United States District Court, M.D. Florida, Orlando Division
GREGORY J. KELLY, UNITED STATES MAGISTRATE JUDGE.
and Recommendation This cause came on for
consideration without oral argument on the following motion:
MOTION:MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW
(Doc. No. 20)
FILED:January 4, 2017
THEREON it is RECOMMENDED that the motion be GRANTED IN PART
AND DENIED IN PART.
October 20, 2016, Plaintiff filed a ten-count complaint
against various defendants, alleging violations of the Fair
Labor Standards Act, 29 U.S.C. § 201, et seq. (the
“FLSA”). Doc. No. 1. Counts I and IX are asserted
against Mideal Food Service LLC, Count V is asserted against
Danilo Arsenijevith, and Count VIII is asserted against Edwin
B. Perez. Id. At 4-6, 9-10, 15-16. On January 4,
2017, Mideal Food Service, Perez, and Arsenijevith moved to
dismiss the claims asserted against them (the
“Motion”). Doc. No. 20. On January 18, 2017,
Plaintiff filed her response to the Motion. Doc. No. 25.
considering a motion to dismiss for failure to state a claim,
a court must accept the allegations in the complaint as true,
construing them in the light most favorable to the plaintiff.
Murphy v. F.D.I.C., 208 F.3d 959, 962 (11th Cir.
2000) (citing Kirby v. Siegelman, 195 F.3d 1285,
1289 (11th Cir. 1999)). A complaint must contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2).
This standard does not require detailed factual allegations,
but does demand “more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Specifically, the factual allegations, accepted as
true, must “state a claim to relief that is plausible
on its face.” Id. (quoting Twombly,
550 U.S. at 570). This cannot be achieved through mere legal
conclusions or recitation of the elements of a claim.
Id. (citing Twombly, 550 U.S. at 555).
Instead, to state a plausible claim for relief, the plaintiff
must go beyond merely pleading the “sheer
possibility” of unlawful activity by a defendant and
offer “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). If the plaintiff fails to
meet this pleading standard, then the complaint will be
subject to dismissal pursuant to Rule 12(b)(6), Federal Rules
of Civil Procedure.
Food Service, Perez, and Arsenijevith move to dismiss the
Complaint because Plaintiff did not sufficiently identify
which defendant employed her. Doc. No. 20 at ¶ 13.
Although eight defendants are named in the Complaint,
Plaintiff throughout the Complaint uses the term
“Defendant” in the singular and without defining
it. Doc. No. 1. This renders it unclear exactly who employed
example, in paragraph four of the Complaint, Plaintiff
alleges the following: “Defendant, Mideal Food Service
LLC, a Florida Profit Limited Liability Company, d/b/a PUNTO
LATINO RESTAURANT AND BAKERY, having its main place of
business in Orange County, Florida where Plaintiff worked for
Defendant, and at all times material hereto was and is
engaged in interstate commerce.” Id. at ¶
4. Following this allegation, Arsenijevith is described as
“a corporate officer of, and exercised operational
control over the activities of, corporate Defendant, MIDEAL
FOOD SERVICE LLC.” Id. at ¶ 8. Perez is
described as “a corporate officer of, and exercised
operational control over the activities of, corporate
Defendant, IDEAL FOOD DISTRIBUTORS LLC[, ]” while Ideal
Food Distributors is described as “a corporate officer
of, and exercised operational control over the activities of,
corporate Defendant, MIDEAL FOOD SERVICE LLC.”
Id. at ¶¶ 10, 11. Paragraph fifteen states
that Plaintiff “was employed by Defendant on or about
June, 2015, through on or about November 17, 2015[, ]”
but does not identify which of the eight defendants is being
referenced. Id. at ¶ 15.
Count V of the Complaint, asserted against Arsenijevith,
Plaintiff alleges the following: “Defendant was an
employer of Plaintiff within the meaning of Section 3(d) of
the ‘Fair Labor Standards Act' [29 U.S.C. §
203(d)], in that this individual Defendant acted directly in
the interests of Defendant employer in relation to the
employees of Defendant employer, including Plaintiff.”
Id. at ¶ 49. This allegation is repeated in
Count VIII, which is asserted against Perez. Id. at
¶ 68. Counts V and VIII, like the rest of the Complaint,
never identify who is the “Defendant employer.”
does not state who employed her. Id. at ¶¶
1-22. The term “Defendant” is undefined and used
throughout the Complaint to refer to each defendant, which
exacerbates the confusion. Because there is no allegation of
who employed Plaintiff, it is recommended that the Court
dismiss the Complaint. See Crossley v. Armstrong Homes,
Inc., No. 5:14-CV-636-OC-30PRL, 2015 WL 2238347, at *2
(M.D. Fla. May 12, 2015) (“To state a cause of action
under the FLSA, an employee must first allege an employment
relationship.”). As “‘a more carefully
drafted complaint might state a claim upon which relief can
be granted[, ]'” it is recommended that Plaintiff
be given an opportunity to file an amended complaint.
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.
2001) (quoting Bank v. Pitt, 928 F.2d 1108, 1112
(11th Cir. 1991)).
also ask the Court to award them attorney's fees for
defending this matter. Doc. No. 20 at ¶ 35. Defendants
fail to cite a legal basis for such an award, however, and
therefore it is recommended that the request be denied.
See generally Italiano v. Jones Chems.,
Inc., 908 F.Supp. 904, 907 (M.D. Fla. 1995)
(striking request for attorney's fees in complaint when
plaintiffs did not cite statute or contract authorizing
it is RECOMMENDED that the Motion (Doc. No. 20) be GRANTED IN