Callwood v. Ferdi's Forest, Inc.

Aziewe Callwood, Pro Se St. Croix, U.S.V.I.

Kevin A. Rames, Esq., St. Croix, U.S.V.I. For Defendants

MEMORANDUM OPINION

WILMA A. LEWIS DISTRICT JUDGE

THIS MATTER comes before the Court on Defendants Ferdi's Forest, Inc. and Abraham Ferdinand's (collectively “Defendants”) “Motion to Dismiss for Lack of Federal Question Jurisdiction” (“Motion to Dismiss”) (Dkt. No. 8); Plaintiff Aziewe Kenyatta Callwood's (“Plaintiff”) Opposition thereto (Dkt. No. 10); Defendants' Reply (Dkt. No. 11); and Plaintiff's Sur-Reply (Dkt. No. 12).^[1] For the following reasons, the Court finds that it lacks subject matter

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jurisdiction over Plaintiffs Bivens and 42 U.S.C. § 1983 claims, but has jurisdiction over Plaintiffs federal Fair Labor Standards Act (“FLSA”) claim and supplemental jurisdiction over the local claims. Therefore, the Court will grant in part and deny in part Defendants' Motion to Dismiss.

I. BACKGROUND

Plaintiff, who worked with Defendant Ferdi's Forest, Inc., brings the instant action pro se, asserting claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983. Plaintiff alleges that his Fifth, Eighth, and Fourteenth Amendment rights have been violated. Plaintiff further alleges a violation of the FLSA; Contract Fraud; Breach of Contract; and Employee Misclassification. (Dkt. No. 1 at 3).

Among other things, Plaintiff alleges that he received an “Independent Contractor Agreement in the disguise as [a] Job Application” from Defendants. Id. However, Plaintiff states that he does not have a contractor license, certification, or permit. Id. Plaintiff argues that Defendant Ferdinand “misclassified” him as an Independent Contractor. (Dkt. No. 10 at 10). Plaintiff further claims that he received an IRS Form 1099-MISC, which should not be provided to employees. (Dkt. No. 12 at 4). Rather, Plaintiff argues that he should have received a W-2 form, and that he “was deprived of the form w-2” by Defendants, which caused him to be “deprived of unemployment benefits, workers compensation, Social Security earnings, Medicare earnings, [and] Federal and State taxes that are to be withheld from the employee by the employer.” Id. at 4, 5.

Plaintiff also states that Sarah Ferdinand-the business manager of Ferdi's Forest, Inc.- made a false claim to him when she told him that it was “to[o] bad” that he could not “handle the

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employment, ” and that she made “cruel [and] unusual” statements to him when she informed him that she hoped he would not be “calling . . . their home for large sums of money.” (Dkt. No. 1 at 2, 4). As relief for his various claims, Plaintiff seeks monetary damages, injunctive relief, and “[s]anctions as the Court may deem necessary.” Id. at 4.

In response, Defendants filed a Motion to Dismiss, wherein they ask the Court to dismiss the action for lack of federal question jurisdiction. (Dkt. No. 8). Defendants assert that Plaintiff worked part-time as a landscaper, and that he signed an “Acknowledgment that he was an independent contractor working for Ferdi's Forest” after “the end of his employment, ” which is titled “Independent Contractor Agreement.” (Dkt. No. 8 at 1-2; Dkt. No. 8-1 at 1). The “Agreement” also states that it “will become effective on 10-26-18, and will end no later than [blank].” (Dkt. No. 8-1 at 1). A note, dated May 2019 and appended to the Motion to Dismiss, states that Plaintiff was a contractor whose relationship with Defendants was terminated on February 27, 2019, and that Plaintiff accepted a gift of $500 “to help him move forward.” (Dkt. No. 8-2).

Defendants argue that the Court should dismiss the case under Rule 12(b)(1) for several reasons. First, Defendants argue that Bivens is inapplicable, as the case does not involve any “federal actor and there is no action by either the federal or the Territorial government.” (Dkt. No. 8 at 2). Second, Defendants assert that they cannot violate Plaintiff's Fifth, Eighth, or Fourteenth Amendment rights because they are private persons and such violations can only occur by state actors, or private persons acting in concert with state actors, which was not alleged. Id. at 3-4. Third, Defendants assert that the remaining claims lack a federal nexus. Id. at 4. Defendants characterize Plaintiff's claim under the FLSA as a “putative violation[] of the Virgin Islands' Fair Labor Standards Act, ” citing 24 V.I.C. §§ 1-23 (1997) and Yutzy v. Super Max Convenience Store,

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No. ST-10-SM-598, 2012 WL 511535 (V.I. Super. Ct. Feb. 13, 2021). Id. Defendants assert that Plaintiffs claims for Breach of Contract and the Virgin Islands Fair Labor Standards Act “are, broadly speaking, local common law and statutory tort claims.” Id.

II. APPLICABLE LEGAL PRINCIPLES

It is axiomatic that federal courts are courts of limited subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Federal courts possess subject matter jurisdiction only over cases that present a federal question, 28 U.S.C. § 1331, or when diversity of citizenship exists and the value of the claim exceeds $75, 000, exclusive of interest and costs, 28 U.S.C. § 1332(a).

Where-as here-the parties are not diverse, this Court's jurisdiction must be based on the existence of a federal question. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (“Absent diversity of citizenship, federal-question jurisdiction is required.”). Pursuant to 28 U.S.C. § 1331, federal courts have jurisdiction over actions that “aris[e] under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331; see also Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006) (“A plaintiff properly invokes § 1331 jurisdiction when she pleads a colorable claim ‘arising under' the Constitution or laws of the United States.”). When faced with determining whether the Court has original “arising under” jurisdiction, the “well-pleaded complaint” rule applies under which “federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.” Caterpillar Inc., 482 U.S. at 392.

Federal question jurisdiction may arise in two ways. First, “a case arises under federal law when federal law creates the cause of action asserted.” Goldman v. Citigroup Global Mkts., Inc., 834 F.3d 242, 249 (3d Cir. 2016) (quoting Gunn v. Minton, 568 U.S. 251, 257 (2013)) (internal quotation marks omitted); Gardiner v. St. Croix Dist. Governing Bd. of Dirs., 859 F.Supp.2d 728, 732 (D.V.I. 2012). In those cases, federal courts unquestionably have federal subject matter

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jurisdiction. Gardiner, 859 F.Supp.2d at 732 (citing Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808 (1986)). Second, in a narrower category of cases, “a case may [also] arise under federal law ‘where the vindication of a right under state law necessarily turn[s] on some construction of federal law.'” Gardiner, 859 F.Supp.2d at 732 (quoting Merrell Dow, 478 U.S. at 808) (internal quotation marks omitted) (alterations in original).

Pursuant to Fed.R.Civ.P. 12(b)(1), a defendant may move to dismiss a complaint for lack of subject matter jurisdiction. For such challenges to subject matter jurisdiction, the plaintiff bears the burden of persuasion. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (citing Mortensen v. First Fed. Sav. and Loan Ass 'n, 549 F.2d 884, 891 (3d Cir. 1977)). An attack under Rule 12(b)(1) to a court's subject matter jurisdiction can be either a facial or factual attack. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen, 549 F.2d at 891). A facial attack-as it is denominated-challenges the sufficiency of the jurisdictional allegations in the complaint on their face. Petruska v. Gannon University, 462 F.3d 294, 302 n.3 (3d Cir. 2006). A facial attack requires that a court “only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” Gould Elecs. Inc., 220 F.3d at 176. In a factual attack, a court may consider evidence beyond the complaint and “no presumptive truthfulness attaches to plaintiffs allegations.” Mortensen, 549 F.2d at 891.

III. DISCUSSION

Defendants make a facial challenge under Rule 12(b)(1), disputing that Plaintiff adequately pleaded any action arising under federal law. (Dkt. No. 8 at 2). For purposes of the Motion, Defendant does not dispute the facts that Plaintiff alleges, only whether those facts support federal question jurisdiction. See Id. (arguing that Plaintiffs facts as alleged do not support any federal cause of action). As such, the Court must view Plaintiffs complaint and documents referenced

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therein and attached thereto, in the light most favorable to Plaintiff. Gould Elecs., Inc., 220 F.3d at 176. Further, Plaintiff's pleadings are liberally construed, as pro se parties are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972); Elliott v. Akator Construction, No. 2:21-cv-337, 2021 WL 3131215, at *1 (W.D. Pa. July 22, 2021). Plaintiff's alleged causes of action referencing federal or constitutional law are examined below, to determine whether federal question jurisdiction exists under 28 U.S.C. § 1331.

A. Plaintiff's Bivens and § 1983 Claims

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court broke new ground, holding that a violation of the Fourth Amendment by a “federal agent acting under color of his authority gives rise to a cause of action for damages” for his unconstitutional...