MATSON v. SCO, SILVER CARE OPERATIONS, LLC et al
OPINION. Signed by Judge Noel L. Hillman on 2/23/2018. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LISA MATSON, on behalf of
herself and those similarly
SCO, SILVER CARE OPERATIONS,
LLC d/b/a/ ALARIS HEALTH AT
CHERRY HILL, SOUTH CENTER
STREET NURSING LLC d/b/a
ALARIS HEALTH AT ST. MARY'S,
and AVERY EISENREICH,
DANIEL ARI HOROWITZ
MATTHEW D. MILLER
SWARTZ SWIDLER LLC
1101 KINGS HIGHWAY NORTH
CHERRY HILL, NJ 08034
On behalf of Plaintiff
GOLDBERG & WEINBERGER LLP
630 THIRD AVENUE
NEW YORK, NY 10017
On behalf of Defendants
HILLMAN, District Judge
This is a Fair Labor Standards Act (FLSA) and New Jersey
Wage and Hour Law (NJWHL) matter.
Plaintiff argues she, and
those similarly situated, were not paid proper overtime
compensation in violation of the FLSA and NJWHL.
Court is Defendants’ July 5, 2017 Motion to Dismiss.
reasons that follow, the Court will deny Defendants’ Motion to
The Court takes its facts from Plaintiff’s June 7, 2017
Plaintiff was employed by Defendants as a
Registered Respiratory Therapist from October 2013 to December
Plaintiff earned $33 per hour as a Registered
Defendant Avery Eisenreich owns SCO, Silver Care
Operations, LLC d/b/a Alaris Health at Cherry Hill (“Cherry
Hill”) and South Center Street Nursing LLC d/b/a Alaris Health
at St. Mary’s (“St. Mary’s”), as well as other Alaris
The payrolls for employees at Cherry Hill, St.
Mary’s, and other Alaris facilities are processed centrally by
Defendants’ payroll administrator Joanne Rocco.
Until April 2015, Plaintiff worked exclusively at the
Cherry Hill location.
In April 2015, Plaintiff also began
working at the St. Mary’s location.
After that point, during at
least nine two-week pay periods, Plaintiff worked at both the
Cherry and St. Mary’s locations during the same workweeks.
resulted in Plaintiff typically working over forty total hours
According to Plaintiff, these hours were not
aggregated for the purpose of paying Plaintiff overtime wages.
Plaintiff argues Defendants failed to aggregate the total
hours worked by Plaintiff at Defendants’ facilities for the
purpose of paying overtime when she worked at more than one of
Plaintiff alleges Defendants consequently
failed to pay at least one and a half times her regular rates
for all hours worked in excess of forty hours a week during the
weeks she worked at multiple locations.
Plaintiff’s Amended Complaint asserts three counts: (1)
violations of the FLSA, (2) violations of the NJWHL, and (3)
civil conspiracy. 1
Defendants filed their Motion to Dismiss on
July 5, 2017.
This Court has federal question jurisdiction pursuant to 28
U.S.C. § 1331, as Plaintiff brings this action to remedy alleged
violations of the FLSA, 29 U.S.C. § 201, et seq.
exercises supplemental jurisdiction over Plaintiff’s remaining
The civil conspiracy claim was voluntarily dismissed by
Plaintiffs on August 4, 2017 pursuant to Federal Rule of Civil
state law wage claim pursuant to 28 U.S.C. § 1367. 2
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well
settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
Under the liberal federal pleading rules, it is not
necessary to plead evidence, and it is not necessary to plead
all the facts that serve as a basis for the claim.
For a Rule 23 class certification, plaintiffs must opt-out
of the class, whereas plaintiffs must opt-in under the FLSA’s
conditional certification. Jones v. SCO, Silver Care
Operations, No. 13-7910, 2014 WL 5410627, at *1 n.1 (D.N.J. Oct.
23, 2014). “Actions that proceed under both ‘opt-in’ and ‘optout’ procedural mechanisms are sometimes referred to as ‘hybrid’
actions.” Id. The Third Circuit, in Knepper v. Rite Aid Corp.,
675 F.3d 249 (3d Cir. 2012), “ruled that jurisdiction over a
Rule 23 ‘opt-out’ class action based on state-law claims that
parallel the FLSA is not ‘inherently incompatible’ with the
FLSA’s conditional certification ‘opt-in’ procedure.” Id.
(quoting Knepper, 675 F.3d at 260). The Court will exercise
supplemental jurisdiction over Plaintiffs’ NJWHL claim because
the underlying operative facts are the same as the FSLA claim.
Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977).
Federal Rules of Civil Procedure . . . do require that the
pleadings ‘give the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests.’”
Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3
(1984) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
A district court, in weighing a motion to dismiss, asks
“not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.”
Bell Atl. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft
v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions’
. . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (“Iqbal . . . provides the final nail in the coffin for
the ‘no set of facts’ standard that applied to federal
complaints before Twombly.”).
Defendants’ Motion to Dismiss does not seek to dismiss
Plaintiff’s claim as asserted individually.
Rather, at this
stage, Defendants seek only to dismiss Plaintiff’s collective
action and class action claims, alleging they were not
In determining whether Plaintiff’s class action and
collective action claims should go forward, the Court recognizes
that, under Federal Rule of Civil Procedure 23(c)(1)(A), “[a]t
an early practicable time after a person sues or is sued as a
class representative, the court must determine by order whether
to certify the action as a class action.”
Plausibly, this could
be accomplished prior to discovery pursuant to a Rule 12(b)(6)
S. Broward Hosp. Dist. v. MedQuist, Inc., 516 F. Supp.
2d 370, 401 (D.N.J. 2007).
However, “decisions in this District
teach that a dismissal of class certification allegations should
be ordered only ‘in those rare cases where the complaint itself
demonstrates that the requirements for maintaining a class
action cannot be met.’”
Id. (quoting Clark v. McDonald’s Corp.,
213 F.R.D. 198, 205 n.3 (D.N.J. 2003)).
“Dismissal at this
stage in the litigation would not allow Plaintiffs to fully
develop their class claims through discovery.”
better course is to deny such a motion because ‘the shape and
form of a class action evolves only through the process of
Id. at 401-02 (quoting Conley v. Gibson, 355 U.S.
41, 45-46 (1957)).
The general principal that “[d]ismissal of
class allegations at this stage should be done rarely” guides
this Court in deciding the pending motion.
Id. at 401.
Plaintiff brings her NJWHL claim both individually and on
behalf of those similarly situated.
Federal Rule of Civil
Procedure 23(a) provides the prerequisites for a class action:
One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
the class is so numerous that joinder of all
members is impracticable;
there are questions of law or fact common to
the claims or defenses of the representative
parties are typical of the claims or defenses
the representative parties will fairly and
adequately protect the interests of the class.
In addition to satisfying the prerequisites in Rule 23(a), a
purported class action also must satisfy Rule 23(b) under either
subsection (1), (2), or (3).
Plaintiff’s Complaint appears to
key the class action to Rule 23(b)(3).
Rule 23(b) provides, in
A class action may
satisfied and if:
. . . .
the court finds that the questions of law
predominate over any questions affecting
only individual members, and that a class
action is superior to other available
matters pertinent to these findings
the class members’ interests
the prosecution or defense of
the extent and nature of any
controversy already begun by
or against class members;
concentrating the litigation
of the claims in the particular
the likely difficulties
managing a class action.
“Plaintiff seeks to represent a class of all persons who
worked for Defendants as non-exempt, hourly employees at any
point during the two years preceding the date the instant action
was initiated, who were subject to Defendants’ unlawful pay
practices,” i.e., whose hours were not aggregated when working
at multiple facilities in the same workweek, resulting in
Defendants’ not paying overtime.
With regard to the Rule 23(a) requirements, Plaintiff
alleges “[t]he class is so numerous that the joinder of all
class members is impracticable.”
Plaintiff pleads that the
potential class is likely over forty members.
there are “questions of law and fact that are common to the
class,” such as “whether Defendants failed to pay proper
overtime wages to Named Plaintiff and Class Plaintiffs who
worked at multiple locations during the same workweek.”
Plaintiff further alleges “Plaintiff’s claims are typical of the
claims of the putative class members” and that “Plaintiff will
fairly and adequately protect the interests of the putative
class because Named Plaintiff’s interests are coincident with,
and not antagonistic to, those of the Class” and because “Named
Plaintiff has retained counsel with substantial experience in
the prosecution of claims involving employee wage disputes.”
The Court finds Plaintiff’s complaint has sufficiently
pleaded the requirements of Rule 23(a) to survive this Motion to
Plaintiff’s Complaint also contains sufficient
allegations to satisfy Rule 23(b)(3), stating that “[q]uestions
of law and fact that are common to the members of the class
predominate over questions that affect only individual members
of the class.”
The Court finds Plaintiff has pled sufficient
allegations to survive a motion to dismiss her class action
claim at this stage of the litigation.
Plaintiff brings her FLSA claim both individually and as a
collective action pursuant to Section 16(b) of the FLSA.
U.S.C. § 216(b) provides: “An action to recover the liability
prescribed . . . may be maintained against any employer . . . 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.”
Thus, “[t]o certify a case
as a collective action under the FLSA, the Court must determine
that employees in the class are ‘similarly situated,’ within the
meaning of § 16(b) of the Act.”
Bredbenner v. Liberty Travel,
Inc., Nos. 09-905, 09-1248, 09-4587, 2011 WL 1344745, at *17
(D.N.J. Apr. 8, 2011).
The “factors to reach a final
determination on class certification under the FLSA . . .
include ‘(1) the disparate factual and employment settings of
the individual plaintiffs; (2) the various defenses available to
[defendants] which appear to be individual to each plaintiff,
[and] (3) fairness and procedural considerations.’”
(alterations in original) (quoting Lusardi v. Xerox Corp., 118
F.R.D. 351, 359 (D.N.J. 1987)).
“[T]he analysis for final
certification ‘largely overlap[s] with class certification under
Federal Rule of Civil Procedure 23(a).’”
Id. (second alteration
in original) (quoting Murillo v. Pac. Gas & Elec. Co., No. 081974, 2010 WL 2889725, at *3 (E.D. Cal. July 21, 2010)).
Plaintiff pleads “Named Plaintiff and Collective Plaintiffs
are similarly situated, have substantially similar pay
provisions and are all subject to Defendants’ unlawful policies
For substantially the same reasons the Court
found the Rule 23(a) and (b) requirements were met, the Court
similarly finds Plaintiff sufficiently pleaded the FLSA
collective action requirements to survive this motion to
Finding Defendants’ Motion to Dismiss Plaintiff’s class
action and collective action claims to be premature, the Court
will deny Defendants’ Motion to Dismiss.
An appropriate Order will follow.
Date: February 23, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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