Jernigan v. 1ST Stop Recovery, Inc et al

Filing 23

OPINION AND ORDER denying 14 motion to dismiss Count II. Signed by Judge John E. Steele on 8/25/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DOROTHY JERNIGAN, on behalf
of
herself
and
others
similarly situated,
Plaintiff,
v.

Case No:

1ST STOP RECOVERY,
Florida
for
Corporation,
and
MARRA-PTASHINSKI,
individually,

2:17-cv-265-FtM-99MRM

INC, a
Profit
JUDITH

Defendants.
OPINION AND ORDER
This matter comes before the Court on Defendants’ Motion to
Dismiss Count II of Plaintiff’s Complaint (Doc. #14) filed on June
21, 2017.
2017.

Plaintiff filed a Response in Opposition on July 5,

For the reasons set forth below, the motion is denied.
I.

On February 16 2017, plaintiff Dorothy Jernigan (plaintiff or
Jernigan), filed a two-count Complaint (Doc. #1) against her former
employers, 1st Stop Recovery, Inc. and Judith Marra-Ptashinski
(collectively

“defendants”).

Plaintiff

alleges

failure

to

pay

overtime wages in violation of the Fair Labor Standards Act (FLSA)

(Count I) and a state-law claim of Unjust Enrichment (Count II).
Marra-Ptashinski owns and operates 1st Stop Recovery.

(Id. ¶ 6.)

According to the Complaint, defendants hired plaintiff in
September

2015

to

work

as

a

non-exempt,

repossession agent/office assistant.
September

2015

to

December

2016,

hourly

paid

(Doc. #1, ¶¶ 25-27.)
while

an

hourly

From

employee,

plaintiff was not paid for all of the overtime hours worked.
at ¶ 30.)

office

(Id.

Throughout the duration of her employment, plaintiff

was required to complete various non-exempt duties as her primary
job function.

(Id. at ¶ 28.)

At various times, defendants

required plaintiff to work, and plaintiff did work, off the clock
with no compensation.

(Id. at ¶ 29.)

Defendants seek dismissal of Count II (unjust enrichment) for
failure to state a claim because the claim is duplicative of
plaintiff’s FLSA claim and is preempted by the FLSA.
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 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

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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

facially plausible.”

“Factual allegations that are merely

defendant’s

liability

fall

short

of

being

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 to
relief.”

Iqbal, 556 U.S. at 679.

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III.
Defendant argues that to the extent plaintiff is attempting
to state a claim for unpaid wages via a state-law claim for unjust
enrichment, the claim must fail as Section 216 of the FLSA is the
exclusive remedy for enforcing rights created under the Act.
Plaintiff responds that her unjust enrichment claim seeks to
recover amounts due and owing to her that may not otherwise be
recoverable pursuant to the FLSA, frequently known as “gap time.”
That

is,

non-overtime

compensated. 1

hours

for

which

an

employee

is

not

Count II seeks recovery for “gap time” hours that

were worked but “cannot be captured as part of [her] overtime
claims in Count One, because the addition of these work hours may
be less than forty (40) hours within a single week.”

(Doc. #1, ¶

54.)
Although the issue has yet to be addressed by the Eleventh
Circuit, whether “gap time” is recoverable under the FLSA has been
addressed by at least three other circuits which ruled against

1

Gap time

refers to time that is not covered by the overtime
provisions because it does not exceed the overtime
limit, and to time that is not covered by the minimum
wage
provisions
because,
even
though
it
is
uncompensated, the employees are still being paid a
minimum wage when their salaries are averaged across
their actual time worked.
Adair v. City of Kirkland, 185 F.3d 1055, 1062 n.6 (9th Cir. 1999).

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FLSA coverage.

See Davis v. Abington Memorial Hosp., et al., 765

F.3d 236, 244 (3d Cir. 2014) (noting that courts “widely agree”
that there is no cause of action under the FLSA for pure gap time
wages – “that is, wages for unpaid work during pay periods without
overtime” – because the FLSA requires payment of minimum wages and
overtime wages only); Lundy v. Catholic Health Sys. of Long Island,
Inc.,

711

F.

3d

106

(2d

Cir.

2013);

Monahan

v.

Chesterfield, Va., 95 F.3d 1263, 1280 (4th Cir. 1996).

Cty.

Of

See also,

Thrower v. Peach Cty., Georgia, Bd. of Educ., No. 5:08-CV-176 MTT,
2010 WL 4536997, at *5 (M.D. Ga. Nov. 2, 2010) (“[T]he clear weight
and trend of authority, nearly twenty years later, is that pure
gap time claims are not compensable.”); Foster v. Angels Outreach,
LLC, No. CIVA 206CV980-ID WO, 2007 WL 4468717, at *3 (M.D. Ala.
Dec. 17, 2007) (“[The FLSA] does not provide a remedy to Plaintiffs
for their unpaid contractual wages which exceed the statutory
mandated minimum wage.”); Ealy–Simon v. Liberty Med. Supply, Inc.,
No. 05-14059-CIV, 2007 WL 7773834, at *6 (S.D. Fla. Feb. 12, 2007)
(“FLSA law is such that an employee can seek minimum wage or
overtime compensation only (and hence no straight or ‘gap’ time)”).
Here, the Court recognizes the authority finding that the
FLSA fails to provide relief for “gap time” claims and therefore
finds that Count II is not duplicative of, nor pre-empted by, the
FLSA.

Because there is otherwise no adequate remedy at law under

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the FLSA for such a claim, equitable relief may be pursued.

See

Mitsubishi Int’l Corp. v. Cardinal Textile Sales, Inc., 14 F.3d
1507, 1518 (11th Cir. 1994).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendants’

Motion

to

Dismiss

Count

II

of

Plaintiff’s

Complaint (Doc. #14) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of August, 2017.

Copies:
Counsel of Record

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25th

day