Tabora v. GC Realty Advisors, LLC.
Filing
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OPINION AND ORDER granting in part and denying in part 14 Motion to Dismiss; granting in part and denying in part 14 Motion for More Definite Statement. Signed by Judge Kenneth A. Marra on 8/20/2012. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-80526-CIV-MARRA
YARDLENE TABORA,
Plaintiff,
vs.
GC REALTY ADVISORS, LLC, a Florida
limited liability company, DAVID GOLDWASSER,
individually,
Defendants.
_____________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendants’ Motion to Dismiss Plaintiff’s Amended
Complaint, or in the Alternative, for a More Definite Statement (DE 14). Plaintiff filed her
response. (DE 20). No reply memorandum was filed. The Court has carefully considered the
Motion and is otherwise fully advised in the premises.
I. Background
Plaintiff Yardlene Tabora (“Plaintiff”) filed a one-count Amended Complaint for
overtime allegedly due under the Fair Labor Standards Act, 29 U.S.C. § 213 (“FLSA”)1 against
Defendants GC Realty Advisors, LLC (“GC”) and David Goldwasser (“Goldwasser”)
(collectively, “Defendants”). (Am. Compl., DE 1.) According to the Amended Complaint,
Plaintiff was an employee of Defendants, and Goldwasser and GC were Plaintiff’s joint
employers. (Id at. ¶ ¶ 7, 11.) GC is subject to enterprise coverage under the FLSA. (Id. at 12.)
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The introductory paragraph of the Amended Complaint states that Plaintiff brings a
claim pursuant to 42 U.S.C. § 1981; however, the Amended Complaint only asserts a claim
under the FLSA. (Am. Compl. ¶ 1.)
Goldwasser is an employee, owner and officer in charge of GC. (Id. at ¶ 9.) He instructed
Plaintiff on a day-to-day basis, including how to perform her job. (Id. at ¶ ¶ 9- 10.) Goldwasser
was also the only other employee. (Id. at ¶ 10.) Defendants shared Plaintiff’s services,
determined her rate of pay, supervised her, controlled the conditions of her employment and had
the power to hire and fire her. (Id. at ¶ 11.)
Plaintiff was employed as a “paralegal/executive administrative assistant” by Defendants
from February 17, 2012 through April 9, 2012, primarily at the GC office, although she would
occasionally work from home. (Id. at ¶ ¶ 15-16.) Plaintiff’s duties included: performing
research, setting up meetings, filing, taking and transcribing notes from meetings, setting up
conferences and conference rooms for clients, making sure coffee was available for Defendants’
clients, making travel arrangements for Goldwasser, calendaring events, organizing and putting
packages of information together concerning companies Defendants were advising, and helping
to raise capital for or counseling on merger and acquisition deals. (Id. at ¶ 17.)
Defendants required Plaintiff to work overtime every week and did not pay her overtime
for hours worked in excess of 40 in any given work week. She worked, on average, 60 hours per
week. (Id. at ¶ 19.) She was “generally paid” $750.00 per week for 40 hours of work, which was
often paid late, and she was prohibited from claiming overtime hours and overtime pay. (Id. at ¶ ¶
20, 25.) Defendants’ failure to pay overtime was knowing and willful. (Id. at ¶ 33.) Despite the
fact that Defendants classified Plaintiff as an exempt employee, she was not exempt from the
requirements of overtime pay. (Id. at ¶ ¶ 23-24, 26.) Plaintiff did not manage employees, nor did
she have authority to hire or fire employees. (Id. at ¶ 27.)
Defendants move to dismiss the Amended Complaint, claiming it is conclusory in that it
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fails to allege adequately that: (1) Plaintiff was a non-exempt employee; (2) Defendants met the
annual gross business volume to be covered under FLSA and (3) Defendant was an “employer”
under the FLSA.2
II. Legal Standard
With respect to the motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), the Court observes first that Rule 8(a) of the Federal Rules of Civil Procedure 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, 129 S.
Ct. 1937, 1949 (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
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There appears to be a scrivener’s error because the motion states the Amended
Complaint is devoid of actual allegations that “Tabora is an employer under the FLSA.” Read in
the context of the legal arguments raised, it appears that Defendant is challenging whether
Goldwasser is an employer under the FLSA.
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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).
III. Discussion
The overtime provisions of the FLSA cover enterprises engaged in commerce or in the
production of goods for commerce, as well as employees who themselves are either engaged in
commerce or in the production of goods for commerce. See 29 U.S.C. § 207(a)(1). For
individual coverage to apply under the FLSA, Plaintiff must be able to show that she was (1)
engaged in commerce or (2) engaged in the production of goods for commerce. For example, at
trial, Plaintiff will be required to demonstrate that she "directly participate[d] in the actual
movement of persons or things in interstate commerce by (i) working for an instrumentality of
interstate commerce, . . . or (ii) by regularly using the instrumentalities of interstate commerce in
[her] work. . . ." Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 1266 (11th Cir. 2006).
For enterprise coverage to apply, the enterprise must be engaged in commerce and its gross sales
must exceed $500,000 annually. See 29 U.S.C. §§ 207(a)(1); 203(s)(1)(A).
Here, the Amended Complaint alleges that GC “qualifies for and is subject to enterprise
coverage under the FLSA.” (Am. Compl. ¶ 13.) Defendants argue in their motion to dismiss that
the Amended Complaint is devoid of any factual allegations to support Plaintiff’s legal
conclusion that GC is an enterprise engaged in commerce. The Court agrees. There are no
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allegations as to whether GC’s annual gross business volume meets the statutory threshold.3
Such a bare-bones complaint runs afoul of Twombly and Iqbal.
The Court will now turn to the argument whether Defendants were Plaintiff’s employer.
The FLSA defines an "employer" as "any person acting directly or indirectly in the interest of an
employer in relation to an employee." See 29 U.S.C. § 203(d). Additionally, the Eleventh Circuit
has held that a "corporate officer with operational control of a corporation's covered enterprise is
an employer along with the corporation, jointly and severally liable under the FLSA" as long as
that corporate officer is "involved in the day-to-day operation or ha[s] some direct responsibility
for the supervision of the employee." Alvarez Perez v. Sanflord-Orlando Kennel Club, Inc., 515
F.3d 1150, 1160 (11th Cir. 2008) (internal quotation marks omitted). In deciding whether a party
is an employer, "economic reality" controls rather than common law concepts of agency.
Goldberg v. Whitaker House Cooperative, 366 U.S. 28, 33 (1961). Here, Plaintiff has provided
more than conclusory allegations. For example, the Amended Complaint states that Goldwasser
instructed Plaintiff on a day-to-day basis and was the only other employee. (Am. Compl. ¶ ¶ 910.) Furthermore, the Amended Complaint alleges that Defendants operated as joint employers
because Plaintiff’s work benefitted both Defendants and her services were shared between the
Defendants. In addition, Defendants had the power to hire and fire her, determine her rate of pay,
supervise her and controlled the conditions of her employment (Id. at ¶ 11). See Layton v. DHL
Exp. (USA), Inc., — F.3d —, 2012 WL 2687961, at * 5 (11th Cir. July 9, 2012) (explaining
factors to be applied in establishing joint employment status); Antenor v. D & S Farms, 88 F.3d
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In response, Plaintiff states that there is also individual coverage under the FLSA. (Resp.
at 8.) However, this fact is not pled in the Amended Complaint. Plaintiff may amend to allege
this fact.
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925, 929 (11th Cir.1996) (same); Aimable v. Long and Scott Farms, 20 F.3d 434, 439 (11th
Cir.1994) (same).
Likewise, the Amended Complaint adequately alleges Plaintiff was a non-exempt
employee. The Amended Complaint alleges Plaintiff’s job duties (Am. Compl. ¶ 17) as well as
stating that Plaintiff had no management responsibilities and could not hire or fire employees
(Am. Compl. ¶ 27). See 29 U.S.C. § 213(a)(1) (FLSA exempts employees who occupy “bona
fide executive, administrative, or professional” positions from the overtime requirements.); cf.
Maya v. Master Restaurant Developer, LLC, No. 09–23408–CIV, 2011 WL 1336468, at *2
(S.D. Fla. Mar. 24, 2011) (a managerial position is generally exempt from the overtime provision
of the FLSA (citing Jones v. Virginia Oil Co., 69 F. App’x 633, 636 (4th Cir. 2003)). By
alleging these facts, Plaintiff has provided a factual basis to support her legal conclusion that she
was a non-exempt employee.
In sum, the Court recognizes that Plaintiff must provide factual underpinnings for the
legal conclusions in the Amended Complaint. At the same time, the Court acknowledges that
"[u]nlike the complex antitrust scheme at issue in Twombly that required allegations of an
agreement suggesting conspiracy, the requirements to state a claim of a FLSA violation are quite
straightforward." Labor v. Labbe, 319 Fed. App'x 761, 763 (11th Cir. Nov.4, 2008). With this in
mind, the Court will grant Plaintiff leave to amend the Complaint, consistent with this Order, if
she can do so in good faith and consistent with Rule 11 of the Federal Rules of Civil Procedure.
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IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants’ Motion to
Dismiss Plaintiff’s Amended Complaint, or in the Alternative, for a More Definite Statement
(DE 14) is GRANTED IN PART AND DENIED IN PART. The motion is granted to the
extent Plaintiff is seeking to hold GC liable based on enterprise coverage and individual
coverage. Plaintiff may amend the Complaint within 14 days of the date of entry of this
Order if she so desires. Otherwise the case will proceed only on the properly pled claims in the
Amended Complaint .
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 20th day of August, 2012.
______________________________________
KENNETH A. MARRA
United States District Judge
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