           Case: 18-14391     Date Filed: 06/11/2019   Page: 1 of 7


                                                          [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-14391
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 3:17-cv-01430-HES-JRK



J. L. NIEMAN,

                                                             Plaintiff-Appellant,

                                     versus

NATIONAL CLAIMS ADJUSTERS, INC.,
DAVID P. IERULLI,

                                                          Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                (June 11, 2019)

Before MARCUS, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:
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      J. Nieman, proceeding pro se, appeals the district court’s order granting

National Claims Adjusters, Inc.’s (“National”) and David Ierulli’s (collectively

“defendants”) motion to dismiss for failure to state a claim. On appeal, Nieman

argues that the district court erred in dismissing his federal claims for failure to pay

and retaliatory discharge under the Fair Labor Standards Act (“FLSA”), 29 U.S.C.

§ 203 et seq., and for civil tax fraud under 26 U.S.C. § 7434. In support, he argues

that he was the defendants’ employee, rather than an independent contractor, and

because that determination was central to his claims, he argues that the district

court erred in holding otherwise.

      We review de novo a district court’s grant of a motion to dismiss under Fed.

R. Civ. P. 12(b)(6) for failure to state claim, “accepting the allegations in the

complaint as true and construing them in the light most favorable to the plaintiff.”

Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Similarly, whether a person is

an employee or independent contractor under the FLSA is a question of law that

we review de novo. Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1310 (11th

Cir. 2013). In his complaint, the plaintiff must state a plausible claim for relief,

requiring the plaintiff to plead factual content “that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where the well-pleaded facts of the




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complaint do not show more than a “mere possibility of misconduct,” the plaintiff

has not shown a plausible claim for relief. Id. at 679.

      The protections of the FLSA extend only to “employees.” Scantland, 721

F.3d at 1311. An “employee” is “any individual employed by an employer.” 29

U.S.C. § 203(e)(1). An “employer” is “any person acting directly or indirectly in

the interest of an employer in relation to any employee.” Id. § 203(d). The term

“employ” means “to suffer or permit to work.” Id. § 203(g). The FLSA does not

cover “independent contractors.” See Scantland, 721 F.3d at 1311. To determine

whether a person is an employee or independent contractor for purposes of the

FLSA, courts look to the “economic reality” of the relationship between the

alleged employee and employer and whether that relationship demonstrates

dependence. Id. The economic reality inquiry is not governed by the “label” put

on the relationship by the parties or the contract that controls their relationship. Id.

Merely putting an “independent contractor” label on the alleged employee does not

take him from the protections of the FLSA. Id.

      Several factors guide the economic reality inquiry, namely: “(1) the nature

and degree of the alleged employer’s control as to the manner in which the work is

to be performed; (2) the alleged employee’s opportunity for profit or loss

depending upon his managerial skill; (3) the alleged employee’s investment in

equipment or materials required for his task, or his employment of workers;


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(4) whether the service rendered requires a special skill; (5) the degree of

permanency and duration of the working relationship; [and] (6) the extent to which

the service rendered is an integral part of the alleged employer’s business.” Id. at

1311-12. While these factors are important, the overarching focus of the inquiry is

economic dependence, or in other words, whether the individual is “in business for

himself” or is “dependent upon finding employment in the business of others.” Id.

at 1312. Additionally, 26 U.S.C. § 7434 provides that a person may bring a civil

action for damages against a person who willfully files a fraudulent information

return with respect to payments purportedly made to any other person. 26 U.S.C.

§ 7434.

      As a general rule, an amended complaint supersedes any prior complaint and

nullifies its exhibits. See Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th

Cir. 2016). In ruling on a motion to dismiss, a district court is not permitted to

consider exhibits attached to an earlier complaint “that a plaintiff has expressly

disavowed or rejected as untrue in a subsequent amended complaint.” Id.

      Here, as an initial matter, we do not reach Nieman’s argument that the

defendants improperly referenced his independent contractor agreement because

the district court did not consider the agreement in reaching its decision and the

fact that the parties labeled Nieman an “independent contractor” in the agreement

does not influence our holding. Further, we consider the exhibits attached to


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Nieman’s original complaint in reaching our decision because Nieman refers to

them in his amended complaint, thereby incorporating them by reference.


      Construing the allegations in the complaint in the light most favorable to

Nieman, the district court did not err in dismissing Nieman's complaint on the

ground that Nieman was an independent contractor, rather than an employee.

Using the six factors to guide the economic reality inquiry, the first, third, fourth,

and fifth factors favor independent contractor status while the second and sixth

factors do not weigh in favor of either. The first factor—control—weighs in favor

of independent contractor status because Nieman controlled when he started work

for National and for how long, how many assignments he took from National, and

when he received those assignments. In other words, he controlled his schedule.

He admitted in his complaint that after he began receiving assignments from

Brown, he set up his own appointments and inspections. He also controlled the

geographic location within which he took assignments. Although he alleged that

National controlled the software that he used, the methods by which he completed

his reports, and in some ways, how he performed the job, he ultimately controlled

how and when he completed the assignments and whether he would take on more

or less of them, showing that he was essentially “in business for himself.” See

Scantland, 721 F.3d at 1312.



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      The third factor—alleged employee’s investment in equipment and materials

for the work—weighs in favor of independent contractor status. Nieman had his

own home office, a laptop, and iPad for field work and was equipped with a

vehicle, ladder, measuring tools, digital voice and photographic equipment, and

“other similar tools of the trade.” It appears that the only “tool” that National

provided was the Xactimate software, and even then, it is not clear whether

Nieman had this software before he began work for National, or whether National

paid for and provided it to him. The fourth factor—whether the service required a

special skill—also weighs in favor of independent contractor status because his job

required a license. The fifth factor—the degree of permanency and duration of the

working relationship—weighs in favor of independent contractor status because

Nieman alleged that National engaged him to handle claims arising from Hurricane

Irma and acknowledged that he was hired for a “special project.”

      Further, looking to the overall economic reality of the parties’ working

relationship, it is also significant that Nieman completed work for another

company after he responded to National’s initial advertisement and looked for and

interviewed for other jobs while he was still engaged with National, which shows

that he was not economically dependent on National. As to the second factor—the

employee’s opportunity for profit or loss depending on his managerial skill—and

the sixth factor—the extent to which the service rendered is an integral part of the


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alleged employer’s business—Neiman did not state many facts in his complaint

that would support his claim for employee status. Therefore, when all the factors

are viewed in the light most favorable to Nieman, four of the six factors weigh

strongly in favor of independent contractor status. Thus, Nieman was an

independent contractor, not an employee, under the FLSA, and to the extent that he

argues that National committed tax fraud for falsely representing to the IRS that he

was an independent contractor, that argument fails for the same reason.

Accordingly, the district court correctly dismissed his federal claims.

      AFFIRMED.




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