UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANA BEATRIZ LOPEZ LIMA, et al.,

Plaintiffs, No. 19-cv-346 (EGS) v.

LONCH, INC. t/a LONCH HOME IMPROVEMENT, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs Ana Beatriz Lopez Lima (“Ms. Lopez Lima”) and

Jorge B. Sanchez Argueta (“Mr. Sanchez Argueta”) bring this

action against Defendants Lonch, Inc., trading as Lonch Home

Improvement (“Lonch”), and Steve John Loney (“Mr. Loney,”

together with Lonch, “Defendants”), under the Fair Labor

Standards Act (“FLSA”),

et seq., and the D.C.

Minimum Wage Revision Act (“DCMWRA”),

et

seq. Plaintiffs claim that Defendants failed to pay them for

hours worked in excess of forty hours per week at a rate less

than one and one-half times their regular rate. In their Answer,

Defendants assert two counterclaims for conversion and breach of

the duty of good faith and fair dealing, alleging that Ms. Lopez

Lima engaged in certain misconduct by, inter alia, misusing

Defendants’ property and falsifying time and attendance records. Pending before the Court is Ms. Lopez Lima’s motion to

dismiss Defendants’ Counterclaims under Federal Rule of Civil

Procedure 12(b)(1). Upon careful consideration of the motion,

opposition and reply thereto, the applicable law, and the entire

record herein, the Court will exercise supplemental jurisdiction

over Defendants’ two common-law counterclaims pursuant to

. Therefore, the Court DENIES Plaintiff’s Motion

to Dismiss Defendants’ Counterclaims.

I. Background

A. Factual Background

The following facts reflect the allegations in the

Complaint and the Counterclaim. See, e.g., Compl., ECF No. 1 at

1-5; Defs.’ Verified Answer & Countercl. (“Defs.’ Countercl.”),

ECF No. 12 at 1-7. 1 In resolving Ms. Lopez Lima’s motion, the

Court “accept[s] as true all of the factual allegations

contained in the [Counterclaim] and draw[s] all reasonable

inferences in favor of [the counter-claimants].” Dalley v.

Mitchell Rubenstein & Assocs., P.C.,

(D.D.C. 2016).

At all relevant times, Mr. Loney, a resident of the

District of Columbia (the “District”), owned and operated Lonch.

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 Compl., ECF No. 1 at 2 ¶ 4, 3 ¶ 14. Lonch is incorporated in the

District, where its principal place of business is located.

E.g.,

at 2 ¶ 3; Defs.’ Countercl., ECF No. 12 at 1 ¶ 2.

Mr. Sanchez Argueta and Ms. Lopez Lima both reside in Maryland,

and they worked for Lonch as supervisors and laborers. Compl.,

ECF No. 1 at 2 ¶ 1-2. Mr. Sanchez Argueta worked there from

“approximately March 2018 until December 7, 2018,” and his

“regular rate of pay was between $18.75 and $30.00 per hour.”

at 3 ¶ 10. Ms. Lopez Lima alleges that she worked for Lonch

from “approximately 2005 until June 19, 2018,” and her “regular

rate of pay was between $18.75 and $30.00 per hour.”

at 3 ¶

9.

According to Defendants, Ms. Lopez Lima performed various

tasks for Lonch as an independent contractor on a temporary

basis between 2005 and 2016, including working on lead abatement

projects and providing administrative services. Defs.’

Countercl., ECF No. 12 at 4 ¶ 1-2. And Ms. Lopez Lima did not

perform any tasks for Lonch in 2017.

at 4 ¶ 3. In March

2018, Ms. Lopez Lima worked with Lonch on one lead abatement

project over ten days from 8:00 AM to 5:00 PM, and she had a

lunch break from noon to 1:00 PM each day.

at 4 ¶ 4. Again,

in July 2018, Ms. Lopez Lima worked on a lead abatement project

at Lonch for a total of thirteen days from 8:00 AM to 5:00 PM

with a lunch break from noon to 1:00 PM per day.

at 4 ¶ 5.

3 From August 2018 to December 2018, Ms. Lopez Lima worked on

different lead abatement projects, and she served as the “charge

person” for Lonch in the absence of the assigned project

manager.

at 4-5 ¶ 6.

As a result of Mr. Loney’s illness, Mr. Loney entrusted

Ms. Lopez Lima in September 2018 with “handling business

matters,” including: (1) “managing and tracking employee time

and attendance records”; and (2) “securing and maintaining

equipment and materials required for the projects and contracts

of [Lonch].”

at 5 ¶ 7. Between October 1, 2018 and November

23, 2018, Ms. Lopez Lima maintained the time and attendance

records for Lonch’s projects, which included recording and

maintaining those records for herself, Mr. Sanchez Argueta, and

other individuals working on the projects.

at 5 ¶ 8.

B. Procedural History

On February 11, 2019, Ms. Lopez Lima and Mr. Sanchez

Argueta filed this action under the FLSA and the DCMWRA,

alleging that “Defendants did not pay [them] one-and-one-half

times (1.5x) their hourly rate for hours worked in excess of 40

during a single work week.” Compl., ECF No. 1 at 3 ¶ 12.

According to Ms. Lopez Lima and Mr. Sanchez Argueta, “Defendants

paid [them] by money order, rather than payroll check” to “hide

the number of hours that [they] worked per week.”

at 3 ¶ 13.

Based on Defendants’ alleged failure to make overtime payments

4 to Ms. Lopez Lima and Mr. Sanchez Argueta,

at 4 ¶ 16, they

assert that Defendants acted in bad faith by willfully and

intentionally failing to compensate them for hours worked in

excess of forty hours per week in violation of the FLSA (“Count

I”) and the DCMWA (“Count II”),

at 4 ¶¶ 17-23, 5 ¶¶ 24-29.

In response, Defendants filed the Verified Answer and

Counterclaim on April 5, 2019, asserting two common-law

counterclaims against Ms. Lopez Lima. See Defs.’ Countercl., ECF

No. 12 at 4-7 ¶¶ 1-22. First, Defendants allege in support of

their conversion claim—Count I—that Ms. Lopez Lima:

(1) “converted several thousand dollars, if not more, of the

Defendants’ money to herself” and she “never sought consent from

Defendants to convert these funds for her own personal use,”

at 5 ¶ 11; (2) “falsely recorded and maintained time and

attendance records not only for herself and [Mr.] Sanchez

Argueta, but for other workers on the projects involving [Lonch]

specifically, by recording days and hours for time they did not

report for and for work they did not perform,”

at 5-6 ¶ 12;

(3) “took into her own personal possession, removed and/or

discarded materials, equipment and other property of value owned

by the Defendants without knowledge, authorization, permission

or consent of the Defendants and converted [the] same for [her]

own personal enrichment,”

at 6 ¶ 14; and (4) “specifically

took into her own personal possession, removed and/or discarded

5 employee time and attendance records that were the property of

[Lonch] without knowledge, authorization, permission or consent

of the Defendants,”

at 6 ¶ 15. Defendants allege that

Ms. Lopez Lima engaged in this conduct between October 1, 2018

and November 23, 2018.

at 5-6 ¶¶ 11-12, 14-15.

Next, Defendants assert that Ms. Lopez Lima’s actions

constitute a breach of the duty of good faith and fair dealing

(“Count II”), alleging that “Ms. Lopez Lima was not authorized

to use Defendants’ funds for her own personal use and benefit

nor was she authorized to use Defendants’ property for [her] own

personal use and benefit.”

at 7 ¶ 21; see also

at 6 ¶ 16

(“[Ms.] Lopez Lima engaged in a pattern and practice of using

[Lonch’s] funds, equipment, materials and other property in her

own personal interest and/or to enrich herself.”). Defendants

further allege that they suffered damages as a result of

Ms. Lopez Lima’s breach.

at 7 ¶ 22; see also

at 6 ¶ 17

(“[Ms.] Lopez Lima has failed and refused to return, refund,

reimburse and/or turn over money, equipment, material, employee

time and attendance records and other property of the Defendants

that she converted for her own personal use and/or gain.”).

C. Ms. Lopez Lima’s Motion

On April 10, 2019, Ms. Lopez Lima moved to dismiss both

counterclaims for lack of subject-matter jurisdiction under Rule

12(b)(1), see generally Pl.’s Mot. to Dismiss Defs.’ Countercl.

6 (“Pl.’s Mot.”), ECF No. 13, arguing that Defendants brought

their counterclaims to “intimidate and retaliate against her

protected rights under the FLSA and the [DCMWRA],” Pl.’s Mem. in

Supp. of Pl.’s Mot. (“Pl.’s Mem.”), ECF No. 13-1 at 2.

Defendants then filed their opposition brief. See generally

Defs.’ Opp’n, ECF No. 15. Thereafter, Ms. Lopez Lima filed her

reply brief. See generally Pl.’s Reply, ECF No. 16. The motion

is ripe and ready for the Court’s adjudication.

II. Legal Standard

“Federal courts are courts of limited jurisdiction.”

Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994). On a Rule 12(b)(1) motion to dismiss, the party seeking

to invoke a federal court’s jurisdiction bears the burden of

establishing jurisdiction by a preponderance of the evidence.

Wisey’s #£1 LLC v. Nimellis Pizzeria LLC,

(D.D.C. 2013). “Because Rule 12(b)(1) concerns a court’s

ability to hear a particular claim, the court must scrutinize

the [party]’s allegations more closely when considering a motion

to dismiss pursuant to Rule 12(b)(1) than it would under a

motion to dismiss pursuant to Rule 12(b)(6).” Schmidt v. U.S.

Capitol Police Bd.,

(D.D.C. 2011). In

accepting as true all of the factual allegations in the

counterclaim and drawing all reasonable inferences in favor of

the counterclaimant, the court “may consider materials outside

7 the pleadings in deciding whether to grant a motion to dismiss

for lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. FDA,

(D.C. Cir. 2005).

“When a federal court has an independent basis for

exercising federal jurisdiction, it may, in certain

circumstances, also exercise pendent, or supplemental,

jurisdiction over related claims under state law.” Women

Prisoners of D.C. Dep’t of Corr. v. District of Columbia,

(D.C. Cir. 1996) (“A district court’s decision to

resolve state law claims is reviewed for an abuse of

discretion.”). A court employs “a two-part test to determine

when the assertion of jurisdiction over a state law claim is

appropriate.”

The court first “determine[s] whether the

state and the federal claims ‘derive from a common nucleus of

operative fact’; if they do, the court has the power, under

Article III of the Constitution, to hear the state claim.”

(quoting United Mine Workers of Am. v. Gibbs,

(1966)). The court “must then decide whether to exercise its

discretion to assert jurisdiction over the state issue,”

considering factors such as “judicial economy, convenience and

fairness to litigants.”

(quoting Gibbs,

).

“If the court finds the claims do not derive from a common

nucleus of operative fact, it cannot exercise supplemental

jurisdiction and the claims must be dismissed under Rule

8 12(b)(1).” Wisey’s #£1 LLC,

.

III. Analysis

Neither party disputes that the Court lacks an independent

basis for subject-matter jurisdiction over Defendants’

counterclaims. See, e.g., Pl.’s Mem., ECF No. 13-1 at 1-2, 7;

Defs.’ Opp’n, ECF No. 15 at 1-4. There is no federal question

jurisdiction over Defendants’ common-law counterclaims because

Defendants assert them under District of Columbia law, see

; and there is no diversity jurisdiction because

Defendants fail to plead an amount in controversy that exceeds

$75,000, see

(a). Accordingly, the Court may

only exercise supplemental jurisdiction as set forth in

. See City of Chicago v. Int’l Coll. of

Surgeons,

(1997) (explaining that Congress

codified the principles for supplemental jurisdiction in

§ 1367). For the reasons explained below, the Court will

exercise supplemental jurisdiction over Defendants’ common-law

counterclaims.

A. The Court Has Supplemental Jurisdiction Over Defendants’ Counterclaims

Section 1367(a), in relevant part, provides that in civil

actions in which federal district courts have original

jurisdiction, “the district courts shall have supplemental

jurisdiction over all other claims that are so related to claims

9 in the action within such original jurisdiction that they form

part of the same case or controversy under Article III of the

United States Constitution.”

(a). A federal

district court “may decline to exercise supplemental

jurisdiction over a [state] claim” on four grounds.

§ 1367(c). First, “the claim raises a novel or complex issue of

State law.” Id. Second, “the claim substantially predominates

over the claim or claims over which the district court has

original jurisdiction.” Id. Third, “the district court has

dismissed all claims over which it has original jurisdiction.”

Id. And fourth, “in exceptional circumstances, there are other

compelling reasons for declining jurisdiction.” Id. 2

In this case, there is no dispute that the Court has

original jurisdiction over this action because the FLSA claim

squarely falls within this Court’s federal question

jurisdiction. See, e.g., Compl., ECF No. 1 at 2 ¶ 8; Pl.’s Mem.,

ECF No. 13-1 at 2-5; Defs.’ Opp’n, ECF No. 15 at 1-4. The

parties, however, dispute whether Ms. Lopez Lima’s FLSA claim

and Defendants’ counterclaims “derive from a common nucleus of

operative fact” such that the Court “would ordinarily be

expected to try them all in one judicial proceeding.” Gibbs, 383

2 For purposes of the supplemental jurisdiction analysis, “the term ‘State’ includes the District of Columbia.”

(e). 10 U.S. at 725. “A federal claim and a state law claim form part of

the same Article III case or controversy,” in turn, “if the two

claims derive from a common nucleus of operative fact such that

‘the relationship between [the federal] claim and the state

claim permits the conclusion that the entire action before the

[C]ourt comprises but one constitutional case.” Lindsay v. Gov’t

Emps. Ins. Co.,

, 423–24 (D.C. Cir. 2006) (citations

and internal quotation marks omitted). “[S]tate law claims do

not derive from a common nucleus of operative facts if there is

almost no factual or legal overlap between the state and federal

claims.” Chelsea Condo. Unit Owners Ass’n v. 1815 A St., Condo

Grp., LLC,

(D.D.C. 2007).

With these principles in mind, the Court finds that there

is sufficient factual overlap between the FLSA claim and the

common-law counterclaims. Ms. Lopez Lima acknowledges this

overlap between the two sets of claims, stating that:

(1) “Defendants’ counterclaims share only minimal factual

overlap with [her] overtime claims,” Pl.’s Mem., ECF No. 13-1 at

4; and (2) “[a]t best, Defendants’ counterclaims share

background facts with [her] wage claims,” id. at 5. But

Ms. Lopez Lima contends that “Defendants’ allegations [in the

counterclaims] are far afield from the current litigation, which

is squarely focused on the narrow issue of Plaintiffs’ unpaid

overtime.” Id. at 4. Ms. Lopez Lima argues that “Defendants’

11 state law counterclaims do not arise from a common nucleus of

operative facts with [her] FLSA claim.” Id. at 5.

To support her contention, Ms. Lopez Lima relies on cases

in which courts have held that state-law counterclaims do not

share a common nucleus of operative fact with FLSA claims where

the counterclaims arose from either a “close working

relationship” or an “employer-employee relationship.” Id. at 4-5

(citing Molnoski v. Batmasian,

(S.D. Fla. 2017); Williams v. Long,

(D.

Md. 2008)). Some “[c]ourts that have so held have recognized

that adjudicating counterclaims filed by an employer in the same

context as a suit seeking unpaid wages may be inconsistent with

the purpose of the FLSA—to assure to the employees of a covered

company a minimum level of wages.” Ayub v. Picco,

(D.D.C. 2018) (citation and internal quotation marks

omitted). That approach, however, is not uniform. See id.; see

also Defs.’ Opp’n, ECF No. 15 at 3 (citing cases).

Other courts have held that FLSA claims and state law

claims derive from a common nucleus of operative fact. See,

e.g., Jones v. Changsila,

(D.D.C. 2017)

(concluding that “the factual bases for [the] FLSA and state law

[tort] claims overlap[ped] in sufficient respects” because

“[b]oth sets of claims concern[ed] the same parties, the same

employment relationship, and the same subject matter—[the

12 plaintiff’s] wages”); Garcia v. Nachon Enters., Inc., No. 15-

23416-CIV,

, at *2 (S.D. Fla. Mar. 18, 2016)

(concluding that the FLSA claims and the counterclaims for

breach of fiduciary duty and conversion were “logically related

and stem[med] from the parties’ employer-employee relationship”

where the plaintiff allegedly “clock[ed] into work but then

[left] the store for extended periods of time to handle personal

matters and then submit[ted] fraudulent hours”); Nicholsen v.

Feeding Tree Style, Inc., No. 12 CIV. 6236 JPO,

,

at *3-*4 (S.D.N.Y. Feb. 6, 2014) (finding factual overlap

between the “faithless servant counterclaims” and the FLSA

claims where the court would need to determine whether the

plaintiff had stolen a ledger recording employees’ work hours).

Here, the outcome of this case may turn on whether Lonch

maintained accurate payroll records. See

(c)

(employer must preserve proper records of hours worked by

employees and wages paid to employees); see also Defs.’ Opp’n,

ECF No. 15 at 3 (“The FLSA requires employers to keep accurate

time and attendance records.”). Ms. Lopez Lima, who claims to be

a former “employee” of Lonch within the meaning of the FLSA, see

Compl., ECF No. 1 at 2 ¶ 6, will bear “the burden of proving

that [she] performed work for which [she] was not properly

compensated,” Akinsinde v. Not-For-Profit Hosp. Corp., No. 16-

CV-00437 (APM),

, at *5 (D.D.C. Nov. 29, 2018)

13 (citation and internal quotation marks omitted). “However, this

burden is lessened when . . . the employer has not maintained

proper records of wages and hours.”

Defendants contend that Ms. Lopez Lima took and destroyed

time and attendance records, and those records are “critical to

showing the hours worked by [Ms. Lopez Lima, Mr. Sanchez

Argueta,] and others.” Defs.’ Opp’n, ECF No. 15 at 3. Defendants

claim that Ms. Lopez Lima “acknowledged prior to filing suit

that [she] knowingly and intentionally discarded materials and

time and attendance records that were the property of [Lonch]

and that were, maintained in the ordinary course of business of

[Lonch].”

Defendants argue that “[s]aid materials and time

and attendance records are vital and would have served as

evidence showing the exact dates and number of hours worked by

[Ms. Lopez Lima and Mr. Sanchez Argueta],” and that those

records “would have served to dispute the claims of . . . over-

time pay.”

And Ms. Lopez Lima notes that Defendants may

argue that she “somehow tampered with Defendants’ records” even

if their counterclaims are dismissed. Pl.’s Reply, ECF No. 16 at

1 n.1.

The Court concludes that at least two issues—(1) whether

Lonch maintained accurate records; and (2) whether Ms. Lopez

Lima took and destroyed those records—illustrate the substantial

factual overlap between the federal overtime claims and the

14 common-law counterclaims. “The existence and accuracy of [the]

records [of hours worked] will be at issue in [this] litigation,

providing an important factual overlap between [Ms. Lopez

Lima’s] original claims and Defendants’ allegations that

[Ms. Lopez Lima] padded [her] hours.” Turban v. Bar Giacosa

Corp., No. 19-CV-1138 (JMF),

, at *4 (S.D.N.Y.

Aug. 1, 2019) (emphasis added). Indeed, Defendants allege that

Ms. Lopez Lima recorded days and hours for certain periods of

time that she and Mr. Sanchez Argueta did not actually work.

Defs.’ Countercl., ECF No. 12 at 6 ¶ 12. Defendants further

allege that other workers, including Plaintiffs, were

compensated for time and work that they did not perform.

at

6 ¶ 13; see also Pl.’s Reply, ECF No. 16 at 2 (acknowledging

that “any time and pay records will likely be evidence in

Plaintiffs’ FLSA and [DCMWRA] case”). The Court therefore finds

that the FLSA claim and Defendants’ counterclaims share a common

nucleus of operative fact to support supplemental jurisdiction

pursuant to

(a). 3

3 Having found that there is factual overlap between the FLSA claim and the counterclaims, the Court need not address whether there is legal overlap because a common nucleus of operative fact exists if there is “factual or legal overlap between the state and federal claims.” Chelsea Condo. Unit Owners Ass’n,

. (emphasis added). This Court will not consider Ms. Lopez Lima’s argument that “[t]he elements of [the counterclaims] will not overlap” with her claims because she raised it for the first time in her reply brief. Pl.’s Reply, ECF No. 16 at 2; see also Singletary v. District of Columbia, 15 B. The Court Will Not Decline to Exercise Supplemental Jurisdiction

The Court next considers whether it should decline

supplemental jurisdiction pursuant to

(c).

Although the Court has the “power to hear [Defendants’

counterclaims],” the Court is not required to do so. Prakash v.

Am. Univ.,

(D.C. Cir. 1984). Supplemental

jurisdiction is a doctrine of discretion. Gibbs,

. As previously stated, the Court may decline to exercise

supplemental jurisdiction over state-law claims based on the

four reasons enumerated in Section 1367(c).

The Court will not decline to exercise supplemental

jurisdiction over Defendants’ counterclaims for conversion and

breach of the duty of good faith and fair dealing for three

reasons: (1) those common-law claims do not raise any novel or

complex issues of state law; (2) the FLSA claims have not been

dismissed; and (3) there are no other compelling reasons to

refuse jurisdiction. See

(c). The remaining

issue is whether Defendants’ counterclaims “substantially

predominate[]” over the FLSA action, thereby providing this

Court with a reason not to exercise supplemental jurisdiction

over the counterclaims.

§ 1367(c)(2).

(D.D.C. 2010) (“[C]ourts should decline to consider arguments raised for the first time in reply.”). 16 The Court is not persuaded by Ms. Lopez Lima’s argument

that Defendants’ counterclaims “would predominate over the

discrete issues raised by Plaintiffs’ wage claims.” Pl.’s Mem.,

ECF No. 13-1 at 6. Ms. Lopez Lima contends that “Defendants’

counterclaims raise numerous issues of state law . . . that do

not relate to Plaintiffs’ overtime.” Id. at 6. But Ms. Lopez

Lima fails to specify what those issues are in her memorandum of

law. See id. Accordingly, Ms. Lopez Lima has failed to

demonstrate that Defendants’ allegations—her alleged destruction

of the time and attendance records, falsification of records,

and receipt of payments for work not performed—would

substantially predominate over the FLSA claims. See Beltran v.

Medcure, Inc., No. 6:13-CV-234-ORL-28,

, at *3

(M.D. Fla. July 23, 2013) (finding that supplemental

jurisdiction was proper where “[t]here [was] no showing that the

[conversion] claim for the [plaintiff’s] alleged overpayment

[would] predominate over the FLSA claim”). The Court therefore

finds that Defendants’ counterclaims do not substantially

predominate over the FLSA claims, over which this Court has

original jurisdiction, for purposes of Section 1367(c)(2).

Finally, “the values of judicial economy, convenience,

fairness, and comity” militate in favor of this Court retaining

jurisdiction over all of the claims. Carnegie–Mellon Univ. v.

Cohill,

(1988). In response to Defendants’

17 argument that this Court should resolve Plaintiffs’ claims and

Defendants’ counterclaims based on those values, see Defs.’

Opp’n, ECF No. 15 at 3-4, Ms. Lopez Lima “fear[s] that

Defendants’ counterclaims would overtake Plaintiffs’ claims and

cloud the process,” Pl.’s Reply, ECF No. 15 at 3. To the

contrary, “any discovery conducted on the [FLSA claims] might

aid a gathering of facts relevant to local-law issues.” Prakash,

; see also Beltran,

, at *3

(finding that “the traditional rationales (judicial economy,

convenience, fairness to the parties, and whether all the claims

would be expected to be tried together) all favor[ed] retaining

jurisdiction” over a conversion counterclaim and a FLSA claim).

Accordingly, the Court will exercise supplemental jurisdiction

over Defendants’ counterclaims.

IV. Conclusion

For the reasons set forth above, the Court DENIES

Plaintiff’s Motion to Dismiss Defendants’ Counterclaims.

Plaintiff shall file an answer to Defendants’ Counterclaims

within fourteen days of the date of this Memorandum Opinion. See

Fed. R. Civ. P. 12(a)(4)(A). A separate Order accompanies this

Memorandum Opinion.

SO ORDERED

Signed: Emmet G. Sullivan United States District Judge March 24, 2020

18