United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants Furkids, Inc.'s
and Samantha Dee Shelton's (collectively
“Defendants”) Motion to Dismiss  for lack of
subject matter jurisdiction (“Motion”).
Laura Moakler (“Moakler”) worked as a Kennel/Vet
Technician for Furkids, a domestic, charitable, nonprofit
provider of pet care, from August 20, 2014, to August 1,
2016. (Id. ¶ 12). Samantha Shelton is its
2, 2016, Defendants were sent correspondence notifying them
that Moakler had obtained counsel to represent her regarding
FLSA overtime claims. (Id. ¶ 28). Ten days
later, Defendants wrote up Moakler for working past 5:00 p.m.
on Wednesday, June 8, 2016. (Id. ¶ 30).
Defendants notified Moakler that overtime would only be paid
if it were approved and that she “would be terminated
should she work overtime again.” (Id.
¶¶ 31, 33). On August 1, 2016, Defendants
terminated Moakler. (Id. ¶ 34). On December 1,
2016, Moakler filed this action, claiming that Furkids
violated the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 215(a)(3) (“FLSA Antiretaliation
Provision”), by terminating Plaintiff in retaliation
for Plaintiff raising FLSA overtime claims. (Compl.
March 10, 2017, Defendants moved to dismiss Moakler's
Complaint pursuant to Fed.R.Civ.P. 12(b)(1). ().
Defendants argue that the Court lacks subject-matter
jurisdiction because “the FLSA does not apply to this
case” since “Moakler's work for Furkids had
nothing to do with interstate commerce.” ([5 at 3-4]).
Defendant purports to mount a “factual attack” on
subject matter jurisdiction. ( ¶ 2 n.1). In support,
Defendant offers the Declaration of Samantha Shelton.
([5-1]). Shelton states that she founded Furkids, Inc., which
is “a 501(c)(3) nonprofit charitable organization that
operates one of the largest cage-free, no-kill shelter in the
Southeast for rescued cats.” ([5-1] ¶ 2). Shelton
asserts that Moakler worked only at the Furkids' cat
shelter located in metro Atlanta, Georgia, and that rescued
animals housed by Furkids are found within Georgia and are
brought to Furkids by Georgia residents. (Id.
¶¶ 4, 6). Shelton further states that
“Furkids' cat and dog shelters do not offer any
services for fees to the general public, and do not [sic]
engage in any ordinary commercial activities.”
(Id. ¶ 7). Shelton acknowledges that
“Furkids operates a thrift store to raise money to care
for its animal residents” but states that
“Moakler did not work at the thrift store, ” the
“thrift store is a completely separate operation from
the cat shelter where Moakler worked, ” and Furkids is
funded primarily through charitable donations. (Id.
¶¶ 8, 9).
states that “Moakler's position as a kennel
technician included giving food and water to the cats,
changing litter, cleaning the facility, supervising the
cats' interactions with each other and with guests, and
otherwise ensuring the clean, safe, and humane care of
Furkids' cat residents.” ([5-1] ¶ 12). Shelton
maintains that “Moakler has never provided commercial
services on behalf of Furkids, or otherwise engaged in
commerce.” ([5-1] ¶ 11).
March 24, 2017, Moakler filed her Response. (). Moakler
maintains that “the central issue for the court on
Defendants' Motion to Dismiss is whether Ms. Moakler can
maintain an action under the FLSA's retaliatory discharge
provision, 29 U.S.C. § 215(a)(3), even if
Defendants' failure to pay overtime does not in fact
constitute a violation of the overtime provision of the Act
because the employment relationship is not covered by the
FLSA.” ( at 2). Moakler argues that she can
“prevail on an FLSA retaliation claim even if she
cannot establish individual or enterprise coverage.”
(Id. at 3, citing Wirtz v. Ross Packaging
Comp., 367 F.2d 549, 550-51 (5th Cir. 1966)).
asserts that “Defendants' Motion is not properly
based on subject matter jurisdiction, and therefore,
Defendants' extrinsic factual exhibits should not be
considered.” (Id. at 3). Nevertheless, Moakler
requests that the Court take judicial notice of information
posted on Defendants' website should the Court consider
extrinsic evidence. (Id. at 3). Moakler contends
that this information demonstrates that “Defendants
operate adoption centers for five PetSmart locations and two
PETCO locations, sell retail merchandise on-line and at the
shelters, and operate three large thrift stores.”
(Id. at 3-4, citing [6-1]). Moakler cites
Defendants' website as demonstrating that Defendants
offer fee for services, like spay and neuter surgeries, to
the public. (Id. at 4, citing [6-1]).
on audited financial statements published on Defendants'
website, Moakler maintains that all of Defendants'
economic activity “takes place under the umbrella of
one business entity - Furkids, Inc., and are accounted for as
one business in Defendant's set of financial
statements.” (Id. at 4, citing [6-2]).
“It appears for Defendant Furkids, Inc.'s 2014
audited financial statements that Furkids generated $601, 210
in revenue from a combination of services provided in
addition to sales from thrift stores.” (Id. at
4, citing [6-2] at 6). “That same revenue amounted to
$486, 302 in 2015.” (Id. at 4, citing [6-3] at
also cites Defendants' website to state that
“Defendants' rescued animals, donors, and adoptive
owners come from various states nationwide.”
(Id. at 5, citing [6-4]). Moakler notes that
“Defendants produced a video to advertise the cat
shelter that went ‘viral' around the world and
generated an ‘influx of donations from around the
country, as well as adoption applications and inquiries from
people interested in volunteering for the
shelter.'” (Id. at 5, citing [6-4] at 2).
April 7, 2017, Defendants filed a Reply. (). Defendants
argue that Wirtz is distinguishable because it did
not involve “the total lack of connection to interstate
commerce that is presented by Plaintiff's work at a local
animal shelter caring for cats.” (Id. at 6).
Defendants maintain that applying the antiretaliation
provision to Moakler “would undermine the
constitutional requirement of interstate commerce
and would extend the reach of that provision far beyond the
reach of Congress' Commerce Clause power. . .”
(Id. at 7 (emphasis in original)).
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). They possess only that power authorized by
the Constitution and conferred by Congress. Bender v.
Williamsport Area School Dist., 475 U.S. 534, 541
(1986). “If the court determines at any time that it