Aquino v. Uber Techs.
| Decision Date | 20 April 2023 |
| Docket Number | 22-CV-4267 (KHP) |
| Parties | ANTHONY AQUINO, individually and on behalf of all others similarly situated, et al., Plaintiffs, v. UBER TECHNOLOGIES, INC., et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Anthony Aquino (“Plaintiff”) is a driver for Uber Technologies, Inc. (“Uber”). He brings claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, and the New York Labor Law (“NYLL”), Article 6 § 190 and Article 19 § 650, on behalf of himself and a putative class and collective of other Uber drivers who opted-out of an arbitration provision in the agreement governing his relationship with Uber. Plaintiff contends that he was misclassified as an independent contractor and not paid minimum wage after accounting for mandated but unreimbursed business expenses. The Defendants - Uber, Rasier, LLC, and Schleuder, LLC (“Defendants”) - have moved pursuant to Federal Rule of Civil Procedure 12(b) to dismiss the First Amended Complaint (“FAC”) for failure to state a claim and for lack of personal jurisdiction over out-of-state Plaintiffs. For the reasons set forth below, the motion to dismiss is GRANTED.
1. Facts Alleged in the Complaint
Plaintiff a resident of the Bronx, worked as an Uber driver from April 2022 to at least August 2022. (FAC ¶ 10.)
Uber is a transportation services company that operates a mobile phone application that dispatches drivers. Raiser, LLC (“Raiser”) is a wholly-owned subsidiary of Uber that processes all payments to Uber drivers. Schleuder, LLC (“Schleuder”) is a subsidiary of Uber that apparently managed Plaintiff's opt-out from arbitration. All three companies are headquartered in San Francisco California and collectively referred to as Uber. (Id. at ¶¶ 1416.)
To become an Uber driver and access the Uber Driver Application (“Driver App”), drivers must agree to a Platform Access Agreement (“PAA”).[1]The PAA became effective on or about March 15, 2021. (Id. at ¶ 33.) The PAA includes an arbitration agreement, which requires drivers to resolve disputes with Uber through final and binding arbitration. (Id. at ¶¶ 22-24.) Acceptance of the arbitration agreement is not required to drive for Uber, and drivers may opt out by sending an email to Uber. Plaintiff notified Defendants by email on three occasions in April 2022 that he would be opting out of the arbitration agreement in the PAA.
The PAA contains various requirements and terms for Uber drivers including that they maintain car insurance, may not share their log in credentials with others, must submit to a background check and may be denied access to the platform as a result of that check, must monitor their vehicles and keep them in good repair, must report any accidents and cooperate with any investigations into same, must maintain the confidentiality of certain rider information, and may be removed the platform for various other conduct. The PAA grants drivers “a limited license to use, wear, or display” Uber-branded materials when providing services for Uber. (Id.)[2]
To access Uber and begin driving, drivers use electronic mobile devices to log in to and access the Driver App. Uber encourages drivers to use their own mobile device without reimbursement. (FAC ¶ 35.) If the driver chooses to use an Uber provided device, the driver must reimburse Uber for the costs associated with the device. (Id.) Uber assigns drivers a Driver ID, which allows them to begin providing services on Uber. Once logged in, the driver app matches a driver to rides requested. (FAC ¶ 36.) Uber assigns a passenger to the driver, providing the passenger's location. However, the Driver App does not disclose the passenger's destination until the driver has picked up the passenger. (Id. at ¶ 37.) If the driver cancels the ride once the destination is provided, the driver receives a negative review, which could potentially lead to deactivation of the driver's account. Once the driver picks up the passenger, Uber recommends a route for the driver on the Driver App. (Id. at ¶ 38.) Uber sets the rates and fares for the driver's services and may adjust this fare if the driver takes an inefficient route. (Id. at ¶¶ 36-38.)
As part of its driver policies, Uber automatically logs drivers out from the Driver App after 12 hours of work and makes it impossible for drivers to work again for at least the next eight hours. (Id. at ¶ 32.) Uber also has certain policies for temporary deactivation of the Driver App. For example, when a New Jersey Uber driver enters New York to perform a drop off, Defendants shut off the app so that the driver cannot be assigned a paid ride back to New Jersey. (Id.)
Plaintiff worked on only three days for Uber. The first was on April 7, 2022. Plaintiff, who lives in the Bronx but drove for Uber only in Westchester, drove 70 minutes round trip to and from his “designated wait spot” in Westchester County. He was logged into the Driver App for 1 hour and 30 minutes while waiting for ride requests and drove only 20 minutes that day, for which he received a payment of $19.25. (FAC ¶ 25.) On April 13, 2022, Plaintiff again drove 70 minutes round trip to and from his waiting spot in Westchester County. He was logged into the Uber application for 90 minutes while waiting for rides and had only one customer, for which he received a payment of $10.31. The complaint is silent as to the amount of time he spent driving the customer. (Id. at ¶ 26.) Lastly, on April 19, 2022, Plaintiff drove 70 minutes round trip to and from his waiting spot in Westchester County. He was logged into the Uber application for 48 minutes waiting for ride requests and again had only one customer. He received a payment of $17.32 for that one ride. Again, the complaint is silent as to the amount of time he spent driving the customer. (Id. at ¶ 27.) Plaintiff alleges that he incurred several “out of pocket” costs associated with his work for Uber including vehicle maintenance and repairs, ride share insurance, and gas. (Id. at ¶ 46.) Plaintiff alleges he paid $119 for vehicle rideshare insurance coverage a month and $100 a month for maintenance. (Id. at ¶ 51.) He also alleges that that the IRS publishes a standard mileage reimbursement rate for businesses, which was 56 cents per mile in 2021 and 58.5 cents a mile in 2022. (FAC ¶¶ 48-49.) However, the complaint is silent as to the miles he drove for the three customers on the three days he worked. (Id. at ¶ 48.)
Defendants argue that the FAC fails to allege sufficient facts to render it plausible that he was an employee as opposed to an independent contractor and that he was required to incur the specific business expenses he asserts brought his pay below the minimum wage. They also assert that the FAC fails to include sufficient facts to render it plausible that the time Plaintiff spent logged into the Uber application while waiting for rides was compensable time. They assert the FAC fails to include facts rendering it plausible that the alleged violations were willful. And, finally, they argue that this Court has no jurisdiction over out-of-state plaintiffs who might opt-into the suit in the future or who might be part of any class or collective certified in the future.
A complaint “does not need detailed factual allegations” to survive a Rule 12(b)(6) motion to dismiss, but the plaintiff must provide facts that plausibly suggest an entitlement to relief - “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action” is required. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up). So too, Federal Rule of Civil Procedure 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When deciding a motion to dismiss for failure to state a claim, the court must accept as true all factual allegations in the complaint. Erickson v. Pardus, 551 U.S. 89, 94, (2007) (per curiam). Additionally, it must draw all reasonable inferences in plaintiff's favor and must confine its review to the pleading, documents incorporated therein by reference, and matters of which a court may take judicial notice. Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021).
It is the plaintiff's burden, when served with a Rule 12(b)(2) motion to dismiss, to establish that the court has jurisdiction over the defendants. Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001) (citation omitted). A plaintiff may carry this burden “by pleading in good faith . . . legally sufficient allegations of jurisdiction.” Id. (citing Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir.1998)). The court “must credit a plaintiff's allegations in support of jurisdiction.” PharmacyChecker.com, LLC v. Nat'l Ass'n of Bds. of Pharmacy, 530 F.Supp.3d 301, 321 (S.D.N.Y. 2021) (citing A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993)).
Federal Rule of Civil Procedure 12(h) provides that “[a] party waives” a Rule 12(b)(2) defense by “failing to either (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment . . . as a matter of course.” Fed.R.Civ.P. 12(h).
To be held liable under the FLSA, one must be an “employer,” which the statute defines broadly as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The definition is broad, and courts...
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