Green et al v. Perry's Restaurants LTD et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 21-cv-0023-WJM-NRN
LANCE GREEN, individually and on behalf of all others similarly situated, and
ANDERSON KHALID, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
PERRY’S RESTAURANTS LTD,
PERRY’S STEAKHOUSE OF COLORADO, LLC, d/b/a PERRY’S STEAKHOUSE AND
GRILLE, AND
CHRISTOPHER V. PERRY,
Defendants.
ORDER DENYING DEFENDANT PERRY’S RESTAURANTS LTD’S RULE
12(b)(3) MOTION TO DISMISS AND GRANTING DEFENDANT PERRY’S
STEAKHOUSE OF COLORADO’S RULE 12(b)(6) MOTION TO DISMISS
This matter is before the Court on Defendants Perry’s Restaurants LTD (“PRL”),
Perry’s Steakhouse of Colorado, LLC (“PSC”), and Christopher Perry’s (collectively,
“Defendants”) two Motions to Dismiss certain of Plaintiffs Lance Green and Anderson
Khalid’s (jointly, “Plaintiffs”) claims (“Motions”). (ECF Nos. 27 & 28.) For the following
reasons, PRL’s Motion is denied, and PSC’s Motion is granted.
I. BACKGROUND AND PROCEDURAL HISTORY1
This putative class action arises out of Defendants’ alleged failure to pay
Plaintiffs’ earned wages due to certain tip-pooling policies. (ECF No. 1.) PRL is a
1 The following facts are taken from Plaintiffs’ Amended Complaint (ECF No. 13), which the
Court assumes are true for the purpose of resolving the Motions. See Ridge at Red Hawk,
L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
Case No. 1:21-cv-00023-WJM-NRN Document 59 filed 10/29/21 USDC Colorado
pg 1 of 12

2
limited partnership headquartered in Houston, Texas, and PSC is a limited liability
company and subsidiary of PRL, located in Lone Tree, Colorado.2 (Id. ¶¶ 22–23.)
Plaintiffs are individuals who were employed by the entity Defendants as servers for
three years and paid a “direct cash wage” of less than minimum wage. (Id. ¶¶ 17–18.)
Plaintiffs initiated this action on January 5, 2021. (ECF No. 1.) They filed an
Amended Complaint on February 16, 2021, which is the operative complaint. (ECF No.
13.) Plaintiffs bring two claims: (1) failure to pay minimum wage and engaging in
unlawful kickbacks in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201, et seq.; and (2) failure to pay minimum wage and provide meal and rest periods
in violation of Colorado state wage laws. (Id. ¶¶ 108–25.) Plaintiffs bring both claims
against all three Defendants. (Id.)
PRL filed its Motion on March 5, 2021. (ECF No. 27.) Plaintiffs responded on
July 27, 2021, and PRL replied on August 13, 2021. (ECF Nos. 49 & 58.) PSC also
filed its Motion on March 5, 2021. (ECF No. 28.) Plaintiffs responded on March 26,
2021, and PSC replied on April 9, 2021. (ECF Nos. 34 & 35.)
II. LEGAL STANDARD
A. 	Rule 12(b)(3)
Rule 12(b)(3) allows a defendant to move to dismiss a complaint due to improper
venue. Once a defendant challenges venue, the plaintiff carries the burden to show that
venue is proper in the forum district. See Gwynn v. TransCor Am., Inc., 26 F. Supp.
1256, 1261 (D. Colo. 1998). “At the motion to dismiss stage, a plaintiff must present
2 The Amended Complaint does not identify Defendant Perry beyond naming him in the caption,
but Court imagines that he is an executive of one of the Defendant companies.
Case No. 1:21-cv-00023-WJM-NRN Document 59 filed 10/29/21 USDC Colorado
pg 2 of 12

3
only a prima facie showing of venue.” Scott v. Buckner Co., 388 F. Supp. 3d 1320,
1324 (D. Colo. 2019). “[I]n reviewing a defendant’s Rule 12(b)(3) motion to dismiss for
improper venue, the Court may examine facts outside of the complaint and must draw
all reasonable inferences and resolve all factual conflicts in favor of the plaintiff.” Id. A
court must “accept the well-pleaded allegations of the complaint as true to the extent
that they are uncontested by the defendant’s affidavits.” Id. (quoting Karl W. Schmidt &
Assocs., Inc. v. Action Envtl. Sols., LLC, 2014 WL 6617095, at *2 (D. Colo. Nov. 21,
2014)). “If the parties present conflicting affidavits, all factual disputes are resolved in
the plaintiff’s favor, and the plaintiff’s prima facie showing is sufficient notwithstanding
the contrary presentation by the moving party. Scott, 338 F. Supp. 3d at 1324.
B. 	Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
claim in a complaint for “failure to state a claim upon which relief can be granted.” The
Rule 12(b)(6) standard requires the Court to “assume the truth of the plaintiff’s well-
pleaded factual allegations and view them in the light most favorable to the plaintiff.”
Ridge at Red Hawk, 493 F.3d at 1177. In ruling on such a motion, the dispositive
inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is
plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously
studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect
the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir.
2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed
Case No. 1:21-cv-00023-WJM-NRN Document 59 filed 10/29/21 USDC Colorado
pg 3 of 12

4
even if it strikes a savvy judge that actual proof of those facts is improbable, and that a
recovery is very remote and unlikely.’” Id. (quoting Twombly, 550 U.S. at 556).
C. 	28 U.S.C. § 1404 Transfer of Venue
“For the convenience of parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or division where it might have
been brought.” 28 U.S.C. § 1404(a). The party seeking to transfer a case pursuant to §
1404(a) bears the burden of establishing that the existing forum is inconvenient. See
Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir. 1991).
In ruling on a motion to transfer venue, district courts must assess whether the
“competing equities” weigh in favor of adjudicating the case in that district. See Hustler
Magazine, Inc. v. U.S. Dist. Ct. for Dist. of Wyo., 790 F.2d 69, 71 (10th Cir. 1986). In
the context of a § 1404(a) motion to transfer, “[u]nless the balance of the inconvenience
is strongly in favor of the movant, the plaintiff’s choice of forum should rarely be
disturbed.” Evans v. Union Pac. R.R. Co., 2014 WL 1309306, at *2 (D. Colo. Apr. 1,
2014) (quoting Bailey v. Union Pac. R.R. Co., 364 F. Supp. 2d 1227, 1229 (D. Colo.
2005)).
III. ANALYSIS
A. 	PRL’s Motion to Dismiss or Transfer Venue
i. 	Rule 12(b)(3) Dismissal for Improper Venue
PRL seeks dismissal of the claims against it pursuant to Rule 12(b)(3) for
improper venue, or, in the alternative, transfer of the action to the United States District
Court for the Southern District of Texas. (ECF No. 27.)
Case No. 1:21-cv-00023-WJM-NRN Document 59 filed 10/29/21 USDC Colorado
pg 4 of 12

5
Venue is proper in a judicial district in which any one defendant resides, if all
defendants are residents of the state in which the district is located, or a judicial district
in which a substantial part of the events or omissions giving rise to the claim occurred.
28 U.S.C. § 1391(b)(1)–(2). This substantiality requirement is satisfied if the acts and
omissions at issue have a close nexus to the alleged claims. See Employers Mut. Cas.
Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1166 (10th Cir. 2010). A court looks “not to a
single triggering event prompting the action, but to the entire sequence of events
underlying the claim.” Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 42 (1st Cir.
2001).
First, Plaintiffs argue that PRL’s failure to challenge the Court’s exercise of
personal jurisdiction deems it to reside in Colorado for the purposes of the venue
analysis, and therefore venue is proper under § 1391(b)(1). (ECF No. 49 at 8–9.)
Where a party fails to object to personal jurisdiction by filing a Rule 12(b)(2) motion to
dismiss, every court to consider the issue has found that such waiver deems venue
proper in the district exercising personal jurisdiction. See Ward v. Certain Underwriters
at Lloyd’s of London, 2019 WL 2076991, at *4–5 (N.D. Cal. May 10, 2019) (“As far as
this Court is aware, every court to consider the issue has held that personal jurisdiction
even based on waiver is sufficient to establish ‘residency’ for the purpose of
§ 1391(c)(2).”); see also Augusta Nat’l, Inc. v. Green Jacket Auctions, Inc., 2018 WL
797434, at *3 (N.D. Ga. Feb. 8, 2018) (collecting cases). Thus, this waiver alone is
likely sufficient to establish the propriety of venue in this District. However, because
neither the Tenth Circuit nor a District of Colorado has ruled on the issue, for the sake of
thorough analysis, the Court will consider whether venue is proper under § 1391(b)(2).
Case No. 1:21-cv-00023-WJM-NRN Document 59 filed 10/29/21 USDC Colorado
pg 5 of 12

6
Plaintiffs argue that a substantial portion of the events and omissions giving rise
to this action arose in this District, as Khalid was employed by PSC in Colorado and
suffered the alleged wage and hour violations there. (ECF No. 49 at 9–12.)
Additionally, they argue that PRL promulgates policies concerning wages and tips which
PSC implements in Colorado. (Id. at 11–12; see also ECF No. 13 ¶¶ 52–58.) Further,
Plaintiffs assert that PRL hires employees, processes payroll for employees, and sends
representatives to Colorado to conduct site visits, as confirmed by attached responses
to interrogatories by PRL and photographs of PRL directors at the ribbon-cutting
ceremony for PSC’s opening. (ECF No. 49-1; ECF No. 49-3.)
Having reviewed the allegations in the Amended Complaint, the Court finds that
Plaintiffs have sufficiently alleged that PRL’s policies and practices caused impacts in
Colorado, namely, the purported wage and hour violations at issue. (ECF No. 13 ¶¶
108–25.) Because the allegedly unlawful wage policies underlie the violations, there is
a nexus between PRL’s actions and the violations at issue. See Employers Mut. Cas.
Co., 618 F.3d at 1166.
Given PRL’s failure to challenge personal jurisdiction through the filing of a Rule
12(b)(2) motion to dismiss—in addition to the clear and undeniable nexus between the
alleged unlawful policies and their effects in Colorado—the Court finds that venue is
proper in this District. Accordingly, PRL’s Motion is denied to the extent it seeks
dismissal of the action pursuant to Rule 12(b)(3).
ii. 	Section 1404(a) Transfer of Venue
In the event PRL’s Motion is denied as to dismissal, it seeks transfer of the
claims against it to the United States District Court for the Southern District of Texas.
Case No. 1:21-cv-00023-WJM-NRN Document 59 filed 10/29/21 USDC Colorado
pg 6 of 12

7
(ECF No. 27 at 7–13.) Specifically, it argues that the equities under § 1404(a)
necessitate transfer due to considerations of convenience and fairness to PRL and
witnesses. (Id. at 9–13.)
In determining whether transfer is appropriate, a court considers the following
factors:
(1) plaintiff’s choice of forum; (2) the accessibility of witnesses
and 	other 	sources 	of 	proof, 	including 	the 	availability 	of
compulsory process to insure attendance of witnesses; (3) the
cost of making the necessary proof; (4) questions as to the
enforceability of a judgment if one is obtained; (5) relative
advantages and obstacles to a fair trial; (6) difficulties that may
arise 	from 	congested 	dockets; 	(7) 	the 	possibility 	of 	the
existence of questions arising in the area of conflict of laws;
(8) the advantage of having a local court determine questions
of local law; and (9) all other considerations of a practical
nature that make a trial easy, expeditious and economical.
Chrysler Credit Corp., 929 F.2d at 1516 (quoting Texas Gulf Sulphur Co. v. Ritter, 371
F.2d 145, 147 (10th Cir. 1967)). Defendants do not argue that the first, seventh, or
eighth factors favor transfer.3 (ECF No. 27 at 9.)
First, PRL argues that most of its employees and anticipated witnesses would be
inconvenienced by travel from Texas to Colorado should this matter proceed. (Id. at
10.) However, PRL does not identify particular witnesses who would be inconvenienced
by travel and concedes that the parties may conduct depositions remotely. (Id. at 10.)
Additionally, the routine work-related travel of PRL employees for site visits and events
(ECF No. 49-1; ECF No. 49-3) further undercuts its argument that sending any
3 The Court notes, however, that the first factor favors Plaintiffs, as the Court affords their choice
of forum substantial deference. See Bailey, 364 F. Supp. 2d at 1229.
Case No. 1:21-cv-00023-WJM-NRN Document 59 filed 10/29/21 USDC Colorado
pg 7 of 12

8
employee to Colorado to litigate this action would be an inconvenience warranting
transfer. The Court therefore finds that this factor does not favor transfer.
Second, PRL concedes that most courts currently conduct hearings remotely due
to the COVID-19 pandemic but speculates that courts will soon resume in-person
hearings, and travel would be inconvenient. (ECF No. 27 at 11.) For the same reasons
as explained in relation to the prior factor, the Court finds that this factor also does not
favor transfer.
Third, PRL argues that its assets are located in Texas, so a judgment against it
by this Court would be difficult for Plaintiffs to collect. (Id. at 11.) Given that courts
routinely issue judgments that require satisfaction by out-of-state parties, the strength of
this factor is well short of sufficient to overcome Plaintiffs’ choice of forum.
Fourth, concerning the advantages and obstacles to a fair trial, PRL argues that
“there would be no obstacles to a fair trial in Texas.” (Id. at 11–12.) Wholly apart from
PRL’s bald and inappropriate effort to shift the burden to Plaintiffs to prove that Texas
would be inconvenient, it argues only that Texas would be more convenient for
Plaintiffs. (Id.) However, Plaintiffs already selected Colorado as their forum, and PRL
does not argue that litigating in Colorado would interfere with PRL’s right to a fair trial.
Moreover, “[s]ection 1404(a) only authorizes the transfer of an entire action, not
individual claims.” Chrysler Credit Corp., 928 F.2d at 1518. Given the extraordinary
burden severance of the claims against PRL would impose on Plaintiffs, and PRL’s
failure to identify any obstacles to a fair trial in this District, this factor also militates
against transfer.
Case No. 1:21-cv-00023-WJM-NRN Document 59 filed 10/29/21 USDC Colorado
pg 8 of 12

9
Fifth, PRL argues that this District’s congested docket causes a median time
interval of case disposition of approximately 18 months, 50% greater than the
disposition time of courts in the Southern District of Texas. (ECF No. 27 at 12–13.)
Plaintiffs counter this argument with more recent data reflecting a somewhat lower
median time interval in this District (7.6 months in this District as compared to 8.2
months in the Southern District of Texas). (ECF No. 49 at 15.) Given the insignificant
difference in the timing of motions dispositions between the two Districts, Court finds
that this factor is immaterial to the analysis and does not favor transfer.
Finally, as to the ninth factor, PRL offers only conclusory statements that its
proposed forum would be more convenient as it pertains to practical considerations,
repeating that travel to Colorado from Texas for trial would inconvenience it and
witnesses. (ECF No. 27 at 13.) For the reasons discussed above, such contentions are
insufficient to overcome Plaintiffs’ choice of forum.
Finding that none of the factors heavily favor transfer, the Court concludes that
the equities favor the action remaining in this District, the forum that Plaintiffs have
properly selected. See Bailey, 364 F. Supp. 2d at 1229. As such, PRL’s Motion is
denied in its entirety.
B. 	PSC’s Partial Motion to Dismiss
PSC argues that to the extent Green or any class members employed at other
restaurants assert claims against it, such claims fail because PSC was not their
employer within the meaning of the FLSA. (ECF No. 28 at 2–4.) 	Specifically, PSC
contends that its only location is in Lone Tree, Colorado, and Khalid is the only named
plaintiff who was employed by PSC. (Id. at 3–4.) In response, Plaintiffs argue that all
Case No. 1:21-cv-00023-WJM-NRN Document 59 filed 10/29/21 USDC Colorado
pg 9 of 12

10
Defendants were collectively their employers, and therefore PSC may be held liable by
all Plaintiffs for FLSA violations, regardless of whether those Plaintiffs physically worked
at PSC in Colorado. (ECF No. 34 at 4–9.)
The Tenth Circuit has adopted the economic realities test for determining the
existence of an employment relationship under the FLSA. Doty v. Elias, 733 F.2d 720,
722–23 (10th Cir. 1984). The Tenth Circuit has set out six factors for courts to consider
in performing this test:
(1) the degree of control exerted by the alleged employer over
the worker; (2) the worker’s opportunity for profit or loss; (3)
the worker’s investment in the business; (4) the permanence
of the working relationship; (5) the degree of skill required to
perform the work; and (6) the extent to which the work is an
integral part of the alleged employer's business.
Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1436, 1440 (10th Cir. 1998).
As noted by PSC, Plaintiffs do not specifically allege that PSC exercised
supervisory authority over any putative plaintiff other than Khalid. (ECF No. 28 at 2–4;
see also ECF No. 13 ¶¶ 18, 35, 36, 53 & 55.) Rather, Green worked at a restaurant in
Alabama, and Plaintiffs seek to hold PSC liable for the claims of putative class members
in Alabama, North Carolina, and Florida, all in addition to Colorado. (ECF No. 13 ¶¶ 1,
16.) Although Plaintiffs argue that they allege PSC’s employment relationship to other
plaintiffs via their allegations against Defendants collectively, they fail to point to any
specific allegations tying any putative plaintiff apart from Green to PSC in particular.4
(ECF No. 34 at 4–6; ECF No. 13 ¶¶ 18, 35, 36, 53 & 55.)
4 To the extent Plaintiffs focus on allegations that Khalid and the Colorado Class Members may
properly assert claims against PSC (ECF No. 34 at 5–6), such argument is inapposite, as PSC
only challenges the inclusion of out-of-state Plaintiffs whom it did not employ. (See generally
ECF No. 28.)
Case No. 1:21-cv-00023-WJM-NRN Document 59 filed 10/29/21 USDC Colorado
pg 10 of 12

11
Considering the complete lack of factual allegations supporting any of the
relevant factors of the economic realities analysis, the Court concludes that no
employment relationship exists between PSC and Green or any other putative class
member who was not directly employed by PSC. See Leber v. Berkley Vacation
Resorts, Inc., 2009 WL 2252517, at *5–6 (D. Nev. July 27, 2009) (dismissing complaint
where no specific allegations tied all plaintiffs to employer defendants). PSC’s Motion is
therefore granted, and the claims against it are dismissed to the extent they are brought
by Green or any other class member who was not employed at PSC’s Colorado
location.5
Dismissal of an action or claim is a harsh remedy, and a court may liberally grant
a litigant leave to cure pleading deficiencies. See Hall v. Bellmon, 935 F.2d 1106,
1109–10 (10th Cir. 1991). Such leave is not to be granted, however, where amendment
would be futile. See Fleming v. Coulter, 573 F. App’x 765, 769 (10th Cir. 2014). “A
proposed amendment is futile if the complaint, as amended, would be subject to
dismissal.” United States ex rel. Barrick v. Parker-Migliorini Int’l, LLC, 878 F.3d 1224,
1230 (10th Cir. 2017). As no employment relationship exists or ever existed between
PSC and any Plaintiffs who did not at any time work at that restaurant, amendment
would be futile, and the dismissal is therefore with prejudice as to any claims brought by
such Plaintiffs and against PSC.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
5 The Court does not discount that other plaintiffs actually employed by PSC may later join this
action; claims against PSC by such plaintiffs would, of course, not be barred.
Case No. 1:21-cv-00023-WJM-NRN Document 59 filed 10/29/21 USDC Colorado
pg 11 of 12

12
1. 	PRL’s Motion (ECF No. 27) is DENIED;
2. 	PSC’s Motion (ECF No. 28) is GRANTED; and
3. 	Plaintiffs’ FLSA claims against PSC are DISMISSED WITH PREJUDICE to the
extent they are brought by Green or any putative class member who was not
employed by PSC.
Dated this 29 th day of October, 2021.
BY THE COURT:
______________________
William J. Martinez
United States District Judge
Case No. 1:21-cv-00023-WJM-NRN Document 59 filed 10/29/21 USDC Colorado
pg 12 of 12