Delgado v. De Ona et al
ORDER granting 52 Unopposed Motion to Dismiss Negligence Count of Plaintiff's Amended Complaint for Lack of Jurisdiction. Signed by Magistrate Judge Andrea M. Simonton on 5/15/2012. (par)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 11-21143-CIV-SEITZ/SIMONTON
ELVA CASIMRA CABRERA DELGADO,
LAURA GONZALEZ DE ONA
and DIEGO R. SUAREZ,
ORDER GRANTING UNOPPOSED MOTION TO DISMISS
NEGLIGENCE COUNT OF PLAINTIFF’S AMENDED COMPLAINT
FOR LACK OF JURISDICTION
This matter is before the Court upon Plaintiff’s Motion to Dismiss Count II of the
Complaint without Prejudice (DE # 52). The Defendant has not filed a response to the
Motion and the time for doing so has elapsed. Pursuant to the consent of the Parties, the
Honorable Patricia A. Seitz, United States District Judge, has referred this case to the
undersigned United States Magistrate Judge for final disposition (DE # 23).
This action was initiated when Plaintiff Elva Casimra Cabrera Delgado
(“Delgado”), a live-in housekeeper, filed a Complaint alleging violations of the Fair Labor
Standards Act 29 U.S.C. § 201, et seq., (“FLSA”) against her former employers Laura
Gonzalez de Ona and Diego R. Suarez (DE # 1). In the original Complaint, in addition to
alleging a federal minimum wage violation, the Plaintiff also alleged one count of
common law negligence related to a slip and fall accident that occurred on the
The federal minimum wage count (Count I) alleges that the Plaintiff worked an
average of 73 hours for the Defendants between August 1, 2008 and April 1, 2011, for
which she was paid below the minimum wage (DE # 8 at 3, 5). The Plaintiff seeks to
recover the difference between the amounts paid by the Defendants and the applicable
minimum wage. Jurisdiction for the federal minimum wage count is predicated upon
federal question jurisdiction pursuant to 28 U.S.C. § 1331.
The negligence count, on the other hand, avers that the Plaintiff slipped and fell
on the Defendants’ property due to the unreasonably unsafe condition of the tile floor
(DE # 8 at 6-8). In that count, the Plaintiff seeks to recover for injuries and medical bills
related to the fall. Jurisdiction for the negligence count is predicated upon the Court’s
supplemental jurisdiction under 28 U.S.C. § 1367.
In the instant Motion, the Plaintiff seeks to have the negligence count dismissed
from this action without prejudice.1 Plaintiff asserts that the Court’s exercise of
supplemental jurisdiction over the negligence claim is not appropriate because the
negligence action does not arise from the same case or controversy as the minimum
wage claim. Specifically, the Plaintiff contends that the state negligence cause of action
requires completely different elements of proof and involves different standards of
liability than the minimum wage claim. In addition, the Plaintiff contends that because
there were no witnesses to the Plaintiff’s fall, there will be no overlap of fact witnesses
In the Motion to Dismiss, the Plaintiff refers to Count II of the Complaint as
alleging negligence. However, on May 9, 2011, the Plaintiff filed an Amended Complaint
wherein the Plaintiff added an additional Count to the action for alleged violations of the
Florida Minimum Wage law, Fla. Stat. § 448.110 (DE # 8). The Florida Minimum Wage
claims were designated as Count II. Thus, it is Count III, not Count II, that alleges
negligence in the Amended Complaint and the Court therefore treats the Plaintiff’s
Motion as seeking to dismiss that count.
at trial, other than the Plaintiff. Further, the Plaintiff contends that the negligence claim,
unlike the minimum wage claim, will require the testimony of engineering experts at trial.
Plaintiff therefore argues that the actions do not arise from a common case or
controversy as required by 28 U.S.C. § 1367(a), the statute which sets forth the Court’s
authority for exercising supplemental jurisdiction. As such, the Plaintiff contends that
the state negligence count must be dismissed without prejudice.
As stated above, the Defendants have not filed a response to the Plaintiff’s Motion
and thus have not contested any of the factual or legal assertions advanced by the
LAW & ANALYSIS
Title 28 U.S.C. § 1367, entitled “Supplemental jurisdiction”, provides in relevant
part, “. . . in any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States Constitution.” 28 U.S.C. §
1367 (a). The Eleventh Circuit has noted that the constitutional “case or controversy”
standard confers supplemental jurisdiction over all state claims which arise out of a
common nucleus of operative fact with a substantial federal claim. Parker v. Scrap Metal
Processors, Inc., 468 F. 3d 733, 742-43 (11th Cir. 2006) citing United Mine Workers of
America v. Gibbs, 383 U.S. 715, 725 (1966).
Based upon a thorough review of the record, including the Plaintiff’s arguments
and the applicable case law, the undersigned concludes that the negligence claim
(Count III) asserted in the Plaintiff’s Amended Complaint must be dismissed for lack of
subject matter jurisdiction. The federal minimum wage claim and the negligence claim
do not arise out of a “common nucleus of operative fact” and thus fail to satisfy the
constitutional case or controversy standard enunciated in § 1367. Rather, the claims
involve different factual predicates, will require the presentation of different types of
evidence at trial, and will involve testimony from different witnesses. In addition,
because the Plaintiff contends that the personal injury incident did not occur while the
Plaintiff was working but when she was in her own apartment, separate from the
Defendants’ home, the incidents that give rise to the actions did not even occur at the
same location. In this regard, this case is akin to Garcia v. Florida Roofing Solutions,
Inc., 2007 WL 3343007 *1 (S.D. Fla. 2009), wherein the Court dismissed a personal injury
count from an FLSA action finding that, although the plaintiff was injured while on the
job, the personal injury claim had nothing, factually, to do with proof of an FLSA
violation. Id. Accord Carvalho v. Door-Pak, Inc., 565 F. Supp 2d 1340 (S.D. Fla. 2008)
(finding same related to counterclaim for tortuous interference raised in FLSA action).
Simply put, the negligence action and the minimum wage violation actions do not
arise from the same case and controversy and thus do not fall within the Supplemental
jurisdiction parameters of 28 U.S.C. § 1367 (a). As such, the Court lacks jurisdiction over
the negligence action, and Count III of the Plaintiff’s Amended Complaint must be
dismissed. As the Defendants have failed to properly lodge an objection to the Plaintiff’s
request for the negligence count to be dismissed without prejudice, the Court dismisses
that Count without prejudice as requested by the Plaintiff.
It is therefore
ORDERED AND ADJUDGED that Plaintiff’s Motion to Dismiss Count II of the
Plaintiff’s Amended Complaint for lack of jurisdiction (DE # 52), is granted to the extent
that it seeks to dismiss the negligence count of the Plaintiff’s action. The Plaintiff may
proceed on Counts I and II of the Amended Complaint (DE # 8) which allege violations of
the Fair Labor Standards Act (Count I) and the Florida Minimum Wage act (Count II).
Count III of the Amended Complaint alleging negligence is dismissed without prejudice
for lack of jurisdiction.
DONE AND ORDERED at Miami, Florida, on May 15, 2012.
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
All counsel of record
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