Stubbia v. NOPI ENTERPRISES INCORPORATED et al
Filing
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ORDER granting in part and denying in part 21 Motion to Dismiss for Failure to State a Claim; granting 29 Motion to Amend Complaint. Clerks Notice: Filer must separately re-file the amended pleading pursuant to Local Rule 15.1, and as ordered by the Judge by 9/7/12. Signed by Judge Cecilia M. Altonaga on 8/27/2012. (ps1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 12-22089-CIV-ALTONAGA/Simonton
GABRIELA L. STUBBIA,
Plaintiff,
vs.
NOPI ENTERPRISES, INC., et al.,
Defendants.
______________________________/
ORDER
THIS CAUSE came before the Court on Defendants’ Motion to Dismiss Complaint . . .
(“Defendants’ Motion”) [ECF No. 21], filed July 18, 2012; and Plaintiff’s Motion for Leave to
File Amended Complaint (“Plaintiff’s Motion”) [ECF No. 29], filed August 14, 2012.1
This case concerns claims for minimum wages, overtime wages, and retaliatory discharge
under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. section 201, et seq.; as well as a claim
for retaliatory discharge due to Plaintiff’s request for worker’s compensation benefits, in
violation of Florida Statute section 440.205. (See Compl. [ECF No. 1]).
I. LEGAL STANDARDS
A. Motion to Dismiss
“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
Plaintiff’s Response to Defendants’ Motion [ECF No. 28] was styled both as a Response and
“alternately, [a] Motion for Leave to File Amended Complaint.” (Id.). The Clerk of the Court docketed
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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. Indeed,
“only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal,
129 S. Ct. at 1950 (citing Twombly, 550 U.S. at 556). To meet this “plausibility standard,” a
plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. at 1949 (citing Twombly, 550 U.S. at
556).
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).
B. Motion to Amend Complaint
“[L]eave to amend is to be freely given, absent substantial reason to deny the motion.”
Greary v. City of Snellville, 205 F. App’x 761, 763 (11th Cir. 2006).
II. ANALYSIS
A. Motion to Dismiss
Defendants argue that all four counts of the Complaint are deficient. As to Count I,
Plaintiff’s claim for minimum wages under the FLSA, Defendants assert: 1) the Complaint is
unclear as to “whether Plaintiff was a tipped-credit employee or not and what credit she is
receiving, or not, based upon the calculations presented” (Defs.’ Mot. 3); 2) Plaintiff does not
accurately set forth her calculation for damages; and 3) Plaintiff requests relief that includes
Plaintiff’s requested alternative relief as a separate motion. (See [ECF No. 29]).
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overtime compensation, when Count II asserts Plaintiff’s claim for overtime wages under the
FLSA.
The FLSA provides:
Every employer shall pay to each of his employees who in any workweek is
engaged in commerce or in the production of goods for commerce, or is employed
in an enterprise engaged in commerce or in the production of goods for
commerce, wages at the following rates:
(1) except as otherwise provided in this section, not less than—
(A) $5.85 an hour beginning on the 60th day after May 25, 2007;
(B) $6.55 an hour, beginning 12 months after that 60th day; and
(C) $7.25 an hour, beginning 24 months after that 60th day . . . .
29 U.S.C. § 206(a). For tipped employees, an employer is required to pay the minimum wages
outlined in 29 U.S.C. section 206(a) “unless such employee has been informed by the employer
of the provisions of [29 U.S.C. § 203(m), which allows an employer to credit the tips received by
the employee up to a maximum of $5.12 an hour], and all tips received by such employee have
been retained by the employee.” Id. § 203(m); see also Updating Regulations Issued Under the
Fair Labor Standards Act, 76 Fed. Reg. 18832, 18835 (Apr. 5, 2011) (“[T]he maximum Federal
tip credit that an employer currently is permitted to claim under the FLSA is . . . $5.12 per
hour.”).
The FLSA also states
Except as otherwise provided in this section, no employer shall employ any of his
employees who in any workweek [(i)] is engaged in commerce or in the
production of goods for commerce, or [(ii)] is employed in an enterprise engaged
in commerce or in the production of goods for commerce, for a workweek longer
than forty hours unless such employee receives compensation for his employment
in excess of the hours above specified at a rate not less than one and one-half
times the regular rate at which he is employed.
29 U.S.C. § 207(a)(1).
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The issues Defendants raise with respect to Count I warrant Plaintiff to clarify her
Complaint.
Plaintiff’s claims are premised on her work for Defendants delivering pizzas.
Construing the Complaint in the light most favorable to Plaintiff as the Court must on a motion
to dismiss, the Court finds that Plaintiff alleges that her compensation by Defendants was $1.00
per each successful delivery plus tips. (See Compl. ¶ 10). She further alleges that the monies
she received — the $1.00 per successful delivery plus tips — amount to less than the FLSA’s
minimum wage requirements. (See id. ¶ 18). In calculating the amount of unpaid wages, it
appears she assumes that Defendants are entitled to a $2.13 per hour “credit” for the tips received
by Plaintiff. (See id. ¶ 32). At the same time, she contends “Defendants are not entitled to the
‘tip credit’ allowed by law” (id. ¶ 20), although she fails to assert that Defendants did not comply
with 29 U.S.C. section 203(m)’s requirements for the application of the tip credit.
As Plaintiff alleges she is a tipped employee, Plaintiff must clarify her claim for
minimum wages given the inconsistency of her allegations regarding whether Defendants are
entitled to a tip credit. Therefore, Count I is dismissed without prejudice with leave to amend.
Further, to the extent Plaintiff also claims overtime wages in Count I (see id. 10), that claim is
dismissed as she does not make any showing within the allegations supporting Count I that she
worked over forty hours per week. See 29 U.S.C. § 207(a)(1). Indeed, she raises a claim for
overtime wages in Count II.
The Court also observes that Plaintiff calculates damages based on a ninety-eight-week
period (see Compl. ¶ 32), while ten to fourteen of those weeks went unworked in 2010. To
eliminate any misunderstanding, should Plaintiff indicate the amount of her alleged damages in
the Complaint, she must do so based on the number of weeks she claims to have worked.
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As to Count II, Plaintiff’s claim for overtime wages under the FLSA, Defendants contend
Plaintiff does not accurately set forth her calculation for damages. According to Defendants,
Plaintiff fails to deduct from her calculation the minimum wages already claimed in Count I.
Additionally, as she has similarly done in Count I, Plaintiff calculates her damages based on
ninety-nine weeks2 although it is noted that ten to fourteen of those weeks went unworked in
2010. (See id. ¶ 44; Defs.’ Mot. 4–5).
With respect to Defendants’ first argument, it appears that Defendants are fully apprised
of Plaintiff’s claim — overtime wages owed. That Plaintiff is not entitled to the damages she
calculates is a subject more appropriately raised in a motion for summary judgment or at trial.
As to the second point raised by Defendants — the manner in which Plaintiff phrases the number
of weeks she alleges to have worked — this does not warrant dismissal. Nevertheless, the Court
notes it raises confusion. As the Court has required with regard to Count I, to eliminate
misunderstanding, should Plaintiff indicate the amount of her alleged damages in the Complaint,
she must do so based on the number of weeks she claims to have worked.
As to Count III, Plaintiff’s claim for retaliatory discharge under the FLSA, Defendants
point out that such a claim cannot be raised on behalf of those “‘similarly-situated’ in addition to
herself,” and they therefore ask the Court to “eliminat[e] the requested relief for any similarly
situated individual therein.” (Defs.’ Mot. 5). Plaintiff agrees to comply with the request. (See
Pl’s. Resp. 5). Plaintiff is granted leave to amend this claim as described, and accordingly, this
issue is denied as moot.
2
In Count I, Plaintiff calculates her damages based on ninety-eight work weeks. (See Compl. ¶ 32).
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As to Count IV, Plaintiff’s claim for retaliatory discharge under Florida worker’s
compensation law, Defendants point out that Plaintiff does not allege she filed a worker’s
compensation claim, which Defendants assert is a prerequisite to relief. (See Defs.’ Mot. 6
(citing FLA. STAT. § 440.205)). Florida Statute section 440.205 states: “No employer shall
discharge, threaten to discharge, intimidate, or coerce any employee by reason of such
employee’s valid claim for compensation or attempt to claim compensation under the Workers’
Compensation Law.” (emphasis added). The case law cited by Defendants does not appear to
support their proposition that the latter half of Section 440.205 should effectively be ignored.
(See Defs.’ Mot. 6 (cases cited therein)). Thus, Defendants’ Motion to Dismiss this claim is
denied.
To the extent Defendants ask the Court to strike Plaintiff’s prayer for attorney’s fees and
punitive damages, Plaintiff does not respond. In any event, the Court notes that these prayers are
not claims brought forth by Plaintiff. Moreover, Defendants’ request to strike should have been
raised in a motion to strike pursuant to Federal Rule of Civil Procedure 12(f), and is not
appropriately before the Court on this motion to dismiss pursuant to Rule 12(b)(6) given the
applicable standard of review. Defendants’ request on this issue is denied.
B. Motion to Amend Complaint
Plaintiff represents she “desires to amend her Complaint in order to include additional
Counts for violations of the Florida Minimum Wage Act.” (Pl’s. Resp. 3). She also “recognizes
that a couple of issues raised by the Defendants’ Motion might warrant correction.” (Id.).
Defendants agree to Plaintiff’s request to amend (see Defs.’ Reply 3), which was timely filed.
(See Order dated July 25, 2012 (requiring that any motions to amend pleadings be filed by
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September 17, 2012)). The Court finds no substantial reason to deny Plaintiff’s Motion, and it is
therefore granted.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED as follows:
1)
Defendants’ Motion [ECF No. 21] is DENIED in part and GRANTED in part.
2)
Plaintiff’s Motion [ECF No. 29] is GRANTED. Plaintiff shall file her amended
complaint as a separate docket entry by September 7, 2012.
3)
Plaintiff shall also file an amended statement of claim by September 7, 2012 to
reflect the claims set forth in her amended complaint. Within fourteen days of
Plaintiff’s filing, Defendants shall file their response to the amended statement of
claim.
DONE AND ORDERED in Miami, Florida, this 27th day of August, 2012.
_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:
counsel of record
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