 29 U.S.C.

§ 203(d). This is a broad definition—but, as the Sixth Circuit has recognized, “[t]he

remedial purposes of the FLSA require the courts to define ‘employer’ more broadly

than the term would be interpreted in traditional common law applications.” Dole v.

Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th Cir. 1991) (internal quotation

omitted). Under this broad definition, several people may simultaneously be

considered employers under the FLSA. Id. “The overwhelming weight of authority is

that a corporate officer with operational control of a corporation’s covered enterprise

is an employer along with the corporation, jointly and severally liable under the

FLSA for unpaid wages.’” Id. (quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st

Cir. 1983)). “To be classified as an employer, it is not required that a party have

exclusive control of a corporation’s day-to-day functions. The party need only have

‘operational control of significant aspects of the corporation’s day to day functions.’”

Id. at 966 (emphasis deleted) (quoting Agnew, 712 F.2d at 1514). “Whether a party

is an employer within the meaning of the FLSA is a legal determination.” Id. at 965.

Mr. Hutt’s allegations are straightforward and sufficient as to Greenix

Holdings LLC d/b/a Greenix Pest Control LLC.2 He alleges that he was “employed

by Defendant Greenix Pest Control LLC” from February 19, 2019, to October 16,

2019. (SAC ¶ 1, 18.) Thus, Defendants misrepresent the SAC when they argue that

Mr. Hutt “does not even expressly identify his own employer[.]” (Mot. to Dismiss, 8

(citing SAC, ¶ 10).)

As to the “other Defendants,” Mr. Hutt alleges only that:

• Matthew Flanders “is an owner of Defendant Greenix Pest Control LLC

and other Defendants[;]”

• Robert T. Nilsen “is an owner of Defendant Greenix Pest Control LLC and

other Defendants[;]” and

• Nilsen Ventures LLC “is an owner of Defendant Greenix Pest Control LLC

and other Defendants.”

(SAC, ¶¶ 5–7.) The Court is not required to accept Mr. Hutt’s “labels and

conclusions, . . . [as] a formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555 (citations omitted). Mr. Hutt does not allege any

facts to support the notion that these “other Defendants” acted in concert to deprive

2According to Defendants, Greenix Pest Control LLC is not a legal entity and maintains no

employees; rather, Greenix Pest Control LLC is a d/b/a used by Greenix Holdings LLC. (Robert

Nilsen Decl., ¶ 4, ECF No. 31.) Accordingly, for purposes of this Motion, any reference to Greenix

Pest Control LLC shall be understood as Greenix Holdings LLC d/b/a Greenix Pest Control LLC.

him of his statutory rights to minimum wage and overtime pay. “[N]aked

assertion[s] . . . without some further factual enhancement [ ] stop[ ] short of the

line between possibility and plausibility of entitle[ment] to relief.” Id. at 557

(internal quotations omitted). Mr. Hutt’s labeling of the other Defendants as

“employers,” when he alleges no facts that any of them had any management

responsibility or operational control over Greenix Pest Control LLC, is insufficient.

Merely having an ownership interest in an FLSA employer is not enough to create

liability; yet, that is all Mr. Hutt has alleged as to Matthew Flanders, Robert

Nilsen, and Nilsen Ventures LLC. Accordingly, all claims against Matthew

Flanders, Robert Nilsen, and Nilsen Ventures LLC are hereby DISMISSED;

Defendants’ Motion to Dismiss is GRANTED to that extent.

2. Mr. Hutt has sufficiently pled that Greenix Pest Control

LLC failed to pay him minimum wage and overtime.

Defendants next argue that Mr. Hutt fails to sufficiently allege minimum

wage and overtime claims. Although some circuits have created a heightened

pleading standard for FLSA plaintiffs, “courts in the Sixth Circuit have rejected

attempts to tighten the post-Twombly/Iqbal pleading standard under the FLSA.”

Comer v. Directv, LLC, No. 2:14-cv-1986, 2016 WL 853027, at *9 (S.D. Ohio Mar. 4,

2016) (collecting cases and finding that plaintiffs adequately pled an FLSA violation

by estimating their average workweek and their average weekly wage and alleging

that “in an average workweek they were not paid over-time or minimum wage”).

Thus, in this Court, “extensively detailed factual pleading is not required in the

context of an FLSA claim, so long as a defendant is given sufficient notice of the

prima facie claim that it is being asked to defend.” Roberts v. Corr. Corp. of Am., No.

3:14-cv-2009, 2015 WL 3905088, at *7 (M.D. Tenn. June 25, 2015). See also Clark v.

Pizza Baker, Inc., No. 2:18-cv-157, 2019 WL 4601930, at *3–4 (S.D. Ohio Sept. 23,

2019) (rejecting defendants’ arguments to apply a heightened pleading standard);

Simpson v. Baskin, No. 3:17-cv-1077, 2018 WL 1070897, at *7 (M.D. Tenn. Feb. 26,

2018); Maclin v. Reliable Reports of Tex., Inc., 314 F. Supp. 3d 845, 851–52 (N.D.

Ohio 2018). To state a prima facie case of entitlement to overtime pay under the

FLSA, a plaintiff must allege that: defendants are engaged in commerce as defined

by the FLSA; plaintiffs are employees as defined by the FLSA; and, as employees

for defendants, plaintiffs were not paid minimum wage or that they worked more

than forty hours per week and were not paid overtime compensation for the hours

worked in excess of forty. See, e.g., Brown v. Allied Commc’ns Corp., No. 1:18-cv-

689, 2020 WL 868207, at *5 (S.D. Ohio Feb. 21, 2020).

Mr. Hutt alleges that he was required by Greenix Pest Control LLC to perform

specific tasks, accounting for one to three hours each day, for which he was not

compensated. (SAC ¶ 10). Mr. Hutt further alleges that he spent time each week

doing additional work for which he was not allowed to clock in and for which he was

not paid. (Id., ¶¶ 11-14). He then asserts that, when this uncompensated time is

added to the hours for which he was paid, he was not compensated at minimum wage

and that Greenix Pest Control LLC “failed to pay proper overtime compensation of

time one and a half.” (Id., ¶ 19). This is sufficient.

Defendants seem to argue that the FLSA requires a talismanic phrase or

other specifics to state a claim. (See Mot. to Dismiss, p. 8–9.) However, as noted

above, detailed factual pleading is not required. Here, Mr. Hutt has sufficiently pled

facts that, if proven to be true, make out a plausible claim that he performed work

for which he was not compensation at the rates required by law. Defendants’ Motion

to dismiss Claims I and II is DENIED.

3. Mr. Hutt has sufficiently pled a collective action as to

Greenix Pest Control LLC.

To recover unpaid compensation owed under the FLSA, employees can

collectively sue their employer. See 29 U.S.C. § 216(b). The FLSA establishes two

requirements for a collective action: the plaintiffs must (1) be “similarly situated”

and (2) signal in writing their affirmative consent to participate in the action. Id.;

Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006).

“The certification process in an FLSA collective action typically proceeds in

two phases.” Atkinson v. TeleTech Holdings, Inc., No. 3:14-cv-253, 2015 WL 853234,

at *2, (S.D. Ohio Feb. 26, 2015). The first stage generally takes place prior to or at

the beginning of discovery, at which time the court must determine whether to

conditionally certify a FLSA class and whether notice of the lawsuit should be given

to putative class members. Id. at *2–3. Because the court has minimal evidence at

this stage, the determination is made using a “fairly lenient standard.” Swigart v.

Fifth Third Bank, 276 F.R.D. 210, 213 (S.D. Ohio 2011). A plaintiff need only make

a “modest factual showing” that he is similarly situated to the putative class

members—that he and the other putative class members “‘suffer from a single,

FLSA-violating policy’ or [that] their claims are ‘unified by common theories of

defendants’ statutory violations, even if the proofs of these theories are inevitably

individualized and distinct.’” Ford v. Carnegie Mgmt. Servs., Inc., No. 2:16-cv-18,

2016 WL 2729700, at *2 (S.D. Ohio May 11, 2016) (citation omitted). The second

stage of the certification process comes after discovery has concluded, at which time

the Court will reconsider, with greater scrutiny, whether the putative class

members are actually similarly situated. Atkinson, 2015 WL 853234 at *3.

Mr. Hutt has not yet moved for conditional certification, so he is not yet

required to show that his position is similar to the positions held by members of the

putative class. Rather, on the Motion to Dismiss, the issue is whether he sufficiently

alleged a collective action under Section 216(b) of the FLSA. The Court concludes

that he has, in part.

Mr. Hutt has set forth allegations of a class-wide practice by Greenix Pest

Control LLC of not paying minimum wage and overtime wages to Pest Control

Technicians. He has alleged that there were numerous Pest Control Technicians

employed by Greenix Pest Control LLC in Ohio, that all of these technicians

performed similar work and were treated similarly in that they were not allowed to

be on the clock or compensated for certain work performed, and that that practice

caused them not to receive minimum wage and overtime pay that they had earned.3

(SAC, ¶¶ 9–20.) Whether any of these technicians would opt-in to the suit remains

3 However, similar to his allegations regarding the “other Defendants” for his own claims (see

§ III.A.1., supra), Mr. Hutt has made only bare, unsupported allegations that the putative class

members worked for “one or more of the Defendants during the last three years.” (SAC, ¶ 10). This is

not enough to assert collective action claims against Matthew Flanders, Robert Nilsen, and Nilsen

Ventures LLC.

to be seen. At this stage of the litigation, the Court cannot conclude that Plaintiff

can prove no set of facts that would entitle him, or those he would represent, to

relief. Defendants’ Motion to dismiss the collective action claims is DENIED.

B. This Court lacks personal jurisdiction over putative class

members’ claims against Greenix Holdings LLC d/b/a Greenix

Pest Control LLC arising from conduct occurring outside of

Ohio.

Rule 12(b)(2) provides for dismissal of a lawsuit for lack of personal

jurisdiction. Fed. R. Civ. P. 12(b)(2). The plaintiff bears the burden of proving that

jurisdiction exists. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991).

“[I]n the face of a properly supported motion for dismissal, the plaintiff may not

stand on his pleadings but must, by affidavit or otherwise, set forth specific facts

showing that the court has jurisdiction.” Id. If a court rules on a Rule 12(b)(2)

motion prior to trial, “it has the discretion to adopt any of the following courses of

action: (1) determine the motions based on affidavits alone; (2) permit discovery,

which would aid in resolution of the motion; or (3) conduct an evidentiary hearing

on the merits of the motion.” Intera Corp. v. Henderson, 428 F.3d 605, 614 n.7 (6th

Cir. 2005). “[T]he decision whether to grant discovery or an evidentiary hearing

before ruling on a 12(b)(2) motion is discretionary.” Burnshire Dev., LLC v. Cliffs

Reduced Iron Corp., 198 F. App’x 425, 434 (6th Cir. 2006). Here, no party has

requested further discovery or an evidentiary hearing, and the Court concludes that

neither is necessary to rule on Defendants’ Motion.

When a court resolves a Rule 12(b)(2) motion based on “written submissions

and affidavits . . . rather than resolving the motion after an evidentiary hearing or

limited discovery, the burden on the plaintiff is ‘relatively slight,’ . . . and ‘the

plaintiff must make only a prima facie showing that personal jurisdiction exists in

order to defeat dismissal.’” Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503

F.3d 544, 549 (6th Cir. 2007) (citations omitted). In the absence of an evidentiary

hearing, a court will generally apply a prima facie standard weighing the evidence

in the light most favorable to the plaintiff. Dean v. Motel 6 Operating L.P., 134 F.3d

1269, 1272 (6th Cir. 1998). Nonetheless, the court may consider a defendant’s

undisputed factual assertions. Conn v. Zakharov, 667 F.3d 705, 711 (6th Cir. 2012).

If “there does not appear to be any real dispute over the facts relating to

jurisdiction, the prima facie proposition loses some of its significance.” Id. (internal

quotations omitted).

Here, Mr. Hutt asserts that this Court has subject matter jurisdiction over

the FLSA claim, with pendent jurisdiction over the state law claims. When

jurisdiction over a case is based upon a federal question, personal jurisdiction over a

defendant exists “if the defendant is amenable to service of process under the

[forum] state’s long-arm statute and if the exercise of personal jurisdiction would

not deny the defendant[ ] due process.” Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.

2002) (internal quotation omitted) (alterations in original). To satisfy due process, a

court’s exercise of its power over an out-of-state defendant must “not offend

‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945) (citation omitted). “[T]he defendant’s conduct

and connection with the forum State [must be] such that he should reasonably

anticipate being hailed into court there.” World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286, 297 (1980). The Due Process Clause of the Fourteenth Amendment

recognizes two types of personal jurisdiction—general and specific—either one of

which is adequate to confer jurisdiction over a defendant. Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

“If a court has general jurisdiction over a defendant, it can adjudicate any

claims involving that defendant, regardless of where the cause of action arose.”

Maclin, 314 F. Supp. 3d at 849. “For an individual, the paradigm forum for the

exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an

equivalent place, one in which the corporation is fairly regarded as at home[,]” such

as the corporation’s place of incorporation and its principal place of business.

Goodyear, 564 U.S. at 924. General jurisdiction may also exist over an out-of-state

corporation when its contacts with the forum state “are so continuous and

systematic as to render it essentially at home in the forum state.” BNSF Ry. Co. v.

Tyrrell, 137 S. Ct.1549, 1558 (2017). However, “[m]aintaining extensive operations

within a state alone does not satisfy the general-jurisdiction exception.” Maclin, 314

F. Supp. 3d at 849 (noting that the Supreme Court found in BNSF Ry. Co., that,

although BNSF operated one of its automotive facilities in Montana, had more than

2,000 Montana employees, and had more than 2,000 miles of Montana railroad

tracks, it was not subject to general jurisdiction in Montana).

“Specific jurisdiction refers to jurisdiction over claims arising from or related

to a defendant’s contacts with the forum state.” Id. For specific jurisdiction to arise,

“there must be ‘an affiliation between the forum and the underlying controversy,

principally, [an] activity or an occurrence that takes place in the forum State and is

therefore subject to the State’s regulation.’” Bristol-Myers Squibb Co. v. Superior

Court of Cal., 137 S. Ct. 1773, 1780 (2017) (quoting Goodyear, 564 U.S. at 919)

(alteration in original). The Sixth Circuit has “promulgated a three-prong test that

not only guides the determination of whether specific jurisdiction exists, but also

protects the due process rights of a defendant[:]”

First, the defendant must purposefully avail himself of the privilege of

acting in the forum state or causing a consequence in the forum state.

Second, the cause of action must arise from the defendant’s activities

there. Finally, the acts of the defendant or consequences caused by the

defendant must have a substantial enough connection with the forum

state to make the exercise of jurisdiction over the defendant reasonable.

Intera Corp., 428 F.3d at 615 (citing S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d

374, 381 (6th Cir. 1968)). “Failure to meet any one of the three prongs means that

personal jurisdiction may not be invoked.” Maclin, 314 F. Supp. 3d at 849.

Here, this Court lacks general jurisdiction over the only remaining

Defendant, Greenix Pest Control, LLC. Mr. Hutt alleges only that the company is

“headquartered” in Utah and is “a Utah corporation.” (SAC, ¶¶ 3, 4.) The mere fact

that a company does business in Ohio does not confer general jurisdiction over that

company upon this Court, absent a showing of operations or contacts that are “so

substantial and of such a nature as to render the corporation at home in [this]

State.” BNSF Ry. Co., 137 S. Ct. at 1558 (internal quotation marks omitted). Mr.

Hutt has made no such showing. Turning to the question of specific jurisdiction, this

Court has jurisdiction over claims by Mr. Hutt and putative class members for

conduct arising from Greenix Pest Control, LLC’s operations in the State of Ohio.

The question becomes whether this Court can exercise specific jurisdiction over

Greenix Pest Control, LLC for putative class members’ claims arising from conduct

occurring outside of Ohio (these putative class members being, “non-Ohio putative

class members”). The Court concludes that it cannot.

Personal jurisdiction must be proper as to each claim. SunCoke Energy Inc. v.

MAN Ferrostaal Aktiengesellschaft, 563 F.3d 211, 217, 219 (6th Cir. 2009) (White,

J., concurring; Rogers, J., dissenting). In the context of FLSA collective actions, this

means that a federal court does not have jurisdiction over claims against a

nonresident defendant where the claims have no connection to the forum state. See

Maclin, 314 F. Supp. 3d at 849; Rafferty v. Denny’s, No. 5:18-cv-2409, 2019 WL

2924998 (N.D. Ohio July 8, 2019). This conclusion rests on an interpretation of the

Supreme Court’s recent decision in Bristol-Myers, 137 S.Ct. 1773. In Bristol-Myers,

vis-à-vis eight separate complaints, a group of 600 plaintiffs sued Bristol-Myers in a

California state court asserting a variety of state-law claims based on injuries

allegedly caused by the drug, Plavix. The plaintiffs resided all over the country—86

resided in California, and the rest resided in one of 33 other states. Bristol-Myers

was incorporated in Delaware and headquartered in New York, with substantial

operations in New York and New Jersey. Bristol-Myers sold Plavix in California,

and operated five research labs, employing 160 people and 250 sales representatives

in the state. Based on its California operations, the California Supreme Court

“concluded that [Bristol-Myers’] extensive contacts with California permitted the

exercise of specific jurisdiction” over the claims of the nonresident plaintiffs. Bristol-

Myers, 137 S. Ct. at 1779 (internal quotation omitted). On review, the Supreme

Court reversed the state court’s finding based on “settled principles of personal

jurisdiction.” Id. at 1783. The Court made clear that its decision was limited to the

issue of “the due process limits on the exercise of specific jurisdiction by a State,” Id.

at 1783–84 (emphasis added), leaving “open the question whether the Fifth

Amendment imposes the same restrictions on the exercise of personal jurisdiction

by a federal court.” Id. at 1784 (citing Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co.,

Ltd., 484 U.S. 97, 102 n.5 (1987) (noting that, “[u]nder [petitioner’s] theory, a

federal court could exercise personal jurisdiction, consistent with the Fifth

Amendment, based on an aggregation of the defendant’s contacts with the Nation as

a whole, rather than on its contacts with the State in which the federal court sits”

but finding no occasion to consider that theory).

In the three years since Bristol-Myers, the Sixth Circuit has not addressed

whether that decision applies to FLSA collective actions or Rule 23 class actions.

Both Ohio District Courts, however, have done so. See Progressive Health & Rehab

Corp. v. Medcare Staffing, Inc., No. 2:19-cv-4710, 2020 WL 3050185 (S.D. Ohio June

8, 2020) (Marbley, CJ.) (claims brought under Telephone Consumer Protection Act);

Wiggins v. Bank of America, North America, No. 2:19-cv-3223, 2020 WL 5642422

(S.D. Ohio Sept. 22, 2020) (Sargus, J.) (claims based on assessment of bank

overdraft fees); Maclin, 314 F. Supp. 3d at 845; Denny’s, 2019 WL 2924998. In each

of the two instances in which this Court (the District Court for the Southern

District of Ohio) has addressed the application of Bristol-Myers, it has concluded

that the decision does not apply to Rule 23 class actions. Progressive Health &

Rehab Corp., 2020 WL 3050185, at *4 (“Bristol-Myers’ holding does not reach

nationwide [Rule 23] class actions because absent class members are not considered

‘parties’ to an action for jurisdictional purposes.”); Wiggins, 2020 WL 5642422, at *9

(following Progressive Health & Rehab. Corp.). Neither decision involved FLSA

collective action claims. Nonetheless, Chief Judge Marbley noted that, while “it is

far from settled that Bristol-Myers applies to FLSA collective actions,” the reason

why it might does “not exist in Rule 23 class actions, which are different from other

types of aggregate litigation.” Progressive Health & Rehab. Corp., 2020 WL

3050185, at *4 (citations omitted); Wiggins, 2020 WL 5642422, at *9 (recognizing

same and likening an FLSA collective to mass tort claim plaintiffs, as in Bristol-

Myers).

Both of the decisions from the Northern District considered FLSA collective

action claims directly and found that Bristol-Myers does apply. Their reasoning is

persuasive:

As noted by the Court in Bristol-Myers, “restrictions on personal

jurisdiction ‘are more than a guarantee of immunity from inconvenient

or distant litigation. They are a consequence of territorial limitations on

the power of the respective States.’” Bristol-Myers, 137 S. Ct. at 1780

(quoting Hanson v. Denckla, 357 U.S. 235, 251, 78 S. Ct. 1228, 2 L.Ed.

2d 1283 (1958)). “[D]ue process, as an ‘instrument of interstate

federalism,’ requires a connection between the forum and the specific

claims at issue.” Mussat v. IQVIA Inc., No. 17 C 8841, 2018 WL 5311903,

at *5 (N.D. Ill. Oct. 26, 2018). “This recognition bars nationwide class

actions in fora where the defendant is not subject to general jurisdiction.

Whether it be an individual, mass, [collective], or class action, the

defendant’s rights should remain constant.” Id. (citing e.g.,

Mgmt. Support Servs., Inc., 301 F. Supp. 3d at 861 (deciding that under

“the Rules Enabling Act, a defendant’s due process interest should be

the same in the class [or collective] context” as all others)). “The

constitutional requirements of due process do[ ] not wax and wane when

the complaint is individual or on behalf of a class [or collective]. Personal

jurisdiction in class [and collective] actions must comport with due

process just the same as any other case.” In re Dental Supplies Antitrust

Litig., No. 16 Civ. 696 (BMC)(GRB), 2017 WL 4217115, at *9 (E.D.N.Y.

Sept. 20, 2017) (cited by Roy, 353 F. Supp. 3d at 56 (FLSA case)).

Denny’s, 2019 WL 2924998, at *7. Thus, “Bristol-Myers applies to FLSA [collective

action] claims, in that it divests [Ohio’s federal] courts of specific jurisdiction over

the FLSA claims of non-Ohio [putative class members] against [non-Ohio

defendants].” Maclin, 314 F. Supp. 3d at 850; see also Denny’s, 2019 WL 2924998, at

*7.

Accordingly, this Court finds that exercising personal jurisdiction over

Greenix Pest Control, LLC with respect to any non-Ohio putative class member’s

FLSA claims would violate due process. (In light of this conclusion, the Court need

not analyze whether Greenix Pest Control, LLC is amenable to service of process

under Ohio’s long-arm statute.) Without jurisdiction over the non-Ohio putative

class members’ FLSA claims, this Court similarly has no authority to exercise

jurisdiction over their related state wage and hour law claims. See 28 U.S.C. § 1367.

The Defendants’ motion to dismiss Claim I with respect to any non-Ohio putative

class member, as well as Claims III, IV, V, and IV, is GRANTED. Those claims are

DISMISSED for lack of personal jurisdiction.

C. Mr. Hutt’s Motion for Leave to file the Third Amended

Complaint is denied.

Courts have discretion to determine whether to dismiss a complaint or to grant

the plaintiff the opportunity to amend. See United States ex rel. Bledsoe v. Cmty.

Health Syst., Inc., 342 F.3d 634, 644 (6th Cir. 2003). When a “more carefully drafted

complaint might state a claim, a plaintiff must be given at least one chance to amend

the complaint before the district court dismisses the action with prejudice.” Id. (citing

EEOC v. Ohio Edison Co., 7 F.3d 541, 546 (6th Cir. 1993)).

The proposed Third Amended Complaint (“TAC”) would add scant factual

allegations. (See TAC, ECF No. 40-1, generally.) Rather, it seeks to add allegations

regarding Defendants’ status as an “enterprise” that is “intertwined,” and that the

individual Defendants “own[] and/or control[] the other corporate Defendants”. (See

TAC, ¶¶ 1, 5, 6.) The TAC would also clarify that the reference to ‘overtime’ means

time worked in excess of forty hours per workweek. (Id., ¶ 21.) Significantly, Mr.

Hutt seeks to add three new claims for alleged violations of state wage and hour

laws in Utah, Pennsylvania, and Indiana. (Id., ¶¶ 43–51.)

Mr. Hutt has already amended his complaint two times. As discussed in detail

above, the SAC fails to state a claim against Defendants Matthew Flanders, Robert

T. Nilsen, and Nilsen Ventures LLC. A review of the proposed TAC reveals persistent

deficiencies. Although the amendment would attach additional legal labels to these

three Defendants, it does not add any supporting factual allegations. As to the

jurisdictional issues, amendment would be futile. Finally, as to Claims I and II, the

Court has already concluding that the SAC sufficiently pleads a claim for conduct

taking place in Ohio. Thus, there is no need for Mr. Hutt to amend his complaint as

to those claims. Accordingly, Mr. Hutt’s Motion for Leave to file a Third Amended

Complaint is DENIED.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion to Dismiss is GRANTED

IN PART and DENIED IN PART. Claim I is DISMISSED with respect to all non-

Ohio putative class members for conduct outside of Ohio; Claims III, IV, V, and VI

are DISMISSED in their entirety; and, all claims are DISMISSED as against

Defendants Matthew Flanders, Robert T. Nilsen, and Nilsen Ventures LLC. Finally,

Mr. Hutt’s Motion for Leave to file a Third Amended Complaint is DENIED.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE