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Angulo v. Il Gabbiano Miami, LLC

United States District Court, S.D. Florida

October 25, 2019

Everth Issac Angulo, Plaintiff,
v.
Il Gabiano Miami, LLC and others, Defendants.

          ORDER DENYING MOTION TO DISMISS COUNTERCLAIM

          Robert N. Scola, Jr. United States District Judge

         This matter is before the Court on Plaintiff/Counter-Defendant's motion to dismiss Il Gabiano's Counterclaim. (ECF No. 31.) The Defendant filed a response (ECF No. 32) and the Plaintiff replied. (ECF No. 37.) Upon review of the record, the parties' briefs, and the relevant legal authorities, the Court denies the Plaintiff's motion. (ECF No. 31.)

         I. Background

         Plaintiff Everth Issac Angulo filed a complaint against his former employer, Il Gabiano, for unpaid overtime wages under the FLSA. (ECF No. 1.) The Plaintiff worked as an appetizer and salad preparer from 2007 to 2019. (Id. at ¶ 11.) On July 29, 2019, Il Gabiano filed a four-count counterclaim against Angulo for conversion, fraud in the inducement, unjust enrichment, and civil theft. (ECF No. 30.) According to the allegations in the counterclaim, Il Gabiano had agreed to pay Angulo $1100 per week. (Id. at ¶ 9.) Based on the going rate for salad preparers in South Florida, this was approximately $200 more per week than Angulo would have received if he was paid the regular $13 per hour for the first 40 hours of work and $19.50 per hour for the 20 hours of overtime that Angulo agreed to work. (Id. at ¶ 10.) Il Gabiano claims that it overpaid Angulo in the amount of $39, 446.71. Angulo now moves to dismiss Il Gabiano's counterclaim.

         II. Legal Standard

         A. Dismissal of Counterclaims

         “A motion to dismiss a counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6) is evaluated in the same manner as a motion to dismiss a complaint.” Bank of Am., N.A. v. GREC Homes IX, LLC, No. 13-21718-CIV, 2014 WL 351962, at *3-4 (S.D. Fla. Jan. 23, 2014) (Altonaga, J.) (citation omitted). When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all of the Complaint's allegations as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A plaintiff must articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Thus, a pleading that offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” will not survive dismissal. See Twombly, 550 U.S. at 555. “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 679.

         Yet, where the allegations “possess enough heft” to suggest a plausible entitlement to relief, the case may proceed. See Twombly, 550 U.S. at 557. “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence' of the required element.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008). “And, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.'” Twombly, 550 U.S. at 556.

         B. Striking affirmative defenses

         Federal Rule of Civil Procedure 12(f) provides that a court may “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” A court has broad discretion in ruling on a motion to strike. Badilo v. City of Deerfield Beach, No. 13-60057-CIV, 2013 WL 3762338, at *1 (S.D. Fla. July 16, 2013) (Rosenbaum, J.). “Striking allegations from a pleading, however, ‘is a drastic remedy to be resorted to only when required for the purposes of justice' and only when the stricken allegations have ‘no possible relation to the controversy.'” Id. (quoting Augustus v. Bd. of Pub. Instruction of Escambia Cty., Fla., 306 F.2d 862, 868 (5th Cir. 1962)). In addition, “pleadings are only allegations, and allegations are not evidence of the truth of what is alleged.” Wright v. Farouk Sys., Inc., 701 F.3d 907, 911 n. 8 (11th Cir. 2012).

         Nevertheless, affirmative defenses will be stricken if insufficient as a matter of law. See Morrison v. Exec. Aircraft Refinishing, Inc., 434 F.Supp.2d 1314, 1319 (S.D. Fla. 2005) (Ryskamp, J.).

         C. Analysis

         The parties' main dispute centers on whether Il Gabiano's counterclaim is compulsory or permissive. Angulo argues that Il Gabiano's counterclaim is permissive and the Court should not exercise supplemental jurisdiction over such claims. (ECF No. 31.) In response, Il Gabiano argues that its ...


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