Hernandez v. Polly Inc.
| Decision Date | 21 December 2022 |
| Docket Number | Civil Action 22-1244 (ES) (JBC) |
| Parties | RAFAEL VIDALS HERNANDEZ individually and on behalf of all others similarly situated, Plaintiff, v. POLLY INC. d/b/a MARTY GRAS BAR & GRILL and MARTIN NOWINSKI, Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Plaintiff Rafael Vidals Hernandez brings the following claims on behalf of himself and all those similarly situated against Defendants Polly Inc. d/b/a Marty Gras Bar & Grill (“Marty Gras Bar & Grill”) and Martin Nowinski (“Nowinski”) (collectively “Defendants”): (i) overtime payment violations under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) (Count One); (ii) overtime payment violations under the New Jersey Wage and Hour Law, N.J.S.A. § 34:11-56(a), et seq. (“NJWHL”) (Count Two); (iii) failure to timely pay wages under the New Jersey Wage Payment Law, N.J.S.A § 34:11-4.1, et seq. (“NJWPL”) (Count Three); and (iv) fraudulent filing of information returns under 26 U.S.C. § 7434 (Count Four). (D.E. No. 1 (“Complaint” or “Compl.”)). Before the Court is Defendants' motion for partial dismissal of the Complaint under Federal Rule of Civil Procedure 12(b)(6), specifically seeking dismissal of Counts One, Two, and Three. (D.E. Nos. 7 & 7-1 ( ) at 1). Having considered the parties' submissions, the Court decides this matter without oral argument. See Fed. R. Civ. P. 78(b); L. Civ. R. 78.1(b). For the reasons set forth below, Defendants' motion is GRANTED-in-part and DENIED-in-part.
According to the Complaint, Defendant Nowinski operates a restaurant, Defendant Marty Gras Bar & Grill. (Compl. ¶ 10). Defendants employed Plaintiff as a cook from approximately December 11, 2005, to December 31, 2020. (Id. ¶ 26). Plaintiff alleges he was a non-exempt employee entitled to regular and overtime wages for purposes of the FLSA, NJWHL, and NJWPL, which Defendants do not dispute. (Id. ¶ 32). Throughout his employment, Plaintiff regularly worked six days per week, for a total of approximately 59 hours per week, without breaks. (Id. ¶¶ 28-29). As of 2007, Defendants paid Plaintiff a fixed salary of $780.00 per week. (Id. ¶ 31). Defendants did not track the hours Plaintiff worked, nor did they require Plaintiff to record his time. (Id. ¶ 30). Plaintiff alleges Defendants failed to pay Plaintiff overtime wages as required by law. (Id. ¶¶ 35-36 & 47).
Plaintiff initiated this action on March 7, 2022. He seeks damages for unpaid overtime under the FLSA for alleged violations that occurred from March 7, 2019, through December 31, 2020, and under the NJWHL for alleged violations that occurred from August 6, 2019, through December 31, 2020. (Id. at 10; D.E. No. 9 (“Opp.”) at 8-9 & 12). On April 18, 2022, Defendants filed the instant motion, which has been fully briefed. (See generally Opp. & D.E. No. 12 (“Reply”)).
In assessing whether a complaint states a cause of action sufficient to survive dismissal under Rule 12(b)(6), the Court accepts “all well-pleaded allegations as true and draw[s] all reasonable inferences in favor of the plaintiff.” City of Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 878 (3d Cir. 2018). “[T]hreadbare recitals of the elements of a cause of action, legal conclusions, and conclusory statements” are all disregarded. Id. at 878-79 (quoting James v. City of Wilkes-Barre, 700 F.3d 675, 681 (3d Cir. 2012)). The complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,” and 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.” Zuber v. Boscov's, 871 F.3d 255, 258 (3d Cir. 2017) (). “In evaluating a motion to dismiss, [courts] may consider documents that are attached to or submitted with the complaint, and any ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.'” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citation omitted) (second alteration in original) (quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004)).
“The FLSA requires employers to pay overtime compensation for a non-exempt employee's work that exceeds forty hours per week.” Lin v. Fada Grp, Inc., No. 20-5942, 2021 WL 4963283, at *3 (D.N.J. Oct. 25, 2021) (citing Buchspies v. Pfizer, Inc., No. 18-16083, 2019 WL 5078853, at *2 (D.N.J. Oct. 10, 2019)); see generally 29 U.S.C. § 207. Specifically, the FLSA provides:
no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
29 U.S.C. § 207(a)(1).
“To state a prima facie claim under the FLSA, a plaintiff must allege that (1) he was an employee of the defendant; (2) the defendant was ‘engaged in commerce'; and (3) the defendant failed to pay the federal minimum wage or overtime compensation for hours worked in excess of forty in a given week.” Morales v. Aqua Pazza LLC, No. 20-6690, 2022 WL 1718050, at *3 ().[1]Defendants appear to only challenge the sufficiency of Plaintiff's allegations as to the third prong of a prima facie claim. See id. ).
The Third Circuit has explained that a plaintiff need not “identify the exact dates and times that [he or] she worked overtime.” Davis v. Abington Mem'l Hosp., 765 F.3d 236, 243 (3d Cir. 2014). “[A] plaintiff must, at least, allege forty hours of work in a given workweek as well as some uncompensated time in excess of the forty hours.” Boone v. Solid Wood Cabinet Co., No. 17-4333, 2018 WL 2455924, at *2 (D.N.J. June 1, 2018) (citing Davis, 765 F.3d at 241-42). For example, a plaintiff's claim that “[he or] she ‘typically' worked forty hours per week, worked extra hours during such a forty-hour week, and was not compensated for extra hours beyond forty hours he or she worked during one or more of those forty-hour weeks, would suffice.” Davis, 765 F.3d at 243; see also Ojeda v. Louis Berger Grp. (Domestic), Inc., No. 18-17233, 2021 WL 941875, at *3 (D.N.J. Mar. 11, 2021) (); Boone, 2018 WL 2455924, at *3 (); Brown v. Apothaker & Assocs., P.C., No. 17-3994, 2018 WL 1605148, at *1-2 (D.N.J. Apr. 3, 2018) ().
Plaintiff has sufficiently alleged overtime payment violations under the FLSA and the NJWHL. Plaintiff alleges Defendants denied him and those similarly situated “who work or worked in excess of forty (40) hours per week . . . overtime compensation and other wages,” specifically, “one and one-half (1.5) times their regular hour rate of pay or the minimum wage, whichever is greater, for all hours worked in excess of forty (40) per week.” (Compl. ¶¶ 21, 4547 & 52-54). Moreover, Plaintiff alleges that at all relevant times, he worked approximately 59 hours per week at a fixed weekly salary of $780.00. (Id. ¶¶ 26, 28 & 31). Thus, Plaintiff has alleged that he worked at least 40 hours in at least one week while employed by Defendants and was not compensated for hours worked in excess of 40 hours at the required rate of one and a half times his hourly rate of pay. See 29 U.S.C. § 207(a)(1). As such, Counts One and Two of the Complaint contain sufficient allegations to state a claim for overtime violations under federal and state law, respectively. See, e.g., Davis, 765 F.3d at 241-42.
Defendants argue that Plaintiff fails to state a claim for unpaid overtime because, according to his own allegation that he received a fixed salary of $780.00 per week, he was paid “well in excess” of applicable minimum wage requirements, including overtime payments. (Mov. Br. at 24). In other words, it is Defendants' position that Plaintiff cannot state a claim because his alleged fixed salary includes overtime if his regular rate of pay is calculated at minimum wage. The Court disagrees. To start, Defendants fail to point to any allegation that Plaintiff was paid minimum wage, and the Court has not found any. Rather, Plaintiff alleges that he is entitled to overtime wages calculated at “his regular hourly rate of pay or the minimum wage, whichever is greater.” (Compl. ¶ 52 (emphasis added)). Moreover, Defendants fail to cite any case law to support the argument that where an employee is paid a fixed salary, that fixed salary is deemed...
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