Acevedo Aguilar v. La Campana Restaurant, Inc et al
Filing
28
OMNIBUS ORDER denying 22 Motion to Dismiss for Failure to State a Claim; denying 23 Motion to Dismiss for Failure to State a Claim; denying 24 Motion to Dismiss for Failure to State a Claim. Signed by Magistrate Judge Edwin G. Torres on 3/2/2018. (js02)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 18-20015-Civ-TORRES
DAYDIS ACEVEDO AGUILAR,
IRINA MILIAN CAMPO, et al.,
Plaintiff,
v.
LA CAMPANA RESTAURANT, INC,
RAMON TIELES, and NAIYU ANDRES,
Defendants.
___________________________________________/
OMNIBUS ORDER ON DEFENDANTS’ MOTIONS TO DISMISS
AND PLAINTIFFS’ MOTIONS TO STRIKE
This matter is before the Court on La Campana Restaurant, Inc.’s, Ramon
Tieles’s, and Naiyu Andres’s (collectively, “Defendants”) motions to dismiss and
Daydis Acevedo Aguilar’s and Irina Milian Campo’s (collectively, “Plaintiffs”)
motions to strike. [D.E. 22-27]. Having reviewed the motions, responses, relevant
authority, and record evidence submitted in support of or in opposition to the same,
the Court’s rulings on each motion follow.
I. APPLICABLE PRINCIPLES AND LAW
A.
Motion to Dismiss Standard
In ruling on Defendants’ motions to dismiss, this Court takes the allegations
in the complaint as true and construes the allegations “in the light most favorable
to the plaintiffs.” Rivell v. Private Health Care Systems, Inc., 520 F.3d 1308, 1309
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(11th Cir. 2008) (citing Hoffman–Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir.
2002)). “When considering a motion to dismiss, all facts set forth in [Plaintiff’s]
complaint ‘are to be accepted as true and the court limits its consideration to the
pleadings and exhibits attached thereto.’” Grossman v. Nationsbank, N.A., 225 F.3d
1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510
(11th Cir. 1993)). A motion to dismiss under Rule 12(b)(6) “is granted only when
the movant demonstrates that the complaint has failed to include ‘enough facts to
state a claim to relief that is plausible on its face.’” Dusek v. JPMorgan Chase &
Co., 832 F.3d 1243, 1246 (11th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
“While 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 entitle[ment] to relief requires more than labels and conclusions . . . .”
Twombly, 550 U.S. at 555 (internal citations and quotations omitted) (alteration in
original).
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint does
not
suffice
“if
it
tenders
‘naked
assertion[s]’
devoid
of
‘further
factual
enhancement.’” Id. (quoting Twombly, 550 U.S. at 557) (alteration in original).
Factual content gives a claim facial plausibility. Id. “[A] court’s duty to liberally
construe a plaintiff’s complaint in the face of a motion to dismiss is not the
equivalent of a duty to re-write it for [the plaintiff].” Peterson v. Atlanta Hous.
Auth., 998 F.2d 904, 912 (11th Cir. 1993).
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B.
Motion to Strike Standard
A party may move to strike pursuant to Rule 12(f) of the Federal Rules “an
insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” FED. R. CIV. P. 12(f). While many “courts consider striking a pleading to
be a ‘drastic remedy to be resorted to only when required for the purposes of justice,’
“Exhibit Icons, LLC v. XP Cos., 609 F.Supp.2d 1282, 1300 (S.D. Fla. 2009), striking
is appropriate in some cases to remove “unnecessary clutter” from the docket.
Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989).
“Striking is appropriate where, for example, a party fails to seek leave of court
before filing an unauthorized pleading.”
Regions Bank v. Commonwealth Land
Title Ins. Co., 2012 WL 5410948, at *2 (S.D. Fla. Nov. 6, 2012) (citing Rogers v.
Hartford Life & Accident Ins. Co., 2012 WL 2395194, at *1 n.1 (S.D. Ala. June 22,
2012) (“There is no doubt that striking an improper amended pleading filed without
leave of court is appropriate and necessary to enforce Rule 15(a)(2).”). Ultimately,
the decision of whether to strike a pleading rests in the court’s discretion.
See
Microsoft Corp. v. Jesse's Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla.
2002) (“District courts have broad discretion in disposing of motions to strike under
Fed. R. Civ. P. 12(f).”) (citation omitted).
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II. ANALYSIS
A.
Defendants’ Motions to Dismiss
Defendants’ motions take aim at counts 4 (assault) and 5 (battery) in
Plaintiffs’ second amended complaint.1
Defendants argue that both counts are
defective because they fail to include sufficient allegations that Defendants intended
to cause any harmful or offensive contact. Because Plaintiffs failed to include this
required element in their complaint, Defendants conclude that counts 4 and 5 must
be dismissed.
Plaintiffs argue, in response, that Defendants’ motions lack merit because
there are more than enough allegations in the complaint that Defendants
committed assault and battery.
Plaintiffs suggest that Defendants are merely
attempting to hold Plaintiffs to a more stringent standard than required and that
the Court should limit its analysis to the four corners of the complaint. Because
Plaintiffs’ complaint alleges that Defendants acted with the intent to commit a
battery and assault, Plaintiffs believe that Defendants’ motions to dismiss must be
denied.
After full consideration of the arguments presented, Defendants’ motions are
unpersuasive because Plaintiffs have alleged all the required elements of an assault
and battery claim.
Generally speaking, assault is defined as “an intentional,
unlawful threat by word or act to do violence to the person of another, coupled with
Plaintiffs filed a five count complaint against Defendants alleging federal
overtime wage violations, federal minimum wage violations, retaliation, assault,
and battery. [D.E. 1].
1
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an apparent ability to do so, and doing some act which creates a well-founded fear of
such violence being done.” Wilson v. State, 265 So. 2d 411, 413 (Fla. 4th DCA 1972).
Under Florida law, assault is construed as “an intentional threat by an act, coupled
with an apparent ability to carry out the threat, that creates a fear of imminent
violence; the required intent is to do the act, not the intent to do violence to the
victim.” Geovera Specialty Ins. Co. v. Hutchins, 831 F. Supp. 2d 1306, 1312 (M.D.
Fla. 2011) (11th Cir. 2013) (citing Cambell v. State, 37 So. 3d 948 (Fla. 5th DCA
2010));
see
also
§
784.011(1),
Fla.
Stat.
(2003) (defining
“assault”
as
“an intentional, unlawful threat by word or act to do violence to the person of
another, coupled with an apparent ability to do so, and doing some act which
creates a well-founded fear in such other person that such violence is imminent”)
(emphasis added).
Here, the second amended complaint alleges that Plaintiff was working as a
waitress and that one of the Defendants “violently and purposefully swung [a] knife
around, nearly striking Plaintiff” and then “stabbed at a container of rice,” and
struck “the Plaintiff in the thigh with the container top.” [D.E. 15]. The complaint
then alleges that the actions of Ramon Tieles were “intentional and unlawful,” that
there was a “well-founded fear . . . that . . . violence was imminent, and that
“Plaintiff was injured physically by the attack and suffered mental anguish.” Id.
Given these allegations, Plaintiffs have set forth enough factual allegations to
support a plausible claim that there was an intentional, unlawful threat to do
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violence on the person of another. Therefore, we conclude that Defendants’ motions
lack merit and must be DENIED.
As for Defendants’ motions to dismiss count 5 (battery), we find that they also
lacks merit. Battery is defined as the “infliction of a harmful or offensive contact
upon another with the intent to cause such contact or apprehension that such
contact is imminent.” Geovera Specialty Ins. Co., 831 F. Supp. 2d at 1313 (citing
Quilling v. Price, 894 So. 2d 1061, 1063 (Fla. 5th DCA 2005); Paul v. Holbrook, 696
So. 2d 1311, 1312 (Fla. 5th DCA 1997)); see also Fla. Stat. § 784.03(1)(a)
(2003) (defining “battery” as a tort that occurs when a person “[a]ctually
and intentionally touches or strikes another person against the will of the other” or
“[i]ntentionally causes bodily harm to another person”).
As interpreted by the Florida Supreme Court, actual and intentional
touching—the only element necessary to support a conviction for simple battery—is
satisfied by any physical contact, “no matter how slight.” State v. Hearns, 961 So.
2d 211, 218–19 (Fla. 2007) (explaining that simple battery “may be committed with
only nominal contact”).
“For example, even a slight but unwanted tap on the
shoulder suffices for a conviction under the simple battery statute.” United States
v. Vail-Bailon, 868 F.3d 1293, 1298 (11th Cir. 2017) (citing Hearns, 961 So. 2d at
219).
In this case, the second amended complaint sets forth sufficient allegations to
state a cause of action for battery because it claims that Ramon Tieles “stabbed . . .
a container of rice,” swung a knife around, and struck one of the Plaintiffs in the
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thigh.
[D.E. 15].
The complaint further alleges that the actions were “an
intentional[,] harmful[,] and offensive touching that were not consented to by
Plaintiff,” and that Plaintiff was physically injured as a result of the attack. Given
these allegations, Plaintiffs have alleged all of the required elements of a battery
claim and therefore Defendants’ motions to dismiss count 5 are DENIED. See, e.g.,
Robbins v. City of Miami Beach, 769 F. Supp. 2d 1372, 1376 (S.D. Fla. 2011) (“[T]he
Court is satisfied Robbins minimally stated a claim of battery against Schoenfeld.
Schoenfeld’s motion to dismiss the battery claim in Count X is denied.”).
B.
Plaintiffs’ Motions to Strike
In response to each motion to dismiss, Plaintiffs filed a corresponding motion
to strike Defendants’ ninth affirmative defense, which claims that “[La Campana] is
entitled to offset monies or other consideration paid or provided to Plaintiffs which
were not earned and/or not engaged in work.” [D.E. 22]. Plaintiffs take issue with
this affirmative defense because setoffs are allegedly inappropriate in all FLSA
cases and should therefore be stricken or dismissed.
In Brennan v. Heard, 491 F.2d 1 (5th Cir. 1974), the Fifth Circuit suggested
that the use of setoffs was prohibited in all FLSA cases because they might be used
as a vehicle to deprive an employee of minimum wage payments:
[The] FLSA decrees a minimum unconditional payment and the
commands of that Act are not to be vitiated by an employer, either
acting alone or through the agency of a federal court . . . Set-offs
against back pay awards deprive the employee of the ‘cash in hand’
contemplated by the Act, and are therefore inappropriate in any
proceeding brought to enforce the FLSA minimum wage and overtime
provisions.
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Id. at 4. However, in a more recent case – Singer v. City of Waco, Tex., 324 F.3d
813, 828 n. 9 (5th Cir. 2003) – the Fifth Circuit clarified its holding in Brennan and
held that setoffs are permissible in certain contexts so long as they do not cause the
employees’ compensation to fall below the statutory minimum wage.2 The setoff
defense is therefore not per se barred in all FLSA cases.3 See Morrison v. Executive
Airport Refinishing, Inc., 434 F. Supp. 2d 1314, 1321 (S.D. Fla. 2005).
Here, we cannot determine that the setoff defense is appropriate because it
fails to include enough factual support as required under Rule 8. Indeed, the ninth
affirmative defense is “no more than a bare bones conclusory statement and cannot
possibly give Plaintiff fair notice of the grounds on which it rests.” Morrison, 434 F.
Supp. 2d at 1322. Because we “cannot determine at this time that this defense is
deficient on the merits,” we “will instead strike the technically deficient affirmative
defense without prejudice, and grant the [D]efendant[s] leave to replead the striken
defense.”
Id. (citing Jesse’s Computers & Repair, Inc., 211 F.R.D. at 684).
If
Defendants wish to remedy their ninth affirmative defense, they should present
enough factual support – and describe the nature of the setoff – to comply with the
In Singer, overpayments of wages paid to employees in some work periods
were setoff against shortfalls in other work periods. Singer, 324 F.3d at 828.
2
“[T]here are several types of payments that cannot be applied to offset unpaid
wages, including: (1) fringe benefits such as meals, health insurance, bonuses, and
paid vacations, see Dunlop v. Gray–Goto, Inc., 528 F.2d 792, 794 (10th Cir.
1976) and Futrell v. Columbia Club, Inc., 338 F. Supp. 566, 573 (S.D. Ind. 1971); (2)
wages for “down time” on the job, see Hiner v. Penn–Harris–Madison Sch. Corp., 256
F. Supp. 2d 854, 860 (N.D. Ind. 2003); (3) wages for meal breaks, see Ballaris v.
Wacker Siltronic Corp., 370 F.3d 901, 913–14 (9th Cir. 2004); and (4) amounts
loaned by an employer to an employee, see Donovan v. Pointon, 717 F.2d 1320, 1323
(10th Cir. 1983).” Morrison, 434 F. Supp. 2d at 1321.
3
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requirements under Rule 8. See Jesse’s Computers & Repair, Inc., 211 F.R.D. at 684
(“While Rule 8 requires only a short and plain statement of the facts in support of
the affirmative defense alleged, it is clear that the Defendant’s copyright misuse
defense falls woefully short of even the liberal requirements of Rule 8.”).
Accordingly, Plaintiffs’ motions to strike are GRANTED without prejudice.
III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that:
A. Defendants’ motions to dismiss are DENIED. [D.E. 22-24].
B. Plaintiff’s motions to strike are GRANTED without prejudice. [D.E.
25-27].
C. An amended answer may be filed within fourteen (14) days from the date
of this Order.
DONE AND ORDERED in Chambers at Miami, Florida, this 2nd day of
March, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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