United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
E. Ott Chief United States Magistrate Judge
Geovany Morales filed a complaint against Defendants Sixth
Avenue Tire Center, Inc. and Warren Wirt alleging a violation
of the Fair Labor Standards Act, 29 U.S.C. §§ 201
et seq., and Alabama's human trafficking statute, Ala.
Code § 13A-6-157. (Doc.1). Currently before the
court are two motions. The first is a motion to
dismiss for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6), or, in the alternative, motion for
more definite statement under Federal Rule of Civil Procedure
12(e). (Doc. 5). Along with his response in opposition to the
motion, (doc. 11), Plaintiff filed a motion to strike the
exhibit attached to the motion to dismiss. (Doc. 10). The
motions are fully briefed, (docs. 6, 11, 13, 14), and ripe
Geovany Morales, is a former employee of Defendant Sixth
Avenue Tire Center, Inc. (“Sixth Avenue Tire”).
(Doc. 1 ¶¶ 9-10, 20). Defendant Warren Wirt is the
owner and operator of Sixth Avenue Tire. (Id. ¶
5). Plaintiff worked for Defendants from approximately
February 1, 2012, until April 7, 2018, as a laborer tasked
with painting, repairing, selling and installing tires.
(Id. ¶¶ 21-22). Plaintiff was an hourly
employee and covered by the FLSA. (Id. ¶ 11).
alleges that he typically worked eleven hours a day, Monday
through Saturday, for a total of sixty-six hours per week.
(Id. ¶¶ 26-27). Generally, he was not
given lunch breaks and “was given few breaks between
long work hours.” (Id. ¶ 28). Defendant
paid Plaintiff a flat weekly fee for his work. (Id.
¶ 27). From February 1, 2012, to March 1, 2013, he was
paid $425 a week. (Id.). From March 1, 2013, to
March 1, 2014, he was paid $525 per week. (Id.).
Finally, from March 1, 2014 to April 7, 2018, Plaintiff was
paid $600 per week. (Id.). For the first three years
of his employment, Plaintiff was paid exclusively by check,
but for the remainder of his employment, he was paid half of
his wages by check and half in cash. (Id. ¶
in 2014, Plaintiff asked Jorge Domingues and Pablo
Mondragaon for higher wages on multiple occasions.
(Id. ¶ 32). Plaintiff alleges, however, that
“Defendants would use Plaintiff's immigration
status as the reason to deny proper compensation.”
(Id.). More specifically, Plaintiff alleges that
Defendants “confirmed the impression for Plaintiff that
he would not be able to claim overtime wages given his
undocumented immigrant status.” (Id. ¶
court begins with Plaintiff's motion to strike and then
moves on to Defendant's motion to dismiss. For the
following reasons, the motion to strike will be deemed moot
and the motion to dismiss is due to be denied.
MOTION TO STRIKE
attach what purports to be a “paystub” as Exhibit
1 to their brief in support of their motion to dismiss. (Doc.
6 at 12). It is an unsigned check for $548.04, as well as a
summary of earnings, hours worked and taxes paid for the pay
period July 18, 2015 through July 24, 2015. (Id.).
The exhibit is not authenticated with an accompanying
affidavit or declaration. Defendants use the exhibit to
counter Plaintiff's allegation in his complaint that he
was not paid overtime. (Id. at 5). Plaintiff moves
to strike the exhibit on the ground that it constitutes an
improper submission of extrinsic evidence in support of a
motion to dismiss brought under Rule 12(b)(6). (Doc. 10).
court is generally limited to reviewing what is within the
four corners of the complaint on a motion to dismiss.”
Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1329
n.7 (11th Cir. 2006). A court may consider extrinsic evidence
submitted in conjunction with a Rule 12(b)(6) motion to
dismiss as long as the court converts the motion to dismiss
into a motion for summary judgment under Federal Rule of
Civil Procedure 56 and provides the parties with adequate
notice of its intent to do so. Fed.R.Civ.P. 12(d). However,
federal courts have discretion whether to consider the
submissions of materials outside the pleadings accompanying a
Rule 12(b)(6) motion, and “[a] judge need not convert a
motion to dismiss into a motion for summary judgment as long
as he or she does not consider matters outside the pleadings.
According to case law, ‘not considering' such
matters is the functional equivalent of ‘excluding'
them - there is no more formal step required.”
Harper v. Lawrence County, 592 F.3d 1227, 1232 (11th
Cir. 2010); see also Jones v. Auto. Ins. Co. of
Hartford, 917 F.2d 1528, 1531-32 (11th Cir. 1990)
(“It is within the judge's discretion to decide
whether to consider matters outside of the pleadings that are
presented to the court. However, if the judge does consider
these outside matters, i.e., if the judge does not exclude
them, Rule 12(b) requires the judge to comply with the
requirements of Rule 56.” (internal citations
the court exercises its discretion in excluding the exhibit
from consideration and, therefore, declines to convert
Defendants' Rule 12(b)(6) motion into a motion for
summary judgment. Whether Defendants denied Plaintiff
overtime is an issue more properly adjudicated at a later
date after the parties have conducted discovery. Because the
court will exclude the exhibit from consideration when ruling
on the motion to dismiss, Plaintiff's motion to strike is
MOTION TO DISMISS
Rule of Civil Procedure 12(b)(6) authorizes a motion to
dismiss claims in a complaint on the ground that the
allegations fail to state a claim upon which relief can be
granted. On such a motion, the ‘“issue is not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the
claims.'” Little v City of North Miami,805 F.2d 962, 965 (11th Cir. 1986) (quoting Scheur v.
Rhodes, 416 U.S. 232, 236 (1974)). The court assumes the
factual allegations in the complaint are true and gives the