Dobbins v. Scriptfleet, Inc. et al

Filing 34

ORDER granting in part and denying in part 20 Motion to dismiss. Counts II and III of the Amended Class Action Complaint as alleged against Defendant Scriptfleet are dismissed with prejudice. Signed by Judge Susan C Bucklew on 2/23/2012. (LSC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

WENDY DOBBINS, individually
and on behalf of persons similarly situated,
Plaintiff,
v.

Case No.: 8:11-cv-1923-T-24-AEP

SCRIPTFLEET, INC., a Florida corporation,
f/k/a Network Express, and
XYZ Entities 1-10, fictitious names of
unknown liable entities,
Defendants.
_____________________________/
ORDER
This cause comes before the Court on Defendant Scriptfleet, Inc.’s (“Scriptfleet”)
Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(6) and 8(a). (Doc. No. 20).
Plaintiff Wendy Dobbins (“Dobbins”) filed a response in opposition to the motion. (Doc. No.
31). For the reasons stated herein, the motion is granted in part and denied in part.
I.

Background
On October 11, 2011, Dobbins filed her Amended Class Action Complaint (Doc. No. 10)

for overtime compensation and other relief under the Fair Labor Standards Act, 29 U.S.C. §§ 201
et seq. (“FLSA”), and also under the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat.
Ann. §§ 501.201 et seq. (“FDUTPA”). In her Amended Class Action Complaint, Dobbins
alleges the following: Dobbins worked for Defendants as a courier from approximately August
2007 until July 2011. Her duties included driving and delivering various goods for Defendants’
customers and completing all necessary paperwork associated with such deliveries. Although

Dobbins was an employee of Defendants, Defendants misclassified her and other couriers as
independent contractors.
In Count I, Dobbins asserts that as a result of this misclassification, she and other
couriers were deprived of overtime wages in violation of the FLSA. In Count II, Dobbins asserts
that Defendants’ conduct of misclassifying her and other couriers as independent contractors
caused them to suffer deductions and incur expenses under federal and state law that would not
have occurred had they been properly classified as employees. As a result, such
misclassification constituted an unconscionable or deceptive act or practice in the conduct of
trade or commerce in violation of the FDUTPA. In Count III, also under the FDUTPA, Dobbins
requests the Court declare Defendants to be in violation of FDUTPA and to enjoin Defendants
from continuing to misclassify their employees as independent contractors.
II.

Standard of Review
Federal Rule of Civil Procedure 8(a)(2) requires a pleading to contain a short and plain

statement of the claim showing the pleader is entitled to relief in order to give the defendant fair
notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (citation omitted). Although Rule 8 does not require a claimant to set
out in detail the facts upon which he bases his claim, “it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct.
1937, 1949 (2009).
To survive a motion to dismiss, a complaint must allege sufficient facts, accepted as true,
to state a plausible claim for relief. Id. Where a complaint contains well-pleaded facts, if those
facts “do not permit the court to infer more than the mere possibility of misconduct,” the

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complaint stops short of plausibility and does not show the plaintiff is entitled to relief. Id. at
1950. Furthermore, while the Court must assume that all of the factual allegations in the
complaint are true, this assumption is inapplicable to legal conclusions. Id. at 1949. The door to
discovery will not open for a plaintiff “armed with nothing more than conclusions.” Id. at 1950.
III.

Discussion
On November 14, 2011, Defendant Scriptfleet filed the instant Motion to Dismiss in

which it asserts multiple grounds for dismissal. First, Scriptfleet argues that Dobbins failed to
plead sufficient facts to establish jurisdiction under the FLSA, to establish an employment
relationship under the FLSA, or to state a claim for unpaid overtime wages under the statute.
Furthermore, Scriptfleet argues the Dobbins does not have standing to assert a claim under
FDUTPA because Dobbins is not a consumer, because no trade or commerce has taken place
between Scriptfleet and Dobbins, and because the damages sought by Dobbins are not
recoverable under the statute.
A.

Sufficiency of the Pleading Under the FLSA

In Count I, Dobbins alleges that Defendants violated the FLSA by mischaracterizing her
and other couriers as independent contractors rather than as non-exempt employees, thereby
depriving them of overtime pay. In its motion, Scriptfleet argues that Dobbins has supported this
claim with “nothing more than boilerplate recitations of legal elements and conclusory assertions
of liability,” and therefore has failed to plead sufficient facts to state a claim under the FLSA.
Specifically, Scriptfleet first argues that Dobbins did not plead sufficient facts to
establish the jurisdictional prerequisite of interstate commerce under the FLSA. Scriptfleet
contends that Dobbins must plead facts that establish jurisdiction, and “must do more than assert

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a rote legal conclusion” concerning jurisdiction.
Here, Dobbins alleges that she was employed by Scriptfleet or its subsidiaries as a
courier. (Doc. No. 10, ¶ 3-4). She alleges that Scriptfleet was “engaged in interstate commerce
or in the production of goods for commerce as defined in 29 U.S.C. § 203(r) and 203(s).” (Doc.
No. 10, ¶ 13). Based upon information and belief, Dobbins also alleged that “the annual gross
sales volume of each of the Defendants was in excess of $500,000.00 per annum.” (Doc. No. 10,
¶ 13). She also alleges that she and others similarly situated were “individually engaged in
commerce.” (Doc. No. 10, ¶ 14).
The Court concludes that these allegations are sufficient at this stage of the litigation to
demonstrate the jurisdictional prerequisite of interstate commerce. “[T]he requirements to state
a claim of a FLSA violation are quite straightforward.” Sec’y of Labor v. Labbe, 319 F. App’x
761, 763 (11th Cir. 2008). “The elements that must be shown are simply a failure to pay
overtime compensation and/or minimum wages to covered employees and/or failure to keep
payroll records in accordance with the act.” Id. At this stage of the proceeding, no more is
required. Id.; see also Spigner v. Lessors, Inc., No. 8:11-cv-420-T-24-MAP, 2011 WL 1466282,
at *2 (M.D. Fla. Apr. 18, 2011).
Scriptfleet next argues that Dobbins did not plead sufficient facts to demonstrate an
employment relationship under the FLSA. Specifically, it argues that, in order to state a claim
under the FLSA, a plaintiff must plead facts sufficient to demonstrate an employment
relationship under the six factor “economic realities” test.1

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Additionally, Scriptfleet argues that Dobbins’s claims against Defendants XYZ Entities
1-10 should be dismissed because Dobbins has merely alleged that these other unknown entities
may have acted as an employer, and such hypothetical allegations against unknown entities are
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Here, Dobbins alleges that she and other couriers were employees of Defendants, were
subjected to Defendants’ control, and were economically dependent on Defendants. (Doc. No.
10, ¶¶ 3, 6, 7). Dobbins alleges that her duties were “non-exempt in nature and included driving
and delivering various goods for Defendants’ customers and completing all necessary paperwork
associated with such deliveries.” (Doc. No. 10, ¶ 4). Dobbins further alleges that she was
required to wear Defendants’ uniforms; rent and use Defendants’ equipment; perform assigned
routes in the order, manner, and timeframe Defendants established; purchase insurance through
Defendants; and also to follow Defendants’ rules, regulations, practices and policies. (Doc. No.
10, ¶ 6). Finally, she alleges that failure to comply with Defendants’ rules would subject her to
disciplinary action. (Doc. No. 10, ¶ 6.)
The Court concludes that these allegations are sufficient to establish an employment
relationship at this early stage of the litigation. Once again, the Court is mindful of the
“straightforward” FLSA pleading requirements required by Eleventh Circuit precedent. See
Labbe, 319 F. App’x at 763. Whether or not Scriptfleet was in fact Dobbins’s employer is an
issue that is more appropriately decided at the summary judgment stage or trial.
Finally, Scriptfleet argues that Dobbins has failed to allege sufficient facts to state a
claim for unpaid overtime wages under the FLSA. Specifically, it contends that Dobbins should
have alleged facts related to “what hourly wage a plaintiff was paid, an estimate of how many
hours a plaintiff worked for which she was not compensated, and whether an employer had
actual or constructive knowledge of the alleged uncompensated overtime.”

insufficient to withstand a motion to dismiss. The Court, however, declines to address this
argument at this time because these entities have not yet appeared in the case, nor has a motion
to dismiss been filed on their behalf.
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The Court disagrees. Dobbins alleged that she worked as a courier from approximately
August 2007 until July 2011. (Doc. No. 10, ¶ 7). She alleges that her duties were non-exempt in
nature and that she was misclassified as an independent contractor. (Doc. No. 10, ¶¶ 3, 4). She
alleges that this misclassification was intentional, willful, and unlawful, and that she is owed
overtime wages for the three year statute of limitations period beginning in August of 2008.
(Doc. No. 10, ¶¶ 5, 19, 39).
The Court concludes that at this stage of the proceedings, the allegations contained in
Count I are sufficient to give Scriptfleet fair notice of the nature of the FLSA claim and the
grounds upon which it rests. Scriptfleet can reasonably prepare a response to the complaint and
may also avail itself of Federal Rule of Civil Procedure 8(b)(5) to answer that it “lacks
knowledge or information sufficient to form a belief about the truth of an allegation” as to any
paragraphs for which it cannot make a determination. Discovery is the appropriate method by
with it should seek any additional information necessary to prepare its defense. See Spigner,
2011 WL 1466282, *2.
Accordingly, the Court concludes that Dobbins has stated a claim for unpaid overtime
wages under the FLSA sufficient to withstand a motion to dismiss, and therefore, Scriptfleet’s
motion as to Count I must be denied.
B.

Standing Under FDUTPA

In Counts II and III, Dobbins alleges that Defendants’ misclassification of her as an
independent contractor constituted a violation of the Florida Deceptive and Unfair Trade
Practices Act. See Fla. Stat. Ann. §§ 501.201 et seq. In response, Scriptfleet contends that
Dobbins does not have standing to bring these claims under FDUTPA because the statute only

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protects consumers, and based upon the allegations contained in the amended complaint,
Dobbins is not a consumer. Dobbins does not dispute that she is not a consumer; instead, she
claims that the 2001 amendments to FDUTPA, which replaced the word “consumer” with the
word “person,” expanded the statute to provide relief to non-consumers.
FDUTPA was originally enacted to protect consumers from suppliers who commit
deceptive trade practices and to prohibit unfair competition methods. Nat’l Alcoholism Programs
v. Palm Springs Hosp. Emp. Benefit Plan, 825 F. Supp 299, 302 (S.D. Fla. 1993). The Florida
legislature intended to create a statutory cause of action to allow citizens to recover damages
related solely to a product or service purchased in a consumer transaction infected with unfair or
deceptive trade practices or acts. Delgado v. J.W. Courtesy Pont. GMC-Truck, 693 So. 2d 602,
606 (Fla. App. 2d DCA 1997). As such, FDUTPA was enacted within Chapter 501, entitled
“Consumer Protection.” As stated in the statute itself, the overall purpose of FDUTPA is to
“protect the consuming public and legitimate business enterprises from those who engage in
unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the
conduct of any trade or commerce.” Fla. Stat. § 501.202(2) (2012) (emphasis added).
In 2001, the Florida Legislature amended Section 501.211 by replacing the word
“consumer” with the word “person” when referring to the ability to recover actual damages as a
result of a violation of the statute. However, the legislative intent of the 2001 amendment was to
clarify that “‘remedies available to individuals are also available to businesses,’” as opposed to
creating a cause of action for non-consumers. Kertesz v. Net Transactions, Ltd., 635 F. Supp. 2d
1339, 1349 (S.D. Fla. 2009) (quoting Senate Staff Analysis and Economic Impact Statement,
Florida Staff Analysis, SB 208, March 22, 2001, at p. 7). Accordingly, the Court is not

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convinced that the 2001 amendment to FDUTPA creates a cause of action for an individual
employee against his or her purported employer, when there is no consumer relationship between
them.
The Court is cognizant of the cases cited by Dobbins in support of her position;
nevertheless, the Court does not find these cases persuasive. True Title, Inc. v. Blanchard, No.
6:06-cv-1871-ORL-19DAB, 2007 WL430659, at *1 (M.D. Fla. Feb. 5, 2007), and Grosharev v.
Wilsons Ltd., Inc., 3:08-cv-1219-J-MCR, 2010 WL 2054168 (M.D. Fla. Mar. 10, 2010), are
factually distinguishable because in those cases the FDUTPA claim was alleged in connection
with alleged misappropriation of company property, and not in a pure employment context as is
the posture of this case. Finally, though factually similar, Scantland v. Jeffery Knight, Inc., No.
8:09-cv-1985-T-17TBM, 2010 U.S. Dist. LEXIS 103151, at *18-19 (M.D. Fla. Sept. 29, 2010),
is not persuasive because the Scantland court reached its decision with very little discussion or
analysis, and because the case has not yet been resolved on summary judgment or at trial.
Accordingly, the Court concludes that Dobbins does not have standing to bring her
FDUTPA claims against Scriptfleet, and therefore, the motion to dismiss as to Counts II and III
must be granted.
IV.

Conclusion
For the reasons stated herein, Defendant Scriptfleet’s Motion to Dismiss (Doc. No. 20) is

GRANTED IN PART AND DENIED IN PART. Counts II and III of the Amended Class
Action Complaint as alleged against Defendant Scriptfleet are dismissed with prejudice.

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DONE AND ORDERED at Tampa, Florida, this 23rd day of February, 2012.

Copies to:
Counsel of record

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