Calderone et al v. Scott

Filing 38

OPINION AND ORDER granting 21 Defendant's Motion to Dismiss Counts V and VI of the Amended Collective & Class Action Complaint. Counts V and VI of the Amended Collective & Class Action Complaint are dismissed with prejudice. See Opinion and Order for details. Signed by Judge John E. Steele on 4/16/2015. (MAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN
CALDERONE,
an
individual, GEORGE SCHWING,
an
individual,
MICHAEL
ZALESKI, an individual, and
SELENA LEE, an individual,
Plaintiffs,
v.

Case No: 2:14-cv-519-FtM-29CM

MICHAEL SCOTT, as the duly
elected
Sheriff
of
Lee
County, Florida,
Defendant.

OPINION AND ORDER
This matter comes before the Court on review of Defendant’s
Motion to Dismiss Counts V and VI of the Amended Collective & Class
Action Complaint (Doc. #21) filed on January 20, 2015.
filed a Response (Doc. #22) on January 30, 2015.

Plaintiff

With leave from

the Court, Defendant and Plaintiffs filed a Reply (Doc. #30) and
Surreply

(Doc.

respectively.

#31)

on

February

6

and

February

13,

2015

For the reasons set forth below, the motion is

granted.
I.
Plaintiffs have filed an Amended Collective & Class Action
Complaint (Doc. #11), on their own behalf and on behalf of other
similarly situated individuals, against Defendant Michael Scott in
his

official

capacity

as

Sheriff

of

Lee

County,

Florida.

Plaintiffs, former employees of the Lee County Sheriff’s Office,
allege that they performed “off-the-clock” work for which they
were

not

failure

compensated.

to

compensate

According
them

for

to

such

Plaintiffs,
work

Defendant’s

constitutes

unjust

enrichment and violates the Fair Labor Standards Act (FLSA) and
the Florida Minimum Wage Act (FMWA).

Defendant now moves to

dismiss Plaintiffs’ unjust enrichment causes of action (Counts V
and VI) on the basis of Florida state law sovereign immunity.
Plaintiffs respond that the State of Florida has waived sovereign
immunity under the circumstances giving rise to their unjust
enrichment claims.
II.
“Sovereign immunity is the privilege of the sovereign not to
be sued without its consent.”

Va. Office for Prot. & Advocacy v.

Stewart, 131 S. Ct. 1632, 1637 (2011).

“In Florida, sovereign

immunity is the rule, rather than the exception,” Pan-Am Tobacco
Corp. v. Dep't of Corr., 471 So. 2d 4, 5 (Fla. 1984) (citing Fla.
Const. art. X, § 13).

Thus, absent a waiver, Florida sovereign

immunity bars suit against the state or one of its political
subdivisions.
Florida’s
immunity

for

Id.
legislature
liability

in

has
torts

explicitly
involving

waived
personal

wrongful death, and loss or injury of property.
768.28.

sovereign
injury,

Fla. Stat. §

Additionally, the Florida Supreme Court has found an

2

implied waiver of sovereign immunity for breach of contract claims.
Pan-Am, 471 So. 2d at 5-6.

That waiver applies to claims for

breach of the express and implied conditions of a written contract,
but does not apply to claims totally outside the terms of a written
contract.

County of Brevard v. Miorelli Eng'g, 703 So. 2d 1049,

1051 (Fla. 1997) (absent a written change order, sovereign immunity
barred breach of contract claim against city for extra work beyond
that described in construction contract); see also ChampagneWebber, Inc. v. Ft. Lauderdale, 519 So. 2d 696, 698 (Fla. 4th DCA
1988) (sovereign immunity waived for claim that city violated
implied covenant not to interfere with performance of written
construction contract by misrepresenting soil conditions).
Here, Plaintiffs bring their unjust enrichment claims against
Michael Scott in his official capacity as the Sheriff of Lee
County, Florida.

A claim against a Florida county sheriff in his

official capacity is considered a claim against the county he
represents.

Cook v. Sheriff of Monroe County, 402 F.3d 1092, 1115

(11th Cir. 2005) (“When, as here, the defendant is the county
sheriff, the suit is effectively an action against the governmental
entity he represents—in this case, Monroe County.”); Abusaid v.
Hillsborough Cnty. Bd. of Cnty. Comm'rs, 405 F.3d 1298, 1305 (11th
Cir.

2005)

(“Florida's

constitution

labels

sheriffs

officers.”) (quoting Fla. Const. art. VII, § 1(d)).

county

Under Florida

law, counties are political subdivisions entitled to sovereign

3

immunity to the same extent as the state.

Fla. Stat. § 768.28(2).

Thus, the Court must determine whether the state has waived
sovereign immunity for the unjust enrichment claims at issue here.
“A claim for unjust enrichment is an equitable claim, based
on a legal fiction created by courts to imply a ‘contract’ as a
matter of law.”

Tooltrend, Inc. v. CMT Utensili, SRL, 198 F.3d

802, 805 (11th Cir. 1999).

Because unjust enrichment claims are

not torts, Florida’s legislature has not waived sovereign immunity
pursuant to Fla. Stat. § 768.28.

Plaintiffs argue, however, that

their unjust enrichment claims fall within the waiver of sovereign
immunity articulated in Pan-Am and Miorelli because their oral
employment

contracts

with

the

Sheriff’s

Office

included

the

express (or implied) covenant that they would be compensated for
all work performed at the Sheriff’s direction.

Defendant responds

that the terms of Plaintiffs’ alleged oral employment contracts
are immaterial because there can be no waiver of sovereign immunity
absent a written contract.

The Court agrees with Defendant.

As explained above, Florida courts have held that sovereign
immunity has been waived for claims that a state entity breached
the express or implied covenants of a written contract.

However,

as explicitly stated by the Florida Supreme Court in Pan-Am, a
duly-authorized written contract is a prerequisite to finding that
sovereign immunity has been waived.

471 So. 2d at 6 (“We would

also emphasize that our holding here is applicable only to suits

4

on express, written contracts into which the state agency has
statutory authority to enter.”); see also Fin. Healthcare Assocs.,
Inc. v. Pub. Health Trust, 488 F. Supp. 2d 1231, 1236 (S.D. Fla.
2007) (“Clearly, the implied contract alleged in Count II is not
an express written contract and therefore it fails to escape the
sovereign immunity bar as articulated in Pan–Am.”).
Here, Plaintiffs concede that they did not have written
contracts with the Lee County Sheriff’s Office.

(Doc. #31, p. 1.)

Thus, the waiver of sovereign immunity articulated by the Florida
Supreme Court in Pan-Am and Miorelli is inapplicable and Defendant
is entitled to sovereign immunity from Plaintiffs’ claims for
unjust enrichment.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss Counts V and VI of the Amended
Collective & Class Action Complaint (Doc. #21) is GRANTED and
Counts V and VI of the Amended Collective & Class Action Complaint
are dismissed with prejudice.
DONE AND ORDERED at Fort Myers, Florida, this
April, 2015.

Copies: Counsel of record

5

16th

day of