United States District Court, S.D. Florida
WALTER ALTARE, and all others similarly situated under 29 U.S.C. 206b, Plaintiff,
VERTICAL REALITY MFG, INC., a Florida Limited Liability Company, KENNETH A. SHARKEY, individually, Defendants.
P. GAYLES UNITED STATES DISTRICT JUDGE
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.
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.
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.]
moved to dismiss Plaintiff's Complaint, and the Motion is
now ripe for the Court's review.
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.
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
Counts I and II - Recordkeeping and Notice
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
did not seek dismissal of Counts I and II's allegations
of overtime payment violations, however, and consequently
those claims remain.
Counts III and IV - ...