United States District Court, M.D. Florida, Fort Myers Division
DOROTHY JERNIGAN, on behalf of herself and others similarly situated, Plaintiff,
1ST STOP RECOVERY, INC, a Florida for Profit Corporation, and JUDITH MARRA-PTASHINSKI, individually, Defendants.
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants' Motion to
Dismiss Count II of Plaintiff's Complaint (Doc. #14)
filed on June 21, 2017. Plaintiff filed a Response in
Opposition on July 5, 2017. For the reasons set forth below,
the motion is denied.
February 16 2017, plaintiff Dorothy Jernigan (plaintiff or
Jernigan), filed a two-count Complaint (Doc. #1) against her
former employers, 1st Stop Recovery, Inc. and Judith
Marra-Ptashinski (collectively “defendants”).
Plaintiff alleges failure to pay overtime wages in violation
of the Fair Labor Standards Act (FLSA) (Count I) and a
state-law claim of Unjust Enrichment (Count II).
Marra-Ptashinski owns and operates 1st Stop Recovery.
(Id. ¶ 6.)
to the Complaint, defendants hired plaintiff in September
2015 to work as a non-exempt, hourly paid office repossession
agent/office assistant. (Doc. #1, ¶¶ 25-27.) From
September 2015 to December 2016, while an hourly employee,
plaintiff was not paid for all of the overtime hours worked.
(Id. at ¶ 30.) Throughout the duration of her
employment, plaintiff was required to complete various
non-exempt duties as her primary job function. (Id.
at ¶ 28.) At various times, defendants required
plaintiff to work, and plaintiff did work, off the clock with
no compensation. (Id. at ¶ 29.)
seek dismissal of Count II (unjust enrichment) for failure to
state a claim because the claim is duplicative of
plaintiff's FLSA claim and is preempted by the FLSA.
Federal Rule of Civil Procedure 8(a)(2), 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 obligation “requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). To survive dismissal, the factual
allegations must be “plausible” and “must
be enough to raise a right to relief above the speculative
level.” Id. at 555. See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This
requires “more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff,
Erickson v. Pardus, 551 U.S. 89 (2007), but
“[l]egal conclusions without adequate factual support
are entitled to no assumption of truth.” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
“Factual allegations that are merely consistent with a
defendant's liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012) (internal citations
omitted). Thus, the Court engages in a two-step approach:
“When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
argues that to the extent plaintiff is attempting to state a
claim for unpaid wages via a state-law claim for unjust
enrichment, the claim must fail as Section 216 of the FLSA is
the exclusive remedy for enforcing rights created under the
Act. Plaintiff responds that her unjust enrichment claim
seeks to recover amounts due and owing to her that may not
otherwise be recoverable pursuant to the FLSA, frequently
known as “gap time.” That is, non-overtime hours
for which an employee is not compensated. Count II seeks
recovery for “gap time” hours that were worked
but “cannot be captured as part of [her] overtime
claims in Count One, because the addition of these work hours
may be less than forty (40) hours within a single
week.” (Doc. #1, ¶ 54.)
the issue has yet to be addressed by the Eleventh Circuit,
whether “gap time” is recoverable under the FLSA
has been addressed by at least three other circuits which
ruled against FLSA coverage. See Davis v. Abington
Memorial Hosp., et al., 765 F.3d 236, 244 (3d Cir. 2014)
(noting that courts “widely agree” that there is
no cause of action under the FLSA for pure gap time wages -
“that is, wages for unpaid work during pay periods
without overtime” - because the FLSA requires payment
of minimum wages and overtime wages only); Lundy v.
Catholic Health Sys. of Long Island, Inc., 711 F.3d 106
(2d Cir. 2013); Monahan v. Cty. Of Chesterfield,
Va., 95 F.3d 1263, 1280 (4th Cir. 1996). See
also, Thrower v. Peach Cty., Georgia, Bd. of
Educ., No. 5:08-CV-176 MTT, 2010 WL 4536997, at *5 (M.D.
Ga. Nov. 2, 2010) (“[T]he clear weight and trend of
authority, nearly twenty years later, is that pure gap time
claims are not compensable.”); Foster v. Angels
Outreach, LLC, No. CIVA 206CV980-ID WO, 2007 WL 4468717,
at *3 (M.D. Ala. Dec. 17, 2007) (“[The FLSA] does not
provide a remedy to Plaintiffs for their unpaid contractual
wages which exceed the statutory mandated minimum
wage.”); Ealy-Simon v. Liberty Med. Supply,
Inc., No. 05-14059-CIV, 2007 WL 7773834, at *6 (S.D.
Fla. Feb. 12, 2007) (“FLSA law is such that an employee
can seek minimum wage or overtime compensation only (and
hence no straight or ‘gap' time)”).
the Court recognizes the authority finding that the FLSA
fails to provide relief for “gap time” claims and
therefore finds that Count II is not duplicative of, nor
pre-empted by, the FLSA. Because there is otherwise no
adequate remedy at law under the FLSA for such a claim,
equitable relief may be pursued. See ...