Opinion
CASE NO: 8:09-cv-846-T-33AEP.
October 5, 2009
ORDER
This cause comes before the Court pursuant to Defendant's Motion to Dismiss or Alternative Motion for Summary Judgment (Doc. # 9) and Motion to Stay Proceedings (Doc. # 12). Plaintiff filed a Response in Opposition to Defendant's Motion to Dismiss (Doc. # 11). Plaintiff did not file a response to Defendant's Motion to Stay Proceedings.
This is a Fair Labor Standards Act (FLSA) case for recovery of overtime compensation and minimum wages. To bring an FLSA claim, the claimant must establish coverage under the Act. The FLSA covers: (1) "enterprise[s] engaged in commerce or in the production of goods for commerce" (enterprise coverage); and (2) "employees who in any workweek [are] engaged in commerce or in the production of goods for commerce" (individual coverage). 29 U.S.C. § 207(a)(1); see Thorne v. All Restoration Serv., Inc., 448 F.3d 1264, 1265-66 (11th Cir. 2006). Defendant is moving to dismiss Plaintiff's complaint on the basis that Plaintiff cannot establish enterprise coverage or individual coverage. Plaintiff opposes the motion as premature and requests that the Court permit Plaintiff to conduct discovery to establish coverage under the FLSA.
The Court finds it appropriate to treat Defendant's motion as one for summary judgment. See Delisle v. LYG Corp., 535 F. Supp. 2d 1266, 1267-68 (S.D. Fla. 2008). Plaintiff, however, must be given the opportunity to supplement the record with further evidence in support of his position that coverage exists.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1) Defendant's Motion to Dismiss or Alternative Motion for Summary Judgment (Doc. # 9) shall be considered by this Court as a motion for summary judgment. Plaintiff may seek discovery relating solely to the Court's subject matter jurisdiction under the FLSA.
(2) Plaintiff's supplemental filing, if any, is due by November 9, 2009, and Defendant's response is due by November 16, 2009. Neither submission shall exceed ten pages.
(3) Defendant's Motion to Stay Proceedings (Doc. # 12) is GRANTED. All proceedings in this matter are STAYED until the Court rules on Defendant's Motion for Summary Judgment (Doc. # 9).DONE and ORDERED in Chambers in Tampa, Florida.