United States District Court, M.D. Florida, Tampa Division
C. BUCKLEW UNITED STATES DISTRICT JUDGE.
cause comes before the Court on Defendants' Motion to
Dismiss. (Doc. No. 4). Plaintiff opposes the
motion. (Doc. No. 9). As explained below, the motion is
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).
John Morton alleges the following in his complaint (Doc. No.
2): In January of 2013, when Plaintiff was 57 years old,
Plaintiff was hired by Defendants Nexagen Networks, Inc.
(“Nexagen”) and Insperity PEO Services,
At that time, he was denied health insurance benefits as a
condition of employment.
April 16, 2014, Plaintiff received a furlough notice
indicating that he would be off work from May 1, 2014 through
July 24, 2014. The furlough notice stated that benefits, if
elected, would be paid during the furlough. Plaintiff
interpreted the furlough notice as implying that benefits
were available, but denied, when he began employment with
Defendants. On June 19, 2014, Plaintiff received notice that
his employment would be terminated on July 24, 2014.
August 18, 2014, Plaintiff was offered another position with
Defendants in a virtual office capacity with benefits.
Plaintiff was told that benefits would be available during
open enrollment, from November 2014 through January 1, 2015.
On December 3, 2014, Plaintiff enrolled in family healthcare
benefits for his wife and himself.
later learned that all younger employees were offered health
insurance benefits. Therefore, Plaintiff now believes that he
was eligible for health insurance benefits during his first
period of employment (prior to July 24, 2014).
October of 2015, Plaintiff's wife suffered a heart issue
that required overnight hospitalization. Healthcare benefits
were paid under the group health plan that Plaintiff had
27, 2016, with only three days notice, Plaintiff's
employment was terminated. Plaintiff was told that his
termination was due to a lack of available work, but
Plaintiff contends that there is direct evidence to the
contrary. Specifically, there was considerable work remaining
to be done, and Defendant Nexagen had been provided a large
military contract at the time of Plaintiff's termination.
Plaintiff also contends that he was replaced by a younger
woman in her twenties or thirties.
Plaintiff contends that the reason given for his
termination-lack of work-was a mere pretext for the real
reasons: his age and the fact that Defendants did not wish to
continue providing healthcare coverage for Plaintiff and his
wife due to their age (both were over 60 years old at the
time of Plaintiff's termination). Plaintiff contends that
Defendants' perception of the cost of healthcare coverage
for Plaintiff and his wife (which was partially confirmed by
his wife's hospitalization and their high prescription
costs) led Defendants to terminate Plaintiff's
contends that there is further evidence of discrimination due
to the fact that within twenty days after his termination,
Defendant Nexagen reached out to Plaintiff and asked to hire
him on an independent contractor basis with no benefits.
These employment offers continued through October 2016.
Again, Plaintiff points out that Defendants offered health
benefits to younger employees but would not offer them to
result, on July 14, 2017, Plaintiff filed a charge of age
discrimination with the Florida Commission on Human Rights
(“FCHR”). He indicated that he had suffered
discrimination from July 27, 2016 through October 2016.
Thereafter, Plaintiff filed the instant lawsuit in state
court, asserting an age discrimination claim under the
Florida Civil Rights Act (“FCRA”). The case was
removed to this Court on the basis of complete ERISA
preemption (federal question jurisdiction) and diversity
Motion to Dismiss
instant motion, Defendants contend that Plaintiff's age
discrimination claim is either completely preempted by ERISA
and/or expressly preempted by ERISA and should be dismissed.
As explained below, ...