Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Morales v. Sixth Avenue Tire Center Inc.

United States District Court, N.D. Alabama, Southern Division

August 23, 2019

SIXTH AVENUE TIRE CENTER, INC., et al. Defendants.


          John E. Ott Chief United States Magistrate Judge

         Plaintiff 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).[1] Currently before the court[2] 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 for decision.


         Plaintiff, 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).

         Plaintiff 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. ¶ 30).

         Beginning in 2014, Plaintiff asked Jorge Domingues and Pablo Mondragaon[4] 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. ¶ 39).


         The 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.


         Defendants 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).

         “A 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 omitted)).

         Here, 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 rendered MOOT.


         Federal 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.