Pruell, et al v. Caritas Christi, et al

Filing

OPINION issued by Michael Boudin, Appellate Judge; Kermit V. Lipez, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [11-1929].

Case: 11-1929

Document: 00116364052

Page: 1

Date Filed: 04/18/2012

Entry ID: 5634410

United States Court of Appeals
For the First Circuit
No. 11-1929
ASHLEIGH PRUELL, on behalf of herself and all other employees
similarly situated; AMY GORDON, on behalf of herself and all
other employees similarly situated,
Plaintiffs, Appellants,
v.
CARITAS CHRISTI; CARITAS CHRISTI NETWORK SERVICES; CARITAS GOOD
SAMARITAN MEDICAL CENTER, INC.; CARITAS NORWOOD HOSPITAL, INC.;
CARITAS SOUTHWOOD HOSPITAL, INC.; CARITAS ST. JOHN OF GOD
HOSPITAL, INC.; SAINT ANNE'S HOSPITAL CORPORATION; RALPH DE LA
TORRE, M.D.; RICHARD KROPP; CARITAS CARNEY HOSPITAL, INC.;
CARITAS HOLY FAMILY HOSPITAL, INC.; CARITAS ST. ELIZABETH'S
MEDICAL CENTER OF BOSTON, INC.; CARITAS CHRISTI RETIREMENT PLAN,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin, Lipez and Thompson,
Circuit Judges.
Guy A. Talia with whom Patrick J. Solomon, Thomas & Solomon
LLP and Dwyer & Collora, LLP were on brief for appellants.
Barry J. Miller with whom Richard L. Alfred, Jessica M.
Schauer and Seyfarth Shaw LLP were on brief for appellees.

April 18, 2012

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BOUDIN, Circuit Judge.

Date Filed: 04/18/2012

Entry ID: 5634410

In September 2009, plaintiffs

Ashleigh Pruell and Amy Gordon filed suit in the district court in
Massachusetts against hospitals and health care providers in the
Caritas Christi hospital network ("Caritas"), as well as two
hospital executives.1

Pruell and Gordon complained of systematic

under-compensation--in particular, a failure to compensate them for
work performed during their meal break, for work performed before
and after shifts, and for time spent attending training sessions.
The complaint set forth several claims under federal law:
specifically, that Caritas
-violated the minimum wage and overtime
provisions of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. §§ 206-207 (2006);
-failed to keep accurate records and to credit
all hours worked in violation of the Employee
Retirement Income Security Act ("ERISA"), 29
U.S.C. §§ 1059(a)(1), 1104(a)(1); and
-engaged in a pattern of mail fraud by sending
misleading payroll checks, in violation of the
Racketeer Influenced and Corrupt Organizations
Act ("RICO"), 18 U.S.C. § 1962, 1964(c).
Plaintiffs purport to represent a large class of Caritas employees;
the FLSA claim was brought under that statute's "collective action"

1

At the same time, Pruell and Gordon filed a companion suit in
Massachusetts state court, asserting similar claims against the
same defendants based on state law.
That case was removed to
district court and thereafter dismissed. On appeal, the case was
remanded to determine whether it had properly been removed, Pruell
v. Caritas Christi, 645 F.3d 81 (1st Cir. 2011), and it remains
pending in the district court.
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provision, 29 U.S.C. § 216(b), rather than as a class action, but
that distinction makes no difference here.
In January 2010, Caritas moved to dismiss plaintiffs'
original complaint.

The FLSA guarantees covered employees a

minimum wage of $7.25 an hour, 29 U.S.C. § 206(a), and payment of
one-and-one-half times their regular rate for hours worked in
excess of forty in any workweek, id. § 207(a)(1).

The district

court held that the FLSA claim was deficiently pled,

Pruell v.

Caritas Christi, No. 09-11466, 2010 WL 3789318 (D. Mass. Sept. 27,
2010), and that this was fatal to the complaint because the ERISA
and RICO claims are derivative of the FLSA claim.
The reasoning was straightforward. To state a valid FLSA
claim, plaintiffs had to allege (1) that they were employed by
Caritas; (2) that their work involved interstate activity; and (3)
that they performed work for which they were under-compensated. 29
U.S.C. §§ 206(a), 207(a)(1). The district court found insufficient
the

allegation

of

the

last

element,

given

the

lack

of

any

information on plaintiffs' approximate weekly wages and hours
worked, or even an allegation that they had worked in excess of
forty hours in any workweek. The court granted plaintiffs leave to
amend the complaint.
In

October

Pruell, 2010 WL 3789318 at *3-*5.
2010,

plaintiffs

filed

their

amended

complaint, adding only the general allegation that the named
plaintiffs and the 12,000 putative class members "regularly worked"

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over 40 hours a week and were not compensated for such time.

In

June 2011, on Caritas' renewed motion, the district court found
that the FSLA claim remained deficient; it said also that the
allegation of employment--providing no information about the named
plaintiffs' specific employer or positions--was too vague.

Pruell

v. Caritas Christi, No. 09-11466 (D. Mass. July 13, 2011).
The district court this time refused to permit further
amendment

and

dismissed

the

complaint

with

prejudice.

The

plaintiffs now appeal. Review of the district court's dismissal of
the claims is de novo, Estate of Bennett v. Wainwright, 548 F.3d
155, 162-63 (1st Cir. 2008), and the denial of leave to amend
further is reviewed for abuse of discretion, Universal Commc'n
Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007).
The need for pleading specificity in federal complaints
has been somewhat unsettled since the Supreme Court's decisions in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 129 S. Ct. 1937 (2009).

The Federal Rules of Civil

Procedure have long provided for "notice pleading," requiring a
"short and plain statement of the claim showing that the pleader is
entitled to relief," Fed. R. Civ. P. 8(a)(2), but the Supreme Court
also made clear in Twombly that
Rule 8(a)(2) still requires a "showing,"
rather
than
a
blanket
assertion,
of
entitlement to relief. Without some factual
allegation in the complaint, it is hard to see
how a claimant could satisfy the requirement
of providing not only "fair notice" of the
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nature of the claim, but also "grounds" on
which the claim rests.
550 U.S. at 555 n.3.
Indeed,
requirements

had

well

before

Twombly

been

stiffened

in

and

many

Iqbal,
circuit

specificity
courts,

see

Twombly, 550 U.S. at 562 (collecting cases), redressing what had
been a much earlier swing of the pendulum to the other end of its
arc, e.g., Conley v. Gibson, 355 U.S. 41 (1957); other pressures
for tightening up have come from growing dockets, the enormous cost
of modern discovery, and the benefits to court and parties of
sorting out hopeless claims early on.

But, as in any transition,

there remain issues of fair warning and elucidation.
To allege an employment relationship, plaintiffs in this
case state: "At all relevant times, Ashleigh Pruell and Amy Gordon
("Plaintiffs")

were

employees

under

the

FLSA,

employed

by

defendants within this district and reside within this District";
and to allege underpayment of overtime, the complaint as amended
says:

"Throughout their employment with defendants, Plaintiffs

regularly worked hours over 40 in a week and were not compensated
for such time, including the applicable premium pay."

Amended

Complaint ¶¶ 75-76, Pruell, No. 09-11466.
The key statement--"regularly worked hours over 40 in a
week and were not compensated for such time"--is one of those
borderline

phrases.

As

we

explained

in

Peñalbert-Rosa

v.

Fortuño-Burset, "some allegations, while not stating ultimate legal
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conclusions, are nevertheless so threadbare or speculative that
they fail to cross 'the line between the conclusory and the
factual.'" 631 F.3d 592, 595 (1st Cir. 2011) (quoting Twombly, 550
U.S. at 557 n.5).

Standing alone, the quoted language is little

more than a paraphrase of the statute.
The general allegations found inadequate in Iqbal were
themselves "factual" assertions but highly general and made without
offering any detail, Peñalbert, 631 F.3d at 595, and prior First
Circuit cases are to the same effect, id. at 595 n.2.
Plumbers'

Union

Local

No.

12

Pension

Fund

v.

Similarly,

Nomura

Asset

Acceptance Corp., 632 F.3d 762, 771 (1st Cir. 2011), warned that
[t]o state a claim, the complaint must
"contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is
plausible on its face,'" Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)); "'naked assertions devoid of further
factual enhancement'" need not be accepted,
Maldonado v. Fontanes, 568 F.3d 263, 266 (1st
Cir. 2009) (quoting Iqbal, 129 S. Ct. at
1949); and "[i]f the factual allegations in
the complaint are too meager, vague, or
conclusory to remove the possibility of relief
from the realm of mere conjecture, the
complaint is open to dismissal," [SEC v.
Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en
banc)].
The harder question is whether the deficiency is cured by
three general allegations in the complaint--namely, charges that
Caritas

requires

automatic

unpaid

timekeeping

work

through

deduction,

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meal-breaks

unpaid

due

preliminary

to

an
and

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Date Filed: 04/18/2012

postliminary work, and unpaid training sessions.
most concrete and so can stand in for the others.

Entry ID: 5634410

The first is the
In a nutshell,

the complaint said that the plaintiffs and other class members
regularly worked through their lunch breaks but that the computer
system tracking time for compensation automatically deducted a half
hour for lunch.
Arguably,

once

the

complaint

was

amended

to

allege

regular work by plaintiffs and others of more than 40 hours a week,
it now described a mechanism by which the FLSA may have been
violated as to those who worked through their lunches.

But such

persons could still have been properly compensated under the FLSA:
in particular, various forms of "work" may not be not compensable.
See 29 U.S.C. § 254(a) (non-"principal" preliminary or postliminary
work not compensable); 29 C.F.R. §§ 785.27-785.32 (various types of
training not compensable); id. § 785.47 (insignificant time beyond
scheduled working hours not compensable).
Yet even the amended complaint does not provide examples
(let alone estimates as to the amounts) of such unpaid time for
either plaintiff or describe the nature of the work performed
during those times.

Also, additional compensation--say, premium

pay above the time-and-a-half mandatory rate, or differential pay
for certain shifts--may offset any deficiency created by other
uncompensated time.

See 29 U.S.C. § 207(e)(5)-(7), (h); 29 C.F.R.

§ 778.200, 778.202.

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As defendants are quick to point out, similar complaints
have been filed around the country in hospital compensation cases
using boilerplate complaints of this character; and counsel may
have some incentive to keep the claims unspecific to achieve the
largest possible class.

A number of district courts, although not

all, have expressed their displeasure and found the complaints
inadequate.2 Class actions are useful to remedy widespread wrongs,
but such lawsuits still require at the outset a viable named
plaintiff with a plausible claim.

In that respect, this complaint

even as amended is deficient although not by a large margin.
It is also telling that when the district court asked for
more detail, plaintiffs' amendment offered the barest possible
minimum--again with no detail as to either plaintiff.
v.

Rancourt,

89

F.3d

823

(1st

Cir.

1996)

Cf. Kueter

(unpublished table

decision) (warnings about adequacy of original complaint relevant
to assessing adequacy of amended complaint).

Adequacy is not

always a clear line; and when the district judge asks for more

2

Compare Davis v. Abington Mem'l Hosp., No. 09-5520, 2011 WL
4018106, at *4 (E.D. Pa. Sept. 8, 2011), and DeSilva v. North
Shore-Long Island Jewish Health Sys., Inc., 770 F. Supp. 2d 497,
508-10 (E.D.N.Y. Mar. 16, 2011), and Manning v. Boston Med. Ctr.
Corp., No. 09-11463, 2011 WL 796505, at *1-*2 (D. Mass. Feb. 28,
2011), and Nakahata v. New York Presbyterian Healthcare Sys., Inc.,
No. 10 Civ. 2661, 2011 WL 321186, at *4 (S.D.N.Y. Jan. 28, 2011),
with Meyers v. Crouse Health Sys., Inc., 274 F.R.D. 404 (N.D.N.Y.
2011), and Hamelin v. Faxton-St. Luke's Healthcare, 274 F.R.D. 385
(N.D.N.Y. 2011).
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specifics, a serious effort to flesh out the complaint is fairly to
be expected.
Plaintiffs' counsel says that (after the complaint and in
aid

of

conditional

certification)

they

submitted

additional

information by affidavit, albeit late in the day and not as an
amendment to the complaint.

These affidavits do identify the

employee position and hospital name for the plaintiffs.

But this

is an answer to a different concern--raised only later by the
district judge, likely in response to his colleague's opinion in
Cavallaro v. UMass Mem'l Health Care Inc., No. 09-40152, 2011 WL
2295023 (D. Mass. June 8, 2011); and the affidavits added nothing
to show that the plaintiffs were in fact under-compensated.
Nevertheless, we think the motion to amend should be
allowed. The precedents on pleading specificity are in a period of
transition, and precise rules will always be elusive because of the
great range and variations in causes of action, fact-patterns and
attendant circumstances (e.g., warnings, good faith of counsel).
"Determining 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."

Iqbal, 129 S. Ct. at 1950.
While specifics as to the named plaintiffs here are

lacking, some of the information needed may be in the control of
defendants.

Plaintiffs certainly know what sort of work they

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performed and presumably know how much they were paid as wages; but
precisely how their pay was computed and based upon what specific
number of hours for particular time periods may depend on records
they do not have.

Complaints cannot be based on generalities, but

some latitude has to be allowed where a claim looks plausible based
on what is known.
Finally, the district judge said originally that there
was no allegation that the plaintiffs worked more than forty hours;
the plaintiffs then supplied such an allegation; and perhaps
plaintiffs' counsel here were genuinely uncertain about just what
more the district court wanted.

Under all of these circumstances

we think another amendment should be permitted, and it would be
helpful on remand for the district judge to indicate to plaintiffs
what deficiencies remain and what the court expects to be supplied
in a final amended complaint.
The judgment is affirmed so far as it finds the complaint
inadequate to state an FLSA claim, but the dismissal with prejudice
is vacated, and the case remanded to give the plaintiffs a final
opportunity to file a sufficient complaint.
its own costs on this appeal.
It is so ordered.

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Each side shall bear