United States District Court, S.D. Florida
LINDSAY BELL, LAUREN RUBIN, KRISTEN MCGREGOR, and HEATHER KELTZ, individually and on behalf of those similarly situated, Plaintiffs,
1220 MANAGEMENT GROUP, LLC, et al., Defendants.
P. GAYLES UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on Defendants'
Motion to Dismiss Amended Complaint [ECF No. 43]
(“Motion”). The Court has carefully reviewed the
submissions of the parties and the applicable law. For the
reasons that follow, Defendants' Motion is granted.
Second Amended Complaint [ECF No. 42], Plaintiffs Lindsay
Bell, Lauren Rubin, Kristen McGregor, and Heather Keltz
(collectively, “Plaintiffs”) bring claims under
(1) the Fair Labor Standards Act, 29 U.S.C. § 201 et
seq. (“FLSA”) and (2) the Florida Deceptive
and Unfair Trade Practices Act, Fla. Stat. 501.202
(“FDUTPA”) and Federal Trade Commission Act, 15
U.S.C. § 41 et seq. (“FTC Act”)
against Defendants 1220 Management Group, LLC, MH Employment
Services, LLC, Menin Hotels, LLC, and Keith Menin,
collectively acting as Bodega Taqueria y Tequila Bar
(collectively, “Defendants”). Plaintiffs claim
that Defendants engaged in an unlawful tip-pooling scheme and
that they were consequently not properly paid their full
tips. Plaintiffs seek damages in the amount of their tip
credit and any tips unlawfully taken beyond the tip credit,
as well as additional damages under FDUTPA and the FTC Act.
January 2, 2018, Defendants moved to dismiss Counts IV, VIII,
XI, and XV of Plaintiffs' Second Amended Complaint
asserting that Plaintiffs' FDUTPA and FTC Act claims fall
directly under the FLSA and are, therefore, preempted by the
survive a motion to dismiss brought pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, a claim “must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In other words, it must contain
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. While a court must
accept well-pleaded factual allegations as true,
“conclusory allegations . . . are not entitled to an
assumption of truth-legal conclusions must be supported by
factual allegations.” Randall v. Scott, 610
F.3d 701, 709-10 (11th Cir. 2010). “[T]he pleadings are
construed broadly, ” Levine v. World Fin. Network
Nat'l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006),
and the allegations in the complaint are viewed in the light
most favorable to the plaintiff. Bishop v. Ross Earle
& Bonan, P.A., 817 F.3d 1268, 1270 (11th
Cir. 2016). At bottom, the question is not whether the
claimant “‘will ultimately prevail' . . . but
whether his complaint [is] sufficient to cross the federal
court's threshold.” Skinner v. Switzer,
562 U.S. 521, 530 (2011) (quoting Scheuer v. Rhodes,
416 U.S. 232, 236 (1974)).
argue that Plaintiffs' state law FDUTPA and FTC
claims “are nothing more than a state law version of
Plaintiffs' FLSA Tip Credit Counts . . . and Remaining
Tips Counts . . . seeking to recover Plaintiffs' tips in
their entirety.” [ECF No. 43, at 3]. Accordingly,
Defendants assert that Plaintiffs' state law claims
“fall squarely under the FLSA and therefore the FLSA
preempts Counts IV, VIII, XI, and XV.” [Id. at
contend that “the FDUTPA/FTC [Act] claims deal with
different facts than the FLSA claim, award separate and
distinct damages from those permitted under FLSA and require
proof of completely different elements to succeed upon the
claims as compared to a FLSA claim.” [ECF No. 45, at
8]. Specifically, Plaintiffs argue that the FLSA claims are
“based upon Defendants' illegal tip pooling and
failure to pay Plaintiffs their proper wages, ” while
the FDUTPA and FTC Act claims are “based upon the
Defendants' unfair methods of competition . . . and
unfair or deceptive acts or practices.” [Id.
a matter of law, [a] plaintiff cannot circumvent the
exclusive remedy prescribed by Congress in asserting
equivalent state law claims in addition to the FLSA
claim.” Garcia v. Nachon Enters., Inc., 223
F.Supp.3d 1257, 1268 (S.D. Fla. 2016) (quoting Morrow v. Green
Tree Serv'g, LLC, 360 F.Supp.2d 1246, 1252 (M.D.
Ala. 2005)) (holding that the FLSA preempted plaintiff's
state law wage and invasion-of-privacy claims). In
particular, where a party's state law claims are
“merely the FLSA claims recast in state law terms,
” those state law claims are preempted by the FLSA.
Plaintiffs' Second Amended Complaint, Counts IV, VIII,
XI, and XV are all simply state law versions of
Plaintiffs' FLSA claims related to Defendants'
alleged illegal tip-pooling scheme. Plaintiffs contend in
both the state law and FLSA counts that Defendants included
other employees not customarily tipped as well as managers in
the Bodega tip pool, resulting in an unfair distribution of
tips and lower-than-expected wages to Bodega bartenders.
Whether broadly cast as deceptive and unfair acts in
violation of FDUTPA or the specific failure to pay Plaintiffs
their proper wages under the FLSA, Plaintiffs' state law
claims are predicated on the same facts as the FLSA claims.
although the FLSA does not include express preemption
language, “it is Congress' clear intent that the
FLSA be ‘the sole remedy available to employees for
enforcement of whatever rights he may have under the
FLSA.'” Choimbol v. Fairfield Resorts,
Inc., No. 2:05cv463, 2006 WL 2631791, at *5 (E.D. Va.
Sept. 11, 2006) (quoting Lerwill v. Inflight Motion
Pictures, Inc., 343 F.Supp. 1027, 1029 (N.D. Cal.
1972)). And here, “[b]ut for the
proscriptions of the [FLSA], ” Defendants' conduct
would not constitute the unlawful scheme Plaintiffs allege.
Butchers' Union, Local No. 498 v. SDC Inv.,
Inc., 631 F.Supp. 1001, 1011 (E.D. Cal. 1986).
“Ultimately, a plain reading of Plaintiffs' state
law claims reveal they are all, without a doubt, dependent on
a finding of the same violations of the FLSA.” Bule
v. Garda CL Se., Inc., No. 14-21898-CIV, 2014 WL
3501546, at *2 (S.D. Fla. July 14, 2014). This Court
therefore rejects Plaintiffs' contention that they are
“seeking to enforce rights independent of the
FLSA.” Petras v. Johnson, No. 92-CIV-8298
(CSH), 1993 WL 228014, at *3 (S.D.N.Y. June 22, 1993).
argument regarding damages is likewise unconvincing.
Plaintiffs maintain that they are “seeking redress
under separate claims for separate requested damages against
the Defendants.” [ECF No. 45, at 10]. “[T]he FLSA
has a comprehensive remedial scheme as shown by the
‘express provision for private enforcement in certain
carefully defined circumstances.'” Herman v.
RSR Sec. Servs. Ltd.,172 F.3d 132, 144 (2d Cir. 1999)
(quoting Nw. Airlines, Inc. v. Transp. Workers Union of
Am., AFL-CIO,451 U.S. 77, 93 (1981)). “[I]n view
of the FLSA's unusually elaborate enforcement scheme,
there cannot be the exceptionally strong presumption against
preemption of such state remedies that would be warranted if
the FLSA did not provide federal remedies.”
Anderson v. Sara Lee Corp.,508 F.3d 181, 193 (4th
Cir. 2007). In FLSA cases, therefore, Courts are more broadly
focused on whether a party “duplicates [its]
allegations] across a series of Counts . . . pursuant to both
state and federal law.” Bule, 2014 WL 3501546,
at *2. While it is true that FDUTPA and the FTC Act do not
“provide for specific remedies regarding ...