Hugler v. Devilbiss Landscapr Architects Inc.

Filing 27

MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 10/17/2018. (dlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
R. ALEXANDER ACOSTA, SECRETARY
OF LABOR, UNITED STATES
DEPARTMENT OF LABOR,
Plaintiff,

v.
DEVILBISS LANDSCAPE ARCHITECTS,
INC. a corporation d/b/a DEVILBISS
LANDSCAPE ARCHITECTS; and PAUL
DEVILBISS,
Defendants.

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C.A. No. 17-354 (MN)

MEMORANDUM OPINION

Frank E. Noyes, II, Offit Kurman P.A., Wilmington, DE; Wendel V. Hall, Hall Law Office,
PLLC, Washington, DC-attorneys for Plaintiff

Matthew R. Epstein, U.S. Department of Labor, Office of the Solicitor, Philadelphia, PAattorney for Defendants

October 17, 2018
Wilmington, DE

On March 31 , 2017, Plaintiff, R. Alexander Acosta, Secretary of Labor ("Plaintiff' or
" Secretary") filed this suit against Defendants DeVilbiss Landscape Architects, Inc. and Paul
De Vilbiss (collectively "Defendants") asserting violations of the Fair Labor Standards Act
("FLSA"). (D.I. 1). Pending before the Court is Defendants, motion to dismiss the Complaint, or
in the alternative, for summary judgment. (D.I. 7). In addition, in connection with the briefing on

that motion to dismiss, Defendants have moved (D.I. 13) to strike paragraphs 11-14 of the
Declaration of Rowena Luk (D.I. 10, Exh A), which was submitted in connection with Plaintiff's
opposition. For the reasons stated below, the Court will deny both motions.
I.

FACTUAL BACKGROUND
Paul DeVilbiss, a landscape architect, is the president and owner of DeVilbiss Landscape

Architects, Inc., a company engaged in landscape design. (D.1. 1 at ,r,r 1, 2). The Complaint in
this action alleges that during the period from "at least April 18, 20 14 through at least April 15,
2016," Defendants employed workers "engaged in retail and wholesale nursery operations, who
worked over 40 hours in a workweek" but failed to compensate them appropriately for their
ove1time hours. (D.I. 1 at ,r 6). It alleges that Defendants' employees engaged in activities such
as "routinely handling landscaping materials including but not limited to mulch, bricks, pavers,
and gravel" and handling "plants and trees that were not grown" by Defendants, which are "not
agriculture within the meaning of the [FLSA]." (Id.).

The Complaint further alleges that

Defendants "failed to make, keep, and preserve adequate and accurate records of their employees,
which they maintained as prescribed by the regulations issue and found at 29 C.F. R Part 5 16."
(Id. at ,r 7).

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II.

LEGAL STANDARDS

A complaint must contain "a short and plain statement of the claim showing that the pleader
is entitled to relief" Fed. R. Civ. P. 8(a)(2). This requires a "'showing,' rather than a blanket
assertion, of entitlement to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007)
(quoting Fed. R. Civ. P. 8(a)(2)). "Specific facts are not necessary; the statement need only 'give
the defendant fair notice of what the ... claim is and the grounds upon which it rests."' Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). To survive a motion to

dismiss under Rule 12(b)(6), the plaintiffs obligation to provide the grounds for his entitlement to
relief necessitates that the complaint contain "more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.
The factual allegations of a complaint are assumed true and construed in favor of the
plaintiff, "even if it strikes a savvy judge that actual proof of those facts is improbable and 'that a
recovery is very remote and unlikely."' Id at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232,236
(1974)). "[O]n the assumption that all the allegations in the complaint are true (even if doubtful
in fact)," the allegations in the complaint must "raise a right to relief above the speculative level."
Id at 555-56. Put simply, the complaint must plead "enough facts to state a claim for relief that is

plausible on its face." Id at 54 7. "A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (the plausibility standard does
not require probability but requires more than a sheer possibility that a defendant has acted
unlawfully.).
Determining whether a complaint states a plausible claim for relief is "a context-specific
task" that requires the court "to draw on its judicial experience and common sense." Id at 679.

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Accordingly, under Twombly, a court considering a motion to dismiss may begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the assumption of
truth. Id. Although legal conclusions "can provide the framework of a complaint, they must be
supported by factual allegations." Id When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to an entitlement
to relief. Id
Thus, the court must find "enough factual matter (taken as true) to suggest" that "discovery
will reveal evidence" of the elements of the claim. Twombly, 550 U.S. at 556. When the
allegations in a complaint, however true, could not raise a claim of entitlement to relief, the
complaint should be dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Twombly,
550 U.S. at 558; Iqbal, 556 U.S. at 679.

III.

DISCUSSION
A.

Motion to Dismiss
1.

The Complaint Sufficiently Alleges Violation Of the FLSA.

Section 7 of the FLSA forbids an employer from employing any worker "for a workweek
longer than forty hours unless such employee receives compensation ... at a rate not less than one
and one-half times the [worker's] regular rate" for the excess hours. 29 U.S.C. § 207(a)(l).
See Brock v. Claridge Hotel and Casino, 846 F .2d 180, 183 (3d Cir. 1988). Here, the Complaint

alleges employees worked more than 40 hours in a workweek and were not paid the required
overtime premium.

(E.g. D.I. 1 at

,r

6) ("[w]orkweeks for these employees ranged from

approximately 60 to approximately 80 hours, but the employees did not receive time and one-half
their regular rate for their overtime hours.") Thus, Defendants' motion to dismiss on this basis
must be denied.

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Similarly, the FLSA recordkeeping regulations, 29 C.F.R. §§ 516.2(a)(8) and 516.2(a)(9),
require that payroll records reflect segregated earnings for both straight-time and overtime. Here,
the Complaint adequately pleads recordkeeping violations by alleging that Defendants failed to
make, keep, and preserve adequate and accurate records containing "total daily or weekly straighttime earning or wages" in compliance with§ 516.2(a)(8) and "employees' total premium pay for
overtime hours" in compliance with § 5 l 6.2(a)(9). (D.1. 1 at ,r 7). Defendants do not dispute that
the Complaint alleges violations, but rather assert that Defendants' "records contain all of the
required information" and asks the Court to review "selected payroll reports" that are not part of
the pleadings in this case or the public record. (D.I. 8 at 6). In evaluating a motion to dismiss, the
Court should not consider extraneous materials, but should only consider the allegations in the
complaint, exhibits attached to the complaint, and matters of public record. Schmidt v. Skolas, 770
F.3d 241, 249 (3d Cir. 2014). As the Complaint alleges record violations (even though the
violations themselves are disputed), the Court denies Defendants' motion to dismiss on this ground
as well.

2.

The Court Cannot Dismiss the Complaint for Failure to Plead
the Absence of an FLSA Exemption.

As discussed above, Plaintiffs allegations of overtime work without appropriate overtime
compensation are sufficient to meet the requirements of Rule 8(a)(2). "The absence of an FLSA
exemption is not a required element of Plaintiffs claim and, therefore, Plaintiff need not plead
facts which would permit a finder of fact to conclude that an exemption does not apply." Sloane
v. Gulf Interstate Case Field Servs., Inc., No. CV 15-1208, 2016 WL 878118, at *5 (W.D. Pa.
Mar. 8, 2016). An exemption, however, "may be plead[ed] as affirmative defense to an FLSA
claim. As such, Defendant's reliance upon affirmative defenses at this stage is misguided, as it is
inappropriate for the Court to grant a motion to dismiss based on an affirmative defense where the

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factual predicate of said defense is not apparent from the face of the complaint." Id. (citing Brody
v. Hanldn, 145 F. App'x 768, 771 (3d Cir. 2005); In re Tower Air, Inc., 416 F.3d 229,242 (3d Cir.
2005) ("affirmative defenses generally.will not form the basis for dismissal under Rule 12(b)(6)");
In re Adams Golf, Inc. Sec. Litig., 381 F.3d 267, 277 (3d Cir. 2004) ("an affirmative defense may
not be used to dismiss a plaintiffs complaint under Rule 12(b)(6)")).
Moreover, as the Third Circuit has recognized, "[u]nder Federal Rule of Civil Procedure
8, a complaint need not anticipate or overcome affirmative defenses ..."Schmidt, 770 F.3d at 248.
"On a Rule 12(b)(6) motion, an affirmative defense . . . is appropriately considered only if it
presents an insuperable barrier to recovery by the plaintiff." Flight Sys. v. Electronic Data Sys.
Corp., 112 F.3d 124, 127 (3d Cir. 1997). "If the bar is not apparent on the face of the complaint,
then it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6)." Robinson
v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (internal citation omitted).
Here, the absence of an FLSA exemption is not a required element of Plaintiffs claim and,
therefore, Plaintiff need not plead facts that would permit a finder of fact to conclude that an
exemption does not apply. Moreover, federal courts have held that whether a plaintiff falls within
a particular exemption under the FLSA overtime provision constitutes a mixed question of law
and fact, and ultimately requires courts to examine the historical and record facts. Hein v. PNC
Fin. Servs. Grp., Inc., 511 F .Supp.2d 563, 570 (E.D. Pa. 2007). As a result, courts have denied
motions to dismiss when a defendant relies on an exemption. See Hasldns v. VIP Wireless
Consulting, C.A. No. 09-754, 2009 WL 4639070, at *6 (W.D. Pa. Dec. 7, 2009) ("We conclude
such a detailed, fact-intensive analysis is impossible at this stage of the litigation."); Snyder v.
Dietz & Watson, Inc., 837 F.Supp.2d 428, 451-52 (D.N.J. 2011) ("The Court finds that resolution
of the affirmative defense raised by Defendants is not appropriate on a motion to dismiss under

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Rule 12(b)(6)."). So, too this Court denies Defendants' motion to dismiss based on the pleadings
here.

B.

Motion for Summary Judgment

Defendants ask that, in the alternative, their motion to dismiss be considered as a motion
for summary judgment. (D.I. 7; D.I. 8). Summary judgment is only appropriate if admissions on
file, together with affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(c). A factual
dispute is material when it "might affect the outcome of the suit under the governing law."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). All reasonable factual inferences must
be made in a light most favorable to the nonmoving party. Id. at 255. Summary judgment should
only be granted if no reasonable trier of fact could find for the non-moving party. Radich v. Goode,
886 F.2d 1391, 1395 (3d Cir. 1989).
Here, both parties have submitted declarations and other extraneous materials for the Court
to consider. The Court cannot, however, at this stage or on the partial record before it, conclude
that no genuine issues of fact exist, and believe that any summary judgment motions are more
appropriately filed after discovery in this case has occurred. Thus, the Court denies Defendants'
motion to the extent it seeks summary judgment.
C.

Motion to Strike

The Court has declined to entertain a motion for summary judgment at this time. In
evaluating the motion to dismiss, the Court has considered only the allegations in the Complaint,
the exhibit attached to the Complaint, and any matters of public record. It has not considered the
declarations submitted by either party in connection with the motion to dismiss, and thus
Defendants' motion to strike is denied as moot.

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IV.

CONCLUSION

For the foregoing reasons, the court denies Defendant's motion to dismiss the Complaint
and motion to strike paragraphs 11-14 of the Declaration of Rowena Luk. An appropriate order
will follow.

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