IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

STEPHANIE DE ANGELIS, : 

 : 

 Plaintiff, : 

 : Case No. 2:17-cv-924 

 v. : 

 : JUDGE ALGENON L. MARBLEY 

NATIONAL ENTERTAINMENT GROUP, : 

LLC, : Magistrate Judge Deavers 

 : 

 Defendant. : 

OPINION AND ORDER 

 This matter is before the Court on Defendant National Entertainment Group, LLC, d/b/a 

Vanity (“Vanity”)’s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) (ECF 

No. 6) and Plaintiff Stephanie De Angelis’ Motion for Judgment on the Pleadings (ECF No. 11). 

For the reasons stated below, Vanity’s Motion (ECF No. 6) is DENIED and Ms. De Angelis’ 

Motion (ECF No. 11) is GRANTED. 

I. BACKGROUND 

Vanity is an adult entertainment club in Columbus, Ohio. (ECF No. 1 at ¶ 3). Ms. De 

Angelis alleges that she worked at Vanity as a dancer from April 2016 to February 2017. (Id. at 

¶¶ 16, 18). Ms. De Angelis alleges that Vanity did not pay its dancers any wages. (Id. at ¶ 1). 

Instead, she avers that Vanity misclassified all of its dancers as independent contractors, rather 

than employees, and that the dancers are only compensated through tips from customers. (Id. at 

¶¶ 17, 21). She further alleges that at the end of each night, Vanity took a cut from all tips made 

by the dancers, and the dancers were required to split their tips with other employees. (Id. at ¶¶ 5, 

29). 

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 Ms. De Angelis filed this lawsuit as a collective and class action against Vanity on October 

23, 2017, alleging violations of the Fair Labor Standards Act of 1983 (“FLSA”), 29 U.S.C. §§ 201, 

et seq., the Ohio Minimum Fair Wage Standards Act (“OMFSWA”), O.R.C. §§ 4111.01, et seq., 

and the Ohio Semi-Monthly Payment Act, O.R.C. § 4113.15, as well as common law unjust 

enrichment by failing to pay dancers minimum wage for all hours worked, including failure to pay 

overtime. (ECF No. 1). On January 2, 2018, Vanity answered the Complaint and brought 

counterclaims against Ms. De Angelis for breach of contract and unjust enrichment. (ECF No. 7). 

The same day, Vanity filed a Motion to Dismiss for Lack of Jurisdiction, arguing that Ms. De 

Angelis never danced at Vanity, and therefore does not have standing to bring the instant lawsuit. 

(ECF No. 6). On January 24, 2018, Ms. De Angelis filed a Motion for Judgment on the Pleadings 

on the counterclaims. (ECF No. 11). On August 10, 2018, this Court held an evidentiary hearing 

to determine for purposes of standing whether Ms. De Angelis danced at Vanity. (See ECF No. 

33). The Motion to Dismiss and Motion for Judgment on the Pleadings are now both ripe for 

decision. 

II. VANITY’S MOTION TO DISMISS 

A. Standard of Review 

As this Court previously determined, Vanity brings a factual attack on subject matter 

jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (ECF No. 31). Factual attacks 

challenge the factual existence of subject matter jurisdiction. United States v. Ritchie, 15 F.3d 

592, 598 (6th Cir.1994). In other words, a party making a factual attack “challenges the actual 

existence of the jurisdiction even though the complaint contains the formal allegations necessary 

to invoke jurisdiction.” Doe v. DeWine, 99 F. Supp. 3d 809, 815 (S.D. Ohio 2015). In reviewing 

a factual challenge, no presumptive truthfulness applies and the trial court “is free to weigh the 

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evidence and satisfy itself as to the existence of its power to hear the case.” Ritchie, 15 F.3d at 

598. The district court “must weigh the conflicting evidence to arrive at the factual predicate that 

subject-matter jurisdiction does or does not exist.” Gentek Bldg. Prod., Inc. v. Sherwin-Williams 

Co., 491 F.3d 320, 330 (6th Cir. 2007). In this review, the district court “has wide discretion to 

allow affidavits, documents, and even a limited evidentiary hearing to resolve jurisdictional facts.” 

Id. Plaintiff bears the burden of demonstrating that subject matter jurisdiction exists. Doe v. 

Dewine, 99 F. Supp. at 809. 

B. Analysis 

Vanity argues that Ms. De Angelis never danced at Vanity, and therefore does not have 

standing to bring the instant lawsuit. (ECF No. 6 at 4-6). Standing is a threshold inquiry in every 

federal case. Jet Courier Servs., Inc. v. Fed. Reserve Bank of Atlanta, 713 F.2d 1221, 1225 (6th 

Cir. 1983). The “gist of the standing question is whether the party seeking relief has alleged such 

a personal stake in the outcome of the controversy as to assure that concrete adverseness upon 

which the court so largely depends for illumination of difficult . . . questions.” United States v. 

Richardson, 418 U.S. 166, 173 (1974). The party invoking federal jurisdiction—here, Ms. De 

Angelis—bears the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 

561 (1992). 

In the Sixth Circuit, a plaintiff must meet Article III standing requirements and prudential 

standing requirements in order to proceed with her case. McGlone v. Bell, 681 F.3d 718, 728–29 

(6th Cir. 2012). To satisfy the constitutional requirements for standing, plaintiff must show she: 

“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, 

and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc., 136 S. Ct. at 

1547 (citing Lujan, 504 U.S. at 560-61). To establish prudential standing requirements: “(1) a 

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plaintiff must assert [her] own legal rights and interests, without resting the claim on the rights or 

interests of third parties; (2) the claim must not be a ‘generalized grievance’ shared by a large class 

of citizens; and (3) in statutory cases, the plaintiff’s claim must fall within the ‘zone of interests’ 

regulated by the statute in question.” McGone, 681 F.3d at 729. While Vanity does not argue with 

any specificity which of the standing requirements Ms. De Angelis would not satisfy if she, in fact, 

never danced at its club, in setting the evidentiary hearing, the Court held that if she did not ever 

perform at Vanity, Ms. De Angelis could not meet the first constitutional requirement: she could 

not show that she suffered an injury in fact. (ECF No. 31). The Court determined that it thus must 

hold a hearing and weigh the evidence to determine if Ms. De Angelis ever worked at Vanity. 

After weighing the evidence, the Court determines that Ms. De Angelis has presented 

sufficient evidence at this stage to meet her burden of showing that did, indeed, have some 

relationship with Vanity, such that she has “a personal stake in the outcome of the controversy as 

to warrant [her] invocation of federal-court jurisdiction.” Providence Baptist Church v. Hillandale 

Comm., Ltd., 425 F.3d 309, 318 (6th Cir. 2005) (emphasis in original). At the hearing, Ms. De 

Angelis testified that she was an exotic dancer at Vanity from approximately April of 2016 to 

February of 2017. (See Transcript of August 10, 2018 Hearing (“Tr.”)). Ms. De Angelis gave 

details regarding her audition at Vanity, including that it was in the early evening on a weekday 

and that she wore unique heels that are neon blue in the black light. (Tr.). She testified about the 

layout of Vanity, and drew a rough sketch showing the distinctive shape of the main stage and the 

location of an individual stage, that she described as peculiar to Vanity. (Id.). Ms. De Angelis 

testified about the last time she danced at Vanity in 2017, explaining that it was very slow at Vanity 

so she left to work at Scores, another club next door, and did not feel that it was fair to have to pay 

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fees at Vanity since she had not worked. (Id.). At the conclusion of her direct testimony, Ms. De 

Angelis testified that she “definitely remember[s] working” at Vanity. (Id.). 

Vanity, on the other hand, presented the testimony of its General Manager, Mr. Kenneth 

Kopras, who also submitted an affidavit in support of the Motion to Dismiss. (Tr., ECF No. 6-7). 

Mr. Kopras testified that he has worked at Vanity for just over fifteen years, and has been the 

general manager for thirteen years. (Tr.). Mr. Kopras testified that he did not recognize Ms. De 

Angelis as a person who has ever danced at Vanity, and he works with all of the dancers there. 

(Tr.). He also stated that Vanity has its dancers complete an initial application and a dancer’s 

agreement, and provide a valid state/government issued identification, and Vanity went through 

their paperwork for entertainers and could not find anything with Ms. De Angelis’ name on it. 

(Id.; ECF No. 6-7 at ¶ 3). 

While the Court does not doubt the veracity of Mr. Kopras’ statements, merely because he 

does not recognize Ms. De Angelis and the club could not find her paperwork does not mean that 

Ms. De Angelis never danced at Vanity. Ms. De Angelis, who performed under the stage name 

“Zoe,” could have appeared differently in her stage costumes and makeup, causing Mr. Kopras not 

to recognize her in a photograph or in court. Ms. De Angelis also testified that Vanity was one of 

her “off clubs” and that other girls worked at the club longer and had more privileges, so Mr. 

Kopras simply could have been less familiar with her than he was with more regular performers. 

As for the paperwork, Ms. De Angelis argued that it is not surprising that Vanity did not have 

paperwork on her, given that one of her claims in the case relates to failure to maintain proper 

records. (ECF No. 9 at 7). In any event, merely because they could not find the paperwork does 

not mean it did not exist at one point or that Ms. De Angelis did not still dance there in the absence 

of paperwork. 

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The Court finds no reason to discredit Ms. De Angelis’ testimony that she did, in fact, 

dance at Vanity, and her testimony is sufficient to find jurisdiction at this stage. The Court 

acknowledges that Ms. De Angelis did not recall with 100% accuracy all of the details of Vanity’s 

operations. For example, she testified that she did not recall exactly how to get to the locker room, 

and stated that the club was only one floor to the best of her knowledge. (Tr.). Mr. Kopras, 

however, testified that Vanity’s locker room is in the basement. (Id.). Ms. De Angelis testified 

that she worked at a number of different clubs during the same time period and because of that 

“some of the details get confused.” (Tr.). The Court finds this explanation to be understandable—

Ms. De Angelis listed at least seven clubs that she danced at during the same time frame, and 

testified that it is common in the industry to dance at multiple clubs, which Mr. Kopras 

acknowledged in his testimony as well. (Id.). It is reasonable for a dancer who works at so many 

clubs to confuse some of these details. At the end of the day, Ms. De Angelis was able to recall 

correctly numerous details, including that the lockers in said locker room were gray, which Mr. 

Kopras confirmed. The Court is satisfied that Ms. De Angelis danced at Vanity, at least on 

occasion. She thus alleges an injury that is personal to her and has standing to bring suit.1

III. MS. DE ANGELIS’ MOTION FOR JUDGMENT ON THE PLEADINGS 

A. Standard of Review 

When a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) 

is based on the argument that the complaint fails to state a claim upon which relief may be granted, 

the Court employs the same legal standard as a Rule 12(b)(6) motion. Morgan v. Church’s Fried 

Chicken, 829 F.2d 10, 11 (6th Cir. 1987) (“Where the Rule 12(b)(6) defense is raised by a Rule 

 

1

 The Court expresses no opinion on whether Ms. De Angelis was an employee or an independent 

contractor. 

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12(c) motion for judgment on the pleadings, we must apply the standard for a Rule 12(b)(6) motion 

in reviewing the district court’s decision.”). The Court will grant the Rule 12(c) motion “when no 

material issue of fact exists and the party making the motion is entitled to judgment as a matter of 

law.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007) (quoting Paskvan 

v. City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991)). 

 When a party moves for judgment on the pleadings, the Court must construe “all wellpleaded material allegations of the pleadings of the opposing party . . . as true, and the motion may 

be granted only if the moving party is nevertheless clearly entitled to judgment.” Id. at 581. The 

Court is not required, however, to accept as true mere legal conclusions unsupported by factual 

allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

B. Analysis 

Defendants bring two counterclaims against Ms. De Angelis: (1) a breach of contract claim 

for breaching the financial compensation terms of the independent contractor agreement 

contingent on Plaintiffs’ success in the lawsuit and Defendants being required to pay them 

additional compensation; and (2) an unjust enrichment claim in the alternative to its breach of 

contract claim. (ECF No. 7 at 7). Both of these counterclaims are contingent on Ms. De Angelis’ 

success in the lawsuit and this Court finding that the dancers are employees rather than independent 

contractors. (ECF No. 15 at 7). Ms. De Angelis argues that the counter claims are impermissible 

because to entertain such claims would undermine the statutory protections of the FLSA. (ECF 

No. 11 at 9-11). 

In Wagoner v. N.Y.N.Y., Inc., this Court confronted the same question at issue here. No. 

1:14-CV-480, 2015 WL 1468526 (S.D. Ohio Mar. 30, 2015) (Barrett, J.). Plaintiff worked as an 

exotic dancer at defendant’s adult entertainment club and filed a class and collective action 

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asserting claims for violations of the FLSA and the OMFWSA. Id. at *1. Defendant filed two 

counterclaims: (1) a breach of contract claim alleging that plaintiff breached an agreement to 

perform as an independent contractor by retaining dance fees while claiming to be employees; and 

(2) an unjust enrichment claim alleging that the dancers benefitted from retaining revenue, among 

other things. Id. at *2. Plaintiff brought a motion to dismiss the counterclaims, arguing that 

defendant’s theory for breach of contract and unjust enrichment are “legally impermissible because 

they improperly seek to circumvent the requirements of the FLSA and OMFWSA.” Id. at *6. 

The Wagoner court agreed. In analyzing the breach of contract claim, the court reasoned 

that “individuals may not contract away the right to be classified and compensated properly or the 

right to be free from retaliation for enforcing those statutory rights.” Id. The court found that the 

FLSA is designed to defeat rather than implement contractual agreements, and that allowing the 

recovery of dance fees “would be antithetical to the long-standing principles of the FLSA and its 

state law counterpart, as the protection afforded by the contract fall short of that provided by those 

wage laws.” Id. The court stated that the labels employers place on the employment relationship 

or the nature of the monies received by the workers are not binding, and that such determinations 

are reserved for the courts. Id. Thus, the Wagoner court held “that the provisions of the contract 

upon which Defendant rely for the breach of contract counterclaim are invalid because they operate 

as impermissible waivers of the dancers’ rights under the federal and state wage laws,” and 

dismissed the claim for failure to state a claim upon which relief could be granted. Id. The court 

went on to find that the unjust enrichment claim must be dismissed for the same reasons—it was 

premised on the same arguments as the breach of contract counterclaim and to allow it to continue 

would be to allow defendant to circumvent the “comprehensive and uniform wage schemes that 

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are intended to protect all individuals performing covered work, and would undermine the 

deterrent role of the FLSA and its state counterpart.” Id. at 7. 

This Court sees no reason to depart from the holding in Wagoner and finds its reasoning to 

be persuasive. Indeed, the Supreme Court has held that “FLSA rights cannot be abridged by 

contract or otherwise waived because this would nullify the purposes of the statute and thwart the 

legislative policies it was designed to effectuate.” Barrentine v. Arkansas-Best Freight Sys., Inc., 

450 U.S. 728, 740 (1981) (internal citations omitted). Allowing the Defendants to bring a breach 

of contract claim (or an unjust enrichment claim premised on the same argument) for breaching an 

agreement that incorrectly labels employees as independent contractors would thwart the 

legislative purposes of the FLSA. To be clear, the Court is not making a judgment at this stage 

that the agreement purporting to classify dancers as independent contractors is invalid, that such 

an agreement is an attempt to thwart the FLSA, or that dancers are more properly characterized as 

employees. Defendants’ counterclaims are both contingent on Ms. De Angelis being successful 

in the lawsuit, and thus would only come in to play after the court would make such a finding. If 

the Court did indeed make such a finding, the counterclaims would not be permissible. Thus, they 

must be dismissed for failure to state a claim.2

Defendants argue that Wagoner is distinguishable because “[r]ather than finding a failure 

to state a cognizable claim, the Court in Wagoner declined to exercise supplemental jurisdiction 

over the defendant’s contractual counterclaims in that case.” (ECF No. 15 at 14). Contrary to 

Defendants’ contention, the Wagoner court did the exact opposite: the court expressly exercised 

supplemental jurisdiction over the counterclaims and then dismissed the counterclaims for failure 

to state a claim upon which relief can be granted. 2015 WL 1468526, at *6 (“[T]he Court finds it 

 

2 Because the Court finds that the counterclaims are impermissible as a matter of law, it need not 

address Ms. De Angelis’ remaining arguments.

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appropriate to exercise supplemental jurisdiction over [the counterclaims] here.”); id. (“The Court 

agrees with Plaintiff that the counterclaims fail to state a claim upon which relief may be 

granted.”). Defendants’ arguments are therefore unpersuasive.3

 

IV. CONCLUSION 

 For the reasons set forth above, Vanity’s Motion to Dismiss (ECF No. 6) is DENIED. Ms. 

De Angelis’ Motion for Judgment on the Pleadings as to Vanity’s counterclaims (ECF No. 11) is 

GRANTED. 

 IT IS SO ORDERED.

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY 

 United States District Court Judge 

DATED: September 11, 2018 

 

3

 The Court notes that Defendants still have a defense for set-off, arguing that they are entitled to 

offset the amount of fees, tips, and other compensation dancers received against any minimum and 

overtime wages owed. This issue “is reserved for a future ruling after further development of the 

factual record given that it is not pertinent to the resolution of the motion presently before the 

Court.” Desio v. Russell Rd. Food & Beverage, LLC, No. 215CV01440GMNCWH, 2016 WL 

4721099, at *1 (D. Nev. Sept. 9, 2016). 

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