GRUBBS

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CAREY GRUBBS, )

) No. 2:23-cv-01429-RJC

Plaintiff, )

)

v. ) Judge Robert J. Colville

)

NEXT PROCESS, INC. f/k/a Thar-Process, )

Inc. and ZAC SHEPARD, jointly and )

severally, )

)

Defendants. )

MEMORANDUM OPINION

Robert J. Colville, United States District Judge

Before the Court is Defendant, Zac Shepard’s Motion to Dismiss pursuant to Fed. R. Civ.

P. 12(b)(1) and 12(b)(6). The Court has jurisdiction in this matter pursuant to 28 U.S.C. § 1331

and has supplemental jurisdiction over any state-law claims pursuant to 28 U.S.C. § 1367. The

Motion has been fully briefed and is ripe for disposition.

I. Factual Background & Procedural History

In the Complaint, Plaintiff sets forth the following factual allegations relevant to the

Court’s consideration of the Motion at issue:

Plaintiff began employment with Defendant Next Processes, formerly known as Thar-

Process, as a Lead Tolling Operator on January 20, 2020. Compl. ¶ 7. In February of 2021,

Plaintiff initiated a claim for wage payment against Defendant Next Processes seeking unpaid

overtime wages. Id. ¶ 12. Defendant Next Processes, through its human resources department,

furnished the requested overtime wages resolving Plaintiff’s claim against Defendant Next

Processes. Id. ¶ 13. Despite, the resolution of this prior claim, Plaintiff alleges that Defendant

Next Processes continued to withhold overtime compensation from Plaintiff. Id. ¶ 14.

In early 2022, Plaintiff made complaints about these unpaid overtime wages to Defendant

Shepard, the Tolling Manager, who Plaintiff alleges is a manager and officer of Defendant Next

Processes. Id. ¶¶ 18, 27. Plaintiff alleges that in response, Defendant Shepard prohibited Plaintiff

from taking further overtime work, in retaliation for Plaintiff’s complaints. Id. ¶ 19. Plaintiff,

however, continued to voice his complaints to Defendants until his termination on August 5, 2022.

Id. ¶ 20.

By way of procedural background, Plaintiff filed the Complaint on August 9, 2023. ECF

No. 1. Defendant Shepard filed his Motion to Dismiss (ECF No. 21), along with a Brief in Support

(ECF No. 22), on September 13, 2024. Plaintiff filed a Brief in Opposition on October 4, 2024.

ECF No. 24. Defendant Shepard filed a Reply on October 8, 2024. ECF No. 25.

II. Legal Standards

A. Fed. R. Civ. P. 12(b)(1)

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the

“court’s ‘very power to hear the case.’” Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir.

2006) (quoting Mortensen v. First Federal Savings and Loan Ass’n, 549 F.2d 884, 891 (3d Cir.

1977)). The party asserting the existence of federal jurisdiction bears the burden of proving that

jurisdiction over the subject matter actually exists. Brown v. Tucci, C.A. No. 12-1769, 2013 WL

2190145 (W.D. Pa. May 20, 2013) (citing Development Finance Corp. v. Alpha Housing & Health

Care, 54 F.3d 156, 158 (3d Cir. 1995)). When considering a challenge to a court’s jurisdiction

under Fed. R. Civ. P. 12(b)(1), a court ordinarily need not limit its inquiry to the facts as pled in

the complaint. Land v. Dollar, 330 U.S. 731, 735 (1947). Rather, “[t]he court may inquire by

affidavits or otherwise, into the facts as they exist.” Id. at 735 n.4. Such inquiry is permissible

because a federal court must assure itself that it has jurisdiction over the case, and it may even

resolve factual disputes in doing so. See Boyle v. The Governor’s Veterans Outreach & Assistance

Ctr., 925 F.2d 71, 74 (3d Cir. 1991) (citing Mortensen, 549 F.2d at 891).

B. Fed. R. Civ. P. 12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In

deciding a motion to dismiss, the court is not opining on whether the plaintiff will likely prevail

on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled

factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S.

Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need

detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide

more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A

“formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (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.” Iqbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). The Supreme Court of the United States has explained:

The plausibility standard is not akin to a “probability requirement,” but it asks for

more than a sheer possibility that a defendant has acted unlawfully. Where a

complaint pleads facts that are “merely consistent with” a defendant’s liability, it

“stops short of the line between possibility and plausibility of ‘entitlement to

relief.’”

Id. (quoting Twombly, 550 U.S. at 556) (internal citations omitted).

The United States Court of Appeals for the Third Circuit instructs that “a court reviewing

the sufficiency of a complaint must take three steps.” Connelly v. Lane Constr. Corp., 809 F.3d

780, 787 (3d Cir. 2016). The Third Circuit explained:

First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.”

Iqbal, 556 U.S. at 675. Second, it should identify allegations that, “because they

are no more than conclusions, are not entitled to the assumption of truth.” Id. at

679; see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011)

(“Mere restatements of the elements of a claim are not entitled to the assumption of

truth.” (citation and editorial marks omitted)). Finally, “[w]hen there are well-

pleaded factual allegations, [the] court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556

U.S. at 679.

Connelly, 809 F.3d at 787. “Determining whether a complaint states a plausible claim for relief

will . . . be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 679 (internal citations omitted).

In addition to reviewing the facts contained in the complaint, a court may consider “matters

of public record, orders, exhibits attached to the complaint and items appearing in the record of

the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994).

When a document integral to or relied upon in the complaint is included, the court may also

consider that document. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.

1997).

Although a district court is not obligated to permit leave to amend before dismissing a

complaint in a non-civil rights case, Wolfington v. Reconstructive Orthopaedic Assocs. II P.C.,

935 F.3d 187, 210 (3d Cir. 2019), courts generally grant leave to amend unless amendment of the

complaint would be inequitable or futile. See, e.g., Bachtell v. Gen. Mills, Inc., 422 F. Supp. 3d

900, 915 (M.D. Pa. Oct. 1, 2019) (citing Phillips v. Allegheny Cty., 515 F.3d 224, 245 (3d Cir.

2008)).

III. Discussion

A. Fed. R. Civ. P. 12(b)(6)

Defendant Shepard asserts that Plaintiff’s claims for unpaid overtime wages in violation of

the FLSA (Count I) and retaliation in violation of the FLSA (Count II) should be dismissed because

Plaintiff has failed to allege that Defendant Shepard is an “employer” under the FLSA.

“The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees

that cannot be modified by contract.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 69

(2013). “The FLSA imposes individual liability on ‘any person acting directly or indirectly in the

interest of an employer in relation to an employee.” Thompson v. Real Estate Mortg. Network,

748 F.3d 142, 153 (3d Cir. 2014) (quoting 29 U.S.C. § 203(d) of the FLSA). “A company’s

owners, officers, or supervisory personnel may also constitute ‘joint employers' for purposes of

liability under the FLSA.” Id. Liability exists when the individual exercises “supervisory

authority over the complaining employee and was responsible in whole or in part for the alleged

violation while acting in the employer’s interest.” Id. (quoting Haybarger v. Lawrence Cnty. Adult

Prob. & Parole, 667 F.3d 408, 417 (3d Cir.2012)). An individual has supervisory authority “when

the supervisor independently exercises control over the work situation.” Id. Again, the “focus is

on ‘the totality of the circumstances rather than on the technical concepts of the employment

relationship.’” Id. at 154 (quoting Haybarger, 667 F.3d at 418).

“When determining whether someone is an employer under the FLSA, ‘the economic

reality rather than the technical concepts is to be the test of employment.’ Under this theory, the

FLSA defines employer ‘expansively,’ and with ‘striking breadth.’ The Supreme Court has even

gone so far as to acknowledge that the FLSA's definition of an employer is ‘the broadest definition

that has ever been included in any one act.’” Thompson, 748 F.3d at 148 (quoting In re Enterprise

Rent–A–Car Wage & Hour Emp't Practices Litig., 683 F.3d 462, 467–68 (3d Cir. 2012)). The

economic reality test focuses on the following non-exhaustive factors: “(1) the alleged employer's

authority to hire and fire the relevant employees; (2) the alleged employer's authority to promulgate

work rules and assignments and to set the employees' conditions of employment: compensation,

benefits, and work schedules, including the rate and method of payment; (3) the alleged employer's

involvement in day-to-day employee supervision, including employee discipline; and (4) the

alleged employer's actual control of employee records, such as payroll, insurance, or taxes.” Id. at

149 (quoting In re Enterprise Rent–A–Car Wage & Hour Emp't Practices Litig., 683 F.3d at 469).

At this time, the Court need not determine whether Defendant Shepard is in fact an

employer under the FLSA, the Court must only determine whether, taking all pled facts as true, it

is plausible that Defendant Shepard is an employer. The Court finds that Plaintiff has sufficiently

alleged enough facts in support of his claim that Defendant Shepard is his employer. Plaintiff has

alleged that Defendant Shepard is an employer as defined under the FLSA, see Compl. ¶ 35, that

Defendant Shepard is a manager and officer of Defendant Next-Processes, see Compl. ¶¶ 18, 27,

and that Plaintiff registered complaints about his unpaid overtime to Defendant Shepard who then

prohibited Plaintiff from undertaking further overtime work, see Compl. ¶¶ 18-19. At this stage

of the litigation, these allegations are sufficient to survive a motion to dismiss and the claims may

proceed to discovery. See DeMarco v. FarmaceuticalRX, LLC, 2023 WL 2392848, at *7 (W.D.

Pa. March 7, 2023) (finding that the plaintiff’s allegations setting for the individual defendants’

ownership status and title as well as a conclusory allegation that said individual defendants

supervised/were responsible for FLSA violations was sufficient to support a reasonable inference

that the individual defendants could be joint employers).

Therefore, Defendant Shepard’s Motion to Dismiss Counts I and II pursuant to Rule

12(b)(6) is denied.

B. Fed. R. Civ. P. 12(b)(1)

Next, Defendant Shepard argues that the Court should decline to exercise control over

Plaintiff’s state law claims contained in Counts III, IV, and V, should the Court dismiss the federal

claims contained in Counts I and II. Because the Court has denied Defendant Shepard’s Motion

to Dismiss Counts I and II, the Court will likewise deny Defendant’s Motion to Dismiss Counts

III, IV, and V brought pursuant to Rule 12(b)(1).

IV. Conclusion

For the reasons discussed above, the Court will deny Defendant Shepard’s Motion to

Dismiss. An appropriate Order of Court follows.

BY THE COURT:

/s/Robert J. Colville

Robert J. Colville

United States District Judge

DATED: January 23, 2026

cc: All counsel of record