Erling v. American Grille with Sushi LLC et al

Filing 32

OPINION AND ORDER granting 29 motion to dismiss and Count III is dismissed for failure to state a claim. Signed by Judge John E. Steele on 2/28/2018. (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 defendant’s
Motion to Dismiss Second Amended Complaint (Doc. #29) filed on
January

23,

2018.

Plaintiff

filed

a

Memorandum

of

Law

in

Opposition (Doc. #30) on February 6, 2018.
On December 28, 2017, the Court issued an Opinion and Order
(Doc. #27) dismissing the Amended Complaint as a shotgun pleading
without prejudice to filing a second amended complaint, leaving
the

issues

raised

in

the

motion

to

dismiss

regarding

the

retaliation claim for another time, and granting the motion to
dismiss

defendants’

counterclaims.

Plaintiff

filed

a

Second

Amended Complaint (Doc. #28) on January 5, 2018, and defendants
are again seeking dismissal of the retaliation claim because

plaintiff was not an employee as of May 22, 2017, a date prior to
the filing of the counterclaims, and therefore the counterclaims
could not be a basis for retaliation.

Plaintiff argues that the

highlighted factual allegations in the Second Amended Complaint
support the 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).

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).
In Count III, plaintiff alleges that he was hired on or about
April 4, 2017, to work as a cook at $15.00 an hour, and thereafter
at a weekly salary of $700 per week.

(Doc. #28, ¶ 33.)

On or

about May 8, 2017, Manager Chris Whitaker spoke to plaintiff about
opening the restaurants for lunch in addition to dinner, but
plaintiff responded “that he had the cheapest chef in the world
and he would need more money to work additional hours as he was
already being less than minimum wage.”

(Id., ¶¶ 6, 35.)

On or

about May 22, 2017, plaintiff was terminated for complaining about
his wages.

(Id., ¶ 36.)

On June 2, 2017, plaintiff’s counsel

2

sent a demand letter for unpaid wages, and subsequently filed suit
on June 22, 2017.

(Id., ¶ 30.)

On September 6, 2017, more than

three months after plaintiff left his employment, defendants filed
a Counterclaim against plaintiff alleging conversion and money
lent.

(Id., ¶ 31.)

“Plaintiff believes that his complaints about

his wages and the counterclaim filed with a retaliatory motive and
lacks a reasonable basis in fact or law.”

(Id., ¶ 32.)

Plaintiff

alleges that defendants retaliated for filing the lawsuit in
violation of 29 U.S.C. § 215(a)(3).

(Id., ¶ 34.)

It is unlawful for any person “to discharge or in any other
manner discriminate against any employee because such employee has
filed any complaint or instituted or caused to be instituted any
proceeding under or related to this chapter, or has testified or
is about to testify in any such proceeding, or has served or is
about to serve on an industry committee.”

29 U.S.C. § 215(a)(3).

To state a claim for retaliation under the Fair Labor Standards
Act (FLSA), plaintiff must show that he engaged in protected
activity, subsequently suffered adverse action by the employer,
and a causal connection existed between the activity and the
adverse action.
Cir. 2000).

Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342 (11th

“The burden of causation can be met by showing close

temporal proximity between the statutorily protected activity and
the adverse employment action.”

Thomas v. Cooper Lighting, Inc.,

506 F.3d 1361, 1364 (11th Cir. 2007).

3

The allegation that plaintiff told Whitaker that he would
require additional pay because “he was already being less than
minimum wage”, followed by his termination within the same month
would be sufficient to support the retaliation claim as there is
at least a temporal proximity.
counterclaims
employment

is

action

clearly
in

Any retaliation claim based on the

subject

response

to

to

dismissal.

the

The

“statutorily

adverse

protected

activity” had already occurred, and the counterclaims – which have
since been dismissed – were not filed until months after the
complaint was filed with the Court.
plaintiff

is

relying

on

the

filing

As currently presented,
of

the

counterclaims

and

therefore Count III must be dismissed.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss Second Amended Complaint (Doc.
#29) is GRANTED.

The motion is granted to the extent that the

retaliation claim is based on the filing of counterclaims, and
Count III is dismissed for failure to state a claim.
DONE AND ORDERED at Fort Myers, Florida, this
February, 2018.

Copies: Counsel of record

4

28th

day of