Martinez v. Nido Caffe 110 LLC et al

Filing 41

ORDER granting 33 Motion to Dismiss for Failure to State a Claim. Amended Complaint due by 11/27/2017. Signed by Judge Robert N. Scola, Jr on 11/16/2017. (ail)

United States District Court
for the
Southern District of Florida
Danilo Martinez, Plaintiff,
v.
Nido Caffe 110 LLC d/b/a Nido
Caffe’ and others, Defendants.

)
)
) Civil Action No. 17-22411-Civ-Scola
)
)

Order on Defendant’s Motion To Dismiss
Plaintiff Danilo Martinez brings this suit for violations of the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). This matter is before the Court
on Defendant Panarea Miami LLC’s (“Panarea’s”) Motion to Dismiss (ECF No.
33). For the reasons set forth below, the Court grants the motion to dismiss.
1. Background
Martinez alleges that he was jointly employed by Defendant Nido Caffe
110 LLC, doing business as Nido Caffe’ (“Nido 110”), and Defendant Nido Caffe
2015 LLC, doing business as Ni.do Caffe & Mozarella Bar (“Nido 2015”), from
April 2014 through May 21, 2017. (Compl. ¶¶ 20-21, ECF No. 1.) Martinez
alleges that, although he worked more than 40 hours per week, he was not
paid overtime wages. (Id. ¶ 22.) He filed a one-count complaint against Nido
110, Nido 2015, Panarea, Lisandro Garcia, and Daian Escalante. Martinez
alleges that Garcia and Escalante had operational control over the “Defendant
corporation,” and that Panarea is the successor entity of Nido 110. (Id. ¶¶ 13,
16-17.)
2. Legal Standard
Federal Rule of Civil Procedure 8(a) requires “a short and plain statement
of the claims” that “will give the defendant fair notice of what the plaintiff's
claim is and the ground upon which it rests.” Fed. R. Civ. P. 8(a). The Supreme
Court has held that “[w]hile 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 raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted).

“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, 556 U.S. 662 (2009) (quotations and citations omitted).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 1950. When considering a
motion to dismiss, the Court must accept all of the plaintiff's allegations as
true in determining whether a plaintiff has stated a claim for which relief could
be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). For purposes of
Rule 12(b)(6), a court generally may not look beyond the pleadings, which
includes any information attached to a complaint. U.S. ex. Rel. Osheroff v.
Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015) (internal citations omitted).
3. Analysis
The FLSA requires employers to pay employees that work in excess of
forty hours per week at a rate of one and one-half times the regular rate at
which the employee is employed. 29 U.S.C. § 207(a)(1). Martinez does not allege
that Panarea was his employer. Rather, Martinez alleges that Panarea is the
successor entity to Nido 110, his joint employer along with Nido 2015. (Compl.
¶¶ 13, 21.)
The Eleventh Circuit has applied federal successor-liability law to FLSA
cases. See Hatfield v. A+ Nursetemps, Inc., 651 Fed. Appx. 901, 906-07 (11th
Cir. 2016) (applying federal successor-liability law to determine whether
judgment in FLSA case could be enforced against successor corporation). The
federal standard for successor liability analyzes whether:
(1) [T]he successor had notice of the pending action; (2) the
predecessor would have been able to provide the relief sought in the
action before the sale; (3) the predecessor could have provided the
relief after the sale (its inability to provide relief favors successor
liability); (4) the successor can provide the relief sought in the action;
and (5) there is continuity between the operations and work force of
the predecessor and the successor.
Id. at 907 (citing Teed v. Thomas & Betts Power Solutions, L.L.C., 711 F.3d 763,
765-75 (7th Cir. 2013)) (internal quotations and alterations omitted). The
successor liability determination “must be conducted in light of the facts of
each case and the particular legal obligation at issue.” Id. at 906 (citing In re
Nat’l Airlines, Inc., 700 F.2d 695, 689 (11th Cir. 1983)). The allegations in the
complaint must provide the factual basis necessary to draw a reasonable

inference of successor liability. See Cuervo v. Airport Serv.’s, Inc., 984
F.Supp.2d 1333, 1340 (S.D. Fla. 2013) (Goodman, Mag. J.) (determining
whether FLSA complaint adequately alleged liability under the federal
successor liability standard); Boateng v. Retirement Corp. of America Partners,
L.P., No. 1:12-cv-01959, 2013 WL 12061901, *4-5 (N.D. Ga. Mar. 5, 2013)
(same).
The Complaint contains sufficient factual allegations for the Court to
draw a reasonable inference that there is continuity between the operations
and work force of Nido 110 and Panarea, since it alleges that Panarea has the
same manager, uses the same location, and uses the same employees,
materials, and equipment as Nido 110. (Compl. ¶ 13.) However, the Complaint
does not contain factual allegations concerning any of the other factors listed
above. Therefore, the Complaint does not plausibly state a claim against
Panarea, particularly in light of the fact that both of Martinez’s joint employers
are named as defendants in this suit. See Boateng, 2013 WL 12061901, at *4-5
(dismissing complaint without prejudice because the plaintiff failed to allege
that the successor corporations were aware of any potential claims for
violations of the FLSA at the time they purchased the predecessor corporation
and failed to allege that the predecessor was not able to provide the relief
requested).
4. Conclusion
Accordingly, the Defendant’s Motion to Dismiss is granted (ECF No. 33),
and the claim against Defendant Panarea Miami LLC is dismissed without
prejudice. If the Plaintiff is able to correct the deficiencies identified above, he
may file an amended complaint on or before November 27, 2017.
Done and ordered, Miami, Florida, on November 16, 2017.
_______________________________
Robert N. Scola, Jr.
United States District Judge