Simmons v. Severin et al

Filing 24

ORDER denying (Doc. # 20 ) Defendants' Motion to Dismiss. In an effort to expedite the proceedings, the Court directs that Defendants' answers be filed by April 25, 2017. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 4/14/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RICKY SIMMONS,
Plaintiff,
v.

Case No. 8:17-cv-200-T-33AEP

ALBERTA A. SEVERIN and JOHN E.
SEVERIN, INDIVIDUALLY AND AS
TRUSTEES OF THE SEVERIN FAMILY
TRUST U/A/D NOVEMBER 11, 2011,
and HILLCREST LODGE, INC.,
Defendants.
______________________________/
ORDER
This cause is before the Court pursuant to Defendants
Alberta R. Severin and John Severin, individually and as
Trustees of the Severin Family Trust u/a/d November 11, 2011,
and

Hillcrest

Lodge,

Inc.’s

Motion

to

Dismiss

Amended

Complaint (Doc. # 20), which was filed on March 30, 2017.
Plaintiff Ricky Simmons filed a Response in Opposition to the
Motion (Doc. # 21) on April 3, 2017.

The Court denies the

Motion to Dismiss.
I.

Background
Simmons alleges that he worked as an on-site resident

manager

and

security

and

never

Park,

apartment

He claims that he worked up to 44 hours each week
weeks

Babson

Lodge

Florida.

23

in

Hillcrest

which

approximately

located

at

complex,

for

is

guard

Polk

received

County,

financial

compensation from Defendants. (Doc. # 11 at ¶ 20). Simmons
“was not actually paid anything for his services.” (Id. at ¶
24).

Simmons indicates that he cannot ascertain the exact

number of hours he worked because Defendants did not keep
accurate time records. (Id. at 21). Simmons claims that the
reasonable value of his services was $15.00 per hour and “in
the alternative,” the “parties agreed on a reasonable wage of
$12.50 per hour.” (Id. at ¶¶ 22-23).
Simmons filed a Complaint against Alberta R. Severin and
John Severin, individually and as Trustees of the Severin
Family Trust u/a/d November 11, 2011, on January 25, 2017.
(Doc. # 1).

On March 16, 2017, he filed an Amended Complaint

adding Hillcrest Lodge, Inc. as a Defendant, containing four
counts. (Doc. # 11).
In Count One he sues all Defendants for recovery of
minimum wage and overtime under the Fair Labor Standards Act.
In Count Two, he seeks a declaratory judgment that all
Defendants

have

violated

the

FLSA

by:

“(a)

failing

to

compensate Plaintiff at least minimum wage for all hours
worked; (b) failing to compensate Plaintiff at least 1.5 times
his regular rate for all hours worked in excess of 40 per work
week; and (c) failing to comply with the time tracking and
record

keeping

requirements

of
2

the

FLSA

and

associated

regulations.” (Id. at ¶ 41).
Counts Three and Four are asserted pursuant to state law.
Specifically, in Count Three, he seeks recovery of minimum
wages under the Florida Minimum Wage Act and the Florida
Constitution. And, in Count Four, he seeks recovery of unpaid
wages pursuant to Florida Common Law.
Defendants

have

filed

a

Motion

to

At this juncture,
Dismiss

the

Amended

Complaint, to which Simmons has responded. (Doc. ## 20, 21).
II.

Legal Standard
On a motion to dismiss, this Court accepts as true all

the allegations in the complaint and construes them in the
light most favorable to the plaintiff.

Jackson v. Bellsouth

Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).

Further,

this Court favors the plaintiff with all reasonable inferences
from the allegations in the complaint.

Stephens v. Dep’t of

Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990)
(“On a motion to dismiss, the facts stated in [the] complaint
and all reasonable inferences therefrom are taken as true.”).
However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
3

raise a
level.

right

to

relief

above

the

speculative

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted).

In addition, courts are not “bound to

accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
Furthermore, “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.”

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). At

the outset, the Court notes that the parties have provided
documents external to the Amended Complaint at the motion to
dismiss stage.

The Court declines to evaluate the extraneous

documents and furthermore declines to advance this case to the
summary judgment phase of the proceedings. As such, the Court
will confine its analysis to the four corners of the Amended
Complaint.
III. Analysis
Defendants advance a number of arguments regarding why
this case should be dismissed.
review, none hold merit.

However, upon a careful

As an initial matter, Defendants

Alberta Severin and John Severin (individually and as trustees
of the Trust) assert that Hillcrest Lodge, Inc. is the only
proper Defendant, such that the Severins and the Trust should

4

be dismissed.

The Severins indicate “if any employment

relationship was formed it was clearly between Hillcrest
Lodge, Inc. and Plaintiff,

as will be evidenced by the

exhibits to this Motion to Dismiss.” (Doc. # 20 at 6)(emphasis
added).

But, at the motion to dismiss stage, the Court

declines to review exhibits, especially on a disputed factual
issue.

As a further source of proof for their contention

that Hillcrest Lodge, Inc. should be the sole Defendant, the
Severins represent that Simmons “conceded” that Hillcrest
Lodge was his sole employer in his application to proceed in
forma pauperis in this case.
Once again, the Court refuses to consider documents
external to the Amended Complaint when ruling on the present
Motion, but even if the Court were to do so, the Court would
not find any such concession.

The Motion to proceed in forma

pauperis states among other things: “The defendants hired me
but they never paid me anything for my work.
destitute and homeless.” (Doc. # 2 at 5).

This has left me

As to the names of

“person[s] owing you or your spouse money,” Simmons listed
“Alberta

&

John

Severin.”

(Id.

at

3).

He

also

listed

“Hillcrest Lodge” in the “employment history” section of the
in forma pauperis application. (Id. at 2).

The Court refuses

to construe the basic facts Simmons provided in an in forma
5

pauperis application as a “concession” concerning a disputed
fact.
To state a claim to relief under the FLSA, a plaintiff
must allege (1) an employment relationship; (2) that the
employer engaged in interstate commerce; and (3) that the
employee worked and was not paid. See Vierra v. Sage Dining
Servs.,

No.

8:10-cv-2267-T-33EAJ,

2010

129534, at *5 (M.D. Fla. Nov. 23, 2010).

U.S.

Dist.

LEXIS

Here, some of the

named Defendants contest that Simmons served as an employee.
However, “[i]n the FLSA, which was adopted in 1938, Congress
defined the term ‘employ’ to ‘include to suffer or permit to
work.’

As interpreted by the Supreme Court, this statutory

‘suffer or permit to work’ definition is one of the broadest
possible delineations of the employer-employee relationship.”
Garcia-Celestino v. Ruiz Harvesting, Inc., 843 F.3d 1276, 1287
(11th Cir. 2016).
regarding

The Court rejects the Severins’ arguments

Simmons’

employment

status.

The

following

allegations asserted in the Amended Complaint satisfy the
Court, at this preliminary juncture, that Simmons served as
Defendants’ “employee” under governing law:
Defendants Alberta R. Severin and John E. Severin
were and are trustees of the Severin Family Trust
u/a/d November 11, 2011 (the “Trust”). The Trust
is a trust established by Florida law that owns
real property located at 241 Palm Ave., Babson
6

Park, Polk County, Florida (the “Property.”). The
Property is known as “Hillcrest Lodge.” . . . .
Defendant Hillcrest Lodge, Inc. is owned and
controlled by Defendants Alberta R. Severin and
John E. Severin, either individually or through the
Trust. . . . . Defendant Hillcrest Lodge, Inc. has
a business relationship with the Trust and the
Severins that enable it to have operational control
over the Property. . . . At all relevant times,
Defendants Alberta R. Severin and John E. Severin
had operational control of the Trust’s day-to-day
functions, including determining compensation of
employees, hiring and discharging employees,
controlling employees, and establishing terms and
conditions of employment, including as to the
Plaintiff.
At all relevant times, Defendants
Alberta R. Severin and John E. Severin had
operational control of Defendant Hillcrest Lodge,
Inc.’s day-to-day functions, including determining
compensation of employees, hiring and discharging
employees, controlling employees, and establishing
terms and conditions of employment, including as to
the Plaintiff.
In June of 2016, Plaintiff Ricky Simmons was
approached by Defendant Alberta Severin and hired
to work at the Property.
His duties included
collecting rent from tenants, answering telephone
calls, showing the Property to potential tenants,
opening and staffing the lodge, distributing mail,
and performing maintenance at the Property.
Plaintiff began work on June 14, 2016. In July,
2016, Plaintiff’s duties increased to include
security.
Defendant Alberta Severin did not
explicitly specify to Plaintiff whether he was
being hired by her individually, by her and John
Severin, individually, by the Trust, or by
Hillcrest Lodge, Inc. Notwithstanding, the Trust
and Hillcrest Lodge, Inc. are in common control and
ownership of Defendants Alberta Severin and John
Severin. Additionally, Hillcrest Lodge, Inc., the
Trust, and the individual Defendants were all aware
that Plaintiff was hired to work at the Property,
they all had the authority and ability to control
and direct his work, they all had the authority to
hire or fire him, they all benefitted from his
7

work, and they all suffered and permitted him to
work on the Property.
(Doc. # 11 at ¶¶ 3-17).
These allegations satisfy the Court, at this preliminary
juncture, that each Defendant is properly named and Simmons is
an “employee” under the FLSA as to each Defendant.

The Court

declines Defendants’ invitation to evaluate documents outside
of the allegations of the Amended Complaint. Focusing on what
Simmons plausibly alleged in the Amended Complaint, the Court
denies the Motion to Dismiss to the extent it challenges
whether Simmons was an “employee” of any named Defendant.
The

Court

also

rejects

Defendants’

assertion

that

“Plaintiff’s Complaint should be dismissed for failing to
adequately allege the number of hours for which he worked and
was not paid.” (Doc. # 20 at 9).

Here, Simmons alleges that

Defendants’ failure to keep adequate records has prevented him
from fully knowing the extent of the failure to pay wages, but
that Simmons estimates that he worked “up to about 44 hours
per week for 23 weeks” and received no compensation. (Doc. #
11 at ¶¶ 20-21, 24).
accurate

and

“The burden is on the defendant to keep

complete

time

records,

specific records that are required.”

and

there

are

very

Robles v. Acebo Roofing

Corp., No. 16-cv-21817, 2017 U.S. Dist. LEXIS 33137, at *10

8

(S.D. Fla. Mar. 7, 2017).
And, at the complaint stage of a FLSA case, a plaintiff
is not required to come forward with information about every
hour of time for which he was not paid lawfully. “There is no
requirement that the Plaintiff explicitly state the amount of
damage, but only that the Plaintiff worked in excess of forty
hours a week and was not paid overtime wages.” Ramos v.
Aventura Limousine & Transp. Serv., Inc., No. 12–21693–civ,
2012 WL 3834962, at *2 (S.D. Fla. Sept. 4, 2012); see also
Dobbins v. Scriptfleet, Inc., No. 8:11–cv–1923–T–24AEP, 2012
WL 601145, at *3 (M.D. Fla. Feb. 23, 2012) (rejecting argument
that a plaintiff must plead an estimate of the amount of
uncompensated hours worked).
In an effort to get to the heart of the matter, the Court
has filed the FLSA Scheduling Order, which requires Simmons to
provide answers to the Court’s Interrogatories regarding the
hours that he worked and for Defendants to then furnish
Simmons and the Court with “a Verified Summary of all hours
worked by Plaintiff during each relevant pay period, the rate
of pay and wages paid, including overtime pay, if any.” (Doc.
# 14 at 2).

Notably, the Motion to Dismiss has been filed

before Simmons has had the opportunity to file Answers to the
Court’s

Interrogatories

and

before
9

Defendants’

Verified

Summary is due.

On due consideration, the Court denies the

Motion to Dismiss to the extent it points out that Simmons has
not articulated the exact number of hours he worked during his
period of employment.

The information exchange contemplated

in the FLSA Scheduling Order is designed to facilitate the
timely and cost-effective resolution of this matter, and the
Court encourages the parties to take full advantage of every
settlement opportunity.
Because the Court has denied the Motion to Dismiss as to
the FLSA count, which forms the basis of the Court’s exercise
of subject matter jurisdiction over the case, the Court need
not

consider

Defendants’

argument

that

the

Court

should

decline to exercise jurisdiction over the pendant state law
wage claims.

Each of Simmons’ claims seek unpaid wages and

the Court has jurisdiction over the pendant state law claims
asserted in the Amended Complaint.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendants

Alberta

R.

Severin

and

John

Severin,

individually and as Trustees of the Severin Family Trust
u/a/d November 11, 2011, and Hillcrest Lodge, Inc.’s
Motion to Dismiss Amended Complaint (Doc. # 20) is
DENIED.
10

(2)

In an effort to expedite the proceedings, the Court
directs that Defendants’ answers be filed by April 25,
2017.
DONE and ORDERED in Chambers, in Tampa, Florida, this

14th day of April, 2017.

11