Farrest v. KNT Distributors, Inc. et al
Filing
31
OPINION AND ORDER denying as moot 25 motion to dismiss; granting in part and denying in part 28 motion to dismiss amended complaint and request for Attorney Fees. The motion is granted to the extent that Count III is dismissed without prejudice and the motion is otherwise denied. Signed by Judge John E. Steele on 11/30/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SCOTT
FARREST,
individual,
an
Plaintiff,
v.
Case No: 2:16-cv-111-FtM-99MRM
KNT DISTRIBUTORS, INC., a
Florida
corporation
and
TIMOTHY HIRT, an individual,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants’ Motion to
Dismiss Amended Complaint and Request for Attorney Fees (Doc. #28)
filed on September 30, 2016.
#29) on October 13, 2016.
motion
is
granted
to
the
Plaintiff filed a response (Doc.
For the reasons set forth below, the
extent
that
plaintiff’s
state-law
indemnity claim is dismissed; otherwise, the motion is denied.
I.
Plaintiff
Scott
Farrest
(plaintiff
or
Farrest),
filed
a
three-count Amended Complaint against his former employer, KNT
Distributors, Inc. (KNT) and Timothy Hirt (Hirt) (collectively
“defendants”), claiming that he was intentionally misclassified as
an independent contractor and denied overtime and minimum wage pay
in violation of the Fair Labor Standards Act (FLSA) (Count I), and
Article 10, Section 24, of the Florida Constitution (Count II).
(Doc. #26.)
Plaintiff was employed by defendants as a deliveryman
from November 2011 until his employment ended on November 30, 2013
following an automobile accident while he was delivering goods for
defendants.
(Id. at ¶10.)
Plaintiff alleges that Hirt is the
president of KNT with the sole authority to hire, fire, and
discipline employees, as well as supervise and control employees’
work schedule and conditions of employment, determining their rate
and method of pay.
(Id. at ¶4.)
Plaintiff alleges willful and/or
reckless disregard and seeks actual and liquidated damages, costs,
expenses, and attorneys’ fees.
(Id. at ¶¶15-16, 25, 29, 34, 36.)
Plaintiff also asserts a state-law claim for indemnity (Count III).
(Id.)
Defendants seek to dismiss Counts I and II for failing to
state a claim upon which relief can be granted, arguing that
plaintiff’s FLSA claim is barred by the statute of limitations and
that
defendant
Hirt
cannot
be
held
individually
liable.
Defendants further argue that plaintiff was required to comply
with the notice requirement imposed by Florida Statutes, Section
448.110, prior to bringing a claim under Article 10, Section 24,
of the Florida Constitution, but failed to do so.
Additionally,
defendants seek to dismiss Count III for lack of subject-matter
jurisdiction, asserting that the Court has no independent federal
jurisdiction to hear plaintiff’s indemnity claim, nor supplemental
jurisdiction.
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II. Failure to State a Claim
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted).
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555.
See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more
than
an
accusation.”
unadorned,
Ashcroft
v.
This requires
the-defendant-unlawfully-harmed-me
Iqbal,
556
U.S.
662,
678
(2009)
(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth.”
v.
Berzain,
omitted).
654
F.3d
1148,
1153
(11th
Cir.
2011)
Mamani
(citations
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent
with
a
“Factual allegations that are merely
defendant’s
liability
- 3 -
fall
short
of
being
facially plausible.”
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (internal quotation marks and citations
omitted).
Thus, the Court engages in a two-step approach: “When
there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
A. Count I - FLSA Statute of Limitations
The statute of limitations for violations of the FLSA is two
years, and three years for willful violations.
29 U.S.C. § 255(a);
Kaplan v. Code Blue Billing & Coding, Inc., 504 F. App’x 831, 833
(11th Cir. 2013).
Here, the original Complaint was filed on
February 8, 2016.
(Doc. #1.)
Defendants argue that because
plaintiff last worked for defendants on November 30, 2013, he is
outside the two-year statute of limitations and does not properly
allege that defendants’ violations were willful in order for three
years to apply.
(Doc. #28, p. 4.)
Plaintiff responds that he has
properly alleged that defendants’ violations were willful, thereby
extending the statute of limitations to three years.
“To establish that the violation of the [FLSA] was willful in
order to extend the limitations period, the employee must prove by
a preponderance of the evidence that [her] employer either knew
that its conduct was prohibited by the statute or showed reckless
disregard about whether it was.”
Kennel
Club,
Inc.,
515
F.3d
Alvarez Perez v. Sanford–Orlando
1150,
- 4 -
1162–63
(11th
Cir.
2008).
Reckless disregard is the “failure to make adequate inquiry into
whether conduct is in compliance with the Act.”
551.104.
5 C.F.R. §
“The three-year statute of limitations may apply even
when the employer did not knowingly violate the FLSA; rather, it
may apply when it simply disregarded the possibility that it might
be violating the FLSA.”
Allen v. Bd. of Pub. Educ. for Bibb Cnty.,
495 F.3d 1306, 1324 (11th Cir. 2007).
Accepting plaintiff’s allegations as true, the Court finds
that
plaintiff’s
Amended
Complaint
includes
facts
sufficiently allege willful violations of the FLSA.
that
Plaintiff
alleges that defendants only paid plaintiff $300.00 per week
despite the fact that he was required to work 55 hours per week,
which defendants were aware of.
(Doc. #26, ¶¶11-12, 13(g).)
B. Count II – Fla. Const. art. X, § 24,
In Count II, plaintiff alleges that defendants failed to pay
him the Florida minimum wage for all hours he worked, as required
by Article 10, Section 24, of the Florida Constitution.
Plaintiff
relies solely upon this constitutional provision as the basis for
his claim.
Defendants seek to dismiss Count II for failing to
state a claim, arguing that plaintiff was required to comply with
the pre-suit notice requirement imposed by the Florida Minimum
Wage Act (FMWA), Fla. Stat. § 448.110, but failed to do so.
1
1
The Florida Minimum Wage Act requires that, “prior to
bringing any claim,” a plaintiff shall “notify the employer . . .,
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Plaintiff responds that Article 10, Section 24 is self-executing
and provides a private cause of action for failure to pay a minimum
wage, and Section 448.110’s notice requirement cannot be imputed
to a constitutional cause of action.
But nevertheless, plaintiff
states that he did comply with Section 448.110’s notice requirement
by providing notice to defendants of his claim when he filed his
Amended Complaint on September 16, 2016. 2
In
examining
this
very
same
issue,
the
undersigned
has
previously found that Article 10, Section 24 is self-executing and
establishes
a
private
cause
of
action.
Bates
v.
Smuggler’s
in writing, of an intent to initiate such an action,” and identify
specifically “the minimum wage to which the person aggrieved claims
entitlement, the actual or estimated work dates and hours for which
payment is sought, and the total amount of alleged unpaid wages
through the date of the notice.” Fla. Stat. § 448.110(6)(a).
2
Plaintiff’s first Complaint, filed on February 8, 2016, pled
a claim for violation of the FMWA, and included a blank space where
the date that notice was provided to defendants was to be. (Doc.
#1, ¶38.) The Amended Complaint dropped the FMWA claim and brought
the claim solely under Article 10, Section 24, of the Florida
Constitution. (Doc. #26.) The Amended Complaint does allege that
notice of his claim was provided to defendants on September 16,
2016, with the caveat that plaintiff does not believe that such a
notice was actually required, but plaintiff included it because he
recognizes that this Court is divided over the issue of whether
Article 10, Section 24 is self-executing (providing an independent
cause of action).
(Doc. #26, ¶37 n.1.)
It is questionable
whether plaintiff complied with the notice provision of the FMWA
as he did not notify defendants prior to bringing the claim.
Rather, he notified them simultaneously with filing the claim with
this Court. The Court need not decide this issue though as it has
determined that notice is not required when bringing a claim solely
under the constitutional provision. See infra.
- 6 -
Enterprises, Inc., 2010 WL 3293347, at *3 (M.D. Fla. Aug. 19,
2010).
The Court also concluded that the notice requirement of
the FMWA is not imputed to Article 10, Section 24, of the Florida
Constitution.
Id. at *4.
Just as in Bates, here the Court notes that the cause of
action created by the Florida Constitution does not contain the
notice requirements of the Florida statute, and such requirements
do not “supplement, protect, or further the availability of the
constitutionally conferred right,” but rather impermissibly modify
the right in such a fashion that it alters and frustrates the
intent of the framers and the people to provide a cause of action
without
the
detailed
pre-suit
notice.
Id.
While
those
requirements are appropriate for the statutory cause of action
created by the FMWA, the Court cannot impute them to a claim
premised solely upon the constitutional provision.
Id.
The Court concludes that because plaintiff relies solely upon
Article 10, Section 24, of the Florida Constitution to support his
claim, he need not plead compliance with the notice requirements
of Florida Statutes Section 448.110 in order to state a claim upon
which relief may be granted.
Therefore, defendants’ motion to
dismiss Count II is denied.
C. Individual Liability
Defendant Hirt, who is the president of KNT, moves to dismiss
the Amended Complaint against him, arguing that he cannot be held
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individually liable because the Amended Complaint does not contain
any allegations that would pierce the corporate veil.
(Doc. #28,
¶11.)
The FLSA defines an “employer” as “any person acting directly
or indirectly in the interest of an employer in relation to an
employee.”
29 U.S.C. § 203(d).
An officer or owner who is either
“involved in the day-to-day operation [of a corporate entity] or
[has]
some
direct
responsibility
for
the
supervision
of
the
employee” can be held jointly and severally liable as an employer
under the statute.
Alvarez Perez v. Sanford–Orlando Kennel Club,
Inc., 515 F.3d 1150, 1160 (11th Cir. 2008).
“[W]hile control need
not be continuous, it must be both substantial and related to the
company’s FLSA obligations.”
Lamonica v. Safe Hurricane Shutters,
Inc., 711 F.3d 1299, 1314 (11th Cir. 2013).
Here, plaintiff has stated a plausible claim against Hirt as
he alleges that Hirt is the president of KNT with the sole
authority to hire, fire, and discipline employees, and supervised
and
controlled
plaintiff’s
work
schedule
and
conditions
of
employment, determining rate and method of pay, which the Court
accepts as true and takes in a light most favorable to plaintiff
in deciding a Rule 12(b)(6) motion to dismiss.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
motion to dismiss is denied.
- 8 -
(Doc. #26, ¶4.);
Therefore, Hirt’s
III. Supplemental Jurisdiction
Defendants argue that the Court does not have subject-matter
jurisdiction over plaintiff’s state-law claim for indemnity (Count
III) because the claim does not arise under federal law, nor are
the parties diverse, and the claim does not form part of the same
case or controversy as the FLSA claim for supplemental jurisdiction
to apply.
(Doc. #28, ¶¶ 12-13.)
Here, plaintiff alleges that on
November 30, 2013 he was driving the defendants’ motor vehicle
when he became involved in an accident.
(Doc. #26, ¶ 40.)
Unbeknownst to plaintiff, defendants had failed to secure proper
liability insurance on the vehicle.
(Id. at ¶ 41.)
As a result,
plaintiff alleges that he was cited and had his license suspended,
as
well
as
incurring
a
fine
of
defendants have refused to pay.
approximately
$12,600,
(Id. at ¶¶ 42-43.)
which
Plaintiff
states that he is wholly without fault and his liability is
vicariously and solely based on defendants’ failure to maintain
insurance.
Therefore, plaintiff seeks indemnity from defendants
for the fine he incurred.
(Id. at ¶¶ 44-47.)
Plaintiff asks the
Court to exercise supplemental jurisdiction over this claim under
28 U.S.C. § 1367(a).
Under 28 U.S.C. § 1367(a), a district court shall exercise
supplemental jurisdiction over any state-law claims that are “so
related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article
- 9 -
III of the United States Constitution.”
“The constitutional ‘case
or controversy’ standard confers supplemental jurisdiction over
all state claims which arise out of a common nucleus of operative
fact with a substantial federal claim.”
Parker v. Scrap Metal
Processors, Inc., 468 F.3d 733, 743 (11th Cir. 2006).
Farrest’s claim for indemnity arises under state law, and the
Court has no independent federal jurisdiction to hear the claim.
Furthermore, the state-law claim does not arise out of a common
nucleus of operative facts as the federal claim.
There is no
relationship between the claim that defendants failed to pay
plaintiff’s
overtime
and
minimum
wages
and
the
claim
that
defendants should indemnify plaintiff regarding fines incurred as
a result of the November 30, 2013 accident.
lacks
subject-matter
indemnity
claim,
and
jurisdiction
Therefore, the Court
over
plaintiff’s
will
be
the
claim
IV.
dismissed
state-law
without
Attorney Fees
prejudice. 3
Defendants request prevailing party attorney fees in the
event that the Court dismisses this action.
(Doc. #28, ¶¶ 14-15.)
As defendants are not yet the prevailing party to this action, the
request is denied.
3
As set forth in 28 U.S.C. § 1367(d), the period of
limitations for plaintiff’s state law claim is tolled for a period
of thirty days after this dismissal unless state law provides for
a longer tolling period.
- 10 -
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Defendants’
Motion
to
Dismiss
Amended
Complaint
and
Request for Attorney Fees (Doc. #28) is GRANTED in part and DENIED
in part.
The motion is granted to the extent that Count III is
dismissed without prejudice; otherwise, the motion is denied.
2.
As plaintiff filed an amended complaint, defendants’
first Motion to Dismiss (Doc. #25) is denied as moot.
DONE and ORDERED at Fort Myers, Florida, this
of November, 2016.
Copies:
Counsel of Record
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30th
day
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