Sosnowy v. A. Perri Farms Inc.

• Decision Date: 10 February 2011
• Docket Number: No. 10–CV–2829 (ADS)(WDW).,10–CV–2829 (ADS)(WDW).
• Citation: 764 F.Supp.2d 457
• Parties: John SOSNOWY, Plaintiff,v.A. PERRI FARMS, INC. and Anthony J. Perry, an individual, Defendants.
• Court: U.S. District Court — Eastern District of New York

764 F.Supp.2d 457

John SOSNOWY, Plaintiff,

v.A. PERRI FARMS, INC. and Anthony J. Perry, an individual, Defendants.

No. 10–CV–2829 (ADS)(WDW).

United States District Court, E.D. New York.

Feb. 10, 2011.

Goldberg & Dohan LLP, New York, NY, by Penn Ueoka Dodson, Esq., of Counsel, Attorney for the Plaintiff.Frank & Associates P.C., by Peter Arcadio Romero, Esq., Neil Frank, Esq., of Counsel, Farmingdale, NY, Attorneys for the Defendants.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

Plaintiff John Sosnowy (“Sosnowy” or “the Plaintiff”) commenced this action for unpaid wages against defendants A. Perri Farms, Inc. and Anthony J. Perry (collectively “the Defendants”) alleging that the Defendants violated the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (“FLSA”), the New York Labor Law (“Labor Law”), and state common law, specifically alleging breach of contract and unjust enrichment (“state common law claims”). Presently before the Court is the Defendants' motion pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the state common law claims and certain of the Labor Law claims including: (1) improper deductions under Labor Law § 193; (2) failure to pay spread of hours pay as defined in the Compilation of Codes, Rules and Regulations of the State of New York (the “N.Y. Rules and Regulations”), tit. 12 § 142–2.4; and (3) failure to pay accrued vacation and/or sick time upon termination pursuant to either Labor Law § 191(3) or Labor Law § 198.

For the reasons set forth below, the Court grants the Defendants' motion to dismiss the Labor Law claims in their entirety, and the state common law claims only insofar as they seek overtime compensation. However, the Court affords the Plaintiff twenty days from the date of this order to serve an amended complaint addressing the specific deficiencies identified in the discussion below.

I. BACKGROUND

The following facts are drawn from the complaint, motion papers, and the Declaration of Anthony J. Perry (the “Perry Declaration”), and are construed in the light most favorable to the Plaintiff.

Plaintiff Sosnowy was employed as a salesman at defendant A. Perri Farms, Inc. (“Perri Farms”) for approximately twelve years prior to his termination in October 2009. Located in Suffolk County, New York, Perri Farms is “an importer and distributor of wholesale fresh cut flowers as well as plants, floral and garden supplies, and gourmet food.” (Compl., ¶¶ 7, 8.) Defendant Anthony J. Perry (“Perry”) is a resident of Suffolk County, New York, who was actively involved in operating Perri Farms and who “exercised substantial control over the functions of the employees, including Plaintiff.” (Compl., ¶ 14.) Perry has an ownership interest and is one of the ten largest shareholders of A. Perri Farms.

The description of the Plaintiff's duties and compensation are disputed by the parties. According to the Plaintiff he was paid “on an hourly basis at a certain rate of pay”; he worked 60–63 hours per week; and he was rarely able to take meal breaks during the day. (Compl., ¶¶ 24–27.) Based on his contention that he was an employee within the meaning of the FLSA and the Labor Law, the Plaintiff asserts that he was entitled to certain types of payments, including, overtime compensation pursuant to FLSA §§ 207 and 216(b) and the Labor Law as set forth in N.Y. Rules and Regulations tit. 12 § 142–2.2; spread of hours pay for days where he worked more than 10 hours per day as set forth in N.Y. Rules and Regulations tit. 12 § 142–2.4; and accrued vacation and sick pay upon his termination pursuant to Labor Law § 191(3) and 198. In addition, the Plaintiff contends that certain deductions were inappropriately made from his wages on days when he was late to work in violation of Labor Law § 193 and that the Defendants failed to provide adequate break time in violation of Labor Law § 162(2). The Plaintiff also asserts that there was an implied contract between the parties that separately entitles him to payment for overtime compensation and accrued vacation and sick time.

The Defendants do not dispute that the Plaintiff worked more than 40 hours per week, but rather contend that the Plaintiff's complaint improperly represents his compensation and job responsibilities. According to the Defendants, the Plaintiff was employed as an account manager, and that he was employed in a “bona fide executive, administrative, or professional capacity,” which exempts him from recovering under certain statutes. (Perry Decl., ¶ 4; Defs.' Reply Br. at 7.) The Defendants also contend that the Plaintiff was not an hourly worker, but rather was paid a bi-weekly salary, and to the extent the Plaintiff could be considered an hourly employee, the Defendants argue that his compensation was well above minimum wage, exempting him from recovering on at least his spread of hours and accrued vacation and sick time claims. (Perry Decl., ¶¶ 5–7.) To support their arguments as to the Plaintiff's compensation, the Defendants attached to the Perry Declaration the Plaintiff's W–2 forms for the years 2007, 2008, and 2009. (Perry Decl., Ex. A.)

The Defendants further assert that the only deductions they made from the Plaintiff's paychecks were for child support, health insurance, and contributions to the Plaintiff's retirement account. (Perry Decl., ¶ 10.) To reflect that these were the only deductions made from the Plaintiff's wages, the Defendants submitted the Plaintiff's 2008 and 2009 payroll report (the “payroll report”), and a Notice to Withhold Income for Child Support (the “child support deduction form”). (Perry Decl., Exs. B & C.) Finally, the Defendants dispute the existence and terms of the alleged implied contract for overtime wages and accrued vacation and/or sick pay. However, the Defendants do admit that the Plaintiff was paid for two weeks of vacation he took during 2009. (Perry Decl., ¶ 11.)

In the instant motion the Defendants move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the breach of contract and unjust enrichment causes of action as duplicative and preempted by the Labor Law and FLSA, and the Plaintiff's claims for improper deductions, spread of hours pay, and accrued vacation and/or sick time under the Labor Law for failure to state a claim, as a matter of law. In addition to opposing the motion, the Plaintiff requests that the Court strike from the record the documents attached to the Perry Declaration. According to the Plaintiff, not only are these documents not “integral” to the complaint, but the Defendants only attached the documents, which contain the Plaintiff's personal information, to embarrass him and coerce him into dropping the lawsuit. The Court will address the admissibility of these documents later in this decision.

II. DISCUSSION

A. Standard of Review—Fed. R. Civ. P. 12(b)(6)

Under the now well-established Twombly standard, a complaint should be dismissed only if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The Second Circuit has explained that, after Twombly, the Court's inquiry under Rule 12(b)(6) is guided by two principles. Harris v. Mills, 572 F.3d 66 (2d Cir.2009) (citing Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)).

“First, although ‘a court must accept as true all of the allegations contained in a complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ ” Id. (quoting Iqbal, 129 S.Ct. at 1949). “ ‘Second, only a complaint that states a plausible claim for relief survives a motion to dismiss' and ‘[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ ” Id. (quoting Iqbal, 129 S.Ct. at 1950). Thus, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and ... determine whether they plausibly give rise to an entitlement of relief.” Iqbal, 129 S.Ct. at 1950. In addition, although the Plaintiff argues that the plausibility pleading standard articulated in Twombly should not apply to FLSA cases, the Court in Iqbal made abundantly clear that the interpretation of Fed.R.Civ.P. 8(a) articulated in Twombly applied to “all civil actions.” Iqbal, 129 S.Ct. at 1953.

In considering a motion to dismiss, this Court accepts as true the factual allegations set forth in the complaint and draws all reasonable inferences in the Plaintiff's favor. Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 979, 108 L.Ed.2d 100 (1990); In re NYSE Specialists Secs. Litig., 503 F.3d 89, 91 (2d Cir.2007). Only if this Court is satisfied that “the complaint cannot state any set of facts that would entitle the plaintiff to relief” will it grant dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir.1993).

B. Whether the State Common–Law Claims are Preempted by the FLSA and the Labor Law

In the complaint, the Plaintiff asserts four causes of action to recover for overtime compensation. First, the Plaintiff alleges that the Defendants “failed to compensate the Plaintiff at a rate of one and one half times his normal hourly rate for hours over 40 in a workweek, in violation of the FLSA.” (Compl., ¶ 35.) Next, the Plaintiff contends that “Defendants failed to compensate Plaintiff at a rate of one and one half times his normal hourly rate for hours over 40 in a workweek, in contravention of [the Labor Law].” (Compl., ¶ 43.) Finally, the Plaintiff asserts that the parties had an implied contract whereby the Defendants “agreed to pay Plaintiff a certain rate of pay for all hours worked and time and a half that rate of pay for hours over 40 worked in a workweek” which the...