Allard v. Post Road Entertainment et al

Filing 68

RULING granting Motion To Dismiss (Doc. No. 12 ). Signed by Judge Alvin W. Thompson on 03/30/2012. (Giering, A)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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JENNIFER ALLARD,
:
Individually and on behalf of
:
other similarly situated
:
individuals,
:
:
Plaintiff,
:
:
v.
:
:
POST ROAD ENTERTAINMENT, PRE
:
PARTNERS, LLC, TODD KOSAKOWSKI
:
and ALBERT SILVERMAN,
:
:
Defendants.
:
:
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Civ. No. 3:11-cv-00901(AWT)

RULING ON MOTION TO DISMISS
The plaintiff, Jennifer Allard (“Allard”), filed this action
on June 3, 2011, against defendants Post Road Entertainment, PRE
Partners, LLC, Todd Kosakowski and Albert Silverman, asserting
violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201 et seq. and the Connecticut Minimum Wage Act (“CMWA”),
Conn. Gen. Stat. § 31-68 et seq.

Specifically, Allard alleges

that the defendants “fail[ed] to pay compensation for all hours
worked” to Allard and similarly situated employees of seven Black
Bear Saloon restaurants in violation of federal and state labor
laws.

(Compl. (Doc. No. 1) ¶ 1).

The defendants have moved to dismiss the complaint for lack
of subject matter jurisdiction.

For the reasons set forth below,

the motion is being granted.
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I.

PROCEDURAL BACKGROUND
Allard asserts six counts against the defendants.

Counts

One and Two are individual claims by Allard for violation of the
FLSA and the CMWA, respectively.

Count Three is a FLSA

collective action claim brought on behalf of Allard and a class
consisting of current and former employees of the defendants who
were employed as servers at any of the defendants’ Black Bear
Saloon restaurants after June 3, 2008.

Count Four is a FLSA

collective action claim brought on behalf of Allard and a class
consisting of current and former employees of the defendants who
were employed as bartenders at any of the defendants’ Black Bear
Saloon restaurants after June 3, 2008.

Count Five is a CMWA

class action claim brought on behalf of Allard and a class
consisting of current and former employees of the defendants who
were employed as severs at any of the defendants’ Black Bear
Saloon restaurants in Connecticut after June 3, 2008.

Count Six

is a CMWA class action claim brought on behalf of Allard and a
class consisting of current and former employees of the
defendants who were employed as bartenders at any of the
defendants’ Black Bear Saloon restaurants in Connecticut after
June 3, 2008.
On June 28, 2011, the defendants served the plaintiff with
an offer of judgment pursuant to Fed. R. Civ. P. 68.

The

defendants contend and the plaintiff does not dispute that the

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offer of judgment provided the plaintiff with more than the
maximum relief to which she might be entitled under the FLSA and
CMWA, including her claim for unpaid wages, liquidated damages,
interest, attorney’s fees and costs.
accept the offer.

The plaintiff did not

On July 19, 2011, the defendants filed the

instant motion to dismiss for lack of subject-matter
jurisdiction.
On November 9, 2011, Scott Sallerson (“Sallerson”) filed a
signed form consenting to be a party plaintiff.

Two days later,

Sallerson withdrew from this action.
On December 1, 2011, Kevin Anderson (“Anderson”) filed a
signed form consenting to be a party plaintiff.

On December 20,

2011, Anderson was served with an offer of judgment which he
accepted.

On February 7, 2012, the court approved a stipulation

of settlement between Anderson and the defendants.
On March 13, 2012, Paul Wool (“Wool”) filed a signed form
consenting to be a party plaintiff.

On March 26, 2012, Wool was

served with an offer of judgment which he accepted.

The court

approved a stipulation of settlement between Wool and the
defendants today.
Allard is the only plaintiff in this case.
filed a motion for class certification.

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She has not

II.

LEGAL STANDARD
A case is properly dismissed for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1) when the district
court lacks the statutory or constitutional power to adjudicate
it.

See Morrison v. Nat’l Austrl. Bank Ltd., 547 F.3d 167, 170

(2d Cir. 2008).

In assessing a motion to dismiss for lack of

subject matter jurisdiction, “the court must take all facts
alleged in the complaint as true and draw all reasonable
inferences in favor of plaintiff.”
80, 83 (2d Cir. 2000).

Sweet v. Sheahan, 235 F.3d

The court, however, refrains from

“drawing from the pleadings inferences favorable to the party
asserting [jurisdiction].”

APWU v. Potter, 343 F.3d 619, 623 (2d

Cir. 2003) (quoting Shipping Fin. Servs. Corp. v. Drakos, 140
F.3d 129, 131 (2d Cir. 1998)).
“On a motion to dismiss pursuant to Rule 12(b)(1), the
plaintiff must establish by a preponderance of the evidence that
the court has subject matter jurisdiction over the complaint.”
Chabad Lubavitch v. Borough of Litchfield, 796 F. Supp. 2d 333,
337 (D. Conn. 2011) (citing Morrison, 547 F.3d at 170).

A

district court evaluating a Rule 12(b)(1) motion “may resolve the
disputed jurisdictional fact issues by referring to evidence
outside of the pleadings, such as affidavits, . . . .”

Zappia

Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253
(2d Cir. 2000).

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III. DISCUSSION
A.

Count One (Individual FLSA Claim)

Count One is brought on behalf of Allard in her individual
capacity and alleges willful violation of the FLSA.

Allard

alleges that “[d]efendants’ failure to pay Allard for all hours
worked, . . . was a wilful violation of the FLSA, in that
Defendants knew or should have known that she was entitled to be
paid for all hours worked at the full fair minimum wage but
failed to do so.”

(Compl. ¶ 55).

Moreover, Allard claims that

“[t]his violation entitles Allard to compensation at the full
fair minimum wage for all hours worked, liquidated damages,
attorneys’ fees and court costs.”

(Id.).

The defendants contend that Count One should be dismissed
because the offer of judgment renders this claim moot under Fed.
R. Civ. P. 68 and the offer-of-judgment rule.

The court agrees.

“A case is moot, and accordingly the federal courts have no
jurisdiction over the litigation, when ‘the parties lack a
legally cognizable interest in the outcome.’”

Fox v. Bd. of Trs.

of State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir. 1994) (quoting
Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).
“[F]ederal courts are without power to decide questions that
cannot affect the rights of litigants in the case before them.”
North Carolina v. Rice, 404 U.S. 244, 246 (1971).
“When a defendant offers the maximum recovery available to a

5

plaintiff, the Second Circuit has held that the case is moot and
‘there is no justification for taking the time of the court and
the defendant in the pursuit of minuscule individual claims which
defendant has more than satisfied.’”

Ward v. Bank of New York,

455 F. Supp. 2d 262, 267 (S.D.N.Y. 2006) (quoting Abrams v.
Interco Inc., 719 F.2d 23, 32 (2d Cir. 1983).

This principle is

known as the “offer-of-judgment rule,” as are any of the many
statutes codifying this principle.

The governing offer-of-

judgment rule in this case is Fed. R. Civ. P. 68.
Rule 68 provides as follows:
At least 14 days before the date set for
trial, a party defending against a claim may
serve on an opposing party an offer to allow
judgment on specified terms, with the costs
then accrued. If, within 14 days after being
served, the opposing party serves written
notice accepting the offer, either party may
then file the offer and notice of acceptance,
plus proof of service.
The clerk must then
enter judgment.
Fed. R. Civ. P. 68(a).
The Supreme Court has noted that “[t]he plain purpose of
Rule 68 is to encourage settlement and avoid litigation. . . .
The Rule prompts both parties to a suit to evaluate the risks and
costs of litigation, and to balance them against the likelihood
of success upon trial on the merits.”

Marek v. Chesny, 473 U.S.

1, 5 (1985).
In this case, the defendants served the plaintiff with an
offer of judgment pursuant to Rule 68.
6

The defendants contend

and the plaintiff does not dispute that the offer of judgment
provided Allard with more than the maximum relief to which she
might be entitled under the FLSA and CMWA, including her claim
for unpaid wages, liquidated damages, interest, attorney’s fees
and costs.
Accordingly, the Rule 68 offer-of-judgment rule moots
Allard’s individual FLSA claim and requires dismissal of Count
One.
B.

Counts Three and Four (Collective Action Claims under
29 U.S.C. § 216(b))

The plaintiff also brings collective action claims under 29
U.S.C. § 216(b) alleging violation of the FLSA.

The plaintiff

brings Count Three on behalf of a class of servers, and Count
Four on behalf of a class of bartenders, who worked at any of the
defendants’ seven Black Bear Saloon restaurants.
An action under 29 U.S.C. § 216(b) ”may be maintained
against any employer (including a public agency) in any Federal
or State court of competent jurisdiction by any one or more
employees for and in behalf of himself or themselves and other
employees similarly situated.”

29 U.S.C. § 216(b).

The FLSA

states that “[n]o employee shall be a party plaintiff to any such
action unless he gives his consent in writing to become such a
party and such consent is filed in the court in which such action
is brought.”

Id.

“Consequently, even if the section 216(b)

plaintiff can demonstrate that there are other plaintiffs
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‘similarly situated’ to him, he has no right to represent them
absent their consent by an opt-in.”

Vogel v. Am. Kiosk Mgmt.,

371 F. Supp. 2d 122, 128 (D. Conn. 2005).
In Vogel, the plaintiff sued her employer individually and
as representative of putative federal and state classes, alleging
failure to pay overtime wages and asserting claims under the FLSA
and Connecticut state law.

The court distinguished the concerns

about the applicability of Rule 68's offer-of-judgment rule to
Rule 23 class actions from the considerations relevant to
collective action claims under the FLSA:
Federal courts differ in opinion on whether
the offer of judgment rule should apply to
class actions, which require judicial approval
of a settlement.
Offers to provide full
relief to the representative plaintiff who
wishes to pursue a class action must be
treated
specially
under
the
law,
lest
defendants find an easy way to defeat class
relief.
Therefore, policy and practicality
considerations render the application of the
offer of judgment rule to class actions under
Fed. R. Civ. P. 23 questionable.
Allowing
Rule 68 judgment offers to apply to class
representatives could have the undesirable
effect of allowing a defendant to “pick off” a
representative plaintiff by way of the offer,
which would undercut the viability of the
class action procedure and frustrate the
objectives of this procedural mechanism for
aggregating small claims.
Id. at 126-27 (citations omitted).

The court, however, reasoned

that “actions such as those pursuant to section 216(b) of the
FLSA are not subject to Rule 23 requirements and principles.”

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Id. at 127.

See also Hoffmann v. Sbarro, Inc., 982 F. Supp. 249,

263 (S.D.N.Y. 1997) (“[T]he prevailing view among federal courts,
including courts in this Circuit, is that § 216(b) collective
actions are not subject to Rule 23's strict requirements,
particularly at the notice stage.”).

The court noted “a

fundamental, irreconcilable difference between the class action
described by Rule 23 and that provided for by FLSA § 16(b).”
Vogel, 371 F. Supp. 2d at 127 (citing LaChapelle v. OwensIllinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975)).

In

particular,
[i]n a Rule 23 proceeding a class action is
described; if the action is maintainable as a
class
action,
each
person
within
the
description is considered to be a class member
and, as such, is bound by judgment, whether
favorable or unfavorable, unless he has “opted
out” of the suit. Under § 16(b) of FLSA, on
the other hand, no person will be bound by or
may benefit from judgment unless he has
affirmatively “opted into” the class; that is,
given his written, filed consent.
Thus,
unlike Rule 23 class actions, plaintiffs in a
collective FLSA action must “opt in” in order
to be bound by any judgment or result.
Therefore, the Rule 23 policy considerations
do not apply to collective actions, as the
named plaintiff in a section 216(b) action
under the FLSA has no procedural right to
represent other plaintiffs.
Id. (citations omitted).
The court held,
Therefore, without the inclusion of other
active plaintiffs who have “opted-in” to the
suit, the section 216(b) plaintiff simply
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presents only her claim on the merits, . . . .
Thus, the general application of Rule 68
Offers
of
Judgment
applies
such
that
settlement of a plaintiff’s claims moots an
action. Furthermore, if the offer of judgment
sufficiently covers all damages claimed by
named plaintiff, plus costs and attorney’s
fees, it may moot the plaintiff’s action, even
if the plaintiff/offeree declines to accept
the offer.
Id. at 128 (citations omitted).

See also Rand v. Monsanto Co.,

926 F.2d 596, 598 (7th Cir. 1991) (“Once the defendant offers to
satisfy the plaintiff’s entire demand, there is no dispute over
which to litigate, . . . and a plaintiff who refuses to
acknowledge this loses outright, under Fed.R.Civ.P. 12(b)(1),
because he has no remaining stake.”) (citation omitted); Abrams
v. Interco Inc., 719 F.2d 23 (2d Cir. 1983) (holding that an
offer of judgment in an amount far larger than the plaintiffs
could possibly obtain at trial was sufficient to require
dismissal after the district court had properly refused to permit
the action to proceed as a class action).
Courts have recognized that in some instances a motion to
dismiss on mootness grounds should not be granted in an FLSA
colective action:

Courts have, however, denied a defendant’s
motion to dismiss on mootness grounds where
the plaintiff potentially could recover more
than the relief offered by defendant, such as
where the offer is not comprehensive, or where
the amount due to plaintiff is disputed.
Reyes v. Carnival Corp., No. 04-21861-CIV,
10

2005 WL 4891058, at *3, 2005 U.S. Dist. LEXIS
11948, at *8 (S.D.Fla. May 25, 2005) (“[T]here
is no basis ... to conclude that the offer of
judgment is definitively for more than the
Plaintiff could recover at trial.”); Raney v.
Young & Brooks, No. Civ. A H-05-0410 (SL),
2005 WL 1249265, at *2 (S.D.Tex. Apr. 26,
2005) (“Defendants’ offer does not include
costs or attorneys’ fees.”); Reed v. TJX Cos.,
No. 04 C 1247(DHC), 2004 WL 2415055, at *2
(N.D.Ill. Oct. 27, 2004) (“In the case at bar
...
the
court
cannot
determine
that
[defendant’s]
offer
fully
compensates
plaintiff for his damages.”); see also
Sibersky, 242 F.Supp.2d at 278; Lovelace, 2001
WL 984686, at *3; Hennessey v. Conn. Valley
Fitness Ctrs., Inc., No. CV980504488S, 2001 WL
1199840 (Conn.Super.Sept.12, 2001) (“[T]his
court finds that the offer of judgment failed
to provide complete relief and did not moot
[plaintiff’s] claim.”).
Courts also have
refused to allow Rule 68 offers of judgment to
moot actions where additional plaintiffs have
opted in to the FLSA collective action, but
have not been made offers of judgment by
defendant. E.g., Reyes, 2005 WL 4891058, at
*3, 2005 U.S. Dist. LEXIS 11948, at *8 (“[T]wo
other persons ... have opted in to this suit,
and [defendant] has not made offers of
judgment to them.”); Reed, 2004 WL 2415055, at
*2 (refusing to dismiss where “[plaintiff] has
identified two similarly situated individuals
who have filed written consents with this
court to join this lawsuit”).
Furthermore,
courts are wary of attempts by defendants to
evade FLSA collective actions by making Rule
68 offers of judgment “at the earliest
possible time.” E.g., Reyes, 2005 WL 4891058,
at *4, 2005 U.S. Dist. LEXIS 11948, at *10-11
(finding that such a strategy “defeats the
collective action mechanism”); Reed, 2004 WL
4891058, at *3 (“Of particular concern in this
case is the ability of defendant purposefully
to moot the class action complaint between the
time of filing and class notification or
certification”).
Ward v. Bank of New York, 455 F. Supp. 2d 262, 267-68 (S.D.N.Y.
11

2006).
In this case, only two other individuals, Anderson and Wool,
consented to be a party plaintiff in the nine months since this
case was filed, and those individuals settled with the
defendants.
withdrew.

A third individual opted in and then immediately
Thus although the Rule 68 offer of judgment was made

early in the case, other individuals have had sufficient time to
opt-in if they had any interest in doing so.

None of the other

concerns, mentioned in Ward, that have led courts to decline to
grant a motion to dismiss on mootness grounds are implicated
here.

Allard remains the only plaintiff in this case, and

“without the inclusion of other active plaintiffs who have
‘opted-in’ to the suit, the section 216(b) plaintiff simply
presents only her claim on the merits, . . . .”
Supp. 2d at 128.

Vogel, 371 F.

Because the defendants’ Rule 68 offer of

judgment renders Allard’s individual FLSA claim moot, and no
other individual has opted in to the case, Allard has no
procedural right to represent any other parties.

Therefore,

Allard’s collective action claims under the FLSA should be
dismissed.
C.

Counts Two, Five and Six (Individual and Class Action
Claims under the CMWA)

Allard brings individual and class action claims against the
defendants under Connecticut law, alleging that the defendants
failed to pay Allard and putative class members for all hours
12

worked in violation of the CMWA.

Allard alleges that the court

has jurisdiction over these claims pursuant to 28 U.S.C.
§ 1367(a).
The defendants contend that the Rule 68 offer of judgment
moots Allard’s CMWA claims, and, alternatively, that the court
should decline to exercise supplemental jurisdiction.

In light

of the fact that allowing Rule 68 offers of judgment to apply to
class representatives in Rule 23 class actions could have the
undesirable effect of allowing a defendant to “pick off” a
representative plaintiff by way of the offer, the court concludes
that, having dismissed all of the federal law claims, it is more
appropriate to decline to exercise supplemental jurisdiction over
her state-law claims.

Under

28 U.S.C. § 1367(c)(3), “[t]he

district court may decline to exercise supplemental jurisdiction
over a claim under subsection (a) if . . .

the district court

has dismissed all claims over which it has original
jurisdiction.”

28 U.S.C. § 1367(c).

When federal claims are

dismissed before trial, the basis for retaining jurisdiction is
weak.

See Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d

Cir. 2003) (“[I]n the usual case in which all federal-law claims
are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine--judicial
economy, convenience, fairness, and comity--will point toward
declining to exercise jurisdiction over the remaining state-law

13

claims.”) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 n. 7 (1988)).
Therefore, the plaintiff’s individual and class action
claims under the CMWA are being dismissed as the court declines
to exercise supplemental jurisdiciton over them.
IV.

CONCLUSION
For the foregoing reasons, the defendants’ Motion To Dismiss

(Doc. No. 12) is hereby GRANTED.
The Clerk shall close this case.
It is so ordered.
Dated this 30th day of March 2012 at Hartford, Connecticut.

/s/
Alvin W. Thompson
United States District Judge

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