DELISLE

v.

LYG CORP.

PATRICIA A. SEITZ, District Judge.

THIS MATTER is before the Court on Defendants’ Motion to Stay Pending Resolution of Defendants’ Motion to Dismiss or Alternative Motion for Summary Judgment [DE-12], On December 26, 2007, Plaintiff filed a single-count Complaint seeking overtime wages under the Fair Labor Standards Act (“FLSA”). Prior to taking any discovery, Defendants filed a motion to dismiss or alternative motion for summary judgment [DE-6] claiming that this Court lacked subject matter jurisdiction under the FLSA because there is no nexus to interstate commerce. Defendants also moved to stay all proceedings pending resolution of the motion [DE-12],

To establish a claim for overtime compensation under the FLSA, Plaintiff must show either individual coverage i.e., he was engaged in commerce or in the production of goods for commerce, or enterprise coverage i.e., that LGY Corporation (“LGY”) is an enterprise engaged in commerce or in the production of commerce.

See

1

see also Thorne v. All Restoration Serv., Inc.,

448 F. 3d 1264, 1266 (11th Cir.2006);

Alonso v. Garcia,

147 Fed.Appx. 815, 816 (11th Cir.2005). By his pleadings, Plaintiff appears to travel under the enterprise coverage theory.

(See

Complaint ¶ 12; Response at 6-7 (claiming that LGY is an “enterprise” within the meaning of the FLSA.)) Thus, under this theory, Plaintiff cannot state a claim under the FLSA unless he can prove that LGY has gross annual sales not less than $500,000.

See

29 U.S.C. § 203(s). Defendants dispute that LGY has sufficient gross sales.

Whether LGY has sufficient gross sales to be covered by the FLSA implicates both the jurisdictional basis and an important element of Plaintiff s federal claim. Also, to determine LGY’s gross sales, the Court must review documents outside of the pleadings. Where a factual attack on subject matter jurisdiction also implicates an element of the cause of action, a district court should “find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiffs case” under the Rule 56 summary judgment standard.

Navarro v. Broney Automotive Repairs, Inc.,

533 F. Supp. 2d 1223, 1224 n. 2, 2008 WL 320326, *3 n. 2 (S.D.Fla.2008) (citing

Lawrence v. Dunbar,

919 F. 2d 1525, 1529 (11th Cir.1990) (internal citations omitted)). Moreover, if a court considers matters outside of the pleadings, Rule 12(b) requires the court to comply with the requirements of Rule 56.

2

Fed.R.Civ.P. 12(b);

Jones v. *1268

Auto. Ins. Co. of Hartford, CT,

917 F. 2d 1528, 1532 (11th Cir.1990). Therefore, the Court shall treat Defendants’ motion as one for summary judgment.

3

Plaintiff, however, may supplement the record with further evidence in support of its position.

4

Accordingly, it is hereby

ORDERED that

(1) Defendants’ Motion to Stay Pending Resolution of Defendants’ Motion to Dismiss or Alternative Motion for Summary Judgment [DE-12] is GRANTED IN PART AND DENIED IN PART. Plaintiffs may seek discovery relating solely to the Court’s subject matter jurisdiction under the FLSA. (2) Plaintiffs supplemental filing, if any, is due by March 24, 2007 and Defendants’ response is due by March 31, 2008.

Neither submission may exceed seven pages.

(3) Nothing in this Order shall alter any other deadlines set in this case.