Lorenzo v. Levy

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 24-CV-24647-WILLIAMS/GOODMAN

MADELIN LORENZO,

Plaintiff,

v.

TESSA LEVY, et al.,

Defendants.

________________________________/

REPORT AND RECOMMENDATIONS ON

SUA SPONTE DISMISSAL OF PLAINTIFF’S COMPLAINT

In this Fair Labor Standards Act, 29 U.S.C. § 203, et seq., (“FLSA”) action, Madelin

Lorenzo (“Plaintiff” or “Lorenzo”) filed a pro se1 Application to Proceed in District Court

Without Prepaying Fees or Costs (Long Form) [ECF No. 3] and a Complaint [ECF No. 1

(“Complaint”)]. United States District Judge Kathleen M. Williams referred “all discovery

disputes and non-dispositive pretrial motions” to the Undersigned. [ECF No. 5].

1 “‘Pro se pleadings are held to a less stringent standard than pleadings drafted by

attorneys’ and are liberally construed.” Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.

2011) (quoting Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)). Liberal

construction, however, does not mean that a court may “act as de facto counsel or rewrite

an otherwise deficient pleading to sustain an action.” Bilal v. Geo Care, LLC, 981 F.3d 903,

911 (11th Cir. 2020).

For the reasons stated herein, the Undersigned respectfully recommends that the

District Court dismiss without prejudice Plaintiff’s Complaint [ECF No. 1] for failure to

state a claim.

I. Background

On November 26, 2024, Plaintiff filed a Complaint [ECF No. 1], using a fill-in-the-

blanks template.2 The Complaint’s caption lists “Happy Corner Hospitality Group LLC”

and “Motek Gables LLC” as Defendants. Id. at 1. But under the section titled “The

Defendant(s)[,]” Plaintiff names “Tessa Levy” and “Krizia Celero” as Defendants and

does not list the two entities. Id. at 2.

In the section titled “Basis for Jurisdiction,” Plaintiff checks boxes for the FLSA,

“Relevant state law,” and “Relevant city or county law,” but the Complaint relies solely

on the FLSA, without any citations or references to Florida (state, city, or county) law.

Plaintiff alleges that she was employed at a hospitality/restaurant/food and

beverage business, as an “Opening General Manager” from January 21, 2023 through

March 27, 2023. Id. at 3. She states that she earned a $75,000 salary, for which she received

weekly payment. Id. at 4. She worked 90 hours per week, over a six to seven-day

workweek. Id.

Plaintiff accuses Defendants of failing to pay overtime, which she describes as

2 On the same day, Plaintiff filed an age discrimination Complaint against the same

Defendants, stemming from the termination of her employment. See 24-cv-24650-JB

Lorenzo v. Happy Corner Hospitality Group LLC et al. (filed Nov. 26, 2024).

“[h]ours worked over 55 weekly.”3 Id. She further alleges that Defendants engaged in:

(1) “[t]ampering of wages/timesheet, from $75,000 salary to $70,000[;]” and (2) “time sheet

tampering from 90 to 55 weekly to avoid over time and compensation.” Id. She further

alleges that she was unable to cash some of her paychecks: “[w]ages of week 03/20 –

[0]3/26/2023 unable to cash, wages have been unpaid since.” Id.

She alleges that the wage tampering occurred from January 2023 through March

2023 and she was unable to cash “check 1043” in the amount of $1,122.91 in August 2023.

Id. In the relief section of her Complaint, Plaintiff states that she has “unpaid wages of

$1,122.91 since 4/7/2023” and seeks: (1) “three times 4 the amount of the unpaid

wages[;]”(2) “overtime compensation of 40 hours5 at $45 an hour[;]”and (3) “damages for

3 The FLSA defines “overtime” as work in excess of forty (40) hours per week. See

29 U.S.C. § 207(a)(1)). It is unclear from Plaintiff’s Complaint whether she is alleging that

she was paid overtime for the first 15 hours (i.e., 55 minus 40) and is seeking overtime

pay for the remaining 35 hours (i.e., 90 minus 55). Plaintiff will need to clarify her unpaid

overtime claim, if she decides to file an amended complaint.

4 It is unclear why Plaintiff believes she would be entitled to triple the amount of

unpaid overtime. The FLSA permits an employee to recover her “unpaid overtime wages

and an equal amount of liquidated damages if the failure to pay overtime wages is

found to be willful.” Keeley v. John’s Green House, Inc., No. 6:22-CV-721-WWB-DCI, 2024

WL 2874637, at *3 (M.D. Fla. Mar. 26, 2024), report and recommendation adopted, No. 6:22-

CV-721-WWB-DCI, 2024 WL 2874625 (M.D. Fla. May 5, 2024) (emphasis added). Here,

the Complaint contains no allegations of willfulness and, in any event, Plaintiff would

not be entitled to recover triple her unpaid overtime (i.e., no provision for treble

damages).

5 It is unclear how Plaintiff arrives at this “40 hours” figure, given that she alleges

that she worked 90 hours per week (90 hours minus 40 hours would be 50 hours of

overtime) and, in another part of her Complaint, she alleges Defendants failed to pay

the unpaid wages, overtime hour compensation and [unspecified] damages.” Id. at 5

(footnotes added).

II. Applicable Legal Standards

As noted above, Plaintiff has moved to proceed in forma pauperis. [ECF No. 3]. The

Court has an obligation to review the complaint brought by a party seeking to proceed in

forma pauperis. 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint “is

frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks

monetary relief against a defendant who is immune from such relief,” then the Court

shall dismiss the case at any time. Id.

A complaint is frivolous when “it lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). “Factual frivolity means ‘clearly baseless’ on

the facts, and legal frivolity means an ‘indisputably meritless’ legal theory.” Shell v. Von

Saal, No. 08-61154, 2009 WL 960809, at *1–2 (S.D. Fla. Apr. 7, 2009) (quoting Neitzke, 490

U.S. at 327).

A litigant’s history of bringing unmeritorious litigation can also be considered in

assessing frivolousness. Bilal v. Driver, 251 F.3d 1346, 1350 (11th Cir. 2001). This is because

28 U.S.C. § 1915 “‘represents a balance between facilitating an indigent person’s access to

the courts and curbing the potentially vast number of suits by such persons, who, unlike

“[h]ours worked over 55 weekly” meaning 35 hours of overtime (90 hours minus 55

hours). Any amended complaint must consistently and more-carefully allege the amount

of overtime hours Plaintiff believes she is due.

those who must pay in order to litigate their claims, have no economic disincentives to

filing frivolous or malicious suits once in forma pauperis status is granted.’” Shell, 2009 WL

960809, at *2 (quoting Herrick v. Collins, 914 F.2d 228, 229 (11th Cir. 1990)).

“The language of section 1915(e)(2)(B)(ii) tracks the language of Federal Rule of

Civil Procedure 12(b)(6), and [courts] will apply Rule 12(b)(6) standards in reviewing

dismissals under section 1915(e)(2)(B)(ii).” Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th

Cir. 1997). In reviewing a motion to dismiss under Rule 12(b)(6), a court must take all

well-pleaded facts in the plaintiff’s complaint and all reasonable inferences drawn from

those facts as true. Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994).

To state a claim for relief, a pleading must contain: “(1) a short plain statement of

the grounds for the court’s jurisdiction[;] . . . (2) a short and plain statement of the claim

showing that the pleader is entitled to relief; and (3) a demand for the relief sought[.]”

Fed. R. Civ. P. 8(a). Thus, “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)).

III. Analysis

A. Plaintiff’s Complaint Should Be Dismissed Without Prejudice

i. Shotgun Pleading

The Eleventh Circuit has stated that the purpose of Federal Rules of Civil

Procedure 8 and 10 is to “require the pleader to present his claims discretely and

succinctly, so that his adversary can discern what he is claiming and frame a responsive

pleading.” See Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021) (quoting Weiland

v. Palm Beach Cnty. Sherriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015)). Complaints that

violate Rule 8 or Rule 10 are termed “shotgun pleadings,” and the Eleventh Circuit has

consistently condemned such pleadings for more than three decades. See Davis v. Coca-

Cola Bottling Co. v. Consol, 516 F.3d 955, 979–80 & n.54 (11th Cir. 2008) (collecting cases)

(abrogated on other grounds).

There are four types of shotgun pleadings:

The most common type—by a long shot—is a complaint containing

multiple counts where each count adopts the allegations of all preceding

counts, causing each successive count to carry all that came before and the

last count to be a combination of the entire complaint. The next most

common type . . . is a complaint that does not commit the mortal sin of re-

alleging all preceding counts but is guilty of the venial sin of being replete

with conclusory, vague, and immaterial facts not obviously connected to

any particular cause of action. The third type of shotgun pleading is one

that commits the sin of not separating into a different count each cause of

action or claim for relief. Fourth, and finally, there is the relatively rare sin

of asserting multiple claims against multiple defendants without

specifying which of the defendants are responsible for which acts or

omissions, or which of the defendants the claim is brought against.

Weiland, 792 F.3d at 1321–23 (footnotes omitted; emphasis added).

“The Eleventh Circuit has repeatedly and unequivocally condemned shotgun

pleadings as a waste of judicial resources.” Finch v. Carnival Corp., No. 23-CV-21704, 2023

WL 7299780, at *4 (S.D. Fla. Nov. 6, 2023). “Shotgun pleadings, whether filed by plaintiffs

or defendants, exact an intolerable toll on the trial court’s docket, lead to unnecessary and

unchanneled discovery, and impose unwarranted expense on the litigants, the court and

the court’s para-judicial personnel and resources. Moreover, justice is delayed for the

litigants who are ‘standing in line,’ waiting for their cases to be heard.” Id. (quoting

Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1356–57 (11th Cir. 2018)).

A district court’s inherent authority to control its docket includes the ability to

dismiss a complaint on shotgun pleading grounds. Vibe Micro, Inc. v. Shabanets, 878 F.3d

1291, 1295 (11th Cir. 2018) (citing Weiland, 792 F.3d at 1320). The Eleventh Circuit has also

noted that district courts should require a plaintiff to replead a shotgun complaint even

when the defendant does not seek such relief. See Hirsch v. Ensurety Ventures, LLC, No.

19-13527, 2020 WL 1289094 at *3 (11th Cir. Mar. 18, 2020).

Plaintiff’s Complaint is a shotgun pleading because it seeks to allege claims under

the FLSA, “[r]elevant state law[,]” and “[r]elvant city or county law” -- Plaintiff fails to

specify what the relevant state, city, and/or county law(s) are -- against presumably6 four

Defendants (Happy Corner Hospitality Group LLC, Motek Gables LLC, Tessa Levy, and

Krizia Celero), but she does not specify what each Defendant did or did not do and what

claim(s) are brought against which Defendant.

Because Plaintiff’s Complaint is a shotgun pleading, the Undersigned respectfully

recommends that Judge Williams dismiss it without prejudice and with leave to amend.

6 As noted above, Plaintiff names two Defendants (Happy Corner Hospitality

Group LLC and Motek Gables LLC) in the caption and two different Defendants (Tessa

Levy, and Krizia Celero) in the body of the Complaint. [ECF No. 1, pp. 1–2].

ii. Failure to State a Claim Under the FLSA

“Because the screening provisions of 28 U.S.C. § 1915(e)(2) apply to [in forma

pauperis motions], the Court first reviews the Complaint to determine whether it is

frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks

monetary relief against a defendant who is immune from such relief.” Emrit v. Univ. of

Miami Sch. of Law, et al., No. 23-CV-20847, 2023 WL 2374441, at *3 (S.D. Fla. Mar. 6, 2023).

As this Court has explained:

“[T]he requirements to state a claim of a[n] FLSA violation are quite

straightforward.” Sec’y of Labor v. Labbe, 319 F. App’x 761, 763 (11th Cir.

2008). To state a claim under the FLSA for unpaid wages, an employee

must allege (1) an employment relationship; (2) that the employer or

employee engaged in interstate commerce; and (3) that the employer

failed to pay overtime compensation and/or minimum wages. See Morgan

v. Family Dollar Stores, 551 F.3d 1233, 1277 n.68 (11th Cir. 2008). The FLSA

provides for two forms of coverage, individual coverage and enterprise

coverage. Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 1265–66 (11th

Cir. 2006) (“Under [the] FLSA, an employer is required to pay overtime

compensation if the employee can establish enterprise coverage or

individual coverage.”); Polycarpe v. E&S Landscaping Serv., Inc., 616 F.3d

1217, 1220 (11th Cir. 2010) (noting that “either individual coverage or

enterprise coverage can trigger the Act’s applicability”).

“For individual coverage to apply under [the] FLSA, [the plaintiff] must

[ ] provide[ ] evidence . . . that he was (1) engaged in commerce or (2)

engaged in the production of goods for commerce.” Thorne, 448 F.3d at

1266 (citing 29 U.S.C. § 207(a)(1)). “[F]or an employee to be ‘engaged in

commerce’ under the FLSA, he must be directly participating in the actual

movement of persons or things in interstate commerce by[:] (i) working for

an instrumentality of interstate commerce, e.g., transportation or

communication industry employees, or (ii) by regularly using the

instrumentalities of interstate commerce in his work, e.g., regular and

recurrent use of interstate telephone, telegraph, mails, or travel.” Id.

(citation omitted).

***

With respect to enterprise coverage, “[a]n employer falls under the

enterprise coverage section of the FLSA if it 1) ‘has employees engaged

in commerce or in the production of goods for commerce, or that has

employees handling, selling, or otherwise working on goods or materials

that have been moved in or produced for commerce by any person’ and

2) has at least $500,000 of ‘annual gross volume of sales made or business

done.’” Polycarpe, 616 F.3d at 1220 (quoting 29 U.S.C. § 203(s)(1)(A)). . . . See

[id.] (“if an employer had two or more workers engaged in commerce or the

production of goods for commerce, FLSA coverage extended to all of the

enterprise’s employees[ ]”) (citing Dunlop v. Industrial Am. Corp.[,] 516 F.2d

498, 500–01 (5th Cir. 1975)).

Ray v. Adams & Assocs., Inc., 599 F. Supp. 3d 1250, 1256–57 (S.D. Fla. 2022) (emphasis and

some alterations added).

Here, Plaintiff’s fill-in-the-blanks Complaint [ECF No. 1] contains no allegations

establishing either enterprise coverage or individual coverage. Therefore, as pled,

Plaintiff’s FLSA claim fails to state a claim under Fed. R. Civ. P. 12(b)(6).

The Complaint also fails to allege an employment relationship between Lorenzo

and any of the four Defendants, alleging (at most) that Plaintiff’s place of employment

was at “Motek Gables” but not specifically identifying Motek Gables, LLC (or any of the

other three Defendants) as an FLSA employer.

The FLSA defines an “employee” as “any individual employed by an employer.”

29 U.S.C. § 203(e)(1). An “employer” is: (1) the company for whom the employee directly

works; and (2) any person who a) acts on behalf of that employer and b) asserts control

over conditions of the employee’s employment.” Josendis v. Wall to Wall Residence Repairs,

Inc., 662 F.3d 1292, 1298 (11th Cir. 2011). “If a covered employee is not paid the statutory

wage, the FLSA creates for that employee a private cause of action against his

employer[.]” Id. (citations omitted). Any amended complaint must allege sufficient facts

establishing that each Defendant qualifies as an “employer,” as that term is defined by

the FLSA.

Plaintiff also fails to adequately plead this Court’s subject-matter jurisdiction. See

Frusner v. Epic Landscaping, Inc., No. 23-CV-61195-RS, 2023 WL 11878202, at *2 (S.D. Fla.

Nov. 14, 2023) (noting that “[t]o establish subject matter jurisdiction under the FLSA, a

plaintiff must establish some connection to interstate commerce” and that “either

enterprise coverage or individual coverage is sufficient to do so under the FLSA” (citing

Polycarpe, 616 F.3d at 1220)).

Additionally, to the extent Plaintiff seeks to bring claims under Florida law

(whether based on state, city, or county law(s)), Plaintiff must specifically identify the

source(s) of her cause(s) of action and comply with any pre-suit notice requirements.

Similarly, to the extent Plaintiff seeks to bring a common law claim, Plaintiff must

specifically plead that common law cause of action and allege sufficient facts establishing

all the necessary elements.

Lastly, the Undersigned notes that Plaintiff describes her pay as a “salary” and

alleges that her employer(s) engaged in “[t]ampering of wages/timesheet, from $75,000

salary to $70,000[.]” [ECF No. 1, p. 4]. But “the FLSA does not create a federal cause of

action for failure to pay an agreed upon salary[.]” Arroyo v. Steps to Recovery, Inc., No.

8:23-CV-0209-KKM-SPF, 2023 WL 2561538, at *1 (M.D. Fla. Mar. 17, 2023). Moreover,

“‘[a]ctions for unpaid wages are typically pled as breach of contract claims wherein the

agreement in question happens to be an employment or compensation contract.’”

Thompson v. Connect Sols. Worldwide, LLC, No. 23-14349-CIV, 2024 WL 5058138, at *3 (S.D.

Fla. Sept. 25, 2024) (quoting Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1271 (11th Cir.

2009)).

For these reasons, the Undersigned respectfully recommends that Judge Williams

dismiss without prejudice Plaintiff’s Complaint [ECF No. 1].

B. Plaintiff’s Motion to Proceed in Forma Pauperis Should Be Denied

without Prejudice

Pending before this Court is Plaintiff’s motion to proceed in forma pauperis [ECF

No. 3]. The Undersigned respectfully recommends that Judge Williams deny as moot

Plaintiff’s motion without prejudice and with leave to renew, if necessary. Plaintiff

should be permitted to re-file her motion to proceed in forma pauperis, if and when she

files an amended complaint.

[Note: This Report and Recommendations does not substantively conclude that

Plaintiff, in fact, has viable factual and legal grounds to file an amended complaint. It

merely recommends that Plaintiff be given the opportunity to do so if she can do so

consistent with her obligations under Federal Rule of Civil Procedure 11.7 If she cannot,

then (obviously) she should not file an amended complaint. Resources and information

related to proceeding in court without a lawyer are available on the Court’s website

(https://www.flsd.uscourts.gov/filing-without-attorney).].

IV. Conclusion

For the reasons stated above, the Undersigned respectfully recommends that the

Complaint [ECF No. 1] be sua sponte dismissed without prejudice and that Plaintiff’s

motion to proceed in forma pauperis [ECF No. 3] be denied as moot without prejudice

and with leave to renew, if and when an amended complaint is filed.

V. Objections

The parties will have fourteen (14) days from the date of being served with a copy

of this Report and Recommendations within which to file written objections, if any, with

United States District Judge Kathleen M. Williams. Each party may file a response to the

other party’s objection within fourteen (14) days of the objection. Failure to file objections

timely shall bar the parties from a de novo determination by the District Judge of an issue

covered in this Report and Recommendations and shall bar the parties from attacking on

appeal any factual or legal conclusions contained in this Report and Recommendations

and to which they did not object, except upon grounds of plain error if necessary in the

7 “Rule 11 of the Federal Rules of Civil Procedure applies to all papers filed in

federal court, including those filed pro se.” Maldonado v. Baker Cnty. Sheriff’s Off., 23 F.4th

1299, 1306 (11th Cir. 2022).

interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley

v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); CTA11 Rule 3-1.

RESPECTFULLY RECOMMENDED in Chambers, in Miami, Florida, on January

6, 2025.

Jonathan Goodman

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable Kathleen M. Williams

Counsel of Record

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