United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, District Judge.
This matter is before the Court on plaintiff William Herbst's Motion to Dismiss Defendant's Counterclaims and Motion to Strike Defendant's Affirmative Defenses. Defendant Ressler & Associates, Inc. ("Ressler") opposes the motion and it is fully briefed and ready for decision. For the following reasons, the Court will (1) grant plaintiff's motion to dismiss Ressler's counterclaims, in part for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, and in part for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Fed. R. Civ. P.; and (2) grant in part and deny in part plaintiff's motion to strike Ressler's affirmative defenses.
The complaint alleges as follows: Ressler sells and services engineered process equipment for municipal and industrial water and wastewater treatment. Ressler employed plaintiff as a Field Service Technician. Plaintiff was responsible for servicing equipment manufactured or offered by manufacturers that Ressler represented. Plaintiff's primary duty was to perform manual labor that consisted of installing, repairing and troubleshooting engineered process equipment, such as filters, gauges and pumps, at municipal and industrial water and wastewater treatment plants.
Plaintiff filed this action on November 19, 2013, asserting a claim for violation of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 201-219, and a supplemental state law claim for violation of Missouri's Minimum Wage Law, Mo. Rev. Stat. §§ 290.500-.580 (2000). Plaintiff seeks damages for unpaid overtime compensation, liquidated damages, interest, attorneys' fees and costs. Ressler filed its answer and affirmative defenses (Doc. 8), and also filed counterclaims for fraud and malicious prosecution (Doc. 9).
The fraud counterclaim alleges that plaintiff concealed material facts and made false representations in seeking and accepting employment with Ressler, and in continuing his employment, as follows:
a. Plaintiff intentionally concealed his criminal record.
b. Plaintiff intentionally concealed the fact that he was a convicted felon.
c. Plaintiff intentionally concealed his prison record.
d. Plaintiff intentionally concealed the fact that he was on parole or probation from imprisonment at the time of his employment application.
e. Plaintiff intentionally concealed the fact that he was described by the Jefferson County, Missouri court system as an "aggravated offender."
f. Plaintiff intentionally concealed his injury and physical disability occurring prior to his employment with Defendant so as to later claim the same injury and physical disability arose out of the course and scope of his employment with Defendant.
g. With knowledge that he was required to operate a motor vehicle as an essential element of his employment, Plaintiff intentionally concealed his history of charges and convictions of driving while intoxicated or driving under the influence of alcohol.
h. Plaintiff concealed the fact that he spent considerable time on his personal affairs while purporting to be acting on behalf of Defendant during regular business hours.
i. Plaintiff concealed the fact that he falsified his expense reimbursement reports so as to obtain payment from Defendant fraudulently on account of his personal expenses in addition to business related expenses.
j. Plaintiff falsified his work schedule and time expended on Defendant's behalf.
k. Plaintiff falsified his records of hours expended and falsified the time he actually spent each day in the service of Defendant.
Counterclaim at 2 (Doc. 9).
Plaintiff moves to dismiss Ressler's counterclaims pursuant to Rules 12(b)(1), 9(b) and 12(b)(6), Fed.R.Civ.P. Plaintiff argues that (1) the Court lacks subject matter jurisdiction over these permissive counterclaims as there is no supplemental jurisdiction over them; (2) Ressler fails to plead its fraud counterclaim with the particularity required by Rule 9(b), and (3) in the alternative, Ressler's counterclaims fail to state a claim upon which relief can be granted.
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Plaintiff's motion to dismiss first asserts that the Court lacks subject matter jurisdiction over Ressler's counterclaims. "[J]urisdiction is a threshold question and must be answered before all other questions." Ginters v. Frazier , 614 F.3d 822, 826 (8th Cir. 2010).
"In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the [counterclaim] must be successfully challenged on its face or on the factual truthfulness of its averments." Titus v. Sullivan , 4 F.3d 590, 593 (8th Cir. 1993) (citing Osborn v. United States , 918 F.2d 724, 729 n.6 (8th Cir. 1990) (citation omitted)). Under a facial challenge to jurisdiction, a court restricts itself to the face of the pleadings, Osborn , 918 F.2d at 729, n.6, and all of the factual allegations concerning jurisdiction in the [counterclaim] are presumed to be true, while under a factual challenge no presumptive truthfulness attaches. See Titus , 4 F.3d at 593 & n.1. The motion asserting a facial challenge will be successful if the [defendant] fails to allege an element necessary for subject matter jurisdiction. Id . Here, plaintiff makes a facial challenge to Ressler's counterclaims. Accordingly, for purposes of this motion, all of Ressler's factual allegations are accepted as true.
Ressler's Counterclaim does not assert a basis of jurisdiction independent of the federal question jurisdiction that supports plaintiff's main FLSA claim. Ressler admits in its opposition memorandum that its counterclaims are permissive rather than compulsory, as they do not directly arise from plaintiff's wage and hour claims. Def.'s Mem. Opp. at 2; see Rule 13(a)(1), Fed.R.Civ.P. (counterclaim is compulsory if it "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim"). Plaintiff argues that supplemental jurisdiction does not exist over the permissive ...