Stotesbery v. Muy Pizza-Tejas, LLC

U.S. District Court, District of Minnesota October 24, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

John Stotesbery, No. 22-cv-01622 (KMM/TNL)

On behalf of himself and those
similarly situated

Plaintiff, ORDER

Muy Pizza-Tejas, LLC; Ayvaz Pizza,
LLC; Shoukat Dhanani; Doe Corporation
1-10; John Doe 1-10,

Defendants

Before the Court is Plaintiff John Stotesbery’s (“Plaintiff”) Second Motion to File a
Third Amended Complaint (ECF 249). For the reasons that follow, the motion is denied.
I. Background
This is a Fair Labor Standards Act (“FLSA”) case involving allegations of wage and
hour violations. Plaintiff is a Pizza Hut delivery driver, who brought his original Complaint
(ECF 1) on his own behalf and on behalf of a putative nationwide collective of other Pizza
Hut Drivers, against Defendant Muy Pizza Tejas, LLC and MUY Pizza Minnesota, LLC
(together, the “Muy Defendants”), Defendant Ayvaz Pizza, LLC and Shoukat Dhanani
(together, the “Ayvaz Defendants”) (collectively, all Defendants are “Defendants”).
Plaintiff alleged that Defendants require him and his fellow delivery drivers to use personal
vehicles to make deliveries and fail to adequately reimburse their resulting expenses, in
violation of federal and common law. See id. at 1. Following motions to dismiss brought
by the Defendants, this Court determined that it lacked personal jurisdiction over those

FLSA claims that lacked a connection with Minnesota. See ECF 58. The Court permitted
the case to go forward as to Minnesota drivers. Id.
After its ruling, the Court granted a joint motion to stay proceedings while the
parties pursued settlement negotiations. ECF 144. This stay ultimately led to a settlement
with the Muy Defendants as to the Minnesota drivers. See, e.g., ECF 220 (Parties’ notice
of settlement). But before this settlement with the Muy Defendants was reached, Plaintiff

also filed a motion for reconsideration, asking the Court to reassess its personal jurisdiction
holding in light of an intervening United States Supreme Court decision, Mallory v. Norfolk
Southern Railway Co.,

600 U.S. 122

(2023). ECF 157. The Court ultimately denied
Plaintiff’s request to seek reconsideration, concluding that Mallory did not constitute a
change of law that warranted a different result. See generally ECF 247. In short, it was the

Court’s conclusion that Mallory stood for a different legal principle—that a defendant may
consent to general personal jurisdiction in a state for all claims against it, arising
anywhere—than what had been at issue in the motion to dismiss in this case—whether
FLSA confers nationwide jurisdiction over claims that lack connection to the litigation
forum. Id. at 4–5.

Meanwhile, while the Court’s ruling on the motion for reconsideration was pending,
the law firm representing Mr. Stotesbery in this matter filed a new case against the Muy
Defendants in the Northern District of Georgia, on behalf of a similar nationwide collective
of delivery drivers. See generally Brown v. MUY Pizza-Tejas, LLC, MUY Pizza Southeast,
LLC, et al, 1:23-cv-01816-MLB (N.D. Ga.). In that case, when faced with a similar motion
to dismiss, the plaintiff argued that, by registering to do business with Georgia’s Secretary

of State, the Muy Defendants had consented to general personal jurisdiction in Georgia for
all claims against them, arising anywhere. See id. (ECF 57 at 3). The Georgia court agreed
and allowed plaintiff to proceed in certifying a nationwide collective of delivery drivers.
Id. (ECF 71 at 15). While the Georgia case proceeded apace (and after this Court’s denial
of leave to file a motion for reconsideration), Plaintiff in this matter filed the pending
motion seeking leave to file a Third Amended Complaint.

Most of the amendments sought1 in the pending motion are directed toward
reestablishing nationwide claims in this case. This is accomplished through new allegations
that the defendant business entities in this case, by registering to do business in Minnesota,
consented to general personal jurisdiction in Minnesota for claims against them arising
anywhere. See ECF 251-1 (Proposed Third Amend. Compl.) ¶¶ 41–42 (proposing new

allegations that “MUY Pizza-Tejas, LLC has registered to do business and registered an

1 The Court observes that at least some proposed amendments do not appear related
to the reintroduction of nationwide claims. See, e.g., ¶ 182 (seeking to replace the allegation
that “[t]he Defendants’ Pizza Hut stores do not reimburse their delivery drivers for the
actual expenses delivery drivers incur” with the allegation that “[t]he Defendants’ Pizza
Hut stores do not reimburse their delivery drivers for the purchase price of their vehicle”);
id. at 73–74 (seeking to introduce a new count of successor liability against the Ayvaz
Defendants). These seemingly unrelated amendments are not addressed by the parties in
the briefing over the pending motion. And as discussed below, the Court’s reasons for
denying the pending motion are based on its conclusion that it is inappropriate to
reintroduce nationwide claims into this case. To the extent that Plaintiff still wishes to seek
amendments to the complaint that are unrelated to nationwide jurisdiction, it may either
meet and confer with opposing counsel and file a stipulation that such amendments are
unopposed, or it may request leave to file supplemental briefing addressing only such
amendments, and the Court will enter a briefing order.
authorized agent for service of process in the state of Minnesota pursuant to Minnesota
state law” and that “MUY Pizza-Tejas, LLC has consented to the Court’s general personal

jurisdiction”); id. ¶¶ 56–67, 109–110 (same allegations for Muy Pizza Minnesota, LLC and
Ayvaz Pizza, LLC, respectively). Other amendments are follow-on allegations that
anticipate the reintroduction of a nationwide collective. See, e.g., id. ¶¶ 225–395 (seeking
to introduce factual allegations related to non-Minnesota-based drivers); id. at 61–73
(seeking to introduce new causes of action arising under the laws of Georgia, Texas,
Florida, South Carolina, North Carolina, New Mexico, and Virginia).

Separately, the Muy Defendants have now settled the cases against them, both in
this Court and in Georgia. Accordingly, the parties have made clear that the motion to
amend now only affects the Ayvaz Defendants. See ECF 291 at 1 (Plaintiff acknowledging
that Settlement of nationwide claims against the Muy Defendants in Georgia rendered the
motion to amend “moot as against the Muy Defendants”).

In support of the pending motion, Plaintiff broadly argues that none of the typical
reasons to deny amendment apply and that he should be free to plead new facts that would
support the formation of a nationwide collective action in this case. See generally ECF 250
(Pl.’s Mem. in Supp. of Mot. to Amend.). Defendants oppose the pending motion. See ECF
259 (Ayvaz Def’s.’ Opp. to Mot. to Amend); ECF 260 (Muy Def’s.’ Opp. to Mot. to

Amend.). The Court held a hearing on July 10, 2024, see ECF 284, and later, a status
conference with Plaintiff and the Ayvaz Defendants on September 11, 2024, in which the
Court heard the parties’ positions as to the effect of intervening developments in another
matter on the pending motion, see ECF 300.
II. Legal Standard
When an amendment is not sought “as a matter of course,” as defined by the Federal

Rules, “[a] party may amend its pleading only with the opposing party’s written consent or
the court's leave.” Fed. R. Civ. P. 15(a)(2).2 The Rule provides that “[t]he court should
freely give leave when justice so requires.” Id. This rule therefore creates a “liberal policy
favoring amendments,” Kozlov v. Associated Wholesale Grocers, Inc.,

818 F.3d 380, 395

 
(8th Cir. 2016) (quotation omitted), but “[t]here is no absolute right to amend” and Rule 15 
is not unbounded, Becker v. Univ. of Neb. at Omaha,

191 F.3d 904, 908

 (8th Cir. 1999). “A 

district court appropriately denies the movant leave to amend if ‘there are compelling 
reasons  such  as  undue  delay,  bad  faith,  or  dilatory  motive,  repeated  failure  to  cure 
deficiencies by amendments previously allowed, undue prejudice to the non-moving party, 


    2 Plaintiff seeks to amend its complaint well after the deadline for doing so in the 
operative scheduling order. See ECF 97 (setting an amended pleadings deadline of May 15, 
2023). As such, this request to amend would typically be subject to Rule 16, which among 
other things, requires the issuance of scheduling orders and allows for modification of such 
orders “only for good cause and with the judge’s consent.” This good-cause standard is 
stricter than that of Rule 15. See Sherman v. Winco Fireworks, Inc.,

532 F.3d 709, 716

 (8th 
Cir. 2008) (“Rule 16(b)’s good-cause standard governs when a party seeks leave to amend 
a pleading outside of the time period established by a scheduling order, not the more liberal 
standard of Rule 15(a).”). Here, however, the Court acknowledges that the lengthy stay in 
this matter created some ambiguity about whether the existing scheduling order truly 
remains in effect. Indeed, it appears that the parties and the Magistrate Judge assigned to 
this matter have been contemplating the need to amend the scheduling order for some time 
(see  ECF  248,  ECF  258),  though  it  is  unclear  whether  the  Magistrate  Judge  would 
ultimately set a new date for amendment of pleadings. Moreover, the Court notes that 
neither Defendant appears to oppose the motion to amend on grounds that the request is 
simply untimely. Thus, despite the apparent tardiness of the motion to amend, the Court 
will apply Rule 15 to Plaintiff’s request. And because the Court denies the amendment 
under Rule 15’s more liberal standard, it assumes without deciding that the request also 
fails under Rule 16.                                                      
or futility of the amendment.’ Hartis v. Chicago Title Ins. Co.,

694 F.3d 935, 948

 (8th Cir. 
2012) (quoting Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc.,

406 F.3d 1052, 1065

 (8th Cir. 2005)).                                                     
III.  Discussion                                                          
    The Court denies Plaintiff’s motion to amend for several reasons. These start with 
the  Court’s  observation  that  the  “amendment”  sought  is  largely  another  effort  at 
reconsideration of the Court’s previous ruling on personal jurisdiction, via a new legal 
theory  that  has  been  available  to  Plaintiff  since  the  outset  of  this  case.3  Through 

amendment, Plaintiff intends to again attempt to form a nationwide FLSA action against 
the Ayvaz Defendants. Plaintiff has already attempted to change the outcome of the Court’s 
decision on jurisdiction via a motion to reconsider. Those efforts failed, and this motion to 
amend is merely another effort to change the jurisdictional landscape, via a new legal 
theory and a different procedural mechanism. In part because this motion for amendment 

functions indistinguishably in outcome from the earlier motion to reconsider, the Court 
concludes that the request for amendment is appropriately denied. See, e.g., SPV-LS, LLC 
v.  Transamerica  Life  Ins.  Co.,

912 F.3d 1106, 1111

  (8th  Cir.  2019)  (“A  motion  for 
reconsideration is not a vehicle to identify facts or legal arguments that could have been, 
but were not, raised at the time the relevant motion was pending.”) (quoting Julianello v. 



    3 This reason is removed from the typical Rule 15(a) analysis, which inquires into 
timeliness, motive, prejudice, and futility. The Court’s other reasons comport with these 
traditional factors—the amendments sought came only after significant delay and would 
prejudice the Ayvaz Defendants if allowed.                                
K-V Pharm. Co.,

791 F.3d 915, 923

 (8th Cir. 2015); Smartmatic USA Corp. v. Lindell, No. 
22-CV-98 (JMB/JFD),

2024 WL 1618349

, at *7 (D. Minn. Apr. 15, 2024) (“A movant 

cannot raise facts or legal arguments [in seeking reconsideration] that they could have 
raised while the motion whose reconsideration is sought was pending.”) (citing Julianello,

791 F.3d at 923

).                                                         
    The Court’s decision is also informed in large part by Plaintiff’s failure to bring this 
request for amendment much sooner.4 The Defendants’ motions to dismiss were brought in 
August 2022. In opposing those motions, Plaintiff chose to argue that FLSA itself conferred 

the requisite personal jurisdiction to bring claims arising anywhere in the United States 
against the Defendants in Minnesota. See ECF 34 (Pl’s Opp. to Mot. to Dismiss). The 
Court’s ruling on Defendants’ motions, delivered from the bench in November 2022, was 
simple: plaintiff’s jurisdictional theory failed under binding Eighth Circuit precedent. See 
Vallone v. CJS Solutions Group, LLC,

9 F.4th 861, 866

 (8th Cir. 2021) (holding that a 

court’s “jurisdiction to entertain a [FLSA] claim with connections to Minnesota” did not 
“establish[] jurisdiction to hear another claim with no such connection”).  
    Following this ruling, Plaintiff had several potential paths forward. One of those 
paths was to immediately seek to replead its case and articulate a different basis for 
nationwide jurisdiction against the Defendants. Whether this Court would have been more 

favorable to such a request in late 2022 is a moot point because Plaintiff instead chose to 

    4 This Court’s analysis of a belated amendment request under Rule 15(a) inquires 
into “undue delay, bad faith, or dilatory motive” by the party seeking amendment. Hartis,

694 F.3d at 948

. Here, the Court discerns nothing in this record that indicates bad faith or
dilatory motive, and its focus is squarely on undue delay.
spend well over a year in settlement discussions, filing a new nationwide FLSA lawsuit
against the Muy Defendants in Georgia, and attempting to persuade this Court to reconsider

its jurisdiction ruling on the erroneous contention that there had been a material change of
law issued by the Supreme Court in Mallory. It is noteworthy that when the Plaintiff first
invoked Mallory in support of reconsideration, he did nothing to demonstrate that Mallory
actually applied, offering no citation to the Minnesota statutes or any other evidence that
the defendants had consented to jurisdiction through registration here. While Plaintiff’s
approach to the jurisdiction issue in the Georgia lawsuit as well as his reliance on Mallory

in seeking reconsideration with this Court certainly foreshadowed what was to come, it
was only in April 20245 that Plaintiff finally made plain that he wanted to allege that, under
Minnesota law, Defendants had consented to jurisdiction in Minnesota over a nationwide
class. In other words, Plaintiff asks to go back to the drawing board and allege a new factual
basis for nationwide jurisdiction premised on the theory of consent under Minnesota law.

But “[w]hen considerable time has elapsed between the initiation of the action and the
motion to amend, the moving party must provide a valid reason for the belatedness of the
motion.” Haukaas v. Liberty Mut. Ins. Co., No. 4:20-CV-04061-KES,

2022 WL 1719412

, 



    5 The pending motion is Plaintiff’s second motion seeking leave to file a third 
amended complaint. The first such motion (ECF 194) was filed in November 2023, and 
sought  leave  to  add  nationwide  allegations  against  James  Bodenstedt,  who  Plaintiff 
contended was unable to dismiss such claims in the same manner that the corporate 
defendants had. See ECF 195 (Mem. in Supp. of First Mot. to File Third Amend. Compl.) 
at 4–5. Plaintiff withdrew this first motion after reaching a settlement in principle with the 
Muy Defendants, including Mr. Bodenstedt. See ECF 217 at 1.               
at *13 (D.S.D. May 27, 2022) (citing Thompson-El v. Jones,

876 F.2d 66

, 68–69 (8th Cir. 
1989)).                                                                   

    Here, the Court concludes that Plaintiff lacks such a valid reason. For example, 
Plaintiff does not suggest that it was only until some revelation in discovery that he was 
aware of facts that would underpin an argument that Defendants had consented to general 
jurisdiction in Minnesota. Nor does Plaintiff argue that the consent theory was legally 
unavailable from the outset of the case, particularly as the Supreme Court’s decision in 
Mallory merely re-affirmed longstanding precedent on the constitutionality of jurisdiction-

by-consent.  See  Mallory,  600  U.S.  at  146  (discussing  and  affirming  the  holding  in 
Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co.,

243 U.S. 93

 (1917)).  Rather, Plaintiff’s failure to allege facts that were consistent with this 
theory until now appears to be the result of a lengthy unawareness that the theory existed. 
Indeed, Plaintiff’s counsel was refreshingly honest on this point during the hearing on the 

pending motion. But this admirable candor does not mitigate Plaintiff’s lengthy delay in 
settling on a new jurisdictional theory in the same way that new evidence or new legal 
development would. And here, the Court concludes that it must simply draw a line in the 
sand.                                                                     
    Finally,  the  Court  considers  prejudice,  because  “[d]elay  alone  is  insufficient 

justification [to deny leave to amend]; prejudice to the nonmovant must also be shown.” 
Bell v. Allstate Life Ins. Co.,

160 F.3d 452, 454

 (8th Cir. 1998). As a general matter, the 
Court  would  find  that  Defendants  face  at  least  some  prejudice  from  the  requested 
amendment simply because it resurrects dismissed claims and therefore intrudes upon an 
expectation of finality in that dismissal. See UMB Bank, N.A. v. Guerin,

89 F.4th 1047, 1057

 (8th Cir. 2024) (noting that when “[w]hen a party moves to amend a complaint after 

[a total] dismissal, a more restrictive standard [than that of Rule 15] reflecting interests of 
finality applies”) (quoting Streambend Props. II, LLC v. Ivy Tower Minneapolis, LLC,

781 F.3d 1003, 1010

 (8th Cir. 2015)). But much more specifically, this Court’s decision on 
nationwide jurisdiction has led each of the Parties to take tangible, significant litigation 
steps that are impossible to ignore in weighing the equities of Plaintiff’s late-requested 
amendment.                                                                

    As noted above, at some point following the Court’s order on the motions to dismiss, 
counsel for Plaintiff brought an almost identical FLSA suit against the Muy Defendants in 
the Northern District of Georgia. The plaintiff in that matter successfully fended off a 
nationwide jurisdiction challenge using a similar consent theory to that presented in the 
pending motion, and a Complaint involving a nationwide class covering all drivers outside 

of Minnesota was moving forward. Having secured nationwide jurisdiction, the Georgia 
plaintiffs were able to reach a settlement with the Muy Defendants in that litigation, and 
Plaintiff no longer seeks amendment as to those defendants. See ECF 291 (Notice of 
Settlement in Principle in Brown v. Muy Pizza-Tejas, LLC et al).          
    That leaves the Ayvaz Defendants, whose Minnesota drivers remain in this case and 

against whom Plaintiff still seeks to amend its complaint to include general consent-to-
jurisdiction allegations. However, the Court finds the balance of prejudice weighs against 
amendment here as well. After this Court’s decision on the motions to dismiss, a different 
plaintiff, represented by a different law firm, brought a FLSA action against the Ayvaz 
Defendants in the Southern District of Texas on behalf of a nationwide collective of Ayvaz 
delivery drivers. See Israel Garza et al. v. Ayvaz Pizza, LLC, 4:23-cv-1379 (S.D. Tx.). The 

nationwide allegations there are virtually identical to the ones Plaintiffs seeks to amend 
back into this case. The Ayvaz Defendants are headquartered in Texas, and therefore 
declined to challenge general personal jurisdiction in Texas. See ECF 283 (Ayvaz Def’s.’ 
Notice of Settlement in Separate Matter) at 2. The Texas matter then settled, resulting in an 
opt-in agreement for Ayvaz delivery drivers in states other than Minnesota, and apparently 
covering a damages period quite similar to that of this lawsuit. See id.; ECF 295 (Pl.’s 

Notice Regarding Garza v. Ayvaz Pizza, LLC Settlement); ECF 296 (Ayvaz Resp. to Pl.’s 
Notice). Indeed, at the hearing Plaintiff conceded that all non-Minnesota drivers who would 
be part of this case will be permitted to opt into that settlement.       
    Despite this settlement, Plaintiff argues that this Court may nevertheless allow for 
an amendment that could result in the formation of a second nationwide collective action 

against the Ayvaz Defendants by its delivery drivers. See ECF 295 at 1 (“The Garza 
settlement is an opt-in, FLSA collective action settlement where only those drivers who 
join the case even arguably release any claims. As a result, it does not moot the claims 
Plaintiffs are seeking to add in this matter.”). This argument fails for two reasons. First, 
Plaintiff’s position regarding the impact of the two settlements is remarkably inconsistent. 

Plaintiff’s counsel states that the opt-in settlement in Georgia with the Muy Defendants, 
involving the same Plaintiff’s counsel as here, renders the pending motion “moot as against 
the Muy Defendants.” See ECF 291 at 1. But Plaintiff takes a different stance on the Texas 
settlement, which was negotiated by and will benefit another law firm. Second, Plaintiff’s 
arguments broadly miss the point. The question is not whether it is legally possible for an 
employer  to  face  multiple  FLSA  actions,  comprising  overlapping  pools  of  potential 

participants. The question is whether it would be prejudicial to allow this amendment in 
this case, as it currently exists. The Court concludes that it undoubtedly would. According 
to the Ayvaz Defendants, the Texas settlement agreement was negotiated without the 
inclusion of Minnesota drivers based on the express acknowledgment that they remained 
in  this  litigation. See  ECF  283  at  2.  It  stretches  credulity  to believe  that  the Ayvaz 
Defendants did not set its strategy in Texas based on the understanding that this Court had 

definitively concluded that it lacked jurisdiction over the claims of drivers elsewhere. And, 
with the Ayvaz Defendants having now committed to those strategic choices by reaching a 
settlement in Texas, it would be highly prejudicial to resurrect a set of nationwide claims 
against them in this case. Finally, the Court notes that any harm to the members of a 
putative  nationwide  collective  caused  by  not  allowing  amendment  in  this  case  is 

ameliorated by those members’ ability to opt into the Texas case. The balance of harms 
therefore strongly favors denying amendment.                              
IV.  ORDER                                                                
    For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Second 
Motion to File a Third Amended Complaint (ECF 249) is DENIED.             


Date: October 24, 2024              s/ Katherine M. Menendez             
                                   Katherine M. Menendez                 
                                   United States District Judge