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Ventura v. Bebo Foods

February 2, 2009


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge,


This matter comes before the Court on defendants' "Motion to Dismiss or, in the Alternative, to Transfer" [9,10]. Upon full consideration of the motion, the oppositions and replies thereto, the applicable law, and the entire record herein, the Court finds, for the reasons set forth below, that defendants' motion will be DENIED.


Plaintiffs are former restaurant wait staff and bussers who commenced this action against defendant Roberto Donna ("Donna") and various restaurants/companies he owns and operates.*fn1

Plaintiffs allege violations of state and federal law governing wage payment and overtime obligations of employers under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), District of Columbia Wage Payment and Collection Act, D.C. Code § 32-1303 et seq. ("DCWP&CA"), and Equal Pay Act, 29 U.S.C. § 206 ("EPA"). Specifically, named plaintiffs contend that they were not paid overtime compensation, were not always paid the minimum wage, and in some instances were not paid any wages due to the issuance of paychecks that either bounced, were void or were otherwise impossible to cash. (Compl. ¶¶ 1, 46-54, 59-61.) Plaintiffs further allege that female bussers were denied equal pay to that of male bussers. (Id. ¶¶ 55-58.) According to plaintiffs, these violations began as early as February 1992 during their employment at the Donna-operated Galileo Restaurant ("Galileo") in Washington, D.C.. (Id. ¶ 25.) The violations allegedly continued until at least February 2008, after plaintiffs were transferred in October 2006 to defendant Donna's newly-opened BEBO Trattoria Restaurant ("BEBO Trattoria") in Arlington, Virginia due to the closure of Galileo for renovations. (Id. ¶ 33-34.)

On April 11, 2008, plaintiffs filed the complaint [1] in this matter, and later filed a four-count amended complaint [4] on May 29, 2008, which added no new causes of action, but styled the case as a collective and class action. Defendants argue plaintiffs' claims fail and dismissal is appropriate based on various theories including lack of personal jurisdiction, improper venue, and failure to state a claim upon which relief can be granted. In the alternative to dismissal, defendants request transfer of the action to the United States District Court for the Eastern District of Virginia.


1. Proper Party Status of Defendants BEBO Trattoria and Galileo

Defendants challenge the inclusion of BEBO Trattoria and Galileo as defendants in this action, arguing they are trade names rather than legal entities capable of being sued and therefore should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs respond by asserting that both parties can be sued in their "doing business capacity" because they are qualifying "employers" as that term is broadly defined and loosely construed under both the FLSA and DCW&HL. In the alternative, plaintiffs have requested the opportunity to amend the complaint caption to correct what is essentially a misnomer of identified defendants.

The parties' filings, affidavits, and exhibits relating to this issuehave conclusively established that: (1) Donna is Principal for defendant corporations BEBO Foods and RD Trattoria; (2) RD Trattoria is "doing business as" BEBO Trattoria Restaurant; and (3) Donna owns/operates BEBO Foods, BEBO Trattoria Restaurant and Galileo Restaurant. (Donna Aff. ¶ 2; Pls.' Opp'n Ex. 1-2.) Furthermore, plaintiffs' opposition indicates that a recent review of District of Columbia bankruptcy petitions has revealed Galileo is a trade name for District of Columbia corporation SER, Inc. ("SER"), and therefore is named in the complaint in its "doing business as" capacity. Plaintiffs further state that their diligent review of D.C. corporation listings did not reveal Galileo as a trade name for corporate entity SER at the time of the filing of their previous complaint, and note that plaintiffs' paychecks were not issued under the name of that corporation. Defendants do not deny the connection between SER and Galileo, or refute plaintiffs' contentions that Galileo is not listed as a trade name with the District of Columbia.

Defendants are correct in noting the axiom that trade names are not juridical entities capable of being sued. Evans v. Washington Center for Internships and Academic Seminars, 2008 WL 4937007 (D.D.C. 2008); American Society for the Prevention of Cruelty to Animals v. Ringling Brothers and Barnum & Bailey Circus, 502 F. Supp. 2d 103, 105 fn. 2 (D.D.C. 2007); Snowden v. CheckPoint Check Cashing, 290 F.3d 631, 634 (4th Cir. 2002). Because BEBO Trattoria and Galileo have been identified as trade names of corporations, they can be dismissed without prejudice as proper defendants in the complaint. However, the specific circumstances involved in this case convince the Court to grant plaintiffs leave to amend the case caption to correct the named defendants and designate the restaurant trade names in their "doing business" capacity with respect to the corporate defendants.

Plaintiffs' first amended complaint included both the known corporate defendants and the names of the restaurants under which those companies were "doing business as"-i.e. the actual places of business where plaintiffs worked. However, these designated corporation/restaurant defendants are not separate and distinct legal entities, but rather a single entity with two names. Here, either or both of the corporate or "doing business as" restaurant defendants-aliases for the same legal entity-were identified in the complaint and provided with effective notice and service of the charges against them. As such, amendment of plaintiffs' complaint caption is in order to reflect that the corporate/restaurant defendants are in fact one and the same defendant for purposes of this lawsuit.

Based on the recent discovery of SER as the corporate entity behind Galileo, the intertwined associations between Donna and all of the corporate/restaurant parties appearing in the complaint, and the lack of any prejudice to the parties given actual notice to all of the originally named "defendants," including Galileo Restaurant, the Court grants plaintiffs leave under Federal Rule of Civil Procedure 15(a)(2) to amend the complaint caption to reflect proper legal entities capable of being sued. The amended caption will therefore reflect "SER, Inc. d/b/a Galileo Restaurant" as a properly named defendant. Likewise, the Court grants plaintiff ...

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