PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS THE COMPLAINT

15 Jan 2015

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS THE COMPLAINT

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PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS THE COMPLAINT

            Plaintiff, Willie Jones, responds to Defendant, Gainesville Hotel Management, LLC, D/B/A Paramount Plaza Hotel& Suites’ Second Motion to Dismiss [Doc. 10] as follows:

  1. INTRODUCTION

“[T]he Eleventh Circuit has held that the requirements to state a claim of a FLSA violation are straightforward.” Vestey v. Publix Super Markets, Inc., Case No. 8:13-cv-2281, 2013 WL 5929061, at *2 (M.D. Fla. Nov. 1, 2013) (citing Secretary of Labor v. Labbe, 319 F. App’x 761, 763 (11th Cir. 2008)). Plaintiff must show “simply a failure to pay overtime compensation . . . to covered employees, and/or failure to keep payroll records in accordance with the act.” Labbe, 319 F. App’x at 763.

There is simply no requirement “that the Plaintiff plead the exact or estimated hours of uncompensated time in his complaint.” Vestey, 2013 WL 5929061, at 2. Courts in the 11th Circuit do not require a Plaintiff to specifically plead those overtime hours claimed. See e.g., Dobbins v. Scriptfleet, Inc., Case No.: 8:11-cv- 1923, 2012 U S. Dist. LEXIS 23131, at *8-9 (M.D. Fla. Feb. 23, 2012) (plaintiff was not required to plead a specific hourly wage, an estimate of the amount of hours worked which were not compensated, or whether the employer had actual or constructive knowledge).

Here, Plaintiff has alleged sufficient facts to give Defendant “fair notice of the nature of the claim and the grounds upon which it rests.” Spigner v. Lessors, Inc., Case No. 8:11- cv-420, 2011 WL 1466282, at *2 (M.D. Fla. Apr. 18, 2011) (finding sufficient the allegation that plaintiff was simply “asserting that he worked overtime and was not paid for it”). Thus, the Court should deny Defendant’s Motion.

  1. MEMORANDUM OF LAW
  2. Standard for a Motion to Dismiss

In ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept the factual allegations set forth in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 1949, 173 L.Ed.2d 868 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Lotierzo v. Woman’s WorldMed. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences should be drawn in favor of the plaintiff. Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir.2003) (per curiam). Nonetheless, the plaintiff must still meet some minimal pleading requirements. Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir.2004) (citations omitted). While “[s]pecific facts are not necessary,” the complaint should ‘“give the defendant fair notice of what the … claim is and the grounds upon which it rests.’ ” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556).

  1. The Amended Complaint is well plead

In the Eleventh Circuit, “[t]he requirements to state a claim of a FLSA violation are quite straightforward.” Dobbins, Case No.: 8:ll-cv-1923-T-24-AEP, 2012 U.S. Dist. TEXTS 23131, at *6 (quoting Sec’y of Labor v. Labbe, 319 Fed. Appx. 761, 763 (11th Cir. 2008)).

“The elements that must be shown are simply a failure to pay overtime compensation and/or minimum wages to covered employees and/or failure to keep payroll records in accordance with the Act.” Id., see also Ellsworth v. Bonita British Open, Inc., Case No.: 2:13-cv-557- FtM-38UAM, Doc. 14 at p. 3 (M.D. Fla., Ft. Myers Div, Sept. 3, 2013). “At this stage of the proceeding, no more is required.” Id. (emphasis added). Thus, there is no requirement that an FLSA Complaint include information regarding specific weeks or hours worked, or whether the employer had knowledge of the alleged overtime. See Id. at 8-9; Vestey v. Publix Super Markets, Inc., Case No.: 8:13-cv-2281-T-30TBM, 2013 U S. Dist. LEXIS 157038, at *4-5 (M.D. Fla. Nov. 1, 2013); Spigner v. Lessors, Inc., Case No.: 8:11 -cv-420-T-24MAP, 2011 U.S. Dist. LEXIS 41729, at 4-5 (M.D. Fla. April 18, 2011); Frazier v. Cummings Leasing, Inc., Case No. 3:07-cv-209-J-20TEM, 2007 U.S. Dist. LEXIS 58720, at *4-6 (M.D. Fla. Aug. 1, 2007).

Defendant erroneously attempts to impose upon Plaintiff a heightened pleading requirement for FLSA cases which does not exist in the Eleventh Circuit. See Frazier, Case No. 3:07-cv-209-J-20TEM, 2007 U.S. Dist. LEXIS 58720, at *6 (“there is no heightened pleading requirement when alleging overtime wage claims under the FLSA”). This is even more ridiculous given the fact that employers, not employees, have the legal obligation to maintain proper records. As stated by the DOL:

The FLSA requires employers to keep records on wages, hours, and other items, as specified in DOL recordkeeping regulations. Most of the information is of the kind generally maintained by employers in ordinary business practice and in compliance with other laws and regulations.

http://www.dol.gov/whd/regs/compliance/hrg.htm. Defendant’s arguments have no merit and are not supported by the case law.

In Dobbins v. Scriptfleet, Inc., Case No.: 8:11-cv-1923, 2012 U.S. Dist. LEXIS 23131, at *8- *9, for example, the Court found that the plaintiff was not required to plead a specific hourly wage, an estimate of the amount of hours worked which were not compensated, and whether the employer had actual or constructive knowledge. There, the defendant “contend[ed] that Dobbins should have alleged facts related to ‘what hourly wage a plaintiff was paid, an estimate of how many hours a plaintiff worked for which she was not compensated, and whether an employer had actual or constructive knowledge of the alleged uncompensated overtime.’” Id. The court rejected the contention, noting that “Discovery is the appropriate method by with it should seek any additional information necessary to prepare its defense.” Id.

Inexplicably, Defendant fails to cite to a single case that supports its notion that a plaintiff must “identify in his pleading the week[s] in which he claims he worked in excess of 40 hours without receipt of overtime compensation” – as it requests in paragraph 9 of its Motion. To the contrary, Defendant’s brief cites to the state law case of Walton v. Healthcare Dist. of Palm Beach, 862 So. 2d 852, 857 (Fla. 4th DCA 2003). However, Defendant fails to acknowledge that state courts have a different and more strict pleading standard. Ranger Constr. v. Martin Cos., 881 So. 2d 677, 680 (Fla. 5th DCA 2004) (“Unlike the pleading requirements in the federal courts where notice pleading is the prevailing standard, the Florida Rules of Civil Procedure require fact pleading.”). Moroever, even Walton did not require the plaintiff in that case to state the amount of overtime claimed in the complaint – only that the plaintiff worked overtime. Id. (“Walton does not allege that he actually worked overtime and was not paid, he does not allege that the employer actually altered his time records, and he does not allege that he actually filed a complaint regarding his employer’s overtime practices.”)

The Defendant’s Motion completely lacks in any legal support for its requested dismissal. It totally fails to cite or distinguish any of the cases already addressing this issue. Accordingly, the Court should deny Defendant’s Motion.

  1. Issues Not Raised In Defendant’s Initial Motion Are Waived

Federal Rule of Civil Procedure 12(g)(2) provides:

Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

Fed.R.Civ.P. 12(g)(2). Under Rule 12(g), a party that fails to raise a defense in a Rule 12 motion cannot raise an omitted defense in a second pre-answer Rule 12 motion. This rule was “intended to eliminate unnecessary delays at the pleading stage of a case by avoiding the piecemeal consideration of pretrial motions.” Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 701 (6th Cir. 1978).

The rule, however, provides an exception for a motion provided for in Rule 12(h)(2) “on any of the grounds there stated.” Fed.R.Civ.P. 12(g). Rule 12(h)(2), in turn, states:

(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:

(A) in any pleading allowed or ordered under Rule 7(a);

(B) by a motion under Rule 12(c); or

(C) at trial.

Fed.R.Civ.P. 12(h)(2). Under Rule 12(h)(2), a party may raise a defense of failure to state a claim upon which relief can be granted, even though not raised in an earlier motion to dismiss, in one of three ways: 1) in an answer, 2) in a motion for judgment on the pleadings, or 3) at trial on the merits. Rule 12(h)(2), in setting out the ways in which a party may raise a failure to state a claim argument after the initial pre-answer motion, precludes the filing of a second 12(b)(6) motion to dismiss after an initial motion to dismiss. See Rauch v. Day & Night Mfg. Corp., 576 F.2d at 701 n. 3 (subsection (g) “contemplates the presentation of an omnibus pre-answer motion in which defendant advances every available Rule 12 defense and objection he may have….”).

In this case, Defendant’s Second Motion to Dismiss raises a new issue not claimed in Defendant’s First Motion to Dismiss. In its First Motion, Defendant claimed that Plaintiff did not generally allege that he any worked overtime – an issue clearly mooted by Plaintiff’s First Amended Complaint which now contains those allegations. In its Second Motion, Defendant now claims that Plaintiff did not identify what overtime hours he worked and/or in which weeks he worked overtime. Thus, even if plausible, the issues raised in Defendant’s Second Motion have been waived.

  1. The Notion that the SOL is an Issue Requiring Dismissal is Baseless

As stated by the court in Vestey v. Publix Super Markets, Inc., 8:13-CV-2281-T-30TBM, 2013 WL 5929061, at *2 (M.D. Fla. Nov. 1, 2013), “a statute of limitations bar is an affirmative defense. Plaintiff is under no obligation to anticipate and negate this affirmative defense in the complaint.” citing Navarro v. Santos Furniture Custom Design, Inc., 372 Fed. Appx. 24, 27 (11th Cir. 2010) and Labbe, 319 Fed. Appx. at 764. Therefore, whether or not Defendant has a statute of limitations defense is not something that need be negated at this stage of the litigation.

III.       CONCLUSION

The Defendant’s arguments are without merit and support in the cases law. Moreover, even if they did, those arguments have been waived because they should have been made in its first motion to dismiss. Thus, Defendant’s motion to dismiss should be denied and fees should be awarded to Plaintiff for responding to the same.

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PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS THE COMPLAINT
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PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS THE COMPLAINT
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This is a response to a motion to dismiss filed in Federal Court.
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About the Author:

Massey & Duffy has existed since October, 2003. We focus exclusively on civil litigation, including wrongful death, overtime cases, car and trucking accidents, insurance claims, breach of contract, general employment law, and serious personal injury lawsuits.