United States District Court, M.D. Florida
REPORT AND RECOMMENDATION
GREGORY J. KELLY, UNITED STATES MAGISTRATE JUDGE
cause came on for consideration without oral argument on the
MOTION: PLAINTIFF'S MOTION TO DISMISS DEFENDANTS'
COUNTERCLAIM AND INCORPORATED MEMORANDUM OF LAW (Doc. No. 29)
FILED: November 29, 2016
THEREON it is RECOMMENDED that the motion be GRANTED.
27, 2016, Plaintiff filed a one-count complaint against
Defendants alleging a violation of the Fair Labor Standards
Act (“FLSA”) for failing to pay Plaintiff
overtime wages. Doc. No. 1 at ¶¶ 14, 43-53. In the
Complaint, Plaintiff alleges that he was only paid for work
performed at the job site, and not for his time at
Defendants' place of business loading and unloading the
equipment needed for use at the job site or for his time
travelling between Defendants' place of business and the
job site. Doc. No. 1 at ¶¶ 28-30, 34, 47-49. On
November 8, 2016, Defendants filed their Answer, Affirmative
Defenses and Counterclaim. Doc. No. 28. In the Counterclaim,
Defendants ask that they be awarded damages against Plaintiff
for conversion. Doc. No. 28 at 12. They allege that Plaintiff
stole gas from the company vehicle and charged Defendant
Leo's Concrete Specialties' employees for rides in
the company vehicle. Id. The Counterclaim does not
contain allegations regarding jurisdiction, such as the
citizenship of the parties, the amount in controversy, or an
issue involving the United States Constitution or federal
law. Id. Defendants also assert in their Eleventh
Defense to the Complaint that Plaintiff charging their
employees for rides to and from jobs is a basis for set-off.
Id. at 11. On November 29, 2016, Plaintiff filed a
motion to dismiss the Counterclaim (the
“Motion”). Doc. No. 29 at 1.
argues in the Motion that the Counterclaim is permissive,
thus requiring an independent basis for federal jurisdiction
under Federal Rule of Civil Procedure 13(b), which it lacks.
Id. at 2. Defendants contend that the Counterclaim
is compulsory because Plaintiff “asserts claims
concerning his use of a company vehicle and his right to be
paid for the use of the company vehicle.” Doc. No. 30
Patel v. Goldspot Stores, LLC, No.
6:15-cv-198-Orl-28DAB, 2015 WL 3401165, at *1 (M.D. Fla. May
26, 2015), the plaintiffs sued the defendant for unpaid
overtime wages under the FLSA. The defendant filed a
counterclaim for conversion and unjust enrichment, alleging
that the “[p]laintiffs misappropriated lottery tickets
at the store.” Id. The plaintiffs moved to
dismiss the counterclaim for lack of subject matter
jurisdiction, Magistrate Judge David A. Baker recommended
that the motion be granted, and Judge John Antoon II adopted
Magistrate Judge Baker's report and recommendation and
made it a part of his order. Id.
Patel, the Court noted that it has original
jurisdiction over the FLSA claims under 28 U.S.C. §
1331, but the counterclaim arose under state law and there
was no showing of facts establishing diversity jurisdiction.
Id. The Court concluded that it only had subject
matter jurisdiction over the counterclaim “if
supplemental jurisdiction is authorized under 28 U.S.C.
§ 1367.” Id. It did not matter whether
the counterclaim was permissive or compulsory; instead, under
section 1367, the appropriate focus is “‘whether
the state law claims are so related to a federal claim as to
form part of the same case or controversy under Article III
of the Constitution . . . .'” Id. at 2
(quoting Beltran v. Medcure, Inc., No.
6:13-CV-234-ORL-28, 2013 WL 3833208, at *3 (M.D. Fla. July
23, 2013)). In finding that the counterclaim was not so
related to the claim in the complaint, the Court used the
common nucleus test, in which the Court compares the nucleus
of facts upon which the federal claims are based with the
nucleus of facts upon which the counterclaim is based.
Id. at 2-3. The Court found that “the only
connection between an action for unpaid wages and the alleged
misappropriation is that” the defendant employed the
plaintiffs when the alleged misappropriation occurred.
Id. at 3. “The counterclaim is not so related
to the FLSA claim that they form the same case or
controversy.” Id. Thus, there was no
jurisdiction, and the counterclaim was dismissed without
prejudice for the defendant to pursue it in state
the nucleus of facts regarding Plaintiff's claim for
unpaid overtime wages is that he was working when he was
loading and unloading the company truck at Defendants'
place of business and when he was driving between the job
site and Defendants' place of business and that he was
not paid for this time. Doc. No. 1 at ¶¶ 28-30, 34,
47-49. The nucleus of facts for the Counterclaim is that
Plaintiff stole gas from the company truck and charged
Defendants' employees to drive them in the company
truck. Doc. No. 28 at ¶¶ 2-3. The
connection between the unpaid overtime wages claim and the
conversion claim is that Plaintiff was employed by Defendants
at the time and Plaintiff drove the company truck to and from
the job sites. As in Patel, the connection that
Plaintiff was employed by Defendant at the time he allegedly
stole the gasoline is not enough to form the same case or
controversy to establish jurisdiction.
relies on Shepherd v. Kelley, No. CIV.A.
12-0424-WS-B, 2013 WL 105284, at *2 (S.D. Ala. Jan. 8, 2013).
Patel, No. 6:15-cv-198-Orl-28DAB, 2015 WL 3401165,
at *2-3. In Shepherd, the plaintiff filed suit based
on the defendants' alleged failure to pay him
appropriately, including a claim for overtime compensation
under the FLSA. Shepherd, No. CIV.A. 12-0424-WS-B,
2013 WL 105284, at *1. The defendant's counterclaim
alleged that the plaintiff used “the defendants'
food, equipment and confidential information for his own
gain, including by selling and catering to the
defendants' customers.” Id. The court
employed the nucleus test in determining whether it had
supplemental jurisdiction over the counterclaim:
The nucleus of operative fact for the plaintiff's claims
is that he worked and was not paid. The nucleus of operative
fact for the defendants' counterclaims is that the
plaintiff used property of the defendants without their
permission. The only overlapping fact in this nucleus is that
the plaintiff was employed by the defendants.
Id. at *2. The defendants did not assert in the
counterclaim “that the plaintiff's alleged conduct
somehow forfeited his right to earned wages. There is not
even an allegation that the defendants withheld the
plaintiff's wages in retaliation for his conduct.”
as in Shepherd, the conversion claim alleges that
Plaintiff used Defendants' property for his own
gain-specifically, stealing gas and charging money for rides
in the company truck. Doc. No. 28 at 12. Also as in
Shepherd, Defendants do not allege in the
Counterclaim that these actions forfeited Plaintiff's
right to earned wages. Id. Defendants argue that
both Plaintiff's allegations and the Counterclaim
“concern his use of the company vehicle.” Doc.
No. 30 at 4. Although they both concern the use of the
company vehicle, the underlying issue in the Complaint is
whether Plaintiff should be compensated by Defendants for his
time when he was driving or loading and unloading the company
truck, whereas the Counterclaim presents issues about whether
Plaintiff stole gas from Defendants and was improperly