Rau v. Cuppa, Inc. et al

Filing 23

ORDER: Plaintiff Kymberlee Rau's Motion for Reconsideration of Order Granting Defendants' Motion to Strike Claim for Punitive Damages (Doc. # 21 ) is GRANTED. Rau's demand for punitive damages is reinstated. Signed by Judge Virginia M. Hernandez Covington on 1/19/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KYMBERLEE RAU,
Plaintiff,
v.

Case No.

8:16-cv-3230-T-33JSS

CUPPA, INC., RICHARD D.
GRISWOLD, JEFFREY D. MADDUX,
and LOU MOSER,
Defendants.
______________________________/
ORDER
This cause is before the Court pursuant to Plaintiff
Kymberlee Rau’s Motion for Reconsideration of Order Granting
Defendants’ Motion to Strike Claim for Punitive Damages (Doc.
# 21), which was filed on December 29, 2016.

Defendants had

the opportunity to respond to the Motion for Reconsideration,
but failed to file a Response in Opposition to the Motion and
the time to do so has now expired.

As explained below, the

Court grants the Motion for Reconsideration. Rau’s demand for
punitive damages is reinstated.
I.

Background
Defendant

Cuppa,

Inc.

is

a

St.

Petersburg,

Florida

corporation specializing in the manufacture of unique custom
made gifts. (Doc. # 1 at ¶¶ 3, 12).

1

Defendant Richard

Griswold is Cuppa’s CFO, Defendant Jeffrey Maddux is Cuppa’s
Chairman, and Defendant Lou Moser is Cuppa’s President. (Id.
at ¶¶ 4-6). Plaintiff Kimberlee Rau was employed by Cuppa as
a salesperson from August 2007 until October 2008 at which
time she was laid off due to a downturn in Cuppa’s business.
(Id. at ¶ 16).

She was rehired in 2011 and worked for Cuppa

until June of 2016. (Id. at ¶ 17).
Rau claims that Cuppa failed to pay her in accordance
with the requirements of the Fair Labor Standards Act and also
alleges that Cuppa retaliated against her when she complained
about Cuppa’s pay practices.
matters

worse

by

She contends that Griswold made

“yelling

complaint.” (Id. at ¶ 39).

and

cursing”

about

“Rau’s

Then, according to Rau, Griswold

battered her in Moser’s presence, by slamming a door against
her body, squeezing her shoulder, shoving her, and shaking
her. (Id. at ¶¶ 41-42).

Rau claims that Moser failed to

intervene to prevent the alleged attack. (Id. at ¶ 43).

Rau

also contends that on June 20, 2016, Defendants falsely
accused her of fraud, contacted the police, and had her
arrested based on false pretenses. (Id. at ¶¶ 51-59).

“Two

days later, with no apparent end to the acts of retaliation in
sight and fearing for her safety, Rau resigned from her
employment with Cuppa.” (Id. at ¶ 60).
2

Rau initiated this action on November 18, 2016, by filing
a Complaint containing the following counts: failure to pay
overtime wages in violation of the Fair Labor Standards Act as
to

all

Defendants

(Count

1);

breach

of

contract

and

entitlement to attorneys’ fees under Florida Statute § 448.08
as to Defendant Cuppa (Count 2); FLSA retaliation as to all
Defendants (Count 3); battery as to Griswold and Cuppa (Count
4); intentional infliction of emotional distress as to all
Defendants (Count 5); and violation of Florida’s private
whistleblower act, Florida Statute § 448.102 as to Cuppa
(Count 6).

Rau has included a prayer for punitive damages

with respect to Counts 4-6.
This is a fast track case, and the Court entered an Order
requiring Rau to file Answers to the Court’s Interrogatories
as well as containing the requirement that Defendants file a
Verified Summary of all hours Rau worked and the wages paid to
Rau. (Doc. # 17). Rau’s Answers to the Court’s Interrogatories
reveal that, with respect to her FLSA claims, she seeks
“$195.75 in unpaid straight time wages, $88.50 in unpaid
overtime wages plus $88.50 in liquidated damages.” (Doc. # 221 at 3).
Defendants filed an Answer and Affirmative Defenses (Doc.
# 15) on December 8, 2016.

Shortly thereafter, on December
3

12, 2016, Defendants filed a Motion to Strike Rau’s demand for
punitive damages. (Doc. # 16).

The Court granted the Motion

to Strike as an unopposed Motion on December 29, 2016, based
on Rau’s failure to respond. (Doc. # 20).

Thereafter, on

December 29, 2016, Rau filed a Motion for Reconsideration
explaining that her counsel miscalculated the deadline for
responding to the Motion to Strike. (Doc. # 21). Rau does, in
fact, oppose Defendants’ Motion to Strike and she requests
that the Court consider her arguments in response regarding
her

demand

for

punitive

damages.

The

Motion

for

Reconsideration is unopposed.
II.

Analysis
As stated in

Florida College of Osteopathic Medicine,

Inc. v. Dean Witter Reynolds, Inc., 12 F. Supp. 2d 1306, 1308
(M.D.

Fla.

1998),

“a

motion

for

reconsideration

must

demonstrate why the court should reconsider its past decision
and set forth facts or law of a strongly convincing nature to
induce the court to reverse its prior decision.” Further, “in
the interests of finality and conservation of scarce judicial
resources, reconsideration is an extraordinary remedy to be
employed sparingly.” Lamar Adver. of Mobile, Inc. v. City of
Lakeland, 189 F.R.D. 480, 489 (M.D. Fla. 1999).
This

Court

recognizes

three
4

grounds

to

justify

reconsideration of a prior order: “(1) an intervening change
in controlling law; (2) the availability of new evidence; and
(3) the need to correct clear error or manifest injustice.”
Fla. College of Osteopathic Med., Inc., 12 F. Supp. 2d at
1308.

Further, as explained in Ludwig v. Liberty Mutual Fire

Insurance Company, Case No. 8:03-cv-2378-T-17MAP, 2005 U.S.
Dist. LEXIS 37718, at *8 (M.D. Fla. Mar. 30, 2005), “This
Court will not reconsider its judgment when the motion for
reconsideration

fails

to

raise

new

issues

but,

instead,

relitigates that which the Court previously found lacking.”
Id. at 9-10.

In addition, “a motion for reconsideration is

not the proper forum for the party to vent dissatisfaction
with the Court’s reasoning.” Id. at 11. (citation omitted).
Here, Rau has not presented new evidence nor has Rau
pointed to a change in controlling law.

However, the Court

will consider her arguments in an abundance of fairness and in
an effort to resolve matters on the merits, rather than based
on a party’s failure to respond to a motion.
The Court is persuaded by Rau’s discussion of punitive
damages.

In Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072

(11th Cir. 2000), the Eleventh Circuit considered whether the
pleading requirements of Florida Statute § 768.72 regarding
punitive damages are applicable to state law claims brought in
5

federal court under diversity jurisdiction.

Florida Statute

§ 768.72 states: “In any civil action, no claim for punitive
damages shall be permitted unless there is a reasonable
showing by evidence in the record or proffered by the claimant
which would provide a reasonable basis for recovery of such
damages.

The claimant may move to amend her or his complaint

to assert a claim for punitive damages as allowed by the rules
of civil procedure.”
Specifically, the Cohen court held that “Florida Statute
786.72 conflicts with and must yield to the ‘short and plain
statement’ rule contained in Federal Rule of Civil Procedure
8(a)(3), and as a result a Florida plaintiff in federal court
because of diversity jurisdiction need not obtain leave of
court before pleading a request for punitive damages.” Id.
In contrast to Cohen, this Court has subject matter
jurisdiction over this case based on the presentation of a
federal question, with the court exercising supplemental
jurisdiction over Rau’s state law claims.
down

in

Cohen

regarding

nevertheless applicable.

pleading

The holding handed

punitive

damages

is

Considering a motion to strike

punitive damages, this Court explained in Brook ex. rel.
Cardoso v. Suncoast Schools, FCU, No. 8:12-cv-1428-T-33MAP,
2012 U.S. Dist. LEXIS 173168 (M.D. Fla. Dec. 6, 2012),
6

“Although this Court’s jurisdiction over the state law claims
in the instant case is supplemental under 28 U.S.C. § 1367
rather than original diversity jurisdiction under 28 U.S.C. §
1332,

the

Court

determines

that

the

same

reasoning

[as

articulated in Cohen] should apply here.” Id. at *12-13.
The

Court

accordingly

grants

the

Motion

for

Reconsideration and reinstates Rau’s demand for punitive
damages.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Kymberlee Rau’s Motion for Reconsideration of
Order Granting Defendants’ Motion to Strike Claim for Punitive
Damages (Doc. # 21) is GRANTED.

Rau’s demand for punitive

damages is reinstated.
DONE and ORDERED in Chambers, in Tampa, Florida, this
19th day of January, 2017.

7