Aragon et al v. Greco International Corporation et al
Filing
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ORDER granting in part and denying in part 33 Motion to Dismiss; the 30 Amended Complaint is dismissed. Plaintiffs have until 11/9/11 to file a aecond amended complant. Signed by Judge Cecilia M. Altonaga on 10/31/2011. (ps1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 11-22224-CIV-ALTONAGA/Simonton
JIMMY MEJIA PERALTA, et al.,
Plaintiffs,
vs.
GRECO INTERNATIONAL
CORPORATION, et al.,
Defendants.
___________________________________/
ORDER
THIS CAUSE comes before the Court upon Defendants, Greco International
Corporation (“Greco”) and George Vergoulias’s (“Vergoulias[’s]”) (collectively, the
“Defendants[’]”) Motion to Dismiss Plaintiffs’ Amended Complaint (the “Motion”) [ECF No.
33], filed on September 26, 2011. On September 7, 2011, Plaintiffs, Jimmy Mejia Peralta,
Miguel Angel Toruno Castillo, Melvin Eleazer Jaime Aragon, Medardo Jose Caballero Diaz, and
Eduardo Gaitan (the “Plaintiffs”) filed an Amended Complaint [ECF No. 30] pursuant to the Fair
Labor Standards Act (“FLSA”) against Defendants, alleging Defendants failed to pay Plaintiffs
the required minimum and overtime wages between 2008 and 2011.
(See Am. Compl.).
Plaintiffs request double damages and reasonable attorney’s fees from Defendants. (See id.). In
the Motion, Defendants move to dismiss Plaintiffs’ Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(b) and Southern District of Florida Local Rule 7.1. (See Mot.). The
Court has carefully considered the parties’ written submissions and the applicable law.
Case No. 11-22224-CIV-ALTONAGA/Simonton
I. BACKGROUND1
The five Plaintiffs were residents of Miami-Dade County, Florida, at the time this dispute
arose. (See Am. Compl. ¶ 2). Defendant Greco is a corporation that regularly transacts business
within Dade County. (See id. ¶ 3). Defendant Vergoulias is a corporate officer and owner of
Greco who runs its day-to-day operations. (See id. ¶ 4). Vergoulias is responsible for paying
Plaintiffs’ wages and controlling their “work and schedule.”
(Id.).
Plaintiffs worked for
Defendants as commercial cleaners. (See id. ¶ 9).
Plaintiffs worked for Defendants at various times between 2008 and 2011. (See id. ¶¶
10–14). Plaintiffs contend their work for Defendants “was actually in and/or so closely related to
the movement of commerce” that the FLSA applies to each of them. (Id. ¶ 15). They assert
Greco’s gross sales exceeded $500,000 annually between 2008 and 2010, and topped $250,000
through the first six months of 2011. (See id. ¶¶ 16–17). Additionally, Plaintiffs claim they each
worked an average of 90 hours a week, not including Sundays. (See id. ¶¶ 19–23, 26–29). They
bring suit as a collective action for recovery of minimum and overtime wages for work
performed in excess of 40 hours per week. (See id. ¶ 6).
Defendants ask the Court to dismiss Plaintiffs’ Amended Complaint (see Mot. 1), or in
the alternative, for a more definite statement because Plaintiffs have not filed written consents
and have insufficiently pleaded a proper cause of action. (See id. 2). In their Response,
Plaintiffs maintain written consent forms are not required by law and minimal pleading
requirements unique to the FLSA allow their Amended Complaint to survive the Motion. (See
Resp. [ECF No. 37]).
1
The allegations in Plaintiffs’ Amended Complaint are taken as true.
2
Case No. 11-22224-CIV-ALTONAGA/Simonton
II. LEGAL STANDARD
“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, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although
this pleading standard “does not require ‘detailed factual allegations,’ . . . it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550
U.S. at 555). Pleadings must contain “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. When
reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to
the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue
Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
III. ANALYSIS
Defendants move to dismiss Plaintiffs’ Amended Complaint on several grounds. First,
they aver that Plaintiffs have not filed written consent forms. (See Mot. 2). Second, Defendants
allege Plaintiffs have pleaded insufficient facts showing they are employed in an enterprise
engaged in commerce or the production of goods for commerce. (See id. 3). Additionally,
Defendants claim Plaintiffs have failed to show that they are similarly situated, a requirement to
proceed as a collective action. (See id. 5). The Court will address the merits of each of
Defendants’ arguments seriatim.
A. Written Consent Forms
“No employee shall be a party plaintiff to any [FLSA] action unless he gives his consent
in writing to become such a party and such consent is filed in the court in which such action is
brought.” 29 U.S.C. § 216(b). An action under the FLSA commences “on the date when the
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complaint is filed, if [the plaintiff] is specifically named as a party plaintiff in the complaint and
his written consent to become a party plaintiff is filed on such date . . . .” Id. § 256. “Based on
this unambiguous provision of the statute . . . in order for a collective, opt-in action brought
under the FLSA to commence, each of the plaintiffs (named or opt-in) must file a written
consent.” Lago v. Amoa Constr. & Dev. Corp., No. 08-20994-CIV, 2008 WL 4540062, at *2
(S.D. Fla. Oct. 10, 2008). The language of sections 216(b) and 256, however, does not require
the Court to dismiss a complaint where a written consent has not been filed. See id. Instead, the
action may proceed on an individual basis. See id.
In Lussi v. Design-Build & Eng’g, Inc., No. 09-23446-CIV, 2010 WL 1571158 (S.D.
Fla. Apr. 20, 2010), the defendants moved to dismiss plaintiffs’ FLSA complaint because the
plaintiffs did not file written consents. See id. at *1. The plaintiffs responded that consents are
not necessary until the court certifies an opt-in class, which had not yet happened. See id. The
court disagreed with the plaintiffs, noting that the plain language of the statute holds otherwise.
See id. Moreover, the court noted that “[c]ourts in this district that have considered whether the
statutory language requires the named plaintiffs in an opt-in action to file consents have
concluded it does.” Id. (collecting cases). As a result, the court instructed the plaintiffs to either
file written consents or proceed individually and not on behalf of others similarly situated. See
id.
Here, the Plaintiffs have not filed written consent forms indicating they wish to pursue
their claims on behalf of other individuals. (See Mot. 2). Plaintiffs insist there is no requirement
for named plaintiffs to file written consents. (See Resp. 6). They maintain that such filing
requirement is “only triggered by others who join the lawsuit after the Court potentially grants a
motion to certify an opt-in class.” (Id. 7) (emphasis in original). Notably, however, Plaintiffs do
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not cite case law to directly support either of these statements. Nor is the Court persuaded by
cases they do cite.2 (See id.).
The Court sees no reason to depart from Lussi and Lago. The statutory language is
unambiguous. As a result, Plaintiffs must either file their written consents or must proceed
individually and not on behalf of others similarly situated.
B. Failure to State a Cause of Action
“[I]t is clear from the language of the statute that, for enterprise coverage under the FLSA
to apply, the enterprise must be engaged in commerce under the statute and must gross over
$500,000 annually . . . [b]oth prongs must be met.” Sandoval v. Fla. Paradise Lawn Maint. Inc.,
303 F. App’x 802, 805 (11th Cir. 2008) (emphasis in original) (citing 29 U.S.C. §
203(s)(1)(A)(i)-(ii)). Defendants do not contest the sufficiency of Plaintiffs’ pleading regarding
the second prong — that Defendants grossed over $500,000 annually. Thus, the Court need not
address this issue.
However, Defendants assert the Amended Complaint fails because the
interstate commerce prong has been insufficiently pleaded. (See Mot. ¶ 8).
Regarding the first prong — that Defendants be engaged in interstate commerce —
Plaintiffs’ Amended Complaint alleges:
Defendant’s [sic] business activities involve those to which the
Fair Labor Standards Act applies. Both the Defendant’s [sic]
business and the Plaintiff’s [sic] work for the Defendants affected
interstate commerce for the relevant time period. Each Plaintiff’s
work for the Defendants affected interstate commerce for the
relevant time period because the goods or materials that Plaintiff
[sic] used on a constant and/or continual basis and/or that were
supplied to them by the Defendants to use on the job moved
through interstate commerce prior to and/or subsequent to each
Plaintiff’s use of the same. Each Plaintiff’s work for the
Two of the cases Plaintiffs rely upon — Cameron-Grant v. Maxim Healthcare Servs., 347 F.3d 1240
(11th Cir. 2003), and Allen v. Atl. Richfield Co., 724 F.2d 1131 (5th Cir. 1984) — were deemed to be
“misplaced” by the court in Lussi. Lussi, 2010 WL 1571158, at *1.
2
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Defendants was actually in and/or so closely related to the
movement of commerce while they worked for the Defendants that
the Fair Labor Standards Act applies to each Plaintiff’s work for
the Defendant [sic].
(Am. Compl. ¶ 15). These allegations are identical to the ones made by the plaintiffs in Lussi.
Compare Lussi, 2010 WL 1571158, at *2, with (Am. Compl. ¶ 15). Defendants argue that
because the court in Lussi rejected this language, the Court should do so now. (See Mot. ¶¶ 9–
11; Reply ¶¶ 14–15 [ECF No. 38]).
Defendants ask this Court to find such allegations
insufficient pursuant to Federal Rule of Civil Procedure 8. (See Mot. ¶ 7). Plaintiffs, curiously,
do not address the court’s reasoning in Lussi, arguing instead that Defendants “would be in a
better position than Plaintiffs to admit or deny” whether the interstate commerce prong is
satisfied. (Resp. 5).
Once again, Lussi is persuasive. In Lussi, the plaintiffs — like Plaintiffs here — claimed
the relevant information necessary to support the interstate commerce prong “will most often be
in the hands of the defendant.” Lussi, 2010 WL 1571158, at *2. Nonetheless, the court found
the allegations regarding interstate commerce — which are identical to those in this case — were
“conclusory and lacking in factual support.” Id. The Court agrees with the rationale in Lussi.
The allegations contained in the Amended Complaint do not contain sufficient facts to show that
Defendants have engaged in interstate commerce.
Because Plaintiffs’ allegations regarding the interstate commerce prong of the enterprise
coverage analysis are insufficient, the Amended Complaint is dismissed with leave to amend.
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C. Collective Action
Finally, Defendants contend Plaintiffs fail to show they are similarly situated, a
requirement to proceed as a collective action.3
(See Mot. ¶ 13).
“The FLSA authorizes
collective actions against employers accused of violating the FLSA.” Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1258 (11th Cir. 2008) (citing 29 U.S.C. § 216(b)). “Section 216(b)
provides that ‘[a]n action . . . may be maintained against any employer . . . by any one or more
employees for and in [sic] behalf of himself or themselves and other employees similarly
situated.’” Morgan, 551 F.3d at 1258 (quoting 29 U.S.C. § 216(b)). “[T]o maintain a collective
action under the FLSA, plaintiffs must demonstrate that they are similarly situated.” Morgan,
551 F.3d at 1258 (citing Anderson v. Cagle’s, 488 F.3d 945, 952 (11th Cir. 2007)). The standard
by which a court determines whether plaintiffs are similarly situated has been described as “not
particularly stringent,” “fairly lenient,” “flexible,” and “not heavy.” Morgan, 551 F.3d at 1260–
61 (internal quotations and citations omitted).
The Eleventh Circuit has not adopted a clear-cut definition of how similar the plaintiffs
must be in order for a case to proceed as a collective action. See Morgan, 551 F.3d at 1259.
Nonetheless, courts have identified several factors relevant to this determination. See Carrera v.
UPS Supply Chain Solutions, Inc., No. 10–60263–CIV, 2011 WL 1303151, at *4 (S.D. Fla. Mar.
31, 2011) (citing Dybach v. Fla. Dept. of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991)). These
factors include: the plaintiffs’ job title, the geographic location where the plaintiffs worked, the
time period of the alleged violations, the similarity of the policies and procedures plaintiffs were
subjected to, and the similarity of the allegations against the defendants. See Carrera, 2011 WL
1303151, at *4 (citing Dybach, 942 F.2d at 1567).
3
Defendants acknowledge Plaintiffs have not yet moved for a conditional certification of the collective
action, “but in order to proceed under a collective action, Plaintiffs would have to satisfy the Court that
there [are] other employees who are similarly situated . . . .” (Mot. n. 3).
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Defendants aver that Plaintiffs have not shown they are similarly situated. (See Mot. ¶
13). The Court disagrees. The Amended Complaint contains the following allegations: First,
Plaintiffs have alleged they all worked for Defendants as commercial cleaners. (See Am. Compl.
¶ 9). Second, they all worked at various times between 2008 and 2011, with four of the five
Plaintiffs overlapping in 2009. (See id. ¶¶ 10–14). Third, Plaintiffs’ wages, work, and schedule
were controlled by the same person — Defendant Vergoulias. (See id. ¶ 4). Fourth, Plaintiffs
allege similar hours worked (an average of 90 hours a week not including Sundays) and similar
wages (between $6.66/hour and $9.72/hour, with three Plaintiffs earning $7.00/hour). (See id. ¶¶
19–23). Fifth, each Plaintiff claims Defendants failed to pay the required minimum and overtime
wages for work performed in excess of 40 hours per week. (See id. ¶ 6). Taking into account all
of these allegations, the Court is persuaded that Plaintiffs have adequately pleaded they are
similarly situated for purposes of surviving a motion to dismiss. As a result, Plaintiffs’ case may
proceed as a collective action if the appropriate written consents are filed.4
IV. CONCLUSION
Based on the foregoing, it is
ORDERED AND ADJUDGED as follows:
1.
The Motion [ECF No. 33] is GRANTED in part and DENIED in part.
2. The Amended Complaint [ECF No. 30] is DISMISSED with leave to amend.
3. Plaintiffs must file a second amended complaint on or before November 9, 2011.
4. Plaintiffs must file written consents by November 9, 2011, or the case will proceed
individually.
4
In making this determination, the Court does not express any conclusion as to whether Plaintiffs are
similarly situated for purposes of class certification.
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Case No. 11-22224-CIV-ALTONAGA/Simonton
DONE AND ORDERED in Chambers at Miami, Florida, this 31st day of October,
2011.
_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:
counsel of record
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