United States District Court, S.D. Florida
ORDER DENYING MOTION TO DISMISS COUNTERCLAIM
N. Scola, Jr. United States District Judge
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.)
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.
Dismissal of Counterclaims
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,
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).
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
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.
Striking affirmative defenses
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).
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.).
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