Dimingo v. Midnight Xpress, Inc. et al
ORDER granting 21 Defendants' Motion to Dismiss. The Plaintiff may file an amended complaint on or before December 1, 2017. Signed by Judge Robert N. Scola, Jr. on 11/17/2017. (jle)
Case 1:17-cv-23010-RNS Document 24 Entered on FLSD Docket 11/17/2017 Page 1 of 3
United States District Court
Southern District of Florida
Eduardo E. Dimingo, Plaintiff,
Midnight Xpress, Inc. and others,
) Civil Action No. 17-23010-Civ-Scola
Order on Defendants’ Motion To Dismiss
Plaintiff Eduardo Dimingo brings this suit for violations of the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), alleging that the Defendants
were his joint employers and that they failed to pay him overtime wages. This
matter is before the Court on the Defendants’ Motion to Dismiss (ECF No. 21).
For the reasons set forth below, the Court grants the motion to dismiss.
1. 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).
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The FLSA requires an employer to pay its employee “an overtime wage of
one and one-half times his regular rate for all hours he works in excess of forty
hours per week.” See Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d
1292, 1298 (11th Cir. 2011); see also 29 U.S.C. § 207(a). “In order to be eligible
for FLSA overtime, however, an employee must first demonstrate that he is
‘covered’ by the FLSA.” Josendis, 662 F.3d at 1298. This requires a showing
that the jurisdictional prerequisite of “interstate commerce” exists in a given
case, a showing that may be made one of two ways––individual coverage or
enterprise coverage. Id. The Defendants argue that the Complaint should be
dismissed because it fails to sufficiently allege enterprise or individual
The Complaint attempts to plead individual coverage, enterprise
coverage, and joint enterprise coverage. However, the allegations concerning
each type of coverage merely consist of a recitation of the various requirements
for pleading each type of coverage. Indeed, the Complaint appears to be a
boiler-plate complaint used by Plaintiff’s counsel, as one of the paragraphs in
the Complaint erroneously references two entities that are defendants in
another suit brought by Plaintiff’s counsel that is currently pending before the
undersigned. (Compl. ¶ 26.) Other than the identities of the Defendants, the
dates of the Plaintiff’s employment, his job title, and the average hours worked,
the Complaint contains no specific factual allegations whatsoever. The
Complaint does not even identify the nature of the Defendants’ businesses.
Although a plaintiff “need not do much” to plead individual or enterprise
coverage, this Court has held that a plaintiff fails to adequately plead coverage
where the plaintiff does not allege specific facts to support his conclusions.
Ceant v. Aventura Limousine & Transp. Serv., Inc., 874 F.Supp.2d 1373, 1377
(S.D. Fla. 2012) (Scola, J.); see also Pardue v. Specialty Eng’g Consultants, Inc.,
85 F. Supp. 3d 1347, 1349–50 (S.D. Fla. 2015) (Marra, J.) (a plaintiff must
provide the “factual underpinnings” which support his general allegations and
legal conclusions); Perez v. Muab, Inc., No. 10-62441, 2011 WL 845818, at *3
(S.D. Fla. Mar. 7, 2011) (Cohn, J.) (mere recitation of the statutory language
that an individual was engaged in commerce is insufficient to allege individual
The failure of the Plaintiff to include specific factual allegations to
support his conclusion that he is a covered employee is especially troubling
because, as noted by the Defendant, Plaintiff’s counsel has had similar
complaints dismissed by other courts in this district for the exact same
deficiencies. For example, in Gonzalez v. Old Lisbon Restaurant & Bar L.L.C.,
820 F.Supp.2d 1365, 1368 (S.D. Fla. 2011), Magistrate Judge Goodman
Case 1:17-cv-23010-RNS Document 24 Entered on FLSD Docket 11/17/2017 Page 3 of 3
dismissed a complaint filed by Plaintiffs’ counsel because “Plaintiff’s complaint
is devoid of any allegations describing the type of business activities in which
Defendants are engaged and for what purpose. Instead, Plaintiff literally has
taken the legal test for joint enterprise coverage and repeated its exact terms as
his allegations.” 820 F.Supp.2d at 1370. Yet rather than file an amended
complaint in response to the Defendants’ motion to dismiss citing to this case
law, the Plaintiff instead filed a fourteen-page response arguing that he has, in
fact, adequately pleaded his claim. (Resp., ECF No. 22.) He has not. The Court
reminds Plaintiff’s counsel that they must comply with the requirements of
Federal Rule of Civil Procedure 11(b), which states, in relevant part, that by
presenting a pleading, written motion, or other paper to the Court, the attorney
certifies that “it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of litigation,”
and that “the claims, defenses, and other legal contentions are warranted by
existing law . . . .”
Accordingly, the Defendants’ Motion to Dismiss is granted (ECF No. 21),
and the Complaint is dismissed without prejudice. The Court will grant the
Plaintiff one opportunity to amend the Complaint, provided he has a good faith
basis for doing so. Any amended complaint must be filed on or before
December 1, 2017.
Done and ordered, Miami, Florida, on November 17, 2017.
Robert N. Scola, Jr.
United States District Judge
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