United States District Court, M.D. Florida, Tampa Division
DAVID POGGI, on his own behalf and others similarly situated, Plaintiff,
HUMANA, INC, Defendant.
C. BUCKLEW UNITED STATES DISTRICT JUDGE.
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.
Standard of Review
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).
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).
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
Motion to Dismiss
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.
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
Florida Minimum Wage Act
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). 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 ...