Mendez v. Old Dominion Freight Line, Inc.
| Decision Date | 05 August 2022 |
| Docket Number | 21-CV-5289 (RPK) (TAM) |
| Parties | RUSBER GONZALEZ MENDEZ, individually and on behalf of all others similarly situated, Plaintiff, v. OLD DOMINION FREIGHT LINE, INC., Defendant. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
Plaintiff Rusber Gonzalez Mendez (“Plaintiff”) initiated this putative collective and class action against Defendant Old Dominion Freight Line, Inc. (“Old Dominion”) on September 23, 2021. (See Complaint (“Compl.”), ECF No. 1.) Plaintiff alleges claims pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. and the New York Labor Law (“NYLL”), §§ 190 et seq. and 650 et seq., related to his work for Old Dominion, one of the largest motor carriers in North America. (Id. ¶¶ 1, 9.) Plaintiff alleges that he performed work for Old Dominion that was covered under the FLSA and the NYLL, but that he was not properly compensated for all of the hours he worked. (Id. ¶¶ 15-48.) Plaintiff's complaint also includes collective action and class action allegations. (Id. ¶¶ 49-75.)
Currently pending before the Court is Old Dominion's motion to dismiss, which the Honorable Rachel P. Kovner referred to the undersigned Magistrate Judge for a report and recommendation. (Mot. to Dismiss (“Mot.”), ECF No. 31; Apr. 5 2022 ECF Referral Order.) Also pending before the Court is Plaintiff's motion for conditional certification of a collective action under the FLSA. (Mot. for Collective Action, ECF No. 12; Nov. 5, 2021 ECF Order; Nov. 12, 2021 ECF Order.)
For the reasons set forth below, the Court respectfully recommends that Defendant's motion to dismiss be granted in part and denied in part. In addition, the Court respectfully recommends granting Plaintiff's request to file an amended complaint. In a separate decision, the Court denies Plaintiff's motion for collective certification without prejudice.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY[1]
According to the complaint, Old Dominion “is one of the largest North American less-than-truckload (‘LTL') motor carriers, providing regional, inter-regional and national LTL services through an expansive network of service centers located throughout the continental United States.” (Compl., ECF No. 1, ¶ 9.) It is also a “foreign business corporation” that “is authorized and regularly transacts business in New York.” (Id. ¶¶ 3-4.) Plaintiff alleges that “As of June 2021, [Old Dominion] had more than 22,000 full time employees and operated approximately 248 service centers across the United States.” (Id. ¶ 10.)
Plaintiff further alleges that Old Dominion employed him as a “switcher” or a “yard switcher” from 2016 to November 2019. (Id. ¶¶ 12-13, 16, 18.) Plaintiff claims that during this time period, he “was required . . . [to] work more than forty (40) hours in a week” and worked “at least 55 hours per week.” (Id. ¶¶ 23, 25.) Plaintiff further claims that “[i]n 2019, [he] was paid hourly at a rate of approximately $26.60,” but that “[f]rom 2016 to 2019, [Old Dominion] failed to pay Plaintiff overtime compensation at 1.5 times his regular rate of pay for all workweeks in excess of 40 hours.” (Id. ¶¶ 26, 29.) Plaintiff also contends that Old Dominion “fabricated false time records which understated the true number of hours Plaintiff worked each week.” (Id. ¶ 32.) Plaintiff further alleges that he was “regularly forced to miss lunch breaks” because Old Dominion required Plaintiff “to be working during that time” but that Plaintiff “was not compensated for such time worked.” (Id. ¶¶ 37, 41.) Based on these allegations, Plaintiff avers that Old Dominion “failed to pay Plaintiff all wages due and owing at the time of termination of his employment, as required by NYLL § 191” and that “[a]s a result of its failure to compensate for all hours worked and all overtime compensation, [Old Dominion] failed to pay Plaintiff for all wages due and owing under the NYLL[].” (Id. ¶¶ 43, 46.) Plaintiff alleges the same facts as the above for “similarly situated switchers” who were employed by Old Dominion.
On the basis of the foregoing allegations, Plaintiff asserts claims against Old Dominion for violating the overtime pay provisions of the FLSA and the NYLL and the meal period provision of the NYLL, and for violating NYLL § 191 by failing to pay Plaintiff “all wages due and owing at the time of termination of [his] employment.” (Id. ¶¶ 79, 80, 85, 90, 91, 98, 100.) Plaintiff also includes allegations and claims on behalf of a putative class under Federal Rule of Civil Procedure 23 and as a conditional collective action under the FLSA. (See id. ¶¶ 49-96.)
On October 28, 2021, Plaintiff filed a letter requesting a pre-motion conference to discuss filing a motion for conditional certification and Old Dominion filed a reply in opposition on November 3, 2021. Judge Kovner found that a pre-motion conference was not necessary and referred Plaintiff's motion for conditional certification to the undersigned Magistrate Judge. (Nov. 5, 2021 ECF Order.)[2] Plaintiff filed his motion to certify an FLSA collective action and accompanying documents on November 11, 2021. (Mot. for Collective Action, ECF No. 12; Pl.'s Mem. in Supp., ECF No. 13.)
On November 12, 2021, however, Defendant filed a motion requesting a premotion conference to discuss filing a motion to dismiss and requesting a stay of the briefing of Plaintiff's conditional certification motion. (Def.'s Pre-Mot. Conf. Letter, ECF No. 16.) Plaintiff filed a letter in opposition on November 15, 2021. (Pl.'s Letter in Opp'n, ECF No. 17.) On November 15, 2021, the undersigned set the briefing schedule for the response and reply as to Plaintiff's motion for conditional certification. (Nov. 15, 2021 ECF Order.) On November 18, 2021, Judge Kovner determined that a pre-motion conference for Defendant's proposed motion to dismiss was unnecessary, set a briefing schedule, and referred Defendant's request to stay briefing of the conditional certification motion to the undersigned Magistrate Judge. (Nov. 18, 2021 ECF Order.) The next day, Defendant filed a motion to stay all proceedings, including briefing of the conditional certification motion, until Defendant's motion to dismiss was briefed and decided. (Def.'s Mot. to Stay, ECF No. 18.) On November 22, 2021, the Court granted Defendant's motion to stay, in part, and stayed briefing on Plaintiff's motion for conditional certification. (Nov. 22, 2021 ECF Order.)
On November 24, 2021, Plaintiff filed a motion for reconsideration of the Court's decision on Defendant's motion to stay. (Pl.'s Mot. for Reconsideration, ECF No. 19.) After Defendant's opposition and Plaintiff's reply were filed, the Court held a status conference on January 11, 2022, during which the Court denied Plaintiff's motion for reconsideration and deferred decision on Plaintiff's motion for certification of a collective action. (Jan. 11, 2022 ECF Minute Entry and Order; see also Def.'s Reply in Opp'n, ECF No. 20; Pl.'s Reply in Supp., ECF No. 21.) The Court explained that “the applicable law, and the arguments underlying Defendant's anticipated motion to dismiss . . . if successful, could impact the allegations in the complaint and/or the suitability of Mr. Mendez to serve as lead Plaintiff for a collective action under Section 216(b) of the FLSA.” (Jan. 11, 2022 ECF Minute Entry and Order.)
The parties filed the fully briefed motion to dismiss on February 16, 2022. (Mot., ECF No. 31; Def.'s Mem. in Supp., ECF No. 32; Pl.'s Resp. in Opp'n, ECF No. 33; Def.'s Reply in Supp., ECF No. 34.) Judge Kovner later referred the motion to dismiss to the undersigned Magistrate Judge. (Apr. 5, 2022 ECF Referral Order.) On June 29, 2022, Defendant filed a notice of supplemental authority in support of its motion to dismiss. (Notice of Suppl. Authority, ECF No. 35.) Because of the significant overlap in issues relevant to consideration of Defendant's motion to dismiss and Plaintiff's motion for collective action certification, the undersigned ordered the parties to appear for oral argument on August 1, 2022, regarding both motions. (See July 26, 2022 ECF Scheduling Order; Aug. 1, 2022 ECF Minute Entry and Order; Aug. 1, 2022 Hearing Transcript (“Hr'g Tr.”), ECF No. 36.)
For the reasons set forth below, the Court respectfully recommends that: (1) Defendant's motion to dismiss be denied as to Plaintiff's wage deficiency claims under the FLSA and the NYLL; (2) Defendant's motion to dismiss be granted, with prejudice, as to Plaintiff's meal break and termination pay claims; (3) Defendant's motion to dismiss be denied as to Plaintiff's collective and class action allegations, without prejudice to Defendant being permitted to raise the same arguments in future motion practice; and (4) Plaintiff's application to file an amended complaint be granted.
In addition, for the reasons set forth in a separate memorandum and order, Plaintiff's motion to certify an FLSA collective action is denied without prejudice.
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P 12(b)(6). To survive a Rule 12(b)(6) motion, “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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff alleges facts that allow “the court to...
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