CHEN et al v. CENTURY BUFFET AND RESTAURANT, INC. et al

Filing 88

OPINION & ORDER granting 74 Motion to Dismiss as to Deft Mullennium only, the Amended Complaint is hereby Dismissed with prejudice. Signed by Judge Stanley R. Chesler on 4/21/11. (jd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RONG CHEN, et al.,
Plaintiffs,
v.
CENTURY BUFFET AND
RESTAURANT, et al.,
Defendants.

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Civil Action No. 09-1687 (SRC)

OPINION & ORDER

CHESLER, U.S.D.J.
This matter comes before this Court on the motion to dismiss the Third Amended
Complaint for failure to state a valid claim for relief, pursuant to Federal Rule of Civil Procedure
12(b)(6), by Defendant Millennium Building and Land Inc. (“Millennium.”) For the reasons
stated below, the motion will be granted.
On December 14, 2010, this Court granted Millennium’s previous motion to dismiss the
Amended Complaint for failure to state a claim, and granted Plaintiffs leave to amend the
Amended Complaint to replead the allegations against Millennium. Millennium now moves to
dismiss the Third Amended Complaint.
In brief, Millennium contends that Plaintiffs’ claims against it require an
employer/employee relationship, and Plaintiffs have not alleged that Millennium is their
employer. Millennium asserts that there is no legal basis for using an alter ego theory to hold
Millennium liable under the Fair Labor Standards Act (“FLSA”) or the New Jersey Wage and
Hour Law (“NJWHL.”)
In response, Plaintiffs do not contend that Millennium employed any Plaintiffs or acted as

an employer. Nor do Plaintiffs point to any provisions in the FLSA or NJWHL which might be
interpreted so as to render Millennium liable. Instead, Plaintiffs look to various cases to
persuade this Court that it may use its equitable powers to create alter ego liability under these
statutes. Plaintiffs cite no case, however, in which any court has ever done so.
Plaintiffs first cite American Bell, Inc. v. Federation of Tel. Workers, 736 F.2d 879,
886-887 (3d Cir. 1984) (citation omitted), in which, discussing veil piercing, the Third Circuit
stated: “We have suggested that there may be a less precise notion that the corporations simply
acted interchangeably and in disregard of their corporate separateness.” Setting aside the fact
that, in the next sentence, the Third Circuit qualified this by saying that “specific, unusual
circumstances” were also required, the Third Amended Complaint does not allege that
Millennium and Century Buffet acted interchangeably in any way relevant to these claims. Id. at
887. The Third Amended Complaint does not allege, for example, that Millennium sometimes
paid wages to Plaintiffs. This Court need not reach the question of whether American Bell
supports Plaintiffs’ alter ego theory, because, even if it did, the Third Amended Complaint does
not allege any facts that could support finding that the entities acted interchangeably in regard to
the subject matter of these claims.
Plaintiffs next cite State, Dept. of Environmental Protection v. Ventron Corp., 94 N.J.
473, 501 (1983), a veil piercing case in which the New Jersey Supreme Court stated: “Even in
the presence of corporate dominance, liability generally is imposed only when the parent has
abused the privilege of incorporation by using the subsidiary to perpetrate a fraud or injustice, or
otherwise to circumvent the law.” The Third Amended Complaint does not allege that
Millennium and Century Buffet have a parent/subsidiary relationship. Moreover, the Third

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Amended Complaint states no facts to support the idea that Millennium used Century Buffet (or
vice versa) to evade the FLSA or NJWHL. There is nothing in the Third Amended Complaint
which suggests that the relationship between Millennium and Century Buffet played any role in
the alleged underpayment of wages to Plaintiffs.
Such is also the case with Plaintiffs’ citation of Culbreth v. Amosa, Ltd., 898 F.2d 13, 15
(3d Cir. 1990), an alter ego case in which the Third Circuit discussed “puppet-like” control of
one entity by another. Plaintiffs overlook the fact that, in the previous sentence, the Third Circuit
stated:
[I]t is nevertheless plain that Pennsylvania, like New Jersey, does not allow
recovery unless the party seeking to pierce the corporate veil on an alter-ego
theory establishes that the controlling corporation wholly ignored the separate
status of the controlled corporation and so dominated and controlled its affairs
that its separate existence was a mere sham.
Id. at 14. The Third Amended Complaint does not allege facts which would support finding that
Millennium so dominated and controlled Century Buffet that its separate existence was a mere
sham.
This Court finds that it need not reach the question of the validity of the legal theories
advanced by Plaintiffs to find alter ego liability under the FLSA or NJWHL.1 The Third
Amended Complaint does not allege sufficient facts to support any of the alter ego or veil
piercing legal theories offered by Plaintiffs. The Third Amended Complaint alleges no facts
which could link Millennium in any way to the alleged violations of the FLSA or NJWHL by
Century Buffet.
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The Court observes, however, that both the FLSA and NJWHL are statutes, and that
Plaintiffs have made no demonstration of any legislative intent to create an alter ego theory of
liability under these statutes. Absent such a demonstration, this Court is not inclined to break
new ground and create such a cause of action.
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A Rule 12(b)(6) motion to dismiss should be granted only if the plaintiff is unable to
articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1974 (2007). The Third Amended Complaint does not state enough
facts to state a plausible claim against Millennium for liability under the FLSA or NJWHL.
Plaintiffs’ opposition brief does not assert that Plaintiffs have claims against Millennium under
any other law. Millennium’s motion to dismiss the Third Amended Complaint will be granted.
Plaintiffs have now filed one original complaint and three amended complaints. This
Court has now twice granted Millennium’s motion to dismiss for failure to state a valid claim.
The Court concludes that further amendment of the Complaint would be futile. As to Defendant
Millennium only, the Third Amended Complaint will be dismissed with prejudice.
For these reasons,
IT IS on this 21st day of April, 2011
ORDERED that Defendant’s motion to dismiss the Third Amended Complaint for
failure to state a valid claim for relief, pursuant to Federal Rule of Civil Procedure 12(b)(6),
(Docket Entry No. 74) is GRANTED, and, as to Defendant Millennium only, the Amended
Complaint is hereby DISMISSED with prejudice.

s/ Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.

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