United States District Court, M.D. Florida, Ocala Division
S. MOODY. JR. UNITED STATES DISTRICT JUDGE
talking to law enforcement about alleged abuse at the
preschool where she worked, Plaintiff was fired from her job.
Now Plaintiff is suing her former employer for alleged unpaid
overtime under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.,
and the Florida Minimum Wage Act (“FMWA”),
section 448.01 et seq., Florida Statutes; and for
retaliation under the Florida private sector Whistleblower
Act (“FWA”), also section 448.01 et
seq., Florida Statutes. Defendant argues the claims
should be dismissed for numerous reasons. The Court concludes
only the unpaid overtime claim under the FMWA should be
dismissed because Plaintiff failed to allege she complied
with the FMWA's pre-suit notice requirements.
worked as a caregiver for Defendant, a preschool, for
approximately six months. Plaintiff's primary responsibility
was to care for the children entrusted to Defendant.
Plaintiff alleges that she worked through her breaks, stayed
late, and attended mandatory weekly after-hours meetings, in
addition to performing work off the clock. So although
Plaintiff worked more than 40 hours per week, she was never
paid overtime. Instead Plaintiff was paid her hourly wage of
$10.85 for 40 hours, and was not compensated at all for the
additional 10 to 20 hours she worked each week.
February, Plaintiff learned that a co-worker had battered a
young autistic boy. The battery was reported to the
Department of Children and Families, and law enforcement
began an investigation. Plaintiff provided information to law
enforcement as part of the investigation and was allegedly
terminated by Defendant for doing so.
addition to these allegations, Plaintiff contends that other
co-workers also did not receive overtime pay and were fired
in retaliation for talking to law enforcement during the
battery investigation. Plaintiff brings this suit for
overtime pay and retaliation on behalf of herself and others
TO DISMISS STANDARD
Rule of Civil Procedure 12(b)(6) allows a complaint to be
dismissed for failure to state a claim on which relief can be
granted. When reviewing a motion to dismiss, courts must
limit their consideration to the well-pleaded allegations,
documents central to or referred to in the complaint, and
matters judicially noticed. See La Grasta v. First Union
Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004)
(internal citations omitted); Day v. Taylor, 400
F.3d 1272, 1276 (11th Cir. 2005). Furthermore, they must
accept all factual allegations contained in the complaint as
true, and view the facts in a light most favorable to the
plaintiff. See Erickson, 551 U.S. at 93-94.
conclusions, however, “are not entitled to the
assumption of truth.” Ashcroft v. Iqbal, 556
U.S. 662, 664 (2009). In fact, “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). To survive a motion to dismiss, a complaint
must instead contain sufficient factual matter, accepted as
true, to “state a claim to relief that is plausible on
its face.” Iqbal, 556 U.S. at 678 (internal
quotation marks and citations omitted). This plausibility
standard is met when the plaintiff pleads enough factual
content to allow the court “to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (internal citations omitted).
reviewing a pro se complaint, the court must hold
the pro se pleading to a less stringent standard and
must construe the complaint liberally. Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998)
(“Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and
will, therefore, be liberally construed.” (citation
omitted)). Although courts afford liberal construction to
pro se litigants' pleadings, litigants appearing
pro se must adhere to the procedural requirements of
the Federal Rules of Civil Procedure as well as the Local
Rules for the Middle District of Florida. McNeil v.
United States, 508 U.S. 106, 113 (1993).
argues the Complaint (Doc. 1) should be dismissed with
prejudice or stricken for the following reasons: (1) the
Complaint contains only boilerplate allegations and
insufficient facts; (2) Plaintiff has not alleged facts to
show others are similarly situated; (3) Plaintiff has not
alleged the FLSA applies to Defendant; (4) Defendant is
exempt from the FLSA; (5) Plaintiff did not allege compliance
with the conditions precedent to a suit under the FMWA and
FWA; (6) Plaintiff did not allege which statutes Defendant
allegedly violated; (7) Plaintiff's claims under the FMWA
and the FWA are frivolous because Plaintiff alleges she made
more than minimum wage; and (8) the Complaint is an
impermissible shotgun pleading. (Doc. 6). What Defendant
lacks in its Motion is legal support for most of its
arguments-which makes it difficult for the Court to determine
if some of the arguments have merit or so completely lack
merit that Defendant could find no support for its arguments.
This problem is compounded by the fact that Plaintiff's
Response similarly lacks legal authority supporting her
arguments. (Doc. 8). The Court admonishes both parties'
Counsel for failing to support their arguments with citations
to legal authority.
to the arguments, the Court concludes only one of
Defendant's argument has merit: that Plaintiff failed to
plead compliance with the FMWA's pre-suit notice
requirement. Section 448.110(6), Florida Statutes,
requires an employee bringing a claim for unpaid minimum
wages to “notify the employer alleged to have violated
this section, in writing, of an intent to initiate such an
action.” The employer then has 15 days from which to
resolve the claim before the employee can bring suit.
Id. Courts have uniformly held that this notice is a
condition precedent to bringing suit. Throw v. Republic
Enter. Sys., Inc., No. 8:06-CV-724-T-30, 2006 WL
1823783, at *3 (M.D. Fla. June 30, 2006); Goetz v.
Louie's Backyard, Inc., No. 14-10074-CIV, 2015 WL
12781194, at *2 (S.D. Fla. May 18, 2015).
never alleges in her FMWA claim (Count II) that she complied
with this condition precedent. Nor is there a general
allegation that Plaintiff complied with all conditions
precedents. As such, the Court must dismiss Plaintiff's
FMWA claim without prejudice for failure to allege compliance
with the notice requirement. That said, it is unclear to the
Court that Plaintiff's claim for unpaid overtime is
appropriately brought under the FMWA, ...