Opinion
Case No. 05-60166-CIV-DIMITROULEAS.
April 11, 2005
ORDER GRANTING MOTION TO DISMISS COUNT III AND MOTION TO STRIKE
THIS CAUSE is before the Court on Defendant Poulos' March 8, 2005 Motion To Dismiss Count III [DE-17-1] and Motion to Strike [DE-17-2], and the Court having considered Plaintiff's March 28, 2005 Response [DE-21], and Poulos' April 1, 2005 Reply [DE-9], finds as follows:
1. On February 16, 2005 Plaintiff filed her First Amended Complaint alleging the following five counts: a violation of the Fair Labor Standards Act ("FLSA") against Rolly Marine Service Company ("Rolly Marine"); Retaliation under FLSA against both Defendants; a violation of Florida's Whistleblower Act against both Defendants; Defamation against Greg Poulos ("Poulos"); and Defamation against Rolly Marine. [DE-8]. Plaintiff alleges that she was employed by Rolly Marine. (First Amended Complaint ¶¶ 4(a), 9, 17.) Furthermore, Plaintiff contends that Rolly Marine is an "employer." (Id. ¶ 11). Plaintiff contends that "Joanne" is the owner of the company, (Id. ¶ 26), and that Poulos is Rolly Marine's general manager. (Id. ¶ 22).
2. Poulos moves to dismiss Count III because he is not an employer and therefore not liable under the Florida Whistleblower's Act. Fla. Stat. § 448.105. Plaintiff responds that she would like to amend her pleadings to allege that both Poulos and Rolly Marine are her employers. Clearly, Poulos was Plaintiff's supervisor. Florida's Whistleblower Act defines both supervisor, Fla Stat. § 448.101(6), and employer, Fla Stat. § 448.101(3). Under the Florida Whistleblower Act, the employee must bring the complained about activity to the attention of a supervisor or the employer. Fla. Stat. § 448.102(2). However, the statute only prevents an employer from taking retaliatory action against an employee. Fla. Stat. § 448.102. This Court will not expand the coverage of a Florida Statute. No cited opinion has analogized the Florida Whistleblower Act to the FLSA's definition of employer, which would include a supervisor. This federal court will not expand the definition of employer in a Florida Statute. Consequently, allowing an amended complaint would inevitably result in a dismissal under Rule 12(b)(6). Since such an amendment would be futile, the request to amend is denied. Fed.R.Civ.P. 15(a); Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004). As such, Count III is dismissed, with prejudice.
3. Both Defendants move to strike the request for punitive damages under the Whistleblower statute. No Florida case authorizes such an award. The Court will strike the request for punitive damages. Branche v. Airtran Airways, 314 F. Supp. 2d 1194 (M.D. Fla. 2004); Hanna v. WCI Communities, 348 F. Supp. 2d 1332 (S.D. Fla. 2004); but see Destel v. McRoberts Protective Agency, Inc., 2004 WL 746293 (S.D. Fla. Feb. 17, 2004), Cray v. NationsBank, 982 F. Supp. 850 (M.D. Fla. 1997).
Accordingly it is ORDERED AND ADJUDGED as follows:
1. Poulos' Motion to Dismiss Count III [DE-17-1] is hereby GRANTED;
2. Defendants' Motion to Strike Punitive Damage Award [DE-17-2] is hereby GRANTED.
DONE AND ORDERED.