Moore v. AIA Direct, Inc. et al

Filing 42

OPINION AND ORDER granting in part and denying in part: 12 MOTION to Dismiss Amended Complaint , 11 MOTION to Dismiss Amended Complaint . The Plaintiff shall file any second amended complaint as to Count II within 21 days. See order for details. Signed by Judge Elizabeth A. Kovachevich on 1/26/2016. (EJJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BRUCE MOORE, JR. , individually, and
on behalf of all others similarly situated,
Plaintiff,
Case No: 8:15-cv-1885-T-17EAJ

v.
AIA DIRECT, INC., AMERICAN
INSURANCE AGENCIES DIRECT, INC.,
AMERICAN INSURANCE AGENCIES
DIRECT OF CLEARWATER LLC,
AMERICAN INSURANCE AGENCIES
DIRECT OF GREATER TAMPA BAY
LLC, ASHLEY REINHOLD, and HANI
RIHAN,
Defendants.

ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANTS' MOTIONS TO DISMISS

This cause came before the Court pursuant to the motion to dismiss (Doc. No. 11)
(the "AIA Direct Motion") filed by Defendants AIA Direct, Inc., American Insurance
Agencies Direct, Inc., and Hani Rihan (the "AIA Direct Defendants") and the motion to
dismiss (Doc. No. 12) (the "AIA Agency Motion," and together with the AIA Direct Motion,
the "Motions") filed by Defendants American Insurance Agencies Direct of Clearwater,
LLC, American Insurance Agencies Direct of Greater Tampa Bay, LLC, and Ashley
Reinhold (the "AIA Agency Defendants," and together with the AIA Direct Defendants,
the "Defendants"), as well as the omnibus response in opposition thereto (Doc. No. 16)
(the "Response") filed by the Plaintiff, Bruce Moore, Jr. (the "Plaintiff"). For the reasons
set forth below, the AIA Direct Motion is DENIED, and the AIA Agency Motion is
GRANTED IN PART AND DENIED IN PART.

I.

Introduction

The primary issues raised by the Motions are (i) whether a complaint that purports
to seek certification of a "hybrid" class/collective action under 29 U.S.C. §§ 201, et seq.
(the "FLSA") and Section 448.110 of the Florida Statutes (the "Florida Minimum Wage
Act" or "FMWA") states a claim upon which relief can be granted, and (ii) whether a

plaintiff is required to allege compliance with the notice requirements of Section
448.110(6) in order to state a claim under the FMWA. Upon review, the resolution of the
first issue is controlled by the Court's prior decision in Scant/and v. Jeffrey Knight, Inc.
Since the Court answered this question in the affirmative in Scant/and, and the
Defendants have not offered any viable bases for revisiting that ruling, the Court will
adhere to its prior precedent and deny the AIA Direct Motion. As to the second issue,
however, the Plaintiff has failed to allege compliance with a necessary condition
precedent to his FMWA claim. As a result, the Plaintiff's FMWA claim will be dismissed
with leave to amend.

II.

Background

The Plaintiff commenced this action on August 14, 2015 by filing a complaint (Doc.
No. 1) against the Defendants for alleged violations of the FLSA. On September 9, 2015,
the Plaintiff filed an amended complaint (Doc. No. 7) (the "Amended Complaint") against
the Defendant.

The Amended Complaint contains two counts: Count I is for alleged

violations of the FLSA, and Count II is for alleged violations of the FMWA. Through the
Amended Complaint, the Plaintiff purports to prosecute (i) the FLSA claims as a collective
action pursuant to 29 U.S.C. § 216(b), and (ii) the FMWA claims as a class action under
Federal Rule of Civil Procedure 23. The AIA Direct Defendants and the AIA Agency

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Defendants filed their Motions on September 23, 2015 and September 25, 2015,
respectively.
Through the AIA Direct Motion, the AIA Direct Defendants seek dismissal of the
FMWA claims (i) for violating 28 U.S.C. § 2072(b) (the "Rules Enabling Act" or "REA"),
(ii) for being preempted by the FLSA, (iii) because the FLSA offers a superior method for
adjudicating the Plaintiff's claims, and (iv) under the Court's discretion to refrain from
exercising jurisdiction over such claims pursuant to 28 U.S.C. § 1367(c). The AIA Agency
Defendants incorporate the grounds from the AIA Agency Motion into their motion to
dismiss, and also seek dismissal of the FMWA claims for failure to allege satisfaction of
a condition precedent under Section 448.110(6)(a) & (b). The Plaintiff filed the Response
on October 22, 2015.

Ill.

Legal Analysis
A.

Federal Pleading Standard 1

"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). "A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. In evaluating whether a complaint meets the federal
pleading standard, the Court is not required to "accept as true" any allegations that

In addition to arguing that the Amended Complaint should be dismissed under Rule
12(b)(6), the AIA Direct Defendants reference Rules 12(b)(2) and Rules 12(f) in the AIA
Direct Motion. However, the AIA Direct Defendants do not provide any argument
regarding the standards for dismissing or striking pleadings under Rules 12(b)(2) and/or
(f) and, as a result, the Court will only analyze the Motions under Rule 12(b)(6). To the
extent the Defendants seek dismissal and/or to strike the Amended Complaint under
Rules 12(b)(2) and/or (f), the Motions are denied.

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constitute legal conclusions. Id. Once the Court has identified the plaintiff's well-pleaded
factual allegations that do not constitute legal conclusions, the Court must determine
whether those allegations "plausibly give rise to an entitlement to relief." Id. at 679. This,
according to the Supreme Court, is "a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged - but is has not shown - that the pleader is entitled to relief." Id.

B.

The Court will not dismiss the Rule 23 opt-out FMWA claims for
being irreconcilably inconsistent with the opt-in FLSA collective
action claims, or under any other similar theory.

As an initial matter, the arguments raised in the AIA Direct Motion closely resemble
those made previously by the AIA Direct Defendants' counsel in the case of Scant/and v.
Jeffrey Knight, Inc. In Scant/and, the defendants asked the Court to dismiss the plaintiffs'

state law wage claims brought in the context of a Rule 23 opt-out class action (i) for
violating the REA, (ii) for being preempted by the FLSA, (iii) for not being superior to
collective action adjudication under the FLSA, and (iv) under the Court's discretionary
authority to decline to exercise supplemental jurisdiction over such claims. 2010 WL
4117683, at *4-5 (M.D. Fla. Sept. 29, 2010). The Court considered and rejected each of
the Scant/and defendants' arguments. Id.

Here, the arguments raised in the Motions

closely resemble those made in Scant/and. Accordingly, absent (i) any discernible basis
for distinguishing Scant/and from the case at hand, or (ii) a change in the law since
Scant/and was decided, the Court will not depart from its prior precedent.

As to the first issue, the Defendants have failed to acknowledge or address the
Scant/and decision in their pleadings. Therefore, the Court is without the benefit of the

Defendants' position, if any, on whether Scant/and is distinguishable from the case at

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hand. Nevertheless, the Court has conducted its own independent comparison of the two
cases, which reveals the following: First, both Scant/and and this case were decided in
the same procedural context, i.e. on a motion to dismiss. Second, unlike in the case at
hand, which only involves claims under the FLSA and FMWA, Scant/and involved claims
under the FLSA, the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), as
well as common law claims for unjust enrichment and conversion. Third, the plaintiffs in

Scant/and purported to seek Rule 23 certification of their common law and FDUPA claims,
along with collective action certification of their FLSA claims, while the Plaintiff in this case
seeks Rule 23 certification of his FMWA claim, coupled with collective action certification
of his FLSA claim. Taken together, the only discernible difference between the two cases
is that Scant/and involved FDUPTA and Florida common law claims, while this case
involves FMWA claims. This, in the view of the Court, is a distinction without a difference,
as the Defendants' arguments are premised on the irreconcilability of state law claims
brought as opt-out class actions under Rule 23, on the one hand, and opt-in collective
action claims under FLSA, on the other; not on distinctions between the FMWA, FDUTPA,
or Florida common law claims.
As to the second issue, since Scant/and was decided every Court of Appeals to
consider these issues has rejected the arguments raised in the AIA Direct Motion. See,

e.g., Knepper v. Rite Aid Corp., 675 F.3d 249, 257-265 (3d Cir. 2012) (holding that (i)
FLSA and state law wage claims are not inherently incompatible, (ii) the FLSA does not
preempt state wage law, and (iii) the REA does not bar certification of an opt-out class
action based on state wage claims); Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 977981 (7th Cir. 2011) (reversing a district court's determination that the an opt-out state

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wage class action was not superior to adjudication under the FLSA, and holding that the
FLSA does not limit a district court's supplemental jurisdiction over opt-out state wage
claims); Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 243-250 (2d Cir.
2011) (finding that a district court did not abuse its discretion by exercising supplemental
jurisdiction over opt-out state wage claims). Nevertheless, the Defendants point out that
some district courts within the Eleventh Circuit have refused to certify opt-out state wage
claims under Rule 23 in "hybrid" class/collective actions also brought under the FLSA.
See, e.g., Calderone v. Scott, 2015 WL 4395623, at *6 (M. D. Fla. July 16, 2015) ("Where
... the putative FLSA and FMWA classes are identical, the opt-in and opt-out procedures
cannot be reconciled."); Nadreau v. Lush Cosmetics NY, LLC, 2012 WL 3852231, at *8
(M.D. Fla. Aug. 13, 2012) (finding that "a rule 23 sub-class ... brought in a hybrid action
with the FLSA Count is not a superior method of adjudicating Count II").
Even if the Court were inclined to revisit its precedent from Scant/and based on
these authorities, the Calderone and Nadreau cases are distinguishable in two important
respects. First, both decisions rely on the former Fifth Circuit's LaChappelle decision,
which stands for the proposition that the class action procedures under Rule 23 and the
FLSA "are mutually exclusive and irreconcilable." Lachappelle v. Owens-Illinois, Inc., 513
F.2d 286, 289 (5th Cir. 1975). Stated differently, Lachappelle prohibits a plaintiff from
bringing an FLSA action as an opt-out class action under Rule 23. Id.

Importantly,

however, Lachappelle did not involve "hybrid" collective/class actions under the FLSA
and FMWA. To the contrary, LaChappelle involved the entirely different issue of whether
a plaintiff could bring an ADEA action as a class action under Rule 23. Id. at 287. As a

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result, Lachappelle is silent regarding whether FLSA and FMWA "hybrid" collective/class
actions are mutually exclusive, as the issue was never raised in Lachappelle.
Second, the Calderone and Nadreau cases were decided in the context of motions
to certify "hybrid" class/collective actions under Rule 23(b )(3) and the FLSA; not at the
pleadings stage. Nadreau, 2012 WL 3852231, at *1; Calderone, 2015 WL 4395623, at
*5. As a result, Calderone and Nadreau do not speak to the precise issue in this case,
namely whether a "hybrid" collective/class action under the FLSA and FMWA states a
claim upon which relief can be grated. Given the substantial body of appellate caselaw
holding that such "hybrid" actions are permissible, the Court will not depart from its own
precedent in Scant/and. As a result, the Court concludes that this "hybrid" collective/class
action does not fail to state a claim upon which relief can be granted due to any
irreconcilability between the opt-out procedures under Rule 23 and the opt-in procedures
under the FLSA.2

C.

The FMWA claim must be dismissed for failure to allege compliance
with Section 448.110(6) of the Florida Statutes.

Section 24, Article X of the Florida Constitution states that "[a]ll working Floridians
are entitled to be paid a minimum wage that is sufficient to provide a decent and healthy
life for them and their families. Fla. Const. Art. X, § 24. As a means of enforcing this
policy, Section 24(e) authorizes employees to bring a civil action to enforce the provisions
of Section 24, Article X of the Florida Constitution. Throw v. Republic Enter. Sys., Inc.,

2 This ruling is without prejudice to the Defendants' right to re-assert such arguments at
an appropriate future juncture of this case, including in response to any motion for class
certification, or in the event the Court enters summary judgment on the FLSA claim. See
Scant/and, 2010 WL 4117683, at *4-5.

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2006 WL 1823783, at *1 (M.D. Fla. June 30, 2006). Section 24(f) further states that
"implementing legislation is not required to enforce the constitutional provision." Id.
Section 448.110 of the Florida Statutes, on the other hand, "was enacted by the
Legislature in order to implement the provisions of Section 24, Article X." Id. 'at *2.
"Section 448.110 replicates the provisions of Section 24 and adds additional provisions."
Id.

In particular, Section 448.110(6)(a) "requires potential plaintiffs to notify their

employers in writing of their intent to file suit." Id. While it may not be necessary for a
plaintiff to "fulfill the notice requirements found in [Section] 448.110(6)(a) in order to allege
a violation of Section 24," a plaintiff who seeks relief under Section 448.110 must "fulfill
the conditions precedent of bringing such an action." Id. at *2-3.
Here, the Amended Complaint contains two causes of action: Count I, which seeks
damages under the FLSA, and Count II, which seeks damages under Section 448.110.
The Amended Complaint does not contain any claim for violations of Section 24, Article
X of the Florida Constitution and, as a result, the exception to the notice requirement from
Throw is inapplicable. Since the Plaintiff has failed to allege compliance with a necessary

condition precedent to its FMWA claim, Count II of the Amended Complaint fails to state
a claim upon which relief can be granted.

Therefore, the Plaintiff's FMWA claim is

dismissed with leave to amend.

IV.

Conclusion

Accordingly, it is
ORDERED that the AIA Direct Motion is DENIED, and the AIA Agency Motion is
GRANTED IN PART AND DENIED IN PART. Count II of the Amended Complaint is
DISMISSED WITHOUT PREJUDICE.

The Plaintiff shall file any second amended

complaint as to Count II within twenty-one (21) days from entry of this order.

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DONE and ORDERED in Chambers, in Tampa, Florida this 26th day of January,
2016.

Copies furnished to: All Parties and Counsel of Record

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