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Altare v. Vertical Reality Mfg, Inc.

United States District Court, S.D. Florida

January 14, 2020

WALTER ALTARE, and all others similarly situated under 29 U.S.C. 206b, Plaintiff,
v.
VERTICAL REALITY MFG, INC., a Florida Limited Liability Company, KENNETH A. SHARKEY, individually, Defendants.

          ORDER

          DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE

         THIS CAUSE comes before the Court upon Defendants' Motion to Dismiss Plaintiff's Complaint (the “Motion”). [ECF No. 10]. The Court has reviewed the Motion and the record and is otherwise fully advised. For the reasons that follow, the Motion is granted in part and denied in part.

         FACTUAL BACKGROUND

         This is an action for minimum wage and overtime violations under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). Plaintiff Walter Altare sued Defendants Vertical Reality MFG, Inc., (“Vertical”) and Kenneth A. Sharkey (“Sharkey”) alleging that they did not adequately compensate him for the hours he worked.

         Plaintiff was employed by Vertical between January 2004 and the fall of 2018. [ECF No. 1, ¶ 14]. Sharkey was a corporate officer of Vertical. [Id. ¶ 5]. Plaintiff earned an average of $19.00 per hour. [Id. ¶ 15]. He “routinely worked . . . approximately seventy (70) hours per week comprised of forty (40) hours of regular time and an average thirty (30) hours of overtime per week.” [Id. ¶ 16]. His overtime rate was $28.50 per hour. [Id. ¶ 18]. Plaintiff claims that Defendants were aware of the hours he worked and failed to pay him the federally required minimum and overtime rates for these hours. [Id. ¶ 19.] Plaintiff also claims that similarly situated employees were likewise not fairly compensated for their work. [Id. ¶ 22.]

         Defendants moved to dismiss Plaintiff's Complaint, and the Motion is now ripe for the Court's review.

         LEGAL STANDARD

         To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint “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)). A claim is considered facially plausible when the court is able to draw a reasonable inference that the defendant is liable based on the factual content pleaded by the plaintiff. Id. The “plausibility standard” requires that there be “more than sheer possibility that a defendant acted unlawfully.” Id. A determination of a claim's plausibility “is a context-specific task that requires the reviewing court to draw on its judicial experiences and common sense.” Id. at 679. It is not enough for a complaint to recite the statutory elements of a cause of action. Id. at 678. Allegations within a complaint must be more than conclusory and must have a factual basis. Id. at 679.

         When reviewing a motion to dismiss, courts accept the allegations as presented in the complaint as true and view those facts “in the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). In addition, the Court “may always consider exhibits attached to the complaint on a 12(b)(6) motion, because exhibits are part of the pleadings.” Basson v. Mortgage Electronic Registration Systems, Inc., 741 Fed.Appx. 770, 771 (11th Cir. 2018). The issue before the Court is “‘not whether [Plaintiff] will ultimately prevail' . . . but whether his complaint [is] sufficient to cross the federal court's threshold.” Skinner v. Switzer, 562 U.S. 521, 529-30 (2011) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

         DISCUSSION

         I. Counts I and II - Recordkeeping and Notice Violations

         Defendants seek to dismiss Counts I and II to the extent Plaintiff attempts to state a claim for failure to keep adequate records or inform employees of their federal rights to overtime and/or minimum wages. Plaintiff did not respond to this argument and, consequently, the Court deems any response waived. See Five for Entm't S.A. v. Rodriguez, No. 11-cv-24142, 2013 WL 4433420, at *14 (S.D. Fla. Aug. 15, 2013) (“A failure to address issues in response to a motion is grounds for finding that the claims have been abandoned.”).

         Defendants did not seek dismissal of Counts I and II's allegations of overtime payment violations, however, and consequently those claims remain.

         II. Counts III and IV - ...


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