1:20-cv-20090
S.D. Fla.Dec 15, 2020Background
- Plaintiff Jarnise Barbour Taylor, an exotic dancer, alleges she worked at "Booby Trap on the River" (trade name of BT’s on the River, LLC) in 2018–2019 and claims FLSA and Florida minimum-wage violations, unlawful taking of tips, and illegal kickbacks/house fees.
- Defendants are a collection of corporate entities and individuals (including BT’s on the River, LLC; BTs North Inc.; Booby Trap, Inc.; Phillip Gori; Gregg Berger; and related entities), which Plaintiff alleges operated as a joint-employer adult-entertainment conglomerate.
- Plaintiff filed suit on January 9, 2020; first amended complaint was filed August 14, 2020. A co-plaintiff’s claims were compelled to arbitration, leaving Taylor as the sole plaintiff in federal court.
- Defendants moved to dismiss most counts against the non-BT entity defendants and to dismiss Counts III–V as not distinct FLSA causes; they also moved to dismiss the Florida constitutional minimum-wage claim (Count VI) for failure to allege the FMWA pre-suit notice.
- The Court granted in part and denied in part: it dismissed Counts I–V as to the non-BT entity defendants (keeping claims against BT’s on the River, LLC, Gori, Berger, and Does) and granted dismissal of Count VI as to all defendants for failure to comply with the FMWA pre-suit notice; dismissed counts were dismissed without leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether non-BT entity defendants are joint employers (Counts I & II) | Taylor alleges a joint-employer relationship and contends resolution is premature at dismissal stage | Defendants say only BT’s on the River employed Taylor and other entity defendants lack factual allegations showing joint-employer control | Court: Dismiss Counts I & II as to the non-BT entity defendants — complaint attributes detailed control only to individual defendants (Gori, Berger), not all entities, so allegations against other entities are conclusory |
| Whether Counts III–V (tips, kickbacks, forced sharing) are duplicative or improper separate causes | Taylor says Counts III–V plead distinct theories of tip-related misconduct (fees, fines, forced sharing, kickbacks) and may be pleaded in the alternative | Defendants contend the FLSA recognizes only wage and overtime causes, so these are not separate causes of action | Court: Denied dismissal — Counts III–V are adequately pled, factually distinct, and not duplicative; permissible to plead alternative theories |
| Whether Count VI (Florida Constitution minimum-wage claim) requires compliance with Fla. Stat. § 448.110 pre-suit notice | Taylor argues FMWA pre-suit notice is unconstitutional and that post-suit consent forms suffice | Defendants argue the Florida amendment is not self-executing; the FMWA implements it and requires pre-suit written notice with specific contents | Court: Grants dismissal of Count VI as to all defendants — plaintiff failed to allege the statutory pre-suit notice; post-suit consent did not satisfy statutory content requirements; amendment would be futile |
| Whether plaintiff should be granted leave to amend after dismissal | Taylor sought belated amendment in response brief (e.g., to treat consent as notice) | Defendants opposed; deadline to amend passed and no motion for leave was timely filed | Court: Denies leave to amend; dismissed counts without leave to amend because plaintiff never timely moved and amendment would be futile |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must state a claim that is plausible on its face)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (conclusory allegations and legal conclusions are insufficient)
- Pielage v. McConnell, 516 F.3d 1282 (11th Cir. 2008) (district court must accept complaint allegations as true at motion-to-dismiss stage)
- Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283 (11th Cir. 2010) (Twombly/Iqbal plausibility standard applied in Eleventh Circuit)
- Glover v. Liggett Group, Inc., 459 F.3d 1304 (11th Cir. 2006) (dismissal appropriate when no construction of facts supports cause of action)
- Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364 (11th Cir. 1997) (court accepts plaintiff's factual allegations as true for Rule 12(b)(6) review)
- Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir. 2002) (district court not required to sua sponte grant leave to amend when plaintiff never filed motion to amend)