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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION KEVIN HIGGINS, Plaintiff, Civil Action No. AW-00-CV-2617 vs. FOOD LION, INC., Defendant.

MEMORANDUM OPINION Currently pending before the Court is the Defendant Food Lion, Inc.'s Motion to Dismiss the Complaint with prejudice [6-1]. The Plaintiff filed a motion to Strike Exhibits [12-1], and a motion for Leave to File Sur-Reply [12-2]. No hearing is deemed necessary. See Local Rule 105.6. For the reasons stated below, the Court will grant Defendant's Motion to Dismiss as to the first count. However, the Court denies Defendant's Motion to Dismiss as to the second and third counts. I. FACTUAL BACKGROUND Plaintiff Kevin Higgins was employed by Defendant Food Lion between January of 1996 until July 1997. In his complaint, he alleges that the Defendant violated federal and state statutes by failing to pay him for the hours he worked at regular and overtime rates. He alleges that the Effective Scheduling system, administered by his employer resulted in him having to clock out after working a regular shift and completing unfinished tasks "off the clock." (Pl's Mem. Opp. Mot. Dis. at 2.). He was not compensated for these "off the clock" hours. Id. The Plaintiff further alleges that the Defendant's conduct was a violation of the public policy against involuntary servitude pursuant to the United States constitution. Thus, he requests relief based upon wrongful termination, and federal

and state wage and hour laws. Most of the relevant facts are not in dispute. The Defendant does not dispute that Plaintiff's complaint includes allegations of the Defendant's willful violation of state and federal law. Nor does the Defendant dispute the applicability of the three-year as opposed to the two-year statute of limitations period for purposes of reviewing its motion. Lastly, both parties seem to agree that the Plaintiff was an employee between January of 1996 until July of 1997. However, there is a disagreement between the Defendant and the Plaintiff as to when and how the Plaintiff was actually separated from the Defendant. The Plaintiff contends that his ultimate separation was involuntary. The Defendant alleges that Plaintiff quit by failing to return to work on July 21st and July 22nd. As a consequence, his termination was effective as of July 23rd. II. DISCUSSION Defendant's motion to dismiss is premised on his allegation that the Plaintiff's last day of employment puts Plaintiff outside of the statute of limitations period for federal and state claims. The Defendant argues that the action accrues on the last day of the Plaintiff's employment, and thus, to be viable the Plaintiff would have had to file the claim on July 19, 2000. The Defendant submitted evidence indicating that the complaint was filed more than three years after his last day of employment. According to Defendant, the evidence indicates that the Plaintiff's last day of employment was July 19, 1997, and the complaint was filed on July 21, 2000. Thus, the Defendant contends that the Plaintiff missed the statutory deadline by two days. In the alternative, the Defendant argues that no relief can be granted even if the Court finds that the Plaintiff did not miss the statutory deadline. According to the Defendant, it is only liable for unpaid wages that the Plaintiff earned within the three-year period ending on the filing date of the complaint. (Def. Mot. Dismiss 2

at 2.). The Defendant maintains that, after July 19th, the Plaintiff was not working for the Defendant, thus the Plaintiff did not earn wages within the statutory period. A. Legal Standard

The Court has the discretion to treat a motion to dismiss as one arising under Rule 12(b)(6) or Rule 56 when the motion to dismiss present matters outside of the pleadings. Fed. R. Civ. P. 12(b)(6). "The court has complete discretion to decide whether to consider the additional materials or to refuse to consider them and determine the motion under normal 12(b)(6) standards." Universal Test Equip. v. Heath, No. CIV. A. 3:99CV00103, 2000 WL 1566971 at *3 (W.D. Va. Oct. 20, 2000); accord Finley Lines Joint Protective Bd. Unit 200, Broth. Ry. Carmen, a Div. of Transp. Commun. Union v. Norfolk Southern Corp., 109 F.3d 993, 996 (4th Cir. 1997) (finding that Rule 12(b)(6) does not permit conversion upon service). A court may exclude extraneous material where to do otherwise would undermine the efficient resolution of the motion to dismiss. Id. at *3 Here, the Court finds that conversion would undermine the efficient resolution of the motion to dismiss. The Court will consider the Defendant's legal arguments, but will not consider the evidence upon which these arguments are based. In light of its decision not to treat the motion to dismiss as one for summary judgment, the Court denies Plaintiff's motions to Strike Defendant's exhibits and to file a Sur-Reply. The motion to dismiss is granted where the plaintiff's claim for relief is insufficient. In assessing the sufficiency of the claim, the court's duty is not to determine whether the claimant will prevail, but whether the claimant is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232 (1974), overruled on other grounds by, Davis v. Scherer, 468 U.S. 183 (1984). It is well settled that the court can consider only the allegations in the pleading, Id., and the facts are 3

to be construed in a light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411 (1969); accord DeSole v. United States, 947 F.2d 1169, 1171 (4th Cir. 1991). Where it appears beyond a reasonable doubt that the plaintiff as a matter of law can prove no set of facts in support of the claim that would entitle the plaintiff relief, the motion to dismiss should be granted. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Whereas, the motion to dismiss is not available where it is based on the judge's belief as to the strength of the plaintiff's factual allegations. Neitzke v. Williams, 490 U.S. 319 (1989). B. Federal Fair Labor Standards Act (FLSA)

The Plaintiff's federal claims are not legally barred by the statute of limitations.1 The statute of limitations for violations of the FLSA has been construed in accordance with the continuing violations theory. Nealon v. Stone, 958 F.2d 584, 591 (4th Cir. 1992). In Nealon, the court found that "each issuance" of the paycheck constituted a new cause of action for the purpose of the statute of limitations period. Id. It is generally accepted that "a cause of action accrues for statute of limitation purposes at each regular payday immediately following the work period during which services were rendered and for which overtime compensation is claimed." Freeman v. National Broadcasting Co, Inc., 846 F.Supp. 1109, 1159 (1993), rev'd on other grounds, 80 F.3d 78 (2nd Cir. 1996); see also Knight v. Columbus, Georgia, 19 F.3d 579, 581 (11th Cir.), cert. denied, 513 U.S.

The FLSA provides fro a three-year statute of limitations period for willful violations applies. See 29 U.S.C.

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