United States District Court, M.D. Florida, Fort Myers Division
TODD ERLING, on behalf of himself and others similarly situated, Plaintiff,
AMERICAN GRILLE WITH SUSHI LLC, a Florida profit corporation and CHRIS K. WHITAKER, individually, Defendants.
OPINION AND ORDER
E. STEELE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on review of plaintiff's
Motion to Dismiss Counterclaim for Lack of Subject-Matter
Jurisdiction (Doc. #15) filed on September 20, 2017, and
defendants' Motion to Dismiss Amended Complaint (Doc.
#21) filed on October 2, 2017. Defendants filed a Response to
Plaintiff's Motion (Doc. #22) and plaintiff filed a
Memorandum of Law in Opposition to Defendants' Motion
preliminary matter, plaintiff's Amended Complaint (Doc.
#19) filed on September 21, 2017, is a shotgun pleading.
“The most common type - by a long shot - is a complaint
containing multiple counts where each count adopts the
allegations of all preceding counts, causing each successive
count to carry all that came before and the last count to be
a combination of the entire complaint.” Weiland v.
Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313,
1321 (11th Cir. 2015). The Court has a sua sponte
obligation to identify and dismiss a shotgun pleading.
See Davis v. Coca-Cola Bottling Co. Consol., 516
F.3d 955, 979 n.54 (11th Cir. 2008) (collecting cases);
Byrne v. Nezhat, 261 F.3d 1075, 1131 (11th Cir.
2001) (“Shotgun pleadings, if tolerated, harm the court
by impeding its ability to administer justice.”). In
this case, plaintiff realleges and reincorporates all
allegations in paragraphs 1 through 26 into paragraph 27, and
also reincorporates and readopts all allegations in
paragraphs 1 through 38 into paragraph 39 thereby including
irrelevant allegations unrelated to the claim in Count II.
The Amended Complaint will be dismissed without prejudice to
filing a second amended complaint.
Motion to Dismiss Count II of Amended Complaint
defendants' motion, defendants seek to dismiss Count II
for failure to state a cause of action. Count Two alleges
retaliation under the Fair Labor Standards Act (FLSA) because
defendants filed a Counterclaim in response to the Complaint
more than 3 months after plaintiff left his employment.
Plaintiff alleges that he believes that it was filed with a
retaliatory motive and because it lacks a reasonable basis in
fact or law. Plaintiff does not allege that the retaliation
was related to his discharge from employment or for
discriminatory reasons under 29 U.S.C. § 215(a)(3),
however the Court will leave this issue for another time
since the Amended Complaint is due to be amended. See
Kentish v. Madahcom, Inc., 566 F.Supp.2d 1343, 1349
(M.D. Fla. 2008) (noting that if “the Court determines
Defendant's Counterclaim is merely a sham pleading, the
Court may impose sanctions against Defendant and its
attorney”); Phillips v. M.I. Quality Lawn Maint.,
Inc., No. 10-20698-CIV, 2011 WL 13100468, at *4 (S.D.
Fla. Mar. 30, 2011) (concluding that the filing of the state
court lawsuit by Defendants was protected by Florida's
litigation privilege), aff'd, 537 Fed.Appx. 908
(11th Cir. 2013).
Motion to Dismiss Counterclaims
to Fed.R.Civ.P. 13(a), defendants allege two Counterclaims as
compulsory counterclaims. That is, defendants allege that the
counterclaims arise out of the same transaction or occurrence
as plaintiff's claims. Defendants allege a state law
claim for conversion because plaintiff often came into the
restaurant and stole liquor and other alcoholic beverages for
his personal use, and a claim for return of money lent to
plaintiff by defendant Chris K. Witaker in May 2017, in the
amount of $350.
parties are not diverse in their citizenship, and no federal
question is presented by the counterclaims. 28 U.S.C.
§§ 1331, 1332. Therefore, any jurisdictional basis
over the counterclaims would necessarily be supplemental
jurisdiction under 28 U.S.C. § 1367. Yeseren v.
Cksingh Corp., No. 2:10-CV-253-FTM-29, 2010 WL 4023524,
at *3 (M.D. Fla. Oct. 13, 2010). For the Court to exercise
supplemental jurisdiction over the counterclaims, they must
be “so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy under Article III of the United States
Constitution.” 28 U.S.C. § 1367(a). The Court may
decline to exercise supplemental jurisdiction if “the
claim substantially predominates over the claim or claims
over which the district court has original
jurisdiction”. 28 U.S.C. § 1367(c)(2).
are generally reluctant to allow employers to assert
state-law counterclaims against employees in FLSA cases.
Pioch v. IBEX Eng'g Servs., Inc., 825 F.3d 1264,
1273-74 (11th Cir. 2016). “The only economic feud
contemplated by the FLSA involves the employer's
obedience to minimum wage and overtime standards. To clutter
these proceedings with the minutiae of other employer-
employee relationships would be antithetical to the purpose
of the Act.” Brennan v. Heard, 491 F.2d 1, 4
(5th Cir. 1974).
the counterclaims may arise from around the same time period
of plaintiff's employment, application of the
“logical relationship” test leads to the
conclusion that the counterclaims do not have the same
operative facts as plaintiff's claim under the FLSA. The
theft of alcohol for personal use would not offset recovery
of wages by plaintiff, and the personal loan to plaintiff
around the time of his termination has no bearing on whether
plaintiff was to be paid overtime wages. The motion to
dismiss the counterclaims will be granted.
it is hereby
Plaintiff's Amended Complaint (Doc. #19) is dismissed
without prejudice to filing a Second Amended Complaint ...