United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
L. HORAN UNITED STATES MAGISTRATE JUDGE
Keri DeVore filed a motion to dismiss
Defendant/Counter-Plaintiff Robert Casey Lyons's
counterclaims against him. See Dkt. No. 36. In
response, Lyons filed both a response to Plaintiff's
motion to dismiss [Dkt. No. 39] and an amended answer [Dkt.
No. 40]. DeVore did not file a reply within the requisite
time period. See Fed. R. Civ. P. 12(a); N.D. Tex. L.
Civ. R. 7(f).
reasons explained below, the Court DENIES the motion to
dismiss [Dkt. No. 36].
original complaint filed June 29, 2016, DeVore alleges that
Lyons is a sole proprietor who operates a plumbing business
under the trade name “Bunkie's Plumbing.” She
asserts that, during the time period of June 27, 2014 through
February 3, 2016, she and Lyons were romantically involved.
See Dkt. No. 1 at 3. DeVore also alleges that she
performed various duties for Lyons's business, including
acting as “Lyon's ‘plumber's helper,
' getting tools and supplies, helping Lyons remove and
install water heaters and toilets, getting heavy machinery
in/out of Lyons work truck and whatever other manual labor
Lyons needed to assist him in completing his work
jobs.” Dkt. No. 1 at 2. DeVore further asserts that she
“prepared business paperwork, communicated with
customers as well as First American Home Warranty (Lyon's
primary supplier of work), coordinated jobs, prepared and
sent invoices, tracked Lyons' mileage and schedule,
prepared job quotes and called vendors as needed.”
Id. at 2-3. DeVore maintains that she performed this
work for Lyons's businesses because she “wanted to
support the work of her boyfriend and help him be
asserts that she “consistently worked over 40 hours per
work week for Lyons's business” and that
“Lyons never paid DeVore any wages for her work.”
Id. at 3. When the romantic relationship between the
two parties ended, “DeVore was left with nothing for 83
weeks of substantial work and suffered severe financial
hardship as a result [but] Lyons maintained all of the
benefits of the free work and continued on with his
the breakup, DeVore sued Lyons for: (1) breach of contract,
or, alternatively, quantum meruit; (2) overtime and minimum
wage violations of the Fair Labor Standards Act; and (3)
violation of the Texas Minimum Wage Act. See Id. at
8, 2016, Lyons filed a motion to dismiss for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) and for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). See Dkt. No. 10. In
response, DeVore filed an amended complaint on June 29, 2016.
See Dkt. No. 17. Lyons then filed a motion to stay
consideration of, or to strike, DeVore's first amended
complaint. See Dkt. No. 21. After a hearing, the
Court denied the request to strike and gave Lyons additional
time to answer or otherwise respond to the amended complaint.
See Dkt. No. 27.
filed a supplemental motion to dismiss in which he
incorporated his arguments in the original motion to dismiss.
See Dkt. No. 28. On October 25, 2016, the Court
issued an Order granting in part and denying in part
Lyons's supplemental motion to dismiss. See Dkt.
his original answer filed on November 16, 2016, and his first
amended answer filed on January 7, 2017, Lyons included
counterclaims of conversion, invasion of privacy, and
tortious interference. See Dkt. Nos. 35 & 40. On
December 7, 2016, DeVore filed a motion to dismiss
Lyons's counterclaims for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). See Dkt.
No. 36 at 2-3. DeVore asserts that Lyons fails to state a
claim for which relief may be granted because the “lack
of any detail as to any alleged conduct on DeVore's part
makes her unable to prepare an adequate defense against the
counterclaims.” Id. at 4.
filed a response to DeVore's motion to dismiss.
See Dkt. No. 39. In supplementing the counterclaims
listed in his original and amended answers, Lyons offered
more detail regarding the substance of the first and second
counterclaims, for conversion and invasion of privacy, and
withdrew his third counterclaim of tortious interference.
See Id. at 1-3.
Lyons's allegations as true, as the Court must in this
context, DeVore took multiple personal and business papers of
Lyons, including his “credit card, banking and accounts
information, computer passwords, business and personal
clothing ... business appointment books, customer names,
addresses, telephone numbers and work order information, rate
lists, bank records, his social security and credit card
numbers, house keys, motorcycle keys, various work clothing
of his, loan statements, etc.” on or before her final
departure from Lyons's residence on February 3, 2016.
Dkt. No. 40 at 3.
did not file a reply to Lyons's response to her motion to
dismiss. DeVore seeks dismissal of Lyons's remaining
counterclaims of conversion and invasion of privacy primarily
on the theory that Lyons failed to ...