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)

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 ^