Fridman v. GCS Computers LLC, 17 Civ. 6698

• Decision Date: 27 March 2018
• Docket Number: 17 Civ. 6698
• Parties: ARTHUR FRIDMAN, on behalf of themselves, individually, and on behalf of all other similarly situated Plaintiffs, Plaintiff, v. GCS COMPUTERS LLC ("GCS"), JIM GOTTLIEB, TOM CROWN, ABC CORPORATION and JOHN DOE 1-13, Defendants.
• Court: U.S. District Court — Southern District of New York

ARTHUR FRIDMAN, on behalf of themselves, individually,and on behalf of all other similarly situated Plaintiffs, Plaintiff, v. GCS COMPUTERS LLC ("GCS"), JIM GOTTLIEB, TOM CROWN,ABC CORPORATION and JOHN DOE 1-13, Defendants.

17 Civ. 6698

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 27, 2018

OPINION and ORDER

APPEARANCES:

Attorney for Plaintiff

DANNY GRACE, P.C.

222 Broadway, 19th Floor

New York, NY 10038

By: Danny Grace, Esq.

Attorney for Defendants

SCOTT A. ROSENBERG P.C.

2400 Jericho Turnpike, Suite 201

Garden City Park, NY 11530

By: Scott A. Rosenberg, Esq.

Sweet, D.J.

Defendants GCS Computers ("GCS"), Jim Gottlieb ("Gottlieb"), and Tom Crown ("Crown," and, together with GCS and Gottlieb, the "Defendants") have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint of Plaintiff Arthur Fridman ("Fridman" or the "Plaintiff"), which alleges violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and New York Labor Law ("NYLL") Article 19 § 650, et seq.

Based upon the conclusions set forth below, Defendants' motion is granted, and Plaintiff is granted leave to replead any dismissed claims within 21 days.

Prior Proceedings

On September 6, 2017, Plaintiff filed his complaint, which alleges violations of the FLSA and NYLL. See Compl. ¶¶ 36-58, Dkt. No. 3. On December 4, the action was ordered closed for failure to prosecute and, on December 6, reopened for good cause shown. Dkt. Nos. 10, 12.

On December 15, Defendants filed the instant motion to dismiss. Dkt. No. 14. The motion was heard and marked fully submitted on February 28, 2018.

Facts

The complaint sets forth the following facts, which are assumed true for the purpose of this motion to dismiss. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012).

From approximately October 2016 until March 2017, Fridman worked as a Field Technician at GCS. Compl. ¶¶ 10-11, 16, 19. During this time, Gottlieb was the owner of GCS, and Crown was Fridman's supervisor at GCS. Compl. ¶¶ 12-13. Gottlieb and Crown were responsible for hiring Fridman, GCS' employment and pay practices, and general day-to-day supervision of GCS employees. Compl. ¶¶ 30-35.

As a Field Technician, Fridman's provided hardware and software support for a point of sale system called Rpower to GCS' clients. Compl. ¶ 29. Fridman was paid bi-monthly, initially at a rate of $15 per hour, which was later raised to $16 per hour. Compl. ¶¶ 16, 19. Fridman was assigned to work atGCS from 11:00 a.m. until 7:00 p.m., Thursday through Monday, without scheduled or unscheduled breaks.¹ Compl. ¶¶ 18, 21. GCS rarely provided Fridman holidays off, and Fridman never took personal or sick days. Compl. ¶¶ 24-25.

Fridman "routinely and systematically worked a total of ten hours or more in excess of forty hours per workweek," Compl. ¶ 26, which were not reflected on his paystubs because his hours would be "systematically" reduced by Defendants, Compl. ¶ 27. Moreover, while a GCS employee, Fridman was improperly classified as "exempt," and did not receive overtime or "spread of hours" compensation for time he worked in excess of forty hours per week. Compl. ¶¶ 17, 26.

In addition to himself, Fridman brings his complaint on behalf of "similarly situated workers who worked or may have worked at GCS." Compl. ¶ 1.

The Applicable Standard

On a Rule 12(b)(6) motion to dismiss, all factual allegations in the complaint are accepted as true and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). 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, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663 (quoting Twombly, 550 U.S. at 556). In other words, the factual allegations must "possess enough heft to show that the pleader is entitled to relief." Twombly, 550 U.S. at 557 (internal quotation marks omitted). Of course, the plausibility threshold is not a one size fits all showing; it is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

While "a plaintiff may plead facts alleged upon information and belief 'where the belief is based on factual informationthat makes the inference of culpability plausible,' such allegations must be 'accompanied by a statement of the facts upon which the belief is founded.'" Munoz-Nagel v. Guess, Inc., No. 12 Civ. 1312 (ER), 2013 WL 1809772, at *3 (S.D.N.Y. Apr. 30, 2013) (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)); Prince v. Madison Square Garden, 427 F. Supp. 2d 372, 384 (S.D.N.Y. 2006); Williams v. Calderoni, 11 Civ. 3020 (CM), 2012 WL 691832, at *7 (S.D.N.Y. Mar. 1, 2012)). The pleadings, however, "must contain something more than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Twombly, 550 U.S. at 555 (citation and internal quotation omitted).

The Motion to Dismiss the Complaint is Granted

To state an overtime compensation claim under FLSA requires plausibly alleging certain statutorily prescribed elements.²First, the plaintiff must allege an employee-employer relationship between the plaintiff and the defendant. See 29 U.S.C. § 207(a)(1). Second, the plaintiff must allege that the work involved some kind of interstate activity. See id. Third, "a plaintiff must sufficiently allege [forty] hours of work in a given workweek as well as some uncompensated time in excess of the [forty] hours." Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013) (citing 29 U.S.C. § 207(a)(1)); see also Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 201 (2d Cir. 2013). In addition, in instances "where a plaintiff brings an FLSA claim 'for and in behalf of himself . . . and other employees similarly situated,' the complaint should indicate who those other employees are, and allege facts that would entitle them to relief." Zhong v. Aug. Aug. Corp., 498 F. Supp. 2d 625, 628 (S.D.N.Y. 2007) (citing 29 U.S.C. § 216(b)).

Defendants do not dispute that they were Plaintiff's employer or that their business engaged in interstate commerce. Rather, the gravamen of Defendants' dismissal motion is that Plaintiff's complaint contains insufficient factual support for, and fails plausibly to allege, his claims of overtimeviolations. See Mem. of Law in Supp. of Defs.' Mot. to Dismiss the Compl. ("Defs.' Mem.") 10-13, Dkt. No. 16.

A trilogy of Second Circuit opinions from 2013-Lundy, Nakahata, and Dejesus-are regularly relied upon to illustrate the contours of specificity required in this circuit to state an overtime claim under FLSA and NYLL.

In Lundy, the Second Circuit held that plaintiffs failed to state an FLSA claim because they did not allege a "single workweek in which they worked at least [forty] hours and also worked uncompensated time in excess of [forty] hours" and needed to do more than merely plead that they worked "occasional" overtime. Lundy, 711 F.3d at 114-15; see also id. at 114 n.7 (noting that an approximation of hours worked per week "may help draw a plaintiff's claim closer to plausibility"); Dejesus, 726 F.3d at 88 ("[The Second Circuit] reasoned that the Lundy plaintiffs had failed to allege that they worked uncompensated overtime because, although the employees went to some lengths to approximate the hours they typically worked, even setting out their typical breaks and shift lengths, the hours alleged did not add up to a claim that over forty hours had been worked in any particular week.").

Next, in Nakahata, the plaintiffs alleged that they "regularly worked hours both under and in excess of forty per week and were not paid for all of those hours," but the Second Circuit still found the claims insufficiently alleged because it only "raise[d] the possibility that [the] [p]laintiffs were undercompensated." Nakahata, 723 F.3d at 199, 201. To plausibly plead, the court stated that the plaintiffs needed to "provide sufficient detail about the length and frequency of their unpaid work to support a reasonable inference that they worked more than forty hours in a given week." Id. at 201; see also Dejesus, 726 F.3d at 89 (second alteration in original) (quoting Nakahata, 723 F.3d at 201) ("[The Second Circuit in Nakahata] concluded that the allegations lacked the 'specificity' required, because though they 'raise[d] the possibility' of an overtime claim, 'absent any allegation that Plaintiffs were scheduled to work forty hours in a given week,' they did not state a plausible claim for relief.").

Finally, in Dejesus, the plaintiff pled that she worked more than forty hours a week in "some or all weeks" without being paid "1.5 times her rate of compensation." Dejesus, 726 F.3d at 89 (internal quotation marks omitted). The SecondCircuit found these allegations insufficient to state a claim because the plaintiff only repeated FLSA's statutory language and failed to "estimate her hours in any or all weeks or provide any other factual context or content." Id.; see id. at 87 (quoting the district court's observation that the plaintiff failed to state a claim for overtime violations because she did not "set forth the precise position she held, any approximation of the number of unpaid overtime hours worked, her rate of pay, or any approximation of the amount of wages due").

Following the line delineated by these authorities leads to the conclusion that Plaintiff's allegations are insufficiently alleged. Plaintiff's complaint includes his position, general wages, and responsibilities at GCS. Compl. ¶¶ 16, 19, 29. Plaintiff further alleges...