Dorsely v. Gonzalez
Filing
50
OPINION AND ORDER granting in part and denying in part 40 motion to dismiss; granting in part and denying in part 46 motion to dismiss. The motions are granted to the extent that Count VII is dismissed without prejudice with leave to file a Fourth Amended Complaint within 14 days of this Opinion and Order. The motions are otherwise denied. Signed by Judge John E. Steele on 9/27/2017. (RKR)
Case 2:17-cv-00037-UA-CM Document 50 Filed 09/27/17 Page 1 of 9 PageID 259
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MITIL DORSELI, RENE JOLTIUS,
GELCILIA
THELEMARC,
and
NERIUS JOLTIUS,
Plaintiffs,
v.
Case No:
2:17-cv-37-FtM-99CM
GREGORIO
GONZALEZ,
JR.,
GREGORIO GONZALEZ, SR., and
GSH LABOR MANAGEMENT, LLC,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants Gregorio
Gonzalez, Jr. and Gregorio Gonzalez, Sr.’s Motions to Dismiss Third
Amended Complaint (Docs. ## 40, 46) filed on July 28 and September
25, 2017.
Plaintiffs filed Responses in Opposition (Doc. ## 42,
49) on August 11, 2017 and September 19, 2017. 1
For the reasons
set for the below, the Motions are granted in part and denied in
part.
I.
Plaintiffs
are
migrant
and
seasonal
farmworkers
seeking
damages, injunctive, and declaratory relief for violations of
certain provisions of the Migrant and Seasonal Agricultural Worker
1
Defendants’ Motions to Dismiss (as well as plaintiffs’
Responses) are virtually identical.
Case 2:17-cv-00037-UA-CM Document 50 Filed 09/27/17 Page 2 of 9 PageID 260
Protection Act, 29 U.S.C. §§ 1801–72 (AWPA) and the Internal
Revenue Code, 26 U.S.C. § 7434.
(Doc. #35.)
Defendant GSH Labor
Management, LLC was a farm labor contracting business 2 operated by
defendants
Gregorio
“defendants”).
Gonzalez,
Plaintiffs
Sr.
were
and
Jr.
transported
by
(collectively,
defendants
to
locations in Palm, Suwanee, and Hamilton County, Florida (northcentral
Florida)
from
2014-2016
to
harvest
sweet
corn.
The
Gonzalez’s are residents of Hendry County, Florida.
Plaintiffs
allege
that
defendants
violated
the
AWPA
by
failing to pay their wages when due, resulting in plaintiffs
receiving less than the wages that they were owed, and failing to
include in their payroll records the full amount of earnings,
resulting in earnings being underreported to the Social Security
Administration and the Florida Reemployment Assistance Program.
(Doc. #35, ¶ 2.)
Defendants failed to provide plaintiffs with a
written disclosure of the terms and conditions of the proffered
employment as required by the AWPA, including required information
regarding
respect
to
plaintiffs
the
workers’
their
in
compensation
employment.
vehicles
that
(Id.)
lacked
insurance
coverage
Defendants
insurance
or
with
transported
sufficient
insurance coverage for personal injuries and property damage as
required by the AWPA.
2
(Id.)
Defendants also willfully filed
GSH administratively dissolved in 2016.
- 2 -
(Doc. #35, ¶ 13.)
Case 2:17-cv-00037-UA-CM Document 50 Filed 09/27/17 Page 3 of 9 PageID 261
fraudulent
IRS
Forms
W-2
for
plaintiffs
that
underreported
plaintiffs’ wages, resulting in tax liability for plaintiffs, and
affecting plaintiffs’ ability to claim Social Security benefits.
(Id. at ¶ 3.)
Although defendants concede in their Motions that individual
liability can exist under the AWPA, they move to dismiss for
failure to state a claim, arguing that the Third Amended Complaint
fails to set forth sufficient allegations to support individual
liability that they are “employers” under the AWPA because there
are no allegations that they exercised day-to-day control over
plaintiffs’ employment with defendants, such as setting their
schedules or determining their rate of pay.
They also argue that
the Third Amended Complaint is a shotgun pleading in the sense
that
each
Count
refers
to
“defendants”
without
specifically
indicating what part each defendant played in the unlawful acts.
Plaintiffs respond that the allegations are sufficient to state a
claim for individual liability under the AWPA and that it is not
necessary to name each defendant under each Count because GSH was
a family-owned business operated jointly by Gonzalez Sr. and Jr.
II.
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
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a formulaic recitation of the elements of a cause of action will
not do.”
(citation
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
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).
This requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.”
Ashcroft v. 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.”
Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
omitted).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
“Factual allegations that are merely
consistent with a defendant’s liability fall short of being
facially plausible.”
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (internal 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
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Case 2:17-cv-00037-UA-CM Document 50 Filed 09/27/17 Page 5 of 9 PageID 263
to relief.”
Iqbal, 556 U.S. at 679.
A. AWPA Claims
The AWPA was passed in 1982 to provide minimum protections
for
migrant
provisions
and
seasonal
demanding
accurate
complete wage payments.
32.
agricultural
workers,
recordkeeping
and
including
timely
and
See, e.g., 29 U.S.C. §§ 1821–23, 1831–
In order “to assure necessary protections for migrant and
seasonal agricultural workers,” 29 U.S.C. § 1801, the statute
imposes obligations on “agricultural employers,” including those
who recruit, solicit, hire, employ, furnish, or transport any
migrant or seasonal farmworkers.
§ 500.20(d).
29 U.S.C. § 1802(2); 29 C.F.R.
The AWPA expressly defines “employ” as synonymous
with the term’s use in the Fair Labor Standards Act.
1802(2)(5).
29 U.S.C. §
Thus, an entity that employs agricultural workers
under the FLSA necessarily employs the workers for the purposes of
the AWPA and vice versa.
Cir. 1986).
Patel v. Wargo, 803 F.2d 632, 635 (11th
Under the FLSA and the AWPA, one “employs” an
individual if it “suffers or permits” the individual to work; a
broad
definition
statutes.
that
furthers
the
remedial
purposes
of
the
29 U.S.C. § 203(g), 1802(5); Antenor v. D&S Farms, 88
F.3d 925, 933 (11th Cir. 1996).
Here, plaintiffs allege that defendants were both registered
and acted as farm labor contractors and that in exchange for
monetary payment, defendants recruited, transported, and furnished
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plaintiffs
for
employment
harvesting
corn
meeting the AWPA definition of employer.
at
various
farms,
(Doc. #35, ¶¶ 11-13.)
Plaintiffs also allege that defendants had control over their pay,
including tax withholdings.
(Id. at ¶¶ 2-3.)
Plaintiffs have
alleged that defendants hired them, drove them to the fields, and
paid
them
their
agricultural
earnings,
employer
all
under
within
the
the
AWPA.
definition
of
The
places
AWPA
an
responsibilities on farm labor contractors and growers in order to
protect migrant and seasonal workers form abuse and exploitation.
Antenor, 88 F.3d at 930-31.
Defendants have cited no authority
holding that they may not be held individually liable if they meet
the definition of agricultural employer under the AWPA.
The Court
finds the allegations sufficient in this regard.
Defendants also argue that the allegations under each Count
are only against “defendants” and do not allege how each defendant
was involved in the wrongdoing - a “shotgun pleading.”
Plaintiffs
respond that the Third Amended Complaint is not a shotgun pleading
because defendants acted in concert to commit the alleged acts,
but requests leave to amend if the Court thinks otherwise.
While generally a complaint that makes no distinction between
defendants’
liability
is
considered
a
shotgun
pleading,
a
“complaint that can be fairly read to aver that all defendants are
responsible for the alleged conduct” may refer to defendants
collectively.
See Kyle K. v. Chapman, 208 F.3d 940, 944 (11th
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Cir. 2000).
in
this
The Court agrees that such an approach makes sense
case.
In
section
titled
“Parties,”
plaintiffs
have
identified that each defendant is a farm labor contractor and that
in exchange for monetary payment, each recruited, transported, and
furnished plaintiffs and other migrant and seasonal workers for
employment harvesting corn.
Third
Amended
Complaint
(Doc. #35, ¶¶ 11-12.)
will
not
be
dismissed
as
Thus, the
a
shotgun
pleading.
B. IRS Claim
Count VII alleges willful filing of fraudulent information
returns in violation of 26 U.S.C. § 7434 3, against all defendants.
Plaintiffs allege that the W-2 forms filed by defendants listed
only a portion of their actual earnings, which substantially
reduced defendants’ obligation for payment of certain taxes and
worker’s compensation premiums.
(Doc. #35, ¶¶ 90-91.)
There are three elements to a Section 7434 claim: (1) that
the defendant issued information returns; (2) the information
returns were fraudulent; and (3) defendant willfully issued the
3
The statute states:
If any person willfully files a fraudulent information
return with respect to payments purported to be made to
any other person, such other person may bring a civil
action for damages against the person so filing such
return.
26 U.S.C. § 7434(a).
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returns.
Leon v. Tapas & Tintos, Inc., 51 F. Supp. 3d 1290, 1297-
98 (S.D. Fla. 2014).
The parties generally do not dispute the first element 4, but
defendants
seek
dismissal
plaintiffs
fail
to
of
allege
Count
facts
VII
that
on
the
show
grounds
that
that
defendants
fraudulently filed returns with the Internal Revenue Service, or
that
they
defendants
may
be
argue
held
that
personally
plaintiffs
liable.
have
not
In
pled
particular,
which
of
the
defendants’ names, if any, were on the W-2 forms, who filed them,
or what facts support the allegation that the conduct was willful.
“Whether innocent or deliberate, the payor’s filing of the
wrong form establishes no liability under Section 7434 unless the
form willfully misstates the payee’s income.”
F. Supp. 3d 1296, 1298 (M.D. Fla. 2017).
Tran v. Tran, 239
Here, plaintiffs allege
in a conclusory fashion that defendants willfully filed W-2 forms
containing fraudulent information regarding plaintiffs’ earnings,
but
offer
little
other
factual
detail.
Simply
stating
that
defendants willfully issued the fraudulent forms offers more of a
legal conclusion than factual allegations.
“To prove willfulness,
the plaintiff must show that the defendants, aware of the duty
purportedly imposed by Section 7434, specifically intended to
4
Under Section 6724(d)(1)(A), an information return is “any
statement of the amount of payments to another person required by”
the Internal Revenue Code. Thus, an information return reports a
payee’s income.
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flout the statute.”
192,
201–02,
Id. (citing Cheek v. United States, 498 U.S.
(1991)
(explaining
“willfulness”
in
a
tax-fraud
action)).
Federal
Rule
9(b)
requires
that
fraud
be
pled
with
particularity and the Court otherwise sees no authority that the
heightened pleading requirement would not apply to tax fraud cases.
Here, plaintiffs fail to allege any information regarding how the
returns were false, or any other factual details regarding the
returns that would tend to show any knowing and willful filing by
either defendant.
Therefore, the Court will dismiss Count VII
with leave to amend.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendants’ Motions to Dismiss Third Amended Complaint (Docs.
##40, 46) are GRANTED IN PART AND DENIED IN PART.
The Motions are
granted to the extent that Count VII is dismissed without prejudice
with leave to file a Fourth Amended Complaint with FOURTEEN (14)
DAYS of this Opinion and Order; otherwise, the Motions are denied.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2017.
Copies:
Counsel of Record
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27th
day
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