RASKAS v. LATTICE, INC. et al

Filing 34

OPINION. Signed by Judge Noel L. Hillman on 7/3/2019. (rss, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SCOTT RASKAS,

1:18-cv-10332-NLH-AMD
Plaintiff,

OPINION

v.
LATTICE, INC., PAUL BURGESS,
JOSEPH NOTO, and TERRY
WHITESIDE,
Defendants.

APPEARANCES
ADAM EDWARD GERSH
FLASTER/GREENBERG PC
1810 CHAPEL AVENUE WEST
CHERRY HILL, NJ 08002
On behalf of Plaintiff
DAVID J. SPRONG
BECKER LLC
354 EISENHOWER PARKWAY
EISENHOWER PLAZA II
STE 1500
LIVINGSTON, NJ 07039
On behalf of Defendants Lattice, Inc., Paul Burgess, and
Terry Whiteside
DARREN MATHEW PFEIL
SHAMY, SHIPERS & LONSKI, P.C.
334 MILLTOWN ROAD
EAST BRUNSWICK, NJ 08816
On behalf of Defendant Joseph Noto
HILLMAN, District Judge
Plaintiff has lodged a complaint against his former employer

for violations of the federal Fair Labor Standards Act and
various New Jersey state laws.

Presently before the Court are

the motions of Defendants to dismiss Plaintiff’s claims against
them.

For the reasons expressed below, the Court will grant

Defendants’ motions to dismiss as to Plaintiff’s FMLA claim, and
decline to retain jurisdiction over Plaintiff’s remaining state
law claims.
BACKGROUND & DISCUSSION
Plaintiff, Scott Raskas, claims that on December 2, 2014,
he accepted employment with Defendant, Lattice Inc., as the
Director of Marketing.

Plaintiff claims that he: (1) “accepted

the position on a salary basis and was supposed to be an exempt
employee”; (2) “was to work as a full-time employee at an
executive level”; (3) “in early 2016, . . . [he] took on
additional responsibilities related to selling to correctional
facilities and managing the activities of the sales team”; and
(4) he “dutifully and faithfully performed his role,” including
the additional duties “without any increase in salary.”

(Amend.

Compl. at 4, Docket No. 13 at 4.)
Plaintiff alleges that even though he “routinely worked in
excess of 40 hours per week,” in December 2016, “Lattice began
withholding significant portions of [his] salary from him,”
claiming that “unfavorable business conditions [] created shortterm cash flow issues for the business.”
2

(Id. at 5.)

Plaintiff

claims that while he continued to work and perform his duties,
and despite his inquiries and complaints, “Lattice failed to pay
him the salary he was owed.”

(Id.)

Plaintiff claims that after

working for almost a year without his full salary, Lattice
terminated him in retaliation for filing this action to collect
his wages. 1

(Id. at 5-6.)

Plaintiff claims that “[p]ast due

salary owed to [him] is in excess of $100,000.00.”

(Id. at 6.)

Plaintiff has filed claims against Lattice and three of its
corporate officers for breach of contract under New Jersey state
law (Count I), violations of New Jersey’s Wage and Hour Laws
(Counts II and III), violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et seq. (Count IV), and retaliation
under New Jersey’s Conscientious Employee Protection Act (Count
V).

Plaintiff’s purported basis for subject matter jurisdiction

is under 28 U.S.C. § 1331 for his FLSA claim, and supplemental
jurisdiction under 28 U.S.C. § 1367 for his state law claims.
Three of the Defendants – Lattice, Paul Burgess, and Terry
Whiteside - filed an answer to Plaintiff’s amended complaint,
and then, somewhat incongruously, moved to dismiss Plaintiff’s
amended complaint for lack of subject matter jurisdiction.
These Defendants argue that Plaintiff cannot maintain his FLSA

1

Plaintiff filed his original complaint on June 8, 2018 while he
was still employed with Lattice. Plaintiff claims he was
terminated on November 27, 2018.
3

claim because he was exempt from the FLSA overtime requirements,
and without a viable federal claim, subject matter jurisdiction
is lacking.

The fourth defendant, Joseph Noto, did not file an

answer, but instead filed a motion to dismiss under Fed. R. Civ.
P. 12(b)(6). 2

Plaintiff opposes Defendants’ motions, arguing

that he has properly pleaded his FLSA claim, and the issue of
whether he is exempt from the FLSA overtime requirements is a
factual issue that cannot be resolved on a motion to dismiss.
Plaintiff also refutes the other bases for dismissal argued by
Noto.
1.

Standard to Apply to Defendants’ Motions

As a primary matter, there is a meaningful and significant
difference between the dismissal of a case for lack of subject
matter jurisdiction and the dismissal of a federal claim for its
failure on the merits.

“‘Whether the complaint states a cause

of action on which relief could be granted is a question of law
and ... it must be decided after and not before the court has
assumed jurisdiction over the controversy.

2

If the court does

In addition to challenging the substance of Plaintiff’s claims
against him, Noto argues that the Court should sua sponte impose
sanctions pursuant to Fed. R. Civ. P. 11(c) against Plaintiff
for adding him to the complaint. Rule 11(c) provides, “On its
own, the court may order an attorney, law firm, or party to show
cause why conduct specifically described in the order has not
violated Rule 11(b).” As we note infra while Plaintiff’s FLSA
count is clearly defective it is not so implausible as to
warrant sua sponte sanctions nor do we find any other grounds to
impose sanctions.
4

later exercise its jurisdiction to determine that the
allegations in the complaint do not state a ground for relief,
then dismissal of the case would be on the merits, not for want
of jurisdiction.’”

Growth Horizons, Inc. v. Delaware County,

Pa., 983 F.2d 1277, 1280 (3d Cir. 1993) (quoting Bell v. Hood,
327 U.S. 678, 682 (1946)).

“‘[D]ismissal for lack of

jurisdiction is not appropriate merely because the legal theory
alleged is probably false, but only because the right claimed is
so insubstantial, implausible, foreclosed by prior decisions of
this Court, or otherwise completely devoid of merit as not to
involve a federal controversy.’”

Id. at 1280-81 (quoting Kulick

v. Pocono Downs Racing Ass'n, 816 F.2d 895, 899 (3d Cir. 1987)
(quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661,
666 (1974)).
Here, although coached in the language of a Rule 12(b)(1)
motion, the essence of the motion by Lattice, Burgess, and
Whiteside is that Plaintiff has failed to assert a plausible
FLSA claim on the facts alleged and if this count falls away no
separate basis for jurisdiction exists for the other counts.
This is a motion to dismiss for failure to state a claim, not a
motion to dismiss for lack of subject matter jurisdiction. 3

3

The group of three Defendants did not assist in adding clarity
to the issues raised in their motion when they failed to cite to
any federal rule or case law to support their argument that the
Court lacks subject matter jurisdiction over Plaintiff’s case.
5

While as explained infra the complaint, as pled, clearly
fails to assert a FLSA claim, the Court does not conclude that
the claim is “so insubstantial, implausible, foreclosed by prior
decisions of this Court, or otherwise completely devoid of
merit” as to deprive the Court of jurisdiction.

Since the three

Defendants have filed an answer, the Court will consider their
application as Rule 12(c) motion. 4

In contrast, the fourth

The Court must nonetheless be careful to properly characterize
the motion before it. “A plaintiff may be prejudiced if what
is, in essence, a Rule 12(b)(6) challenge to the complaint is
treated as a Rule 12(b)(1) motion. When subject matter
jurisdiction is challenged under Rule 12(b)(1), the plaintiff
must bear the burden of persuasion. On the other hand, under
Rule 12(b)(6) the defendant has the burden of showing no claim
has been stated. . . . [T]ransforming a 12(b)(1) motion into a
12(b)(6) motion would deprive the plaintiffs of the procedural
safeguards to which they were entitled.” Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (quotations,
citations, and alterations omitted). In Kehr, the defendants
filed a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), and the district court granted
the motion because it found the RICO claims in plaintiffs'
complaints to be legally insufficient. Although the court
denominated its order as one under Rule 12(b)(1), it appeared to
dismiss the complaint under Rule 12(b)(6) for failure to state a
claim upon which relief could be granted. The Third Circuit
found that even though the plaintiffs recognized defendants’
motion to be advanced pursuant to Rule 12(b)(1), they stated
that “Plaintiffs are treating the Motion of Defendants entitled
a ‘Motion to Dismiss' as one filed under Rule 12(b)(6).” The
Third Circuit found in that situation there was no harm in
treating the district court’s dismissal as having been made
under Rule 12(b)(6). The Third Circuit stressed, however, that
challenges for failure to state a claim ordinarily should be
made under Rule 12(b)(6). Id., 926 F.2d at 1408-09.
4

Because the three Defendants filed an answer to Plaintiff’s
amended complaint (Docket No. 19), Fed. R. Civ. P. 12(b)(6) is
not an available avenue for these three Defendants to challenge
6

defendant, Joseph Noto, did not file an answer, but instead
filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6).

The

legal standard to be applied to the two motions is the same. 5
2.

Assessment of Plaintiff’s FLSA claim

The Third Circuit has explained that the “‘FLSA establishes
federal minimum-wage, maximum-hour, and overtime guarantees that
cannot be modified by contract.’”

Davis v. Abington Memorial

Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Genesis
Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1527 (2013)).
Under the FLSA, an employer must pay its employees at least a
specified minimum hourly wage for work performed, and the
employer must pay one and one-half times the employer’s regular

the sufficiency of Plaintiff’s pleadings. See Fed. R. Civ. P.
12(b) (“A motion asserting [the defense of failure to state a
claim] must be made before pleading if a responsive pleading is
allowed.”); Fed. R. Civ. P. 12(h)(2) (“Failure to state a claim
upon which relief can be granted . . . may be raised: (A) in any
pleading allowed or ordered under Rule 7(a); (B) by a motion
under Rule 12(c); or (C) at trial.”). As a Rule 12 motion, the
Court will not consider any of the affidavits and other
documents filed by the parties, and instead only focus on the
claims in Plaintiff’s complaint.
5

In practical effect, there is no difference between a Rule
12(b)(6) motion and a Rule 12(c) motion. See Turbe v.
Government of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991)
(because the defendant “filed its motion after it had already
filed an answer, the motion must be considered a Rule 12(c)
motion. Nevertheless, Rule 12(h)(2) provides that a defense of
failure to state a claim upon which relief can be granted may
also be made by a motion for judgment on the pleadings. In this
situation, we apply the same standards as under Rule 12(b)(6)”).
7

wage for hours worked in excess of forty hours per week.
(citing 29 U.S.C. §§ 206, 207).

Id.

Employers who violate these

provisions are “liable to the employee or employees affected in
the amount of their unpaid minimum wages, or their unpaid
overtime compensation, as the case may be, and in an additional
equal amount as liquidated damages.”

Id. (quoting § 216(b)).

Thus, to recover overtime compensation under the FLSA, “an
employee must prove that he worked overtime hours without
compensation, and he must show the amount and extent of his
overtime work as a matter of just and reasonable inference.”
Id. (citations and quotations omitted).
Certain employees are exempt from the overtime wage
requirements, however.

Under 29 U.S.C. § 213(a)(1), “any

employee employed in a bona fide executive, administrative, or
professional capacity (including any employee employed in the
capacity of academic administrative personnel or teacher in
elementary or secondary schools), or in the capacity of outside
salesman (as such terms are defined and delimited from time to
time by regulations of the Secretary,” is exempt from overtime
requirements.

FLSA exemptions are to be given a fair (as

opposed to narrow) interpretation, Depalma v. Scotts Company,
LLC, 2019 WL 2417706, at *5 (D.N.J. June 10, 2019) (citing
Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018)
(quoting A. Scalia & B. Garner, Reading Law 363 (2012)), and
8

employers bear the burden to prove that an employee qualifies
for an FLSA exemption, Depalma, 2019 WL 2417706 at *6 (citing
Mazzarella v. Fast Rig Support, LLC, 823 F.3d 786, 790–91 (3d
Cir. 2016); Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 900
(3d Cir. 1991)).
In this case, Plaintiff’s FLSA claim alleges:
52. Pursuant to the Fair Labor Standards Act,
Defendants are liable to Mr. Raskas for the foregoing
conduct, including, without limitation, failing to
compensate him for overtime because he was improperly
characterized as exempt when he was not paid on a salary
basis, failing to pay him the minimum wage, and withholding
wages from him.
53. As a result of this unlawful conduct, Mr. Raskas
has suffered, and will continue to suffer, substantial
damages.
(Docket No. 13 at 8.)
Applying the Rule 12(b)(6) standard to Plaintiff’s
complaint, 6 the Court accepts as true all of Plaintiff’s

6

When considering a motion to dismiss a complaint 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. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d
Cir. 1977). However, “[a]lthough the Federal Rules of Civil
Procedure do not require a claimant to set forth an intricately
detailed description of the asserted basis for relief, they do
require that the pleadings give defendant fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.”
9

allegations.

In doing so, Plaintiff’s own allegations compel

the conclusion that Plaintiff was an exempt employee and not
covered by the FLSA’s overtime requirements.
Plaintiff states in his amended complaint that he was a
full-time, salaried, executive, exempt “Director of Marketing”
who managed the activities of the sales team, among other
duties.

(Docket No. 13 at 3-6, 8.)

Plaintiff claims that over

the course of a year, Lattice underfunded Plaintiff’s salary in
excess of $100,000.

(Id. at 6-7.)

The Court accepts

Plaintiff’s averments about himself to be true.

As such,

Plaintiff’s description of his status as an employee with
Lattice falls squarely in the FLSA’s administrative exemption or

Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3
(1984) (quotation and citation omitted). 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 Atlantic 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.”).
A court need not credit either “bald assertions” or “legal
conclusions” in a complaint when deciding a motion to dismiss.
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 142930 (3d Cir. 1997). The defendant bears the burden of showing
that no claim has been presented. Hedges v. U.S., 404 F.3d 744,
750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor,
Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
10

executive exemption, or both. 7
(a) The term “employee employed in a bona fide
administrative capacity” in section 13(a)(1) of the Act
shall mean any employee:
(1) Compensated on a salary or fee basis at a rate of
not less than $455 per week . . .; 8
(2) Whose primary duty is the performance of office or
non-manual work directly related to the management or
general business operations of the employer or the
employer's customers; and
(3) Whose primary duty includes the exercise of
discretion and independent judgment with respect to
matters of significance.
29 C.F.R. § 541.200.
a) The term “employee employed in a bona fide executive
7

The FLSA does not define the term “executive” or
“administrative” for purposes of the exemption, but the statute
directs the Department of Labor (“DOL”) to do so by regulation.
See 29 U.S.C. § 213(a)(1). The DOL promulgated a new version of
29 C.F.R. § 541.100(a)(1) regarding the minimum salary
requirement. Langston v. Lookout Mountain Community Services,
2019 WL 2372314, at *5 (11th Cir. June 5, 2019) (citing Defining
and Delimiting the Exemptions for Executive, Administrative,
Professional, Outside Sales and Computer Employees, 81 Fed. Reg.
32,391, 32,549 (May 23, 2016) (codified at 29 C.F.R. §
541.100(a)(1)). The U.S. District Court for the Eastern
District of Texas has held this new version to be invalid. Id.
(citing Nevada v. U.S. Dep’t of Labor, 275 F. Supp. 3d 795, 80708 (E.D. Tex. 2017)). Although it appears that the issue is
still unresolved and winding its way through the courts, it does
not affect the Court’s analysis in this case.
8

A yearly salary at that rate totals $23,660. Plaintiff claims
that he is owed at least $100,000 over the course of a year.
Even if Plaintiff was not paid at all – a claim that Plaintiff
does not make – his salary would be at least $100,000 a year,
which readily satisfies this requirement. Failing to pay
Plaintiff his salary gives rise to a breach of contract claim.
As explained infra, it does not compel the conclusion that he
becomes a de facto hourly employee.
11

capacity” in section 13(a)(1) of the Act shall mean any
employee:
(1) Compensated on a salary basis at a rate of not
less than $455 per week . . . ;
(2) Whose primary duty is management of the enterprise
in which the employee is employed or of a customarily
recognized department or subdivision thereof;
(3) Who customarily and regularly directs the work of
two or more other employees; and
(4) Who has the authority to hire or fire other
employees or whose suggestions and recommendations as
to the hiring, firing, advancement, promotion or any
other change of status of other employees are given
particular weight. 9
29 C.F.R. § 541.100(a).
The regulations expand on the distinction between “blue
collar” and “white collar” employees for purposes of these
exemptions.

Depalma v. Scotts Company, LLC, 2019 WL 2417706, at

*4 (D.N.J. June 10, 2019).

The regulations explain that the

exemptions do not apply to manual laborers or other “blue
collar” workers who perform work involving repetitive operations
with their hands, physical skill and energy.

9

29 C.F.R. §

“An employee's suggestions and recommendations may still be
deemed to have ‘particular weight’ even if a higher level
manager's recommendation has more importance and even if the
employee does not have authority to make the ultimate decision
as to the employee's change in status.” 29 C.F.R. § 541.105.
Plaintiff does not aver that he had the authority to hire or
fire employees, and he does not say he provided suggestions or
recommendations to higher level managers regarding the hiring or
firing of employees, but Plaintiff states that he managed the
sales team, which by implication infers that Plaintiff exercised
some control and influence over subordinate employees.
12

541.3(a).

The exemptions also do not apply to law enforcement,

firefighters, or paramedics, no matter their rank or how highly
they are paid.

29 C.F.R. § 541.3(b).

Plaintiff argues that he qualifies for the overtime wage
requirements under the FLSA because even though he was
“supposed” to be an exempt executive, the non-payment of his
full salary rendered him to be “improperly characterized as
exempt.”

(Docket No. 13 at 8.)

This position as alleged in

Plaintiff’s amended complaint is without merit. 10
Accepting as true that Defendants did not pay Plaintiff his
full salary, that circumstance does not convert his executive
level position into a nonexempt, non-executive, “blue collar”
position.

The regulations do not say that if an exempt employee

is not paid his full salary for whatever reason, that employee
is then considered to be nonexempt.

Instead, “exempt or

nonexempt status of any particular employee must be determined
on the basis of whether the employee’s salary and duties meet
the requirements of the regulations in this part.”

29 C.F.R. §

541.2.
Regarding Plaintiff’s salary, Plaintiff does not plead the

10

In his opposition brief, Plaintiff contends that subject
matter jurisdiction may be premised on his FLSA retaliation
claim because his status as exempt or nonexempt is not material
to that analysis. Plaintiff, however, has not asserted an FLSA
retaliation claim in his amended complaint.
13

specific salary he was being paid, but he claims that over a
year Defendants withheld $100,000 of his salary.

As noted

above, see supra note 8, to qualify as exempt, an employee must
earn at least $455 a week, which amounts to $23,660 a year.

The

amount of salary allegedly withheld from Plaintiff shows that
his total salary easily meets that requirement. 11

Additionally,

Plaintiff alleges that Defendants failed “to pay him the minimum
wage” (Docket No. 13 at 8, emphasis added), which in New Jersey
was $8.85 prior July 1, 2019. 12

Plaintiff, however, provides no

factual support for that allegation. 13

To the extent that

Plaintiff alleges that he was not paid his minimum wage,
Plaintiff fails to plead the amount of his hourly wage.

Both of

these deficiencies do not meet the pleading standards under
Twombly/Iqbal.
As for the alleged overtime Plaintiff worked, Plaintiff

11

The provision that is currently subject to an injunction
barring enforcement, see supra note 7, which further provides,
“As of December 1, 2016, and until a new rate is published in
the Federal Register by the Secretary, [an exempt executive,
administrative or professional employee under section 13(a)(1)
of the Act] must be compensated on a salary basis at a rate per
week of not less than $913.” 29 C.F.R. § 541.600. That rate
amounts to an annual salary of $47,476. Plaintiff’s salary
would still qualify under this provision.
12

See https://www.nj.gov/labor/wagehour/content/general_
information.html.
13

The minimum wage paid for 40 hours of work for 52 weeks totals
$18,408 a year.
14

alleges, “Mr. Raskas routinely worked in excess of 40 hours per
week.”

(Docket No. 13 at 4.)

insufficiently pleaded.

This allegation is also

See Davis v. Abington Memorial Hosp.,

765 F.3d 236, 242 (3d Cir. 2014) (concluding that the
plaintiffs’ allegations were insufficient because “[n]one of the
named plaintiffs has alleged a single workweek in which he or
she worked at least forty hours and also worked uncompensated
time in excess of forty hours,” and

“[o]f the four named

plaintiffs who allege that they ‘typically’ worked at least
forty hours per week, in addition to extra hours ‘frequently’
worked during meal breaks or outside of their scheduled shifts .
. . none indicates that she in fact worked extra hours during a
typical (that is, a forty-hour) week”).
Regarding Plaintiff’s duties, he refers to himself as an
executive “Director of Marketing” who managed the activities of
the sales team and assumed additional responsibilities related
to selling to correctional facilities.

Plaintiff does not

allege that he performed any “blue collar” or other duties that
would fall outside the scope of the FLSA overtime wage
exemptions. 14

14

To qualify for exemption:
[A]n employee's “primary duty” must be the performance of
exempt work. The term “primary duty” means the principal,
main, major or most important duty that the employee
performs. Determination of an employee's primary duty must
15

In sum, Plaintiff is a self-described executive who was
hired as an exempt employee on a salary basis.

When Plaintiff

learned of Lattice’s alleged financial difficulties, and was
informed that Lattice could not pay him his full salary,
Plaintiff voluntarily continued to work there for two years. 15
Plaintiff may be entitled to the salary he earned under the
terms and conditions of his employment, but he has failed to
state a viable claim that he is a non-exempt employee entitled
to overtime pay under the FLSA.
Consequently, the Court will dismiss Plaintiff’s FLSA
claim.

Because the remaining claims in Plaintiff’s complaint

sound under New Jersey state law and there is no independent
basis for subject matter jurisdiction absent the dismissed FLSA
claim, the Court will decline to exercise supplemental

be based on all the facts in a particular case, with the
major emphasis on the character of the employee's job as a
whole. Factors to consider when determining the primary
duty of an employee include, but are not limited to, the
relative importance of the exempt duties as compared with
other types of duties; the amount of time spent performing
exempt work; the employee's relative freedom from direct
supervision; and the relationship between the employee's
salary and the wages paid to other employees for the kind
of nonexempt work performed by the employee.
29 C.F.R. § 541.700.
15

Plaintiff’s amended complaint alleges that he was not paid his
full salary for over a year, but Plaintiff alleges the salary
reduction began in December 2016 and continued until he was
terminated on November 27, 2018. (Docket No. 13 at 5.)
16

jurisdiction over those claims. 16

28 U.S.C. § 1367(c)(3).

CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss
will be granted.

An appropriate Order will be entered.

Date:
July 3, 2019
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

16

“In enacting section 1367, Congress intended to enhance a
district court's ability to gain jurisdiction over pendent
claims and parties while providing those courts with the
discretion to decline to exercise supplemental jurisdiction in
several express circumstances.” De Asencio v. Tyson Foods,
Inc., 342 F.3d 301, 308 (3d Cir. 2003). Importantly, pendent
jurisdiction is a doctrine of discretion, not a plaintiff's
right. See id. (citing United Mine Workers of Am. v. Gibbs, 383
U.S. 715, 726 (1966)). A district court may decline to exercise
supplemental jurisdiction where it “has dismissed all claims
over which it has original jurisdiction.” 28 U.S.C. §
1367(c)(3).
17