Duran v. Joekel et al

Filing 44

OPINION AND ORDER denying without prejudice 11 Motion to Dismiss; denying without prejudice 12 Motion to Dismiss. The 7 Complaint is dismissed without prejudice to filing an amended complaint within 21 days. Discovery and disclosures are stayed pending further order. Signed by Judge John E. Steele on 11/13/2023. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
REYNALDO
DURAN,
an
individual, on behalf of
themselves and all others
similarly situated,
Plaintiff,
v.

Case No:

2:23-cv-558-JES-NPM

KENNETH
JOEKEL,
an
individual, MARC PLOTKIN, an
individual,
PACESETTER
PERSONNEL SERVICE, INC., A
Texas profit corporation,
PACESETTER PERSONNEL SERVICE
OF FLORIDA, INC., A Florida
profit corporation, FLORIDA
STAFFING SERVICE, INC., A
Florida profit corporation,
and TAMPA SERVICE COMPANY,
INC.,
A
Florida
profit
corporation,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of two motions
to dismiss.

Corporate Defendants’ Motion to Dismiss Plaintiffs’

Complaint (Doc. #11) was filed on August 2, 2023.

Plaintiffs’

Response in Opposition (Doc. #29) was filed on September 21, 2023.
Also before the Court is Individual Defendants' Motion to Dismiss
Plaintiffs'
Plaintiff

Complaint
filed

a

(Doc.

#12),

Memorandum

in

filed

on

August

Opposition

to

2,

2023.

Individual

Defendants' Motion to Dismiss Plaintiffs' Complaint (Doc. #20) on

September

13,

2023.

Corporate

Defendants

filed

a

Notice

of

Supplemental Authority (Doc. #34) on October 4, 2023, and all
defendants

collectively

filed

another

Notice

Authority (Doc. #35) on October 16, 2023.

of

Supplemental

Plaintiff filed a

responsive Notice of Filing (Doc. #36) on October 20, 2023.
On November 9, 2023, the Court heard oral arguments on both
motions.

For the reasons set forth below, the two motions to

dismiss are denied and plaintiff is granted leave to file an
amended complaint.
I.
First, an over-simplification of the procedural history that
impacts this case.

On January 29, 2020, Shane Villarino and three

other named plaintiffs filed a four-count Nationwide Collective
and Class Action Complaint (Doc. #11-1) (the Villarino Complaint)
in the United States District Court for the Southern District of
Florida (Villarino 1).

The first two counts alleged violations of

the federal Fair Labor Standards Act (FLSA), while the third count
alleged a violation of the Florida Constitution and the fourth
count alleged various violations of the Florida Labor Pool Act
(FLPA).

One of several alleged violations of the FLPA involved

charging workers more than $3.00 per day for transportation to/from
a worksite.

(Id. at ¶ 55.)

The Villarino Complaint stated that

it was being filed as both a proposed “opt-in” collective action
as to the FLSA claims and as a Fed. R. Civ. P. 23 class action as

2

to the third and fourth counts.

(Id. at p. 2.)

The Villarino

Complaint named three corporations as defendants – Pacesetter
Personnel Service, Inc., Pacesetter Personnel Service of Florida,
Inc., and Florida Staffing Service, Inc. 1
The Honorable Raag Singhal, District Judge in the Southern
District of Florida, was assigned to the case and in due course
entered a series of orders generally in favor of defendants.

As

relevant to the instant motions, these orders included twice
denying plaintiffs’ requests to certify a nationwide collective
action as to the FLSA claims; granting certain summary judgments
in favor of defendants; denying certain summary judgments in favor
of plaintiff; denying Rule 23 class certification except a small
class covering potential water and bathroom violations at the
Broward County location; and ultimately decertifying that Rule 23
class in February 2023.

The Rule 23 class which had been certified

and then decertified consisted only of employees who worked at
Defendants’ Fort Lauderdale, Florida location from January 29,
2016, to that location’s closure.

(Doc. #20-6.)

That class did

not include Reynaldo Duran, the named-plaintiff in this case.

An Amended Villarino Complaint (Doc. #146) was filed on
April 14, 2020, and a Corrected First Amended Nationwide Collective
and Class Action Complaint (Id., Doc. #152) was filed on May 6,
2020. The Court uses “Villarino Complaint” to refer to both the
original Complaint and the Amended Complaints.
1

3

Judge Singhal then solicited the views of the parties as to
whether

he

should

retain

supplemental

remaining state law FLPA claims.

jurisdiction

over

the

Both sides initially agreed that

the court should retain supplemental jurisdiction, but plaintiffs
thereafter changed their mind and objected to the retention of
such jurisdiction.
jurisdiction

and

Judge Singhal declined to retain supplemental
dismissed

the

remaining

FLPA

count

without

prejudice.
On February 27, 2023, plaintiffs in Villarino 1 filed a Notice
of Appeal (Doc. #689) to the Eleventh Circuit Court of Appeals.
Among other issues, plaintiffs assert that the denial of the Rule
23 class certification as to the FLPA claims was reversible error.
The appeal remains pending, and the issues are currently being
briefed.
In late March 2023, Reynaldo Duran (Duran) filed the instant
case in state court.

The Class Action Complaint (Doc. #7) (the

Complaint) was removed from state court pursuant to the diversity
jurisdiction provisions of the Class Action Fairness Act, 28 U.S.C.
§ 1332(d).

(See Doc. #1, ¶¶ 7-17.) The Complaint alleges that

four corporate defendants and two individual defendants violated
the Florida Labor Pool Act of 1995 (the FLPA), Fla. Stat. § 448.20,
et seq., by employing plaintiff (and others similarly situated) as
day laborers and charging them an amount in excess of $1.50 each
way

for

transportation

to

or

from

4

a

designated

worksite,

in

violation of Fla. Stat. § 448.24(1)(b).

The Complaint asserts the

action is maintainable as a class action pursuant to Florida law
and procedure.
Corporate

(Doc. #7, ¶ 67.)
defendants

Pacesetter

Personnel

Service,

Inc.,

Pacesetter Personnel Service of Florida, Inc., Florida Staffing
Service, Inc., and Tampa Service Company, Inc. (collectively the
Corporate Defendants) seek to dismiss the Complaint based on claim
splitting and res judicata principles.

Individual defendants

Kenneth Joekel (Joekel) and Marc Plotkin (Plotkin) (collectively
the Individual Defendants) seek to dismiss the Complaint for lack
of personal jurisdiction. The Individual Defendants also join in
the Corporate Defendants’ motion to dismiss.

(Doc. #12, pp. 3,

13.)
II.
In a footnote which cites no legal authority, Plaintiff
asserts that “it is readily apparent that this Court lacks subject
matter jurisdiction over the instant claims.”
n.6.)

(Doc. #29, p. 3,

If true, the Court can stop working on the case.

McIntosh

v. Royal Caribbean Cruises, Ltd., 5 F.4th 1309, 1313 (11th Cir.
2021) (If subject matter jurisdiction does not exist, there must
be a dismissal without prejudice).
The following is the entirety of Plaintiff’s argument as
stated in footnote 6:
Defendants argue both that this Court has CAFA
jurisdiction [see D.E. 1] over this case, and
5

that Judge Singhal’s prior orders denying
certification of the FLPA transportation
claims in Villarino has preclusive effect on
this Court. See D.E. 11, generally. Both
things cannot simultaneously be true.
While Plaintiff has not moved to remand this
case—in the absence of a stipulation from
Defendants that Judge Singhal’s prior orders
regarding
certification/decertification
in
Villarino lack preclusive effect here (or an
order from this Court to the same effect)—it
is readily apparent that this Court lacks
subject matter jurisdiction over the instant
claims because a class could not exist, by
definition, when Plaintiff filed this case and
when Defendants removed this case to federal
court.
(Doc. #29, p. 3, n.6.)
Whether

raised

by

a

party

or

not,

federal

courts

are

“obligated to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking.” Univ. of S. Ala. v. Am. Tobacco Co.,
168 F.3d 405, 410 (11th Cir. 1999).
is not lacking in this case.
inconsistent

arguments,

Subject matter jurisdiction

A party may make alternative,

including

jurisdictional

arguments,

without jeopardizing subject matter jurisdiction.
Certainly, pleading in the alternative is
permissible in federal court. United Techs.
Corp. v. Mazer, 556 F.3d 1260, 1273 (11th Cir.
2009) (“Rule 8(d) of the Federal Rules of
Civil Procedure expressly permits the pleading
of
both
alternative
and
inconsistent
claims.”). And “[t]he pleading of alternative
jurisdictional bases is a common practice.”
State Establishment for Agr. Prod. Trading v.
M/V Wesermunde, 770 F.2d 987, 991 n.3 (11th
Cir. 1985). Pleading a lack of jurisdiction as
an alternative to her affirmative claim for

6

negligence, while contradictory, is not fatal
to DeRoy's complaint.
DeRoy v. Carnival Corp., 963 F.3d 1302, 1308 n.7 (11th Cir. 2020).
Additionally, the Notice of Removal (Doc. #1) plausibly alleges
subject matter jurisdiction under CAFA, which is all that is
required at this stage of the proceedings.

The Court therefore

rejects Plaintiff’s jurisdictional argument.
III.
The Corporate Defendants argue that the Complaint is barred
by claims-splitting and/or res judicata doctrines, and therefore
must be dismissed with prejudice.

(Doc. #11, pp. 2-4.)

The

Corporate Defendants argue that this case must be dismissed “as
duplicative litigation” because the Southern District of Florida
“has already ruled on whether a statewide class action should be
certified against these Corporate Defendants, on these same facts,
with these same legal theories.”

(Id. at p. 13.)

The Corporate

Defendants also argue that this case must be dismissed under res
judicate “for Plaintiff’s own failure to alert the Villarino 1
court to the CAFA jurisdiction originally pled by Plaintiffs.”
(Id. at p. 18.)

The Corporate Defendants argue:

Plaintiffs chose to bring those claims in
federal
court
based
on
their
own
jurisdictional
allegations,
including
an
allegation of jurisdiction based on CAFA.
Moreover, at the time of the supplemental
jurisdiction briefing, Plaintiffs knew that
Judge Singhal had jurisdiction under CAFA.
Nevertheless, after originally asking the
Court to retain jurisdiction, Plaintiffs
7

subsequently requested the Court to relinquish
jurisdiction in hopes of a more favorable
outcome in a different forum. In this
circumstance, case law precedent makes clear
that Plaintiffs may not pursue their FLPA
claims anywhere other than the original
litigation. Plaintiffs’ attempts to seek a
more favorable outcome in their pursuit of the
same claims previously raised in Villarino 1
should be denied, and this instant suit should
be dismissed in its entirety.
(Id. at pp. 18-19.)

The Corporate Defendants argue that even

though the Southern District of Florida had jurisdiction under the
CAFA after it decertified the FLPA class, plaintiffs in Villarino
1 changed their minds and advocated for the Southern District of
Florida court to relinquish jurisdiction.

“That change proves

fatal to their attempts to raise and re-litigate those claims in
this instant matter.”
this

is

prejudice.

“textbook
(Id.)

(Id. at p. 20.)
res

judicata,”

Corporate Defendants argue
justifying

dismissal

with

Additionally, the Corporate Defendants argue

that because Plaintiffs failed to alert the Villarino 1 court of
its CAFA jurisdiction, it is now barred from refiling the same
case.

(Id. at 20-24.)

The Court finds the motion is premature to the extent that it
raises objections to potential class certification in this case.
There is nothing currently before the Court seeking certification
of any class.

The only claim currently before the court is Duran’s

personal claim under the FLPA, which he hopes to expand into a
class action.

The deadline requested by the parties for moving

8

for class certification does not expire until July 1, 2024 (Doc.
#26, p. 2), although discovery and disclosures have been stayed
pending resolution of the motions to dismiss (Doc. #30).
pursuing

a

personal

FLPA

claim

which

was

never

Duran is

certified

in

Villarino 1 and was dismissed without prejudice in that case. When
and if Duran files such a class certification motion, the claim
splitting argument may become relevant, but it is not at the
present time.

Additionally, no res judicata principle justifies

dismissal for failure to remind a district judge of jurisdiction.
The Corporate Defendant’s Motion to Dismiss is denied as premature,
with leave to raise the issues if and when a motion for class
certification is filed.
IV.
The Individual Defendants both argue that the Court lacks
personal

jurisdiction

over

each

of

them.

Whether

personal

jurisdiction exists is a question of law for the court. Diamond
Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249,
1257 (11th Cir. 2010) (citing Oldfield v. Pueblo De Bahia Lora,
S.A., 558 F.3d 1210, 1217 (11th Cir. 2009)).

For a court to

exercise personal jurisdiction over a nonresident defendant, there
must be: (1) a basis for asserting personal jurisdiction under the
forum-state's long-arm statute; and, if there is, (2) satisfaction
of the Due Process Clause requirements.

SkyHop Techs., Inc. v.

Narra, 58 F.4th 1211, 1222–23 (11th Cir. 2023); Sculptchair, Inc.

9

v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir. 1996); Madara
v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).

Generally, the

Court

accepting

determines

personal

jurisdiction

allegations in the complaint as true.

after

the

Don't Look Media LLC v. Fly

Victor Ltd., 999 F.3d 1284, 1292 (11th Cir. 2021).

When a

defendant submits an affidavit contesting the basis for personal
jurisdiction, “the burden shifts back to the plaintiff to produce
evidence

to

support

personal

jurisdiction.”

Id.

“[W]here

the

plaintiff's complaint and the defendant's affidavits conflict, the
district court must construe all reasonable inferences in favor of
the plaintiff.” Madara, 916 F.2d at 1514.
At oral arguments, counsel for plaintiff sought leave to file
an

amended

complaint

if

the

Court

had

concerns

about

the

sufficiency of the allegations concerning personal jurisdiction.
Because the Court has such concerns, that request will be granted.
The Court will deny the Individual Defendants’ Motion to Dismiss,
grant plaintiff leave to file an Amended Complaint, and allow the
Individual Defendants to file a motion addressing the Amended
Complaint if they feel it is appropriate.
V.
At the oral arguments, the Court also briefly discussed the
possibility of staying all or some portion of the case.

The Court

will require plaintiff to file an amended complaint setting forth
all his claims as to all defendants.

10

Defendants shall timely file

either a responsive pleading or an appropriate motion to the
amended complaint.

Since plaintiff’s arguments in the appeal may

adversely affect even his own claims in the current case, the Court
will continue to stay discovery and disclosures pending a decision
by the appellate court in Villarino 1 and further order of this
Court.
Accordingly, it is now
ORDERED:
1.

Corporate

Defendants’

Motion

to

Dismiss

Plaintiffs’

Complaint (Doc. #11) is DENIED without prejudice.
2.

Individual Defendants' Motion to Dismiss Plaintiffs'
Complaint (Doc. #12) is DENIED without prejudice.

3.

The Complaint (Doc. #7) is DISMISSED without prejudice
to plaintiff filing an amended complaint within twentyone (21) days of the date of this Opinion and Order.

4.

Discovery and disclosures relating to this case will be
STAYED pending further order of the Court.

DONE AND ORDERED at Fort Myers, Florida, this
November 2023.

Copies: Counsel of record

11

13th

day of