Serrano v. Griffin Parking Area Maintenance, Inc.

Filing 16

ORDER granting 11 --motion to dismiss; permitting Serrano to amend the complaint by 10/19/2017. Signed by Judge Steven D. Merryday on 10/4/2017. (BK)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NELSON SERRANO,
Plaintiff,
v.

CASE NO. 8:17-cv-1684-T-23AEP

GRIFFIN PARKING
AREA MAINTENANCE, INC.,
Defendant.
____________________________________/
ORDER
Nelson Serrano sues (Doc. 1) Griffin Parking Area Maintenance under the
FLSA. According to the complaint, Serrano cleaned parking lots in Tampa between
July 2015 and February 2017 and sometimes worked more than forty hours per week,
but Griffin failed to pay overtime. Griffin moves (Doc. 11) to dismiss under
Rule 12(b)(6), Federal Rules of Civil Procedure, and argues that the complaint
contains insufficient facts to show that the FLSA covers Serrano’s employment.*
DISCUSSION
To succeed on an FLSA claim, a plaintiff must establish the applicability of
either “individual” or “enterprise” coverage. Thorne v. All Restoration Serv., Inc.,
448 F.3d 1264, 1265–66 (11th Cir. 2006). Under 29 U.S.C. § 207, individual

*

After the motion to dismiss, the defendant answered the complaint. In accord with
Rule 12(h)(2)(A), the answer alleges that the complaint fails to state a claim because the plaintiff
pleads insufficient facts to establish the FLSA’s applicability. (Doc. 15 at ¶¶ 1, 4–15)

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coverage applies only if the plaintiff “engaged in commerce” or in “the production of
goods for commerce.” Under 29 U.S.C. § 203(s)(1), enterprise coverage applies only
if a company’s annual revenue exceeds $500,000. Also, the company must employ
people (1) who “engage[] in commerce,” (2) who “produc[e] goods for commerce,”
or (3) who “handl[e], sell[], or otherwise work[] on goods that have been moved in or
produced for commerce.” Under 29 U.S.C. § 203(b), “commerce” means trade
“among the several States or between any State and any place outside thereof.”
A plaintiff must allege facts sufficient to show a plausible “entitlement to
relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (holding that a claim
supported by a conclusory allegation rather than a well-pleaded fact violates
Rule 8(a)). Griffin correctly argues that the well-pleaded factual allegations fail to
establish either individual or enterprise coverage under the FLSA. Serrano alleges
that he cleaned parking lots in Tampa for Griffin, which “operates . . . in
Hillsborough County.” (Doc. 1 at ¶¶ 5 and 15) Several conclusory paragraphs
(Doc. 1 at ¶¶ 9 and 12–13) parrot the text of the FLSA, but no well-pleaded facts
show or permit inferring either Serrano’s or Griffin’s engaging in trade outside
Florida. Because the well-pleaded factual allegations fail to establish the applicability
of the FLSA, Serrano’s FLSA claim cannot succeed.
CONCLUSION
The motion (Doc. 11) to dismiss is GRANTED, and the complaint is
DISMISSED. No later than OCTOBER 19, 2017, Serrano may amend the

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complaint to allege facts sufficient to establish the FLSA’s applicability. The failure
to timely amend the complaint will result in the dismissal of this action without
further notice.
ORDERED in Tampa, Florida, on October 4, 2017.

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