MacDonald v. J. Brown, Inc. et al

Filing 11

Judge Mark L. Wolf: ENDORSED ORDER entered. MEMORANDUM AND ORDER: It is hereby ORDERED that: 1.) Defendants' Motion to Dismiss (Docket No. 7) is DENIED. 2.) This case is REFERRED to the Magistrate Judge for all pretrial purposes. (Franklin, Yvonne)

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS R. SCOTT MACDONALD, Plaintiff C.A. V. J. BROWN, INC. No. 15-13252-MLW and JEFF BROWN, Defendants. MEMORANDUM AND ORDER WOLF, D.J. September 16, 2016 Defendants J Brown Inc.'s and Jeff Brown's motion to dismiss plaintiff R. Scott MacDonald's claim under the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. §207 ^ MacDonald has alleged a seq, is being denied because plausible claim that they violated the FLSA by failing to pay him overtime wages for time he worked in excess of forty-hours a week. 173, 174-75 (1st Cir. See Martinez v. Petrenko, 792 F.3d 2015). Defendants' motion to dismiss plaintiff's Massachusetts Wage Act claim, under M.G.L. c. Defendants assert plaintiff that 149, §150, did is also not meritorious. not give notice to the Massachusetts Attorney General 90 days before filing the complaint in this case, as required by §150. Plaintiff's complaint, in SI14, alleges that he did ask the Attorney General for authorization to sue. In his Opposition to defendants' motion to dismiss, plaintiff states that the notice was given on "August 21, 2015, contemporaneous with the filing of this Action." 10 at See Docket No. 3. The Supreme Judicial Court has held that: [F]allure to file a complaint with the Attorney General before initiating a private suit for alleged employment violations does not interfere with the accomplishment of the statutory purposes of §150 to a substantial degree, at least where the Attorney General is notified of the suit during its pendency. Depianti v. Jan-Pro Franchising Int'l, Inc., 614, 990 N.E.2d 1054, 1062 (2013). Therefore, a plaintiff's "failure first to file a complaint with the Attorney General does not deprive the United States District Court of jurisdiction to consider his claims under G.L. . . . §150 . . ." Id. In deciding defendants' motion to dismiss, the court must accept plaintiff's plausible allegations as true. See Penalbert- Roia V. Fortuno-Burset, plaintiff has plausibly 631 F.3d 592, alleged General of his §150 claim, he 595 has (1st Cir. notified N.E.2d a t the As Attorney the motion to dismiss for failure to exhaust administrative remedies is not meritorious. 614 2011). See Depianti, 1062. In view of the foregoing, it is hereby ORDERED that: 1. Defendants' Motion to Dismiss 2. This case is REFERRED to the Magistrate Judge for all pretrial purposes. (Docket No. 7) is DENIED. UNITED^TATES DISTRICT JUDGE ^

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