United States District Court, D. Rhode Island
R. ALEXANDER ACOSTA, Secretary of Labor, United States Department of Labor, Plaintiff,
MADEIRA RESTAURANT INC. d/b/a MADEIRA RESTAURANT, THE WATERFRONT RESTAURANT AND LOUNGE INC. d/b/a AL'S WATERFRONT RESTAUARANT & MARINA, and ALBERTINO MILHO, DAVID MILHO, and KAREN DASILVA, Individually, Defendants.
MEMORANDUM AND ORDER
J. McCONNELL, JR., UNITED STATES DISTRICT JUDGE.
an action under the Fair Labor Standards Act
("FSLA") brought by Plaintiff R. Alexander Acosta,
Secretary of Labor of the United States Department of Labor
("the Secretary of Labor") against Madeira
Restaurant Inc. and The Waterfront Restaurant and Lounge Inc.
d/b/a Al's Waterfront Restaurant &
Marina (all Defendants collectively "Madeira
Restaurant"). By answer, Madeira Restaurant asserts two
counterclaims under the Federal Tort Claims Act
("FTCA"), 28 U.S.C. §§ 1346(b),
2671-2680, and the Equal Access to Justice Act
("EAJA") against the Secretary of Labor. The United
States, on behalf of the Secretary of Labor, moves to dismiss
Madeira Restaurant's counterclaims pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 12.
For the following reasons, the Court GRANTS the Secretary of
Labor's Motion to Dismiss Madeira Restaurant's two
Secretary of Labor's complaint alleges that Madeira
Restaurant violated the FLSA by failing to compensate
properly eleven employees for overtime hours worked. The
Secretary of Labor also alleges that Madeira Restaurant
violated the FLSA by failing to "make, keep, and
preserve adequate and accurate records" related to
employees' wages and hours. ECF No, 1 at 10. The alleged
violations were discovered during an investigation by the
Secretary of Labor that examined Madeira Restaurant's
employment practices from October 31, 2015 to October 28,
2017. The Secretary of Labor sought monetary relief of $45,
130.77 for unpaid wages and an equal amount in liquidated
damages for a total of $90, 261.54.
completion of the investigation and filing of the complaint,
the Secretary of Labor issued the following statement in a
press release: "The defendants knew what the FLSA
required of them yet intentionally disregarded or violated
those requirements. In doing so, they not only deprived their
employees of their hard- earned wages, they also undercut
those competitors who chose to obey the law." ECF No. 9
Restaurant responded by bringing the counterclaims that are
at issue here, seeking damages under the FTCA, for harm
caused by the "false or misleading" press release
that "intentionally or negligently" damaged the
business as well as reimbursement of legal fees and costs
under the EAJA. Id., The Secretary of Labor has moved to
dismiss the FTCA claim for lack of subject matter
jurisdiction and to dismiss the EAJA claim for failure to
state a claim upon which relief can be granted.
APPLICABLE LEGAL STANDARDS
defendant may move for relief asserting lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). Fed.R.Civ.P. l2(b)(1). Subject matter jurisdiction
is "never presumed." Viqueira v. First
Bank, 140 F.3d 12, 16 (1st Cir. 1998). If a party
invokes subject matter jurisdiction, it must show by a
preponderance of the evidence that jurisdiction is proper.
Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 31 (1st
Cir. 2008). The Court may look to materials beyond the
pleadings when deciding on a Rule l2(b)(1) motion.
Gonzalez v. United States, 284 F.3d 281, 288 (1st
complaint can also be dismissed under Federal Rule of Civil
Procedure 12(b)(6) where it fails to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a
motion for dismissal under Rule 12(b)(6), the complaint must
contain enough facts "to state a claim to relief that is
plausible on its face." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim that is
simply conceivable is not enough. Id. For a claim to
be "facially plausible," the factual allegations,
accepted as true, must provide a "reasonable inference
that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The Court must accept as true only factual
allegations, and not legal conclusions. Id.
Madeira Restaurant's Claim Under the FTCA
longstanding principle, the United States, as sovereign,
"is immune from suit save as it consents to be sued ...
and the terms of its consent to be sued in any court define
that court's jurisdiction to entertain the suit."
United States v. Sherwood, 312 U.S. 584, 586 (1941),
When the Government waives sovereign immunity,
"limitations and conditions upon which the Government
consents to be sued must be strictly observed and exceptions
thereto are not to be implied." Soriano v.
United States, 352 U.S. 270, 276 (1957).
circumstances, the United States consents to be sued under
the FTCA. "The FTCA provides a 'carefully limited
waiver' of the federal government's sovereign
immunity for certain claims alleging harm caused by United
States employees or agents." Carroll v. United
States, 661 F.3d 87, 93 (1st Cir. 2011) (quoting
Bolduc v. United States, 402 F.3d 50, 62 (1st Cir.
2005)). More precisely, the FTCA grants district courts
jurisdiction in civil suits against the United States for:
[I]njury or loss of property ... caused by the negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
under circumstances where the United States, if a private
person, would be liable to the claimant in ...