Dimingo v. Midnight Xpress, Inc. et al

Filing 40

ORDER granting 37 Motion for Clarification. Signed by Judge Robert N. Scola, Jr. on 2/5/2018. (jle)

United States District Court
for the
Southern District of Florida
Eduardo E. Dimingo, Plaintiff,
v.
Midnight Xpress, Inc. and others,
Defendants.

)
) Civil Action No. 17-23010-Civ-Scola
)
)

Order on the Plaintiff’s Motion for Clarification
This matter is before the Court on the Plaintiff’s Motion for Clarification
and to Compel Second Depositions of Defendants Limited to the Issue of FLSA
Enterprise Coverage, which asks the Court to clarify whether it dismissed all of
the Plaintiff’s allegations concerning enterprise coverage in the First Amended
Complaint, or whether the Court dismissed only the Plaintiff’s allegations
concerning his joint enterprise theory (ECF No. 37). The Court grants the
motion for clarification (ECF No. 37) and provides the following guidance
concerning its Order on Defendants’ Motion to Dismiss First Amended
Complaint (ECF No. 32).
The Court dismissed the Plaintiff’s first complaint because the allegations
consisted “of a recitation of the various requirements for pleading each type of
[FLSA] coverage.” (Order on Def.’s Mot. to Dismiss 2, ECF No. 24.) The Court
granted the Plaintiff “one opportunity to amend the Complaint . . . .” (Id. at 3
(emphasis in original).) The Plaintiff subsequently filed his First Amended
Complaint (ECF No. 26.) The Court granted in part and denied in part the
Defendant’s motion to dismiss the First Amended Complaint, holding that the
Plaintiff had properly alleged individual coverage under the FLSA, but not
enterprise coverage. (Order on Def.’s Mot. to Dismiss First Am. Compl., ECF
No. 32.) As the Court stated in the order, an employee may show that his
employer is subject to enterprise coverage by demonstrating that: (1) the
employer has two or more employees regularly and recurrently engaged in
commerce or in the production of goods for commerce, or has two or more
employees regularly and recurrently handling, selling, or otherwise working on
goods or materials that have been moved in or produced for commerce by any
person; and (2) the employer is an enterprise whose annual gross volume of
sales made or business done is not less than $500,000. Scott v. K.W. Max
Investments, Inc., 256 F. App'x 244, 248 (11th Cir. 2007); Diaz v. Jaguar Rest.
Grp., LLC, 649 F. Supp. 2d 1343, 1346 (S.D. Fla. 2009). The Court noted that
the First Amended Complaint stated that the Plaintiff intended to utilize a joint
enterprise theory in order to establish that the Defendants’ volume of sales was

$500,000 or more, and held that the Plaintiff had not adequately alleged joint
enterprise coverage. (Order at 3-5.)
The Plaintiff’s motion for clarification erroneously assumes that his joint
enterprise theory can be severed from the rest of the allegations concerning
enterprise coverage. The Plaintiff attempts to argue that he “clearly pled FLSA
enterprise coverage” by relying on the allegation in the First Amended
Complaint that “all of the Defendant Corporations had gross sales or business
done in excess of $500,000 annually each and/or combined . . . .” (First Am.
Compl. ¶ 18.) However, the first sentence of the very next paragraph stated
that, “[w]ith respect to the $500,000 threshold, Plaintiff intends to stack
income to fullest extent allowable by law, under a joint enterprise theory . . . .”
(Id. ¶ 19.) Thus, the joint enterprise theory cannot be severed from the rest of
the allegations concerning enterprise coverage because the Plaintiff explicitly
relied on the joint enterprise theory in order to meet the sales volume
requirement. This is precisely why the Court analyzed the Plaintiff’s joint
enterprise theory under the heading “Enterprise Coverage,” and why the Court
stated in the conclusion that it “dismisses the allegations concerning enterprise
coverage in the First Amended Complaint.” (Order 3-5, 9, ECF No. 32.) Now
that the Court has determined that the Plaintiff did not adequately plead joint
enterprise coverage, the Plaintiff appears to be asking the Court to simply
ignore his explicit reliance on that theory. The Court cannot and will not rewrite the First Amended Complaint for the Plaintiff.
To the extent that the Plaintiff still believes that compelling second
depositions of the individual Defendants or the corporate Defendants’
representatives is warranted, the Plaintiff may utilize the procedures for
enforcing discovery obligations set forth in Magistrate Judge Torres’s Order
Setting Discovery Procedures (ECF No. 20).
Done and ordered, Miami, Florida, on February 5, 2018.
_______________________________
Robert N. Scola, Jr.
United States District Judge