# Hutt v. Greenix Pest Control LLC

> District Court, S.D. Ohio · November 24, 2020

URL: https://www.frixlaw.com/law-library/cases/10376885

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** November 24, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10376885

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376885. Public record. Not legal advice.