United States District Court, District of Columbia
CHERYL C. BRADLEY, et al., Plaintiffs,
VOX MEDIA, INC. d/b/a SB NATION, Defendant.
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
much employer control is required for an independent
contractor to be considered an employee under the Fair Labor
Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq.?
That is the question raised by a purported class of employees
who provide blogging and supervision services to Vox Media,
Inc. (Vox) on its various sports blogs. Before the Court may
address that question, Vox moves for partial dismissal to
limit Plaintiffs' claims to the two-year, rather than
three-year, statute of limitations provided by the FLSA. Vox
argues that Plaintiffs have failed to allege adequately its
violation was willful, as required to fall under the
three-year statute of limitations. The Court finds
Plaintiffs' allegations sufficient to allege a plausible
claim for relief and will deny the motion.
a media corporation that maintains and operates approximately
319 sports websites through its business division, SB Nation.
First Amended Collective Action Complaint (Am. Compl.) [Dkt.
16] ¶ 11. Each website is maintained by a Site Manager,
who is in turn supervised by a League Manager. Id.
¶ 17. Vox manages its Site Managers through Blogger
Agreements and direct supervision by League Managers.
Id. ¶¶ 13, 70-73. Each Blogger Agreement
outlines when and how often Site Managers must create new
content, specifies that Vox maintains the authority to edit
or remove such content, and includes a non-compete clause.
Id. ¶¶ 53-59. When a position becomes
available, Vox posts a short description to its website that
includes a list of requirements and responsibilities, as well
as details on how to apply. Id. ¶ 50. It
advertises for all its paid positions in the same manner.
Cheryl Bradley was a Site Manager for Vox's website, Mile
High Hockey, from June 2013 until February 2015. Id.
¶ 14. Her relationship with Vox was governed by a
Blogger Agreement that she signed on June 1, 2013.
Id. ¶ 13; see also Ex. 1, Am. Compl., Bradley
Blogger Agreement [Dkt. 16-2]. Ms. Bradley was interviewed,
and later managed, by League Manager Travis Hughes. Am.
Compl. ¶ 44. She was required to watch games featuring
the Colorado Avalanche, a professional ice hockey team, and
then to publish five to six articles per week, manage other
writers, edit and approve articles by those writers, monitor
search engine optimization, manage Mile High Hockey's
comments section and social media accounts, and live-Tweet
games and practices. Id. ¶¶ 16, 18-19. Ms.
Bradley was paid $125 per month. Id. ¶ 20. She
regularly worked 30-40 hours per week, and up to 50 hours per
week during peak times or when she was understaffed.
Id. ¶¶ 20-21. In late 2013, Ms. Bradley
complained to her League Manager that her wages were
inadequate and was told that wages were dependent on team
site traffic. Id. ¶ 106. Even though she
increased Mile High Hockey's site traffic, her pay never
increased. Id. Ms. Bradley was fired in February
2015. Id. ¶¶ 45-46.
John Wakefield was a Site Manager for Vox's website,
Through it All Together, from December 2015 until May 2017.
Id. ¶ 23. Mr. Wakefield applied for the
position on December 10, 2015 and was hired by Soccer League
Manager Jeremiah Oshan. Id. ¶ 47. His
relationship with Vox was governed by a Blogger Agreement
that he signed on January 1, 2016. Id. ¶ 22;
see also Ex. 2, Am. Compl., Wakefield Blogger Agreement [Dkt.
16-3]. He was required to watch or listen to games featuring
the Leeds United Football Club, an English professional
soccer team, and publish one to three articles per week,
manage other writers, edit and approve articles, monitor
search engine optimization, and manage Through It All
Together's comments section and Twitter account. Am.
Compl. ¶¶ 27-29. Mr. Wakefield was initially paid
$50 per month; his pay was later increased to $75 per month.
Id. ¶ 30. He regularly worked 30-40 hours per
week, and up to 60 hours per week during peak times.
Id. ¶¶ 30-31.
Maija Varda is currently the Site Manager for Vox's
website, Twinkie Town. Id. ¶ 33. Ms. Varda
applied for the position of Site Manager in April 2016 after
seeing a job posting and was interviewed and hired by Major
League Baseball League Manager Justin Bopp. Id.
¶ 49. Her relationship with Vox is governed by a Blogger
agreement that she signed on May 1, 2016. Id. ¶
32; see also Ex. 3, Am. Compl., Varda Blogger Agreement [Dkt.
16-4]. She is required to write daily interest articles about
the Minnesota Twins, a professional baseball team, report
breaking news, recruit and manage staff writers, and manage
Twinkie Town's social media accounts. Am. Compl.
¶¶ 35-38. She is paid $400 per month. Id.
¶ 40. She regularly works 30 to 40 hours per week, and
up to 50 hours per week during peak times or when she is
understaffed. Id. ¶¶ 40-41.
September 1, 2017, Ms. Bradley filed a Collective Action
Complaint against Vox, alleging a violation of the minimum
wage and overtime requirements of the FLSA. Collective Action
Compl. [Dkt. 1]. An Amended Complaint adding Mr. Wakefield
and Ms. Varda as named plaintiffs was filed October 23, 2017.
See Am. Compl. Vox moved for partial dismissal of any claims
outside the standard two-year statute of limitations on
November 6, 2017 and at the same time moved for the Court to
take judicial notice of four exhibits attached to the partial
motion to dismiss. Plaintiffs opposed and Vox replied. Both
motions are ripe for review.
Court has jurisdiction under 29 U.S.C. § 216(b) of the
FLSA and 28 U.S.C. § 1331. See 29 U.S.C. § 216(b)
(“An action to recover the liability prescribed in the
preceding sentences may be maintained against any employer
(including a public agency) in any Federal or State court of
competent jurisdiction by any one or more employees for and
in behalf of himself or themselves and other employees
similarly situated.”); 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or
treaties of the United States.”). Venue is proper in
the United States District Court for the District of Columbia
because Defendant Vox Media, Inc. is headquartered in the
District and the events giving rise to Plaintiffs' claims
also occurred in the District. See 28 U.S.C. §
ruling on a 12(b)(6) motion to dismiss, a court may consider
the facts alleged in the complaint, documents attached to the
complaint as exhibits or incorporated by reference, and
matters about which the court may take judicial notice.
See Abhe v. Svoboda, Inc. v. Chao, 508 F.3d 1052,
1059 (D.C. Cir. 2007). The court has the discretion to take
judicial notice of “historical, political, or
statistical facts, or any other facts that are verifiable
with certainty.” Mintz v. FDIC, 729 F.Supp.2d
276, 278 n.2 (D.D.C. 2010). The Federal Rules of Evidence
require that the court only judicially notice a fact when it
is “not subject to reasonable dispute because it: (1)
is generally known within the trial court's territorial
jurisdiction; or (2) can be accurately and readily determined
from sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201(c)(2). The facts to be
noticed must also be relevant. Whiting v. AARP, 637
F.3d 355, 430 (D.C. Cir. 2011) (declining to take judicial
notice of facts that are “irrelevant to disposition of
the motion to dismiss, which turns on the adequacy of the
well-pleaded factual allegations in the complaint”).
Motion to Dismiss for Failure to State a Claim
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) challenges the
adequacy of a complaint on its face. Fed.R.Civ.P. 12(b)(6). A
complaint must be sufficient “to give a defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted). Although a
complaint does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief
that is “plausible on its face.” Id. at
570. A court must ...