Parajon et al v. Coakley Mechanical, Inc. et al

Filing 74

OMNIBUS ORDER ON MOTIONS TO DISMISS. The Court grants in part and denies in part ECF Nos. 20 Defendant Odebrecht Construction, Inc.'s Motion to Dismiss; 22 Defendant Turner Construction Company's Motion to Dismiss; and 36 Defendan ts Coakley Mechanical, Inc., RCI Air Conditioning Company, Thomas Maldonado, and Micke Ricklick's Motion to Dismiss. The Plaintiffs may file a second amended complaint, on or before May 1, 2018. If the Plaintiffs may file a second amended complaint, the Defendants shall file their response on or before May 8, 2018. (Amended Complaint due by 5/1/2018., Responses due by 5/8/2018). Signed by Judge Robert N. Scola, Jr on 4/23/2018. (mc)

United States District Court
for the
Southern District of Florida
Milton Parajon and Jerman Tymer,
Plaintiffs,
v.
Coakley Mechanical, Inc., and
others, Defendants.

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) Civil Action No. 17-24007-Civ-Scola
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Omnibus Order on Motions to Dismiss
This matter is before the Court upon three motions to dismiss filed by
the Defendants Odebrecht Construction, Inc. (ECF No. 20), Turner
Construction Company (ECF No. 22), and Coakley Mechanical, Inc., RCI Air
Conditioning Company, Thomas Maldonado, and Mike Ricklick (collectively, the
“Coakley-RCI Defendants”) (ECF No. 36). After careful consideration of the
motions, all opposing and supporting submissions, and the applicable case
law, the Court grants in part and denies in part the motions (ECF Nos. 20,
22, 36).
1. Background
This case involves a dispute over wages allegedly owed to the Plaintiffs
Milton Parajon and Jerman Tymer. In the Amended Complaint (ECF No. 7), the
Plaintiffs allege that Odebrecht and Turner were the prime contractors on
several projects undertaken pursuant to contracts awarded by Miami-Dade
County. Coakley Mechanical, Inc. served as a subcontractor for both Odebrecht
and Turner, and RCI Air Conditioning Company served as a sub-subcontractor
hired by Coakley Mechanical, Inc. for the relevant projects. The Plaintiffs
allegedly worked for the Coakley-RCI Defendants from approximately March,
2013 until October, 2016. The Plaintiffs further allege that pursuant to the
Responsible Wages Ordinance, Miami-Dade County, Fla., Code of Ordinances
§ 2-11.16 (2017) (the “Ordinance”) (ECF No. 20-1), prime contractors and
subcontractors are subject to certain duties, including paying an hourly rate
and benefits according to the applicable schedule, permanently posting the
schedule with accompanying notice, and keeping accurate time records of all
employees performing work. Moreover, the Plaintiffs allege that pursuant to the
Responsible Wages Ordinance, a prime contractor bears the ultimate
responsibility for ensuring compliance by all subcontractors and sub-

subcontractors. According to the Plaintiffs, the Coakley-RCI Defendants failed
to comply with the requirements of the Responsible Wages Ordinance (Counts
1-2, 5, 7) and they seek to hold Odebrecht and Turner liable for those
violations as well (Counts 1-2, 7). In addition, the Plaintiffs assert claims for
violation of the Fair Labor Standards Act against the Coakley-RCI Defendants
(Count 4).1 The Defendants each request dismissal of the claims asserted
against them for failure to state a claim.
2. Legal Standard
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept all of the complaint’s allegations as
true, construing them in the light most favorable to the plaintiff. Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Under Federal Rule of Civil
Procedure 8, a pleading need only contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he
pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The plaintiff must therefore articulate “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). The Court evaluates the instant motions through this lens.
3. Analysis
The Responsible Wages Ordinance states, in pertinent part,
[a]ny employee of a contractor or subcontractor who
performed work on a contract subject to this section,
may instead of adhering to the County administrative
procedure set forth in this section but not in addition
to such procedure, bring an action by filing suit
against the contractor or subcontractor in any court of
competent jurisdiction to enforce the provisions of this
Chapter and may be awarded back pay, benefits,
attorney’s fees, costs.
Miami-Dade County, Fla., Code of Ordinances § 2-11.16(k) (2017). This
language was added to the Responsible Wages Ordinance through Ordinance
No. 16-88, which was passed and adopted on September 7, 2016. (See ECF 57In Count 3, the Plaintiffs assert a claim for violation of the overtime wage provisions
of the FLSA, for which the Coakley-RCI Defendants do not seek dismissal. In addition,
in their response to the Coakley-RCI Defendants’ motion to dismiss, the Plaintiffs
agree to dismissal of Count 6. (See ECF No. 57 at 13.)
1

3); see also http://www.miamidade.gov/cob/library/Registry/Ordinances/Board-ofCounty-Commissioners/2016/16-88.pdf.

A. The Ordinance does not apply retroactively
The Coakley-RCI Defendants argue that Counts 1 and 5 asserting
violations of the Responsible Wages Ordinance for unpaid wages and retaliation
should be dismissed because the amendment does not apply retroactively to
give rise to a cause of action for violations occurring before the amendment.
“The question of whether a statutory change in the law should be applied
retroactively is governed by state law.” Rivera v. Wal-Mart Stores E., LP, No.
3:10-cv-956-J-20TEM, 2011 WL 7575393, at *2 (M.D. Fla. Jan.13, 2011)
(citing Turner v. United States, 514 F.3d 1194, 1199 n.3 (relying upon Florida
law to determine retroactive application of Florida statutory amendment)). “The
presumption against retroactive application is a well-established rule of
statutory construction that is appropriate in the absence of an express
statement of legislative intent.” Fla. Ins. Guar. Ass’n, Inc. v. Devon Neighborhood
Ass’n, Inc., 67 So. 3d 187, 195 (Fla. 2011).
The Court employs the same framework when interpreting a statute or
ordinance. “[W]ith any question of statutory interpretation, [the Court] begins
by examining the text of the statute to determine whether its meaning is clear.”
Harry v. Marchant, 291 F.3d 767, 770 (11th Cir. 2002) (internal citations
omitted). “When the language of a statute is unambiguous, we need go no
further, because we must presume that Congress said what it meant and
meant what it said.” In re Paschen, 296 F.3d 1203, 1207 (11th Cir. 2002)
(quoting United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (internal
quotations omitted)). “The plain meaning of legislation should be conclusive,
except in the rare cases in which the literal application of a statute will produce
a result demonstrably at odds with the intentions of its drafters.” Id. (quoting
United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989)
In support of their contention that subsection (k) of the Ordinance
should apply retroactively, the Plaintiffs urge the Court to read it in
conjunction with subsection (f), which states, “[t]his section shall not apply to
any contract for which authority to advertise for bids has been obtained prior
to the effective date of this section [Ordinance 90-90].” According to the
Plaintiffs, subsection (f) indicates Miami-Dade County’s ability to clearly and
explicitly exclude retroactive application, and that in the absence of such
language, the Court should hold that subsection (k) applies retroactively.
However, the Plaintiffs’ argument turns the Court’s inquiry on its head. The
Court looks at the plain text of an ordinance or statute to assess evidence of
retroactive intent. West Palm Gardens Villas Condo. Ass’n, Inc. v. Aspen
Specialty Ins. Co., No. 11-23912-Civ, 2012 WL 3017083, at *4 (S.D. Fla. June

25, 2012) (Scola, J.). In this case, the plain text of the Ordinance does not
demonstrate an expressly stated clear legislative intent for subsection (k) to
apply retroactively. Indeed, subsection (f) supports the exact opposite
conclusion than the one the Plaintiffs advance – had the County intended that
subsection (k) apply retroactively, it could have so stated. Therefore, to the
extent that the Plaintiffs are seeking relief for violations occurring prior to the
enactment of subsection (k), those claims are properly dismissed.
The Plaintiffs next argue that the Responsible Wages Ordinance has
nevertheless always contained an implied private right of action. However, the
Plaintiffs’ argument is inconsistent with this Court’s interpretation of prior
versions of the Ordinance. See Reinoso v. AGC Consulting Civil Eng’rs, No. 1223461-Civ, 2015 WL 12533085, at *4 (S.D. Fla. Oct. 7, 2015) (Altonaga, J.);
Calderon v. Form Works/Baker JV, LLC, No. 2013 WL 12086651, at *4 (S.D.
Fla. Dec. 12, 2013) (Altonaga, J.), rev’d on other grounds sub nom. Calderon v.
Baker Concrete Const., Inc., 771 F.3d 807 (11th Cir. 2014). Therefore, the Court
does not interpret the Ordinance to contain an implied private right of action.
B. The Ordinance does not encompass overtime wages
The Coakley-RCI Defendants also request dismissal of Count 2 for
unpaid overtime wages, arguing that the Ordinance does not encompass claims
for overtime wages. The Plaintiffs suggest that, in addition to the express
language of the Ordinance, the Court should consider the applicable
Supplemental General Conditions (ECF No. 56-1), which state that “the hourly
rate paid must equal the sum of the base rate and the fringe benefit rates listed
for that classification in the Wage and Benefits Schedule” and that “[i]n the
event of non-payment or underpayment of the required wages, the prime
contractor shall be liable to the underpaid employees of the subcontractor for
the amount of each underpayment.” Supp. Gen. Conditions at §§ 1.A., 4.
However, the Ordinance itself is silent with respect to the payment of overtime
wages, and in addition, the Supplemental General Conditions do not include
overtime wages as fringe benefits, nor do the Wages and Benefits Schedule
mention overtime wages. See id. § 1.B. (“Payments made to health insurance
companies for hospitalization and medical costs, to dental insurance
companies for dental costs, retirement plans, and life insurance companies for
life insurance are fringe benefits.”). As a result, Count 2 fails to state a claim
for violation of the Responsible Wages Ordinance.
C. The Ordinance does not provide a right of action against
Odebrecht or Turner
In their motions, Odebrecht and Turner further argue that Count 1
should be dismissed against them, because the Plaintiffs do not allege that
they were employees of Odebrecht or Turner, but only of the Coakley-RCI

Defendants. In response, the Plaintiffs concede that they were not employed by
Odebrecht or Turner, but argue that Odebrecht and Turner are nevertheless
liable to them through an implied private right of action, relying upon language
in the Supplemental General Conditions which states that “[t]he prime
contractor will be responsible for compliance by all subcontractors and their
lower tier subcontractors . . . [and i]n the event of non-payment or
underpayment of the required wages, the prime contractor shall be liable to the
underpaid employees of the subcontractor for the amount of each
underpayment.” Supp. Gen. Conditions § 4. The Plaintiff urges the Court to
read the Responsible Wages Ordinance in conjunction with the Supplemental
General Conditions to imply a cause of action against Odebrecht and Turner,
the prime contractors, for the non-payment of wages by the Coakley-RCI
Defendants. However, the Court has already declined to interpret the
Ordinance as containing an implied right of action prior to amendment in
2016.
In addition, as previously stated, the language of the Ordinance is
unambiguous, in that employees of contractors and employees of
subcontractors may file suit against the contractor or subcontractor to enforce
the provisions of the Ordinance. The language from the Supplemental General
Conditions relied upon by the Plaintiffs is informative with respect to the
ultimate responsibility for payment of wages in a contractor-subcontractor
relationship, but it does not alter the plain language of the Ordinance, which
restricts the express private right of action to employees. Moreover, the
Conditions also specifically state that “[i]n the event of underpayment of the
required wage rates, the contractor shall be liable to the underpaid employee
for the amount of such underpayment.” Id. § 2.A. (emphasis added).
Accordingly, the Plaintiffs fail to state a claim in Count 1 against Odebrecht
and Turner.
As the Court has already determined that the Ordinance does not
encompass claims for overtime wages, the Court does not consider Odebrecht’s
and Turner’s arguments with respect to the dismissal of Count 2.
D. The Plaintiffs sufficiently state a claim for FLSA retaliation
The Coakley-RCI Defendants argue that the FLSA retaliation claim
asserted in Count 4 should be dismissed because the Plaintiffs allege that they
were terminated after they filed complaints for violations of the Ordinance, not
for violations of the FLSA.
The FLSA protects persons against retaliation for asserting their rights
under the statute. See 29 U.S.C. § 215(a)(3). “A prima facie case of FLSA
retaliation requires a demonstration by the plaintiff of the following: (1) []he
engaged in activity protected under the act; (2) []he subsequently suffered

adverse action by the employer; and (3) a causal connection existed between
the employee’s activity and the adverse action.” Wolf v. Coca-Cola Co., 200 F.3d
1337, 1342-43 (11th Cir. 2000) (quoting Richmond v. ONEOK, Inc., 120 F.3d
205, 208-09 (10th Cir.1997) (internal alterations and quotations omitted)).
“Unlike the complex antitrust scheme at issue in Twombly . . . , the
requirements of a FLSA violation are quite straightforward.” U.S. Sec’y of Labor
v. Labbe, 319 F. App’x 761, 763 (11th Cir. 2008). Extensive pleading is not
required in the context of a FLSA claim and such claims require compliance
with Rule 8 only. Burton v. Hillsborough Cty., Fla., 181 F. App’x 829, 840 (11th
Cir. 2006); Ceant v. Aventura Limousine & Transp. Serv., Inc., 874 F. Supp. 2d
1373, 1377 (S.D. Fla. 2012) (Scola, J.).
In the complaint, the Plaintiffs allege that the Coakley-RCI Defendants
failed to compensate them time and a half for hours worked in excess of forty
hours per week. In addition, the Plaintiffs allege three separate instances in
which they complained about the Coakley-RCI Defendants’ failure to properly
compensate them, and a resulting reduction in work hours ultimately resulting
in replacement. As such, the Plaintiffs sufficiently state a claim for FLSA
retaliation against the Coakley-RCI Defendants.
E. The Plaintiffs may plead unjust enrichment in the alternative
Odebrecht, Turner, and the Coakley-RCI Defendants argue that the
Plaintiffs’ unjust enrichment claim in Count 7 fails because such claims are
preempted by the FLSA, and because the Plaintiffs have an adequate remedy at
law. In response, the Plaintiffs maintain that they may assert a claim for unjust
enrichment against Odebrecht and Turner, as they have not asserted a FLSA
claim against either, and that their unjust enrichment claim may be
alternatively pled against the Coakley-RCI Defendants.
As the parties point out, there is case law to support both positions.
Compare Bule v. Garda CL SE, Inc., No. 14-21898-CIV, 2014 WL 3501546, at *2
(S.D. Fla. July, 14, 2014) (Moreno, J.) (dismissing unjust enrichment claim
where the claim was duplicative of FLSA claim) with Botting v. Goldstein, No.
15-cv-62113, 2015 WL 10324134, at *3 (S.D. Fla. Dec. 18, 2015) (Bloom, J.)
(denying motion to dismiss unjust enrichment claim pled in the alternative).
Upon review, and based upon the circumstances in this case, the Court will not
dismiss the unjust enrichment claim. This case more closely resembles Botting,
in which the plaintiffs, as the Plaintiffs here, pled an unjust enrichment claim
in the alternative in the event that their FLSA claim failed. Indeed, under the
Federal Rules, a plaintiff may allege arguably inconsistent theories in the
alternative. See, e.g., Wiand v. EFG Bank, No. 8:10-CV-241-T-17MAP, 2012 WL
750447, at *8 (M.D. Fla. Feb. 8, 2012) (denying motion to dismiss unjust
enrichment claim because “alternative pleading is permitted by the Federal

Rules of Civil Procedure”); Adelphia Cable Partners, Inc. v. E & A Beepers Corp.,
188 F.R.D. 662, 666 (S.D. Fla. 1999) (King, J.) (“Although equitable relief
ultimately may not be awarded where there exists an adequate remedy at law,
Plaintiff certainly may plead alternative equitable relief.”). Ultimately, a plaintiff
may not recover under both legal and equitable theories; however, there is no
basis for dispensing with the Plaintiffs’ unjust enrichment claim at the motion
to dismiss stage. See Muzuco v. Re$ubmitIt, LLC, No. 11-62628-Civ, 2012 WL
3242013, at *8 (S.D. Fla. Aug. 7, 2012) (Scola, J.).
4. Conclusion
Accordingly, the Court grants in part and denies in part the motions to
dismiss (ECF Nos. 20, 22, 36). To the extent that the Plaintiffs premise their
Responsible Wages Act claims in Counts 1 and 5 upon alleged violations prior
to September 7, 2016 and the addition of subsection (k), the Coakley-RCI
Defendants’ motion is granted, and Counts 1 and 5 are dismissed without
prejudice. With respect to Odebrecht and Turner, Count 1 is dismissed with
prejudice. Count 2 is dismissed with prejudice as to all Defendants. With
respect to Counts 4 and 7, the motions are denied. The Plaintiffs may file a
second amended complaint, on or before May 1, 2018. If the Plaintiffs file a
second amended complaint, the Defendants shall file their response on or
before May 8, 2018.
Done and ordered at Miami, Florida, on April 23, 2018.
________________________________
Robert N. Scola, Jr.
United States District Judge