United States District Court, M.D. Florida
MATTHEW M. AULICINO, Plaintiff,
KRISTINE EPPERSON MCBRIDE, STUART EPPERSON and NANCY EPPERSON, Defendants.
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court without a hearing on the Motion
to Dismiss (Doc. 26) filed by the Defendants. The
Plaintiff's response in opposition was stricken as
untimely on March 2, 2017. (Doc. 32).
to the allegations of the Complaint (Doc. 1), which are
accepted in pertinent part as true for purposes of resolving
the instant motion, the Plaintiff, Matthew Aulicino
(“Aulicino”), was hired by Defendant Kristine
Epperson McBride (henceforth, “McBride”) and by
her parents, Defendants Stuart Epperson and Nancy Epperson,
to serve as McBride's bodyguard during the course of her
divorce from her then-husband. (Doc. 1 at 1-2). Aulicino
worked for McBride and the Eppersons from November 16, 2013
to May 4, 2014. (Doc. 1 at 3). He contends that he was never
paid for his work and is owed $77, 500. (Doc. 1 at 3). He
also contends that he was assaulted by McBride and that the
Defendants falsely accused him of offering to murder
McBride's husband. (Doc. 1 at 8-9, 18-19).
Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief” so as to give the defendant fair
notice of what the claim is and the grounds upon which it
rests, Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
99, 103, 2 L.Ed.2d 80 (1957), overruled on other
grounds, Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A Rule
12(b)(6) motion to dismiss for failure to state a claim
merely tests the sufficiency of the complaint; it does not
decide the merits of the case. Milbum v. United
States, 734 F.2d 762, 765 (11th Cir.1984). In ruling on
a motion to dismiss, the Court must accept the factual
allegations as true and construe the complaint in the light
most favorable to the plaintiff. SEC v. ESM Group,
Inc., 835 F.2d 270, 272 (11th Cir.1988). The Court must
also limit its consideration to the pleadings and any
exhibits attached thereto. Fed.R.Civ.P. 10(c); see also
GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th
plaintiff must provide enough factual allegations to raise a
right to relief above the speculative level,
Twombly, 550 U.S. at 555, 127 S.Ct. at 1966, and to
indicate the presence of the required elements, Watts v.
Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th
Cir.2007). Conclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts will
not prevent dismissal. Davila v. Delta Air Lines,
Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009), the Supreme Court explained that a
complaint need not contain detailed factual allegations,
“but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. A pleading
that offers labels and conclusions or a formulaic recitation
of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertions devoid of
further factual enhancement.” Id. at 1949
(internal citations and quotations omitted). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not ‘show[n]' - ‘that
the plaintiff is entitled to relief.'” Id.
at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).
first four counts of the Complaint, Aulicino seeks to recover
the $77, 500 he is allegedly owed under theories of recovery
of lost wages (Count I), estoppel (Count II), unjust
enrichment (Count III), and quantum meruit (Count IV). Under
Florida law, an action to recover wages must be commenced
with two years. Fla. Stat. § 95.11(4)(c). This
limitation period applies even when the attempt to recover
wages is characterized in other ways, such as an unjust
enrichment claim. See, e.g., Blackburn v. Bartsocas,
978 So.2d 820, 822 (Fla. 4th DCA 2008) (finding that unjust
enrichment claim was “in reality a claim for past
wages” and was therefore limited by Section
95.11(4)(c)). According to the allegations of the Complaint,
Aulicino last worked for Epperson on May 4, 2014. There is
nothing in the Complaint to suggest that the wages were due
after the last day on which Aulicino worked for Epperson. The
instant case was filed on May 26, 2016 - more than two years
after that date. The first four counts will therefore be
dismissed. As this is Aulicino's initial pleading, and as
there is at least a theoretical possibility that additional
factual allegations could provide a basis for overcoming the
statute of limitations issue, the dismissals will be without
Count V, Aulicino contends that the Defendants falsely told
law enforcement officials that he had offered to kill
McBride's then-husband, and that the negative publicity
resulting from this allegation “interfered …
with Plaintiff's prospective business
relationships.” (Doc. 1 at 12). Under Florida law, an
action for tortious interference with a business relationship
generally requires “a business relationship evidenced
by an actual and identifiable understanding or agreement
which in all probability would have been completed if the
defendant had not interfered.” Ethan Allen, Inc. v.
Georgetown Manor, Inc., 647 So.2d 812, 815 (Fla. 1994).
Aulicino does not identify any such relationship, or even
allege that one existed. Instead he simply asserts that the
Defendants prevented him from “entering into business
relationships with new clients.” (Doc. 1 at 12).
Aulicino has failed to state a claim for tortious
interference with prospective business relationships, and
Count V will therefore be dismissed without prejudice.
VI is a slander claim based on the same allegations about
Aulicino offering to murder Epperson's then-husband,
which were made by the Defendants to the police and others.
Aulicino argues that the utterances at issue were made
“[o]n or before October 2013.” A slander claim
under Florida law is subject to a two-year statute of
limitations. Fla. Stat. § 95.114(g). As this action was
filed more than two-years after October 2013, this count will
also be dismissed without prejudice.
Count VII, Aulicino relies on the same allegations to assert
a claim for false light invasion of privacy. (Doc. 1 at 15).
However, Florida does not recognize a cause of action for
this tort. Anderson v. Gannett Co., Inc., 994 So.2d
1048 (Fla. 2008). Count VII will therefore be dismissed with
next asserts two claims for infliction of emotional distress
- one for intentional infliction (Count VIII) and one for
negligent infliction (Count IX). But the allegations set
forth in the Complaint - failure to pay wages, false
accusations of offering to commit a crime, and assault - are
nowhere near outrageous enough to state a claim for
intentional infliction of emotional distress. See Metro.
Life Ins Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.
1985) (quoting Restatement (Second) of Torts and holding that
the tort requires conduct that is “so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized society.”) And,
generally speaking, recovery of damages for negligent
infliction of emotional distress under Florida law requires
either (1) some physical contact during the incident giving
rise to the emotional distress or (2) a physical injury,
manifesting shortly after the distressing incident ...