Saavedra v. DeBaldo et al, No. 8:2010cv01935 - Document 24 (M.D. Fla. 2011)
Court Description: ORDER granting 11 Motion to Dismiss for Lack of Jurisdiction. See order for details. Signed by Judge Elizabeth A. Kovachevich on 5/6/2011. (JM)
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Saavedra v. DeBaldo et al Doc. 24 UNITED STATES MIDDLE DISTRICT DISTRICT OF COURT FLORIDA TAMPA DIVISION ALINA LEZCANO SAAVEDRA, Plaintiff, CASE NO. v. 8:10-CV-1935-T-17TGW USF BOARD OF TRUSTEES and ANN DEBALDO, Defendants. ORDER This cause Dkt. Dkt. Dkt. 11 18 23 is before the Court on: Motion to Dismiss Second Amended Complaint Response Reply The Second Amended Complaint includes the following claims: Count I: Violation of FMLA, Count II: 2612, et seq. Public Policy Tort Count III: Breach of Contract 29 U.S.C. Sec. and Count IV: Declaratory Relief Misrepresentation and Deceit Count Intentional V: Infliction of Emotional Distress Count VI: Negligent Infliction of Emotional Distress In Count I, Plaintiff seeks statutory damages, damages, Count II, damages, equitable relief, liquidated and attorney's fees and costs. In Plaintiff seeks the relief in Count I, and compensatory punitive damages, interest and court costs. pre-judgment and post-judgment In Count III, judgment against both Defendants, above relief, Plaintiff seeks a jointly and severally, and for a declaration of the rights, for the duties and Dockets.Justia.com Case No. 8:10-CV-1935-T-17TGW liabilities of the parties. In Count IV, Plaintiff seeks a judgment against both Defendants, severally, for compensatory damages, and attorney's fees and costs. judgment against both Defendants, Counts. I. and jointly and interest, Plaintiff seeks a individually, and jointly and for damages and losses as requested in the previous Plaintiff requests a jury trial. Standard of A. individually, In Count VI, interests, Plaintiff seeks a for damages as requested in previous Counts, and attorney's fees and costs. severally, punitive damages, In Count V, judgment against both Defendants, severally, individually, and jointly and Review Subject Matter Jurisdiction A motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, be a facial attack or a factual attack. In a facial attack, factual allegations of the Complaint are taken as true. factual attack, Complaint, true. the In a the Court may consider matters outside the and is free to weigh evidence and satisfy itself as to the existence of its power to hear the case. attack, can In a factual the allegations of the Complaint are not presumptively Where the attack on jurisdiction implicates the merits of the plaintiff's federal cause of action, the Court should find that jurisdiction exists and deal with the objection as a direct attack on the merits of plaintiff's case, 12(b)(6) or Rule 56. proceeding under Rule The exceptions to this rule are narrowly drawn, and are intended to allow jurisdictional dismissals only in those cases where the federal claim is clearly immaterial or insubstantial. Cir.), cert, See Williamson v. Tucker, denied, 454 U.S. 897 (1981). 645 F.2d 404 (5th Case No. 8:10-CV-1935-T-17TGW 3. Failure to State a Claim "Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." "[D]etailed factual allegations" are not required, 544, 555 matter, (2007), Bell Atlantic v. Twombly, 550 U.S. but the Rule does call for sufficient factual accepted as true, to "state a claim to relief that is plausible on its face," Id., at 570. A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the misconduct alleged. underlie Twombly. the defendant Id., at 556. First, is liable for Two working principles the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, conclusory statements. Id., at 555. supported by mere Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense. Id. , at 556. A court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, entitled to the assumption of truth. provide the complaint's framework, factual allegations. allegations, are not While legal conclusions can they must be supported by When there are well-pleaded factual a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. See Ashcroft v. Iabal, 129 S.Ct. (2009)(quoting Bell Atlantic v. Twomblv. 3 1937, 1955-1956 550 U.S. 544 (2007). Case No. 8:10-CV-1935-T-17TGW II. Discussion Defendants move to dismiss the Second Amended Complaint under Fed.R.Civ.P. A. Count and 12(b)(6). Jurisdiction 1. 12(b)(1) I - FMLA Defendants move to dismiss Count I as to Defendant Ann DeBaldo in her individual capacity based on lack of subject matter jurisdiction. See Wascura v. Carver, 169 F.3d 683, 685 (11th Cir. 1999) . Plaintiff Saavedra opposes the dismissal of Count I as to Defendant DeBaldo in her individual capacity. There is a split of authority as to individual supervisory liability for FMLA violations. Carver, supra, Circuit. The Court notes that Wascura v. remains the controlling authority in the Eleventh The Court therefore grants the Motion to Dismiss Count I as to Defendant DeBaldo in her individual capacity. 2. Counts II, III, IV, Defendants move V and VI to dismiss Counts II, to Defendant USF Board of Trustees DeBaldo in her official capacity, immunity. III, ("USFBOT") IV, V and VI as and Defendant Ann based on Eleventh Amendment Defendants argue that USFBOT is a state agency entitled to immunity from suit for the above claims in federal court. Defendants further argue that Defendant DeBaldo, official capacity, is an agent of the state for Eleventh in her Case No. 8:10-CV-1935-T-17TGW Amendment purposes, above claims in and is entitled to immunity from suit for the federal court. Plaintiff Saavedra opposes Defendants' motion. Plaintiff Saavedra argues that Defendants are not entitled to Eleventh Amendment immunity as to Count I, violation of the FMLA. Plaintiff Saavedra further argues that Eleventh Amendment immunity does not automatically extend to Plaintiff's pendent state claims, Counts II, III, IV, V and VI. In Counts II through VI, Plaintiff Saavedra seeks the award of damages against Defendants USFBOT and Ann DeBaldo in her official capacity, in addition to other relief. The Eleventh Amendment prohibits federal courts from exercising subject matter jurisdiction in suits brought against a state by a citizen of that state. The Eleventh Amendment extends to state agencies and other arms of the state. State agencies are immune from suit under the Eleventh Amendment unless their immunity is either waived by the state or abrogated by Congress. Dept. of Health and Rehabilitative Services, Gamble v. Fla. 779 F.2d 1509, 1511 (11th Cir. 1986) (citing Edelman v. Jordan, 415 U.S. 651 (1974)). The Court takes judicial notice of Florida Board of Governors Regulation 1.001(2) (g), which provides that: "Each board of trustees shall be primarily acting as an instrumentality of the state pursuant to s. 768.28, purposes of sovereign immunity." Florida Statutes, for Any award of damages against Defendant USFBOT would come from the State of Florida. Any award of damages as to Defendant DeBaldo in her official capacity would come from the State of Florida. Case No. 8:10-CV-1935-T-17TGW In Schopler v. Bliss, 903 F.2d 1373, 1379 (11th Cir. 1990), the Eleventh Circuit Court of Appeals states: In order to constitute waiver of Eleventh Amendment immunity from suit in federal court, however, a state statute must employ language that is either explicit or else admits of no other reasonable interpretation... Evidence that a state has waived sovereign immunity in its own courts is not by itself sufficient to establish v/aiver of Eleventh Amendment immunity from suit that in federal court....This court has held section 768.28 does not waive Florida's Eleventh Amendment immunity... To the contrary, subsection 768.28(16) declares the legislature's intention that Florida statutes not be construed to waive Eleventh Amendment immunity unless they explicitly waive immunity from suit in federal court. (Internal citations omitted). Florida has not waived Eleventh Amendment immunity from suit in federal court as to Counts II, consideration, Counts II, III, IV, the Court grants Defendants' III, IV, State V and VI. After Motion to Dismiss V and VI based on Eleventh Amendment immunity. B. Failure to 1. Count - I a Claim FMLA Defendants move to dismiss Count I because Plaintiff Saavedra does not allege facts that establish Plaintiff is an eligible employee for FMLA purposes, and because Plaintiff does not allege facts which identify the family member and serious Case No. 8:10-CV-1935-T-17TGW health condition. Plaintiff Saavedra denies that the Second Amended Complaint is insufficient or formulaic, or that there are inadequate facts setting forth a proper cause of action. Plaintiff Saavedra requests leave to amend in the event that the Court determines the pleadings are inadequate to support any particular cause of action. The FMLA grants an eligible employee the right to take up to twelve workweeks of unpaid leave annually for any one or more of several reasons, including the care of a spouse, parent of the employee. See 29 U.S.C. son, 2612(a)(1)(C). daughter or An "eligible employee" means an employee who has been employed: i) for at least 12 months by the employer with respect to whom leave is requested under Section 2612; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period. See 29 U.S.C. Sec. 2611(2)(A) There are two types of claims under the FMLA, claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights, claims, "interference and retaliation in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act." Birmingham, Strickland v. Water Works & Sewer Bd. Of 239 F.3d 1199, 1206 (11th Cir. 2001). The FMLA provides that "any employer" who interferes with or denies any rights provided to an employee under the FMLA is liable for damages. See 29 U.S.C. 2617(a) (2008) . The FMLA defines "employer" as "any person engaged in commerce or in any industry affecting commerce who employs 50 or more employees for each Case No. 8:10-CV-1935-T-17TGW working day during each of 20 or more calendar workweeks in the current or preceding calendar year." See 29 U.S.C. Sec. 2611(4) (A) (i) (2008) . To establish an interference claim, "an employee need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied." Strickland at 1207. To establish a prima facie case of FMLA retaliation, plaintiff must show: 1) a that he engaged in statutorily protected activity; 2) he experienced an adverse employment action; and 3) there is a causal connection between the protected activity and the adverse action. Inc. , 439 F.3d 1286, Hurlbert 1297 v. St. (ll,h Cir. Mary's 2006). In the Second Amended Complaint, that 1) Health Care System, Plaintiff Saavedra alleges Plaintiff commenced her employment with Defendants on or about July 25, 2008; 2) on various dates in November of 2008, Plaintiff took a qualified leave from work in accordance with the FMLA; 3) March 16, Commencing on January 2, 2009 and continuing through 2009, Plaintiff took a second qualified leave from work which included sick leaves, leave; 4) vacation time and FMLA-qualified Upon Plaintiff's return to work, Plaintiff indicated Plaintiff was still dealing with one or more sick and critically ill family members at home; 5) Upon Plaintiff's return and continuing through June 30, 2009, Plaintiff was hassled about taking FMLA leave and other terms and conditions regarding her job (Dkt. 6, p 2). After consideration, the Court finds that Plaintiff has not Case No. 8:10-CV-1935-T-17TGW alleged facts that show Plaintiff was an eligible employee or facts which identify the family member for which Plaintiff took leave as Plaintiff's parent, child or spouse, and which identify the serious health condition. Motion to Dismiss, The Court grants Defendants' with leave to file a Third Amended Complaint within fourteen days. Defendants also move to dismiss Count I as to Defendant DeBaldo in her official capacity as duplicative of Plaintiff's claim against Defendant USFBOT. Since Plaintiff Saavedra named Plaintiff's employer as a Defendant, it is not necessary to also name Defendant DeBaldo as agent of the employer. Schopler v. Bliss, 903 F.2d 1373 (11th Cir. 1990); Busbv v. Citv of Orlando, 931 D.2d 784 (11th Cir. grants Defendants' 1991). After consideration, the Court Motion to Dismiss as to Defendant DeBaldo in her official capacity as to Count I. 2. Count II - Public Policy Tort Defendants seek dismissal of Count II with prejudice because Florida does not recognize a common law cause of action for wrongful or retaliatory discharge, and there is no specific statutory authority granting a cause of action for wrongful or retaliatory discharge. A common law cause of action for retaliatory or wrongful discharge does not exist in Florida. Club, Inc., 476 So.2d 1327 (Fla. See Hartley v. Ocean Reef 3d DCA 1985). Granting leave to Plaintiff Saavedra to amend Count II would 9 Case No. 8:10-CV-1935-T-17TGW be futile. After consideration, the Court grants Defendants' Motion to Dismiss Count II with prejudice. 3. Count III - Breach of Contract and Declaratory Relief Defendants move to dismiss for failure to state a claim because Plaintiff Saavedra does not specify the essential terms of any agreements entered into with Plaintiff by Defendants. Defendants move to dismiss the Count III as in her individual capacity with prejudice, to Defendant DeBaldo as Plaintiff Saavedra does not allege the existence of any express or implied contract between Plaintiff Saavedra and Defendant DeBaldo in her individual capacity, but only express or implied promises that related to Plaintiff's employment with Defendant USFBOT. Defendants argue that the only authority Defendant DeBaldo had over the terms and conditions of Plaintiff Saavedra's employment stemmed from Defendant DeBaldo's official capacity as an employee of the University. Defendants further argue that, to the extent that Plaintiff alleges express or implied promises were made by Defendant DeBaldo, such promises could only have been made in her official capacity. Plaintiff Saavedra has requested leave to amend; however, accepting as true that Defendants made promises to Plaintiff Lezcano related to Plaintiff's employment, it would be futile to grant leave to amend Count III as to Defendant DeBaldo in her individual capacity. Defendants' After consideration, the Court grants Motion to Dismiss Count III with prejudice as to Defendant DeBaldo in her individual capacity. 10 Case No. 8:10-CV-1935-T-17TGW 4. Count IV - Misrepresentation and Deceit Defendants move to dismiss because Plaintiff Saavedra does not allege the elements of a claim for fraudulent misrepresentation. Defendants further move to dismiss because Plaintiff's allegations consist of bare legal conclusions without sufficient factual allegations which establish fraudulent misrepresentation. The Court notes that a claim for fraudulent misrepresentation is subject to the heightened pleading requirements of Rule 9(b), Inc. , 544 F.3d 1230, 1237 Fed.R.Civ.P. (ll"' Cir. Mizzaro v. Home Deoot, 2008). When pleading fraud, a plaintiff should specifically identify the individuals who made the alleged misrepresentations, the time of the alleged fraud, and the place of the alleged fraud. Raber v. Osorey, Inc., 1999). 187 F.R.D. 675, 680 Under Florida law, (M.D. Fla. a plaintiff must allege: 1) Alaska, a misrepresentation of a material fact; 2) which the person making the misrepresentation knew or should have known to be false; 3) that the misrepresentation was made for the purpose of inducing another person to rely upon it; 4) that the person relied on the misrepresentation to his detriment; and 5) caused damages. 51 (Fla. See Romo v. Amedex Ins. that this reliance Co., 930 So.2d 643, 650- 3d DCA 2006). After consideration, the Court grants Defendants' Motion to Dismiss, with leave to file a Third Amended Complaint within fourteen days as to Count IV. 11 Case No. 8:10-CV-1935-T-17TGW 5. Count V - Intentional Defendants Infliction of Emotional Distress seek to dismiss Plaintiff's claim for intentional infliction of emotional distress with prejudice because this is not a case involving both persistent verbal abuse coupled with repeated offensive physical contact. only "harassment before termination, Plaintiff Saavedra alleges humiliating treatment, extraordinary and irregular work assignments, excessive levels of micro-management and other forms of unorthodox workplace management." (Dkt. 6, par. 43). Defendants argue Plaintiff's allegations are not close to those which establish conduct "beyond all possible bounds of decency,... atrocious and utterly intolerable in a civilized community." Telephone and Telegraph Co., Callaway v. Hernandez, Mundy v. Southern Bell 676 F.2d 503, 2010 WL 1249936, 2010)(citing Bvrd v. BT Foods, Inc., 504 *10 (11!!' Cir. (M.D. 1982); Fla. 948 So.2d 921, 928 (Fla. 4th DCA 2007) . The issue before the Court is whether the allegations of the Second Amended Complaint rise to the level of "outrageous conduct" under state law. Fla. 1991). McCray v. Holt, See Ponton v. Scarfone, 2d DCA 2985) . 777 F.Supp. 468 So.2d 1009, 945 1011 (S.D. (Fla. Mere indignities and insults in the workplace do not rise to the level of "outrageous conduct" under Florida law. Even if every allegation of the Second Amended Complaint is accepted as true, the claim for intentional infliction of emotional distress is due to be dismissed. American Medical International, (Fla. 4th FCA 1987) . Inc., See e.g. Scheller v. 502 So.2d 1268, After consideration, the Court grants Defendants' Motion to Dismiss with prejudice. 12 1270-1271 Case No. 8:10-CV-1935-T-17TGW 6. Count VI - Negligent Infliction of Emotional Distress Defendants seek to dismiss Plaintiff's claim for negligent infliction of emotional distress because Plaintiff Saavedra includes no allegation of physical contact and resulting physical injury. Defendants argue that Plaintiff's claim does not fall within the narrow exceptions to the impact rule permitted by Florida law. Defendants also argue that Plaintiff's negligence claim is not based on underlying tort but only an alleged statutory violation, retaliation in violation of the FMLA. Count VI does not include allegations of emotional distress which flow from a physical injury sustained in a physical impact. After consideration, the Court grants Defendants' Motion to Dismiss with prejudice. C. Punitive Damages and Pre-judgment Interest Defendants USFBOT and Ann DeBaldo in her official capacity move to dismiss Plaintiff Saavedra's request for the av/ard of punitive damages in Count II and Plaintiff's request for the award of pre-judgment interest in Count II, 768.28(5), Florida Statutes based on the Sec. (2010). Based on the specific provisions of the statute, the Court grants Defendants' Motion to Dismiss as to punitive damages and pre-judgment interest in Count II. D. Attorney's Fees Defendants seek the dismissal 13 of Plaintiff Saavedra's Case No. 8:10-CV-1935-T-17TG\V request for the award of attorney's fees in Counts IV, V and VI, because those Counts are common law claims that do not support Plaintiff's request. Defendants argue no contractual agreement or statutory authority supports Plaintiff's request as to Counts IV, V and VI, Industries, and should be dismissed. Inc., 3 So.3d 1194, After consideration, 1198 Trytek v. Gale (Fla. 2009). the Court grants Defendants' Motion to Dismiss as to attorney's fees sought in Counts IV, V and VI. Accordingly, ORDERED it is that Defendants' Amended Complaint (Dkt. 1. Count Motion to Dismiss the Second 11) is granted as follows: I is dismissed as to Defendant DeBaldo in her individual capacity for lack of subject matter jurisdiction; 2. Counts II, III, IV, V and VI are dismissed as to Defendant USFBOT and Defendant DeBaldo in her official capacity, based on Eleventh Amendment immunity; 3. Count I is dismissed as to Defendant DeBaldo in her official capacity; 4. Count I to state a claim, is dismissed as to Defendant USFBOT for failure with leave to file an amended complaint within fourteen days; 5. Count II is dismissed with prejudice as a matter of law as to Defendant DeBaldo in her individual capacity; 14 Case No. 8:10-CV-1935-T-17TG W 6. Count III is dismissed with prejudice as to Defendant DeBaldo in her individual capacity; 7. Count IV is dismissed with leave to file an amended complaint within fourteen days as to Defendant DeBaldo in her individual capacity; 8. Count V is dismissed with prejudice as to Defendant DeBaldo in her individual capacity; 9. Count VI is dismissed with prejudice as to Defendant DeBaldo in her individual capacity; 10. As to Count II, Plaintiff's request for the award of punitive damages and pre-judgment interest is dismissed; 11. As to Counts IV, V and VI, Plaintiff's request for the award of attorney's fees is dismissed. NE AND ORDERED in Chambers, ay of May, 2011. Copies to: All parties and counsel of record 15 in Tampa, Florida on this
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