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Poggi v. Humana, Inc.

United States District Court, M.D. Florida, Tampa Division

April 7, 2017

DAVID POGGI, on his own behalf and others similarly situated, Plaintiff,
v.
HUMANA, INC, Defendant.

          ORDER

          SUSAN C. BUCKLEW UNITED STATES DISTRICT JUDGE.

         This cause comes before the Court on Defendant's Motion to Dismiss. (Doc. No. 8). Plaintiff opposes the motion. (Doc. No. 11). As explained below, the motion is granted.

         I. Standard of Review

          In deciding a motion to dismiss, the district court is required to view the complaint in the light most favorable to the plaintiff. See Murphy v. Federal Deposit Ins. Corp., 208 F.3d 959, 962 (11th Cir. 2000)(citing Kirby v. Siegelman, 195 F.3d 1285, 1289 (11th Cir. 1999)). The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. Instead, Rule 8(a)(2) requires a short and plain statement of the claim showing that the pleader is entitled to relief in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citation omitted). As such, a plaintiff is required to allege “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citation omitted). While the Court must assume that all of the allegations in the complaint are true, dismissal is appropriate if the allegations do not “raise [the plaintiff's] right to relief above the speculative level.” Id. (citation omitted). The standard on a 12(b)(6) motion is not whether the plaintiff will ultimately prevail in his or her theories, but whether the allegations are sufficient to allow the plaintiff to conduct discovery in an attempt to prove the allegations. See Jackam v. Hospital Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579 (11th Cir. 1986).

         II. Background

         Plaintiff filed a complaint for recovery of overtime and minimum wage compensation. Plaintiff provides no detail about his position with Defendant Humana, Inc., other than to allege that he “is employed in a labor position” and “worked as an hourly employee.” (Doc. No. 1, ¶ 1). However, later in the complaint, Plaintiff alleges that in many instances, Defendant “simply paid Plaintiff a flat rate or salary that would have equated to far less than the minimum wage and no provision for overtime.” (Doc. No. 1, ¶ 8).

         In addition to the lack of detail regarding Plaintiff's employment, it is also unclear what precise claims that Plaintiff is asserting. There is no dispute that Plaintiff is asserting claims under the Fair Labor Standards Act (“FLSA”), but Plaintiff also references the Florida Constitution. He also makes a passing reference to retaliation. Finally, he appears to be attempting to assert a collective action. In response, Defendant moves to dismiss the complaint.

         III. Motion to Dismiss

         Defendant moves to dismiss portions of the complaint, making four arguments: (1) Plaintiff fails to sufficiently allege a claim for retaliation; (2) Plaintiff fails to sufficiently allege a claim under the Florida Minimum Wage Act; (3) Plaintiff fails to adequately set forth a claim for relief as a collective action; and (4) Plaintiff cannot pursue a collective action because he has failed to file a consent to join form for himself. Accordingly, the Court will address each argument.

         A. Retaliation

         Defendant argues that Plaintiff fails to sufficiently allege a claim for retaliation, as his complaint contains no allegations to support such a claim. Plaintiff's response fails to address this argument, and therefore, the Court considers the retaliation claim to be abandoned. Accordingly, the Court grants Defendant's motion to dismiss the retaliation claim.

         B. Florida Minimum Wage Act

         Next, Defendant argues that Plaintiff fails to sufficiently allege a claim under the Florida Minimum Wage Act (“FMWA”), because Plaintiff fails to allege that he complied with the pre-suit notice requirements set forth in Florida Statute § 448.110(6)(a).[1] Plaintiff responds that he is not asserting a claim under the FMWA and that he “brings his claims under the Fir Labor Standards Act, alone.” (Doc. No. 11, p. 4). Accordingly, the Court grants Defendant's motion to dismiss any purported claim brought under the FMWA.

         C.Collective Action Allegations and ...


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