Erling v. American Grille with Sushi LLC et al
Filing
27
OPINION AND ORDER dismissing 19 Amended Complaint without prejudice to filing a Second Amended Complaint within 7 days; denying as moot 21 motion to dismiss; granting 15 Motion to dismiss for lack of jurisdiction and the 12 Counterclaims are dismissed without prejudice. The Clerk shall terminate all counterclaimants. Signed by Judge John E. Steele on 12/28/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TODD ERLING, on behalf of
himself and others similarly
situated,
Plaintiff,
v.
Case No:
2:17-cv-350-FtM-29MRM
AMERICAN GRILLE WITH SUSHI
LLC,
a
Florida
profit
corporation and CHRIS K.
WHITAKER, individually,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of plaintiff’s
Motion
to
Jurisdiction
Dismiss
(Doc.
Counterclaim
#15)
filed
for
on
Lack
of
September
Subject-Matter
20,
2017,
and
defendants’ Motion to Dismiss Amended Complaint (Doc. #21) filed
on October 2, 2017.
Defendants filed a Response to Plaintiff’s
Motion (Doc. #22) and plaintiff filed a Memorandum of Law in
Opposition to Defendants’ Motion (Doc. #23).
1. Amended Complaint
As a preliminary matter, plaintiff's Amended Complaint (Doc.
#19) filed on September 21, 2017, is a shotgun pleading.
“The
most common type — by a long shot — is a complaint containing
multiple counts where each count adopts the allegations of all
preceding counts, causing each successive count to carry all that
came before and the last count to be a combination of the entire
complaint.”
Weiland v. Palm Beach Cnty. Sheriff’s Office, 792
F.3d 1313, 1321 (11th Cir. 2015).
The Court has a sua sponte
obligation to identify and dismiss a shotgun pleading.
See Davis
v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 n.54 (11th
Cir. 2008) (collecting cases); Byrne v. Nezhat, 261 F.3d 1075,
1131 (11th Cir. 2001) (“Shotgun pleadings, if tolerated, harm the
court by impeding its ability to administer justice.”).
In this
case, plaintiff realleges and reincorporates all allegations in
paragraphs 1 through 26 into paragraph 27, and also reincorporates
and readopts all allegations in paragraphs 1 through 38 into
paragraph 39 thereby including irrelevant allegations unrelated to
the claim in Count II.
The Amended Complaint will be dismissed
without prejudice to filing a second amended complaint.
2. Motion to Dismiss Count II of Amended Complaint
In defendants’ motion, defendants seek to dismiss Count II
for failure to state a cause of action.
Count Two alleges
retaliation under the Fair Labor Standards Act (FLSA) because
defendants filed a Counterclaim in response to the Complaint more
than 3 months after plaintiff left his employment.
Plaintiff
alleges that he believes that it was filed with a retaliatory
2
motive and because it lacks a reasonable basis in fact or law.
Plaintiff does not allege that the retaliation was related to his
discharge from employment or for discriminatory reasons under 29
U.S.C. § 215(a)(3), however the Court will leave this issue for
another time since the Amended Complaint is due to be amended.
See Kentish v. Madahcom, Inc., 566 F. Supp. 2d 1343, 1349 (M.D.
Fla. 2008) (noting that if “the Court determines Defendant’s
Counterclaim is merely a sham pleading, the Court may impose
sanctions against Defendant and its attorney”); Phillips v. M.I.
Quality Lawn Maint., Inc., No. 10-20698-CIV, 2011 WL 13100468, at
*4 (S.D. Fla. Mar. 30, 2011) (concluding that the filing of the
state court lawsuit by Defendants was protected by Florida’s
litigation privilege), aff'd, 537 F. App'x 908 (11th Cir. 2013).
3. Motion to Dismiss Counterclaims
Pursuant to Fed. R. Civ. P. 13(a), defendants allege two
Counterclaims as compulsory counterclaims.
That is, defendants
allege that the counterclaims arise out of the same transaction or
occurrence as plaintiff’s claims.
claim
for
conversion
because
Defendants allege a state law
plaintiff
often
came
into
the
restaurant and stole liquor and other alcoholic beverages for his
personal use, and a claim for return of money lent to plaintiff by
defendant Chris K. Witaker in May 2017, in the amount of $350.
3
The parties are not diverse in their citizenship, and no
federal question is presented by the counterclaims.
1331,
1332.
Therefore,
any
jurisdictional
28 U.S.C. §§
basis
over
the
counterclaims would necessarily be supplemental jurisdiction under
28 U.S.C. § 1367.
Yeseren v. Cksingh Corp., No. 2:10-CV-253-FTM-
29, 2010 WL 4023524, at *3 (M.D. Fla. Oct. 13, 2010).
Court
to
exercise
supplemental
jurisdiction
For the
over
the
counterclaims, they must be “so related to claims in the action
within such original jurisdiction that they form part of the same
case
or
controversy
Constitution.”
under
Article
28 U.S.C. § 1367(a).
III
of
the
United
States
The Court may decline to
exercise supplemental jurisdiction if “the claim substantially
predominates over the claim or claims over which the district court
has original jurisdiction”.
28 U.S.C. § 1367(c)(2).
Courts are generally reluctant to allow employers to assert
state-law counterclaims against employees in FLSA cases.
Pioch v.
IBEX Eng’g Servs., Inc., 825 F.3d 1264, 1273–74 (11th Cir. 2016).
“The only economic feud contemplated by the FLSA involves the
employer’s obedience to minimum wage and overtime standards.
To
clutter these proceedings with the minutiae of other employer-
4
employee relationships would be antithetical to the purpose of the
Brennan v. Heard, 491 F.2d 1, 4 (5th Cir. 1974) 1.
Act.”
Although the counterclaims may arise from around the same
time period of plaintiff’s employment, application of the “logical
relationship” test 2 leads to the conclusion that the counterclaims
do not have the same operative facts as plaintiff’s claim under
the FLSA.
The theft of alcohol for personal use would not offset
recovery of wages by plaintiff, and the personal loan to plaintiff
around the time of his termination has no bearing on whether
plaintiff was to be paid overtime wages.
The motion to dismiss
the counterclaims will be granted.
Accordingly, it is hereby
ORDERED:
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc) the Eleventh Circuit adopted as binding precedent
all the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
2
“Under this test, there is a logical relationship when “the same
operative facts serve as the basis of both claims or the aggregate
core of facts upon which the claim rests activates additional legal
rights, otherwise dormant, in the defendant.”
Republic Health
Corp. v. Lifemark Hosps. of Florida, Inc., 755 F.2d 1453, 1455
(11th Cir. 1985) (citation omitted).
5
1. Plaintiff's
Amended
Complaint
(Doc.
#19)
is
dismissed
without prejudice to filing a Second Amended Complaint
within SEVEN (7) DAYS of this Order.
2. Defendants’ Motion to Dismiss Amended Complaint (Doc. #21)
is DENIED as moot.
3. Plaintiff’s Motion to Dismiss Counterclaim for Lack of
Subject-Matter Jurisdiction (Doc. #15) is GRANTED and the
Counterclaims (Doc. #12) are dismissed without prejudice.
The Clerk shall terminate all counterclaimants in the case.
DONE AND ORDERED at Fort Myers, Florida, this
December 2017.
Copies:
Counsel of record
6
28th
day of
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