United States District Court, S.D. Florida
J. O'Sullivan, Judge
MATTER is before the Court on the Defendants' Motion to
Dismiss Counts V, VI, VII and VIII of the Plaintiff's
Amended Complaint and Incorporated Memorandum of Law (DE# 19,
considering a motion to dismiss brought under Fed.R.Civ.P.
12(b)(6), the Court's analysis is generally limited to
the four corners of the complaint and the attached exhibits.
See Grossman v. Nationsbank, 225 F.3d 1228, 1231
(11th Cir. 2000). The Court must accept the non-moving
party's well-pled facts as true and construe the
complaint in the light most favorable to that party.
Caravello v. Am. Airlines, Inc., 315 F.Supp.2d 1346,
1348 (S.D. Fla. 2004) (citing United States v. Pemco
Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir. 1999)
(en banc); St. Joseph's Hosp., Inc. v. Hosp.
Corp. of Am., 795 F.2d 948, 953 (11th Cir. 1986)).
survive a motion to dismiss, the complaint must contain
factual allegations which are “enough to raise a right
to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009). The issue to be decided is not whether the
plaintiff will ultimately prevail, but “whether the
[plaintiff] is entitled to offer evidence to support the
claims.” Swierkiewicz v. Sorema N.A., 534 U.S.
506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S.
232, 236 (1974), overruled on other grounds by
Davis v. Scherer, 468 U.S. 183 (1984)).
Sufficiency of the Pleadings
defendants move to dismiss Counts V, VI, VII and VIII of the
Amended Complaint which allege claims of retaliation under
the FLSA against each defendant. On a motion to dismiss, all
well-pled facts must be taken as true. Iqbal, 556
U.S. at 679. The Court has reviewed the Amended Complaint and
finds that the plaintiff has stated a claim upon which relief
may be granted as to Counts V, VI, VII and VIII. Accordingly,
the defendants are not entitled to relief on this ground.
Florida's Litigation Privilege
defendants also argue that the plaintiff's retaliation
claims are barred as a matter of law by Florida's
litigation privilege. Florida's litigation privilege
provides that “absolute immunity must be afforded to
any act occurring during the course of a judicial proceeding,
regardless of whether the act involves a defamatory statement
or other tortious behavior . . . so long as the act has some
relation to the proceeding.” Levin, Middlebrooks,
Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins.
Co., 639 So.2d 606, 608 (Fla. 1994). The Florida Supreme
Court has held that the litigation privilege applies to
common law causes action as well as statutory causes of
action. Echevarria, McCalla, Raymer, Barrett &
Frappier v. Cole, 950 So.2d 380, 384 (Fla. 2007)
(“we hold that the litigation privilege applies in all
causes of action, whether for common-law torts or statutory
litigation privilege applies to the state-law claims
adjudicated in federal court.” Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1274-75 (11th Cir. 2004)
(emphasis added citation omitted). The Court finds no merit
in the defendants' argument that Florida's litigation
privilege bars a claim of retaliation under the FLSA, a
federal statute. See Ramos v. Hoyle, No. 08-21809, 2009 WL
2151305, at *1 (S.D. Fla. July 16, 2009) (J. Martinez)
(“declin[ing] to find that th[e] state privilege
extends to bar Plaintiffs federal cause of action for
retaliation under the FLSA.”); Pescatrice v.
Orovitz, 539 F.Supp.2d 1375, 1380 n.4 (S.D. Fla. 2008)
(J. Cohn) (stating that “[t]o the extent Defendants
argue that this proposed settlement offer is protected by a
state ‘absolute litigation privilege' for
statements made during litigation, that privilege would only
apply to state court claims, and not the [Fair Debt
Collection Practices Act].”). The defendants are not
entitled to the dismissal of the plaintiff's retaliation
claims on this ground. Accordingly, it is
AND ADJUDGED that the Defendants' Motion to Dismiss
Counts V, VI, VII and VIII of the Plaintiff's Amended
Complaint and Incorporated ...