CONCEICAO v. NATIONAL WATER MAIN CLEANING COMPANY et al

Filing 15

OPINION. Signed by Judge William J. Martini on 6/26/15. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DANIEL CONCEICAO,

Civ. No. 14-5146 (WJM)

Plaintiff,
OPINION
v.
NATIONAL WATER MAIN CLEANING
CO., et al.,
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Daniel Conceicao filed this action against Defendants National
Water Main Cleaning Company (“NWMCC”) and Carylon Corporation
(“Carylon”) alleging unlawful wage payment practices. This matter comes before
the Court on NWMCC’s motion to dismiss Plaintiff’s claims, pursuant to Fed. R.
Civ. P. 12(b)(6), in light of the court-approved settlement in Mulroy v. National
Water Main Cleaning Co., No. 12-3669, 2014 WL 7051778, at *1 (D.N.J. Dec. 12,
2014). There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons below,
Defendant’s motion is GRANTED.
I.

BACKGROUND

Between April 9, 2005 and the week of November 5, 2011, Plaintiff worked
for NWMCC, which provides catch basin and sewer cleaning, inspection, and
maintenance services. Defendant Carylon is NWMCC’s parent company. See
Letter dated June 24, 2015, ECF No. 14. In the instant case, he claims that
Defendants’ payment practices violated the New Jersey Prevailing Wage Act, the
Fair Labor Standard Act, the Davis-Bacon Act, and the Service Contract Act.
Plaintiff filed this action while participating in Mulroy, a state-law wage and
hour class action. That lawsuit similarly alleged that NWMCC’s payment practices
violated the New Jersey Prevailing Wage Act and New Jersey Wage and Hour

Law. Mulroy, 2014 WL 7051778 at *1. The Mulroy litigation was filed on May
2012, and ended when the parties reached a class-wide settlement in January 2014.
Plaintiff received notice of the proposed settlement, which included an explanation
of his right to opt-out or object. On June 2, 2014, he chose to object. Id. at *3.
Then, on August 18, 2014, Plaintiff filed the instant action.
On October 23, 2014, Judge Falk held a fairness hearing, during which the
parties presented arguments regarding whether the Court should consider
Plaintiff’s ambiguous objection a request to opt-out. Id. On December 12, 2014,
Judge Falk ruled that Plaintiff’s objection could not simultaneously function as an
opt-out request, and responded to each of Plaintiff’s objections to the settlement
agreement. Id. at *6-7 n.3. Judge Falk then issued a final settlement approval order
pursuant to Fed. R. Civ. P. 23(e), finding the settlement to be fair, reasonable, and
adequate. Id. at 2.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a
complaint, in whole or in part, if the plaintiff fails to state a claim upon which
relief can be granted. The moving party bears the burden of showing that no claim
has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In
deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations
in the complaint as true and view them in the light most favorable to the
plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump Hotels & Casino
Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998). Moreover,
where the plaintiff is proceeding pro se, the complaint is “to be liberally
construed,” and, “however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 93–94 (2007).
Although a complaint need not contain detailed factual allegations, “a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Thus, the factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, such that it is “plausible on its face.” See id. at
570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir.
2008). A claim has “facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a
‘probability requirement’ . . . it asks for more than a sheer possibility.” Id.
III.

DISCUSSION

Res judicata, also known as claim preclusion, bars plaintiffs from bringing
claims that they or their representatives brought, or could have brought, in a
previously settled litigation. The party raising this affirmative defense bears the
burden of showing that the doctrine applies. United States v. Athlone Industries,
Inc., 746 F.2d 977, 983 (3d Cir. 1984). Res judicata applies where the prior suit (1)
ended in a final judgment on the merits; (2) involved the same parties or their
privies, and (3) was based on the same causes of action. Id.
When asking whether two causes of action are the same, the Court considers
whether the Plaintiff (1) complains of the same wrongs and demands the same
relief; (2) brings the same theory of recovery; (3) would call the same witnesses
and bring the same documents at trial; and, (4) alleges the same material facts. Id.
at 984. “Claim preclusion ... prohibits reexamination not only of matters actually
decided in a prior case, but also those that parties might have, but did not, assert in
that action.” Edmundson v. Borough of Kennett Square, 4 F.3d 186, 189 (3d Cir.
1993). In other words, a new legal theory “does not make the second case different
for purposes of claim preclusion.” Jones v. Lapina, 450 F. Appx. 105, 108–09 (3d
Cir. 2011).
“It is well-settled that under the doctrine of res judicata, ‘a judgment
pursuant to a class settlement can bar later claims based on the allegations
underlying the claims in the settled class action.’” Gotthelf v. Toyota Motor Sales,
U.S.A., Inc., 525 Fed. Appx. 94, 99 (3d Cir. 2013) (quoting In re Prudential Ins.
Co. of Am. Sales Practice Litig., 261 F.3d 355, 366 (3d Cir. 2001)). And, judicial
approvals of settlement agreements are considered final judgments on the merits
for the purposes of claim preclusion. Toscano v. Conn. Gen. Life Ins. Co., 288 Fed.
Appx. 36, 38 (3d Cir. 2008). The Court must principally ask whether the factual
predicate for future claims is the same as the factual predicate underlying the
settlement agreement. Freeman v. MML Bay State Life Ins. Co., 445 Fed. Appx.
577, 579 (3d Cir. 2011).
Here, res judicata applies to all claims that Plaintiff raises in his August 18,
2014 Complaint. First, Judge Falk’s order approving the settlement agreement
constitutes a final judgment on the merits for the purposes of claim preclusion. See
Toscano, 288 Fed. Appx. at 38. Courts facing negotiated settlement agreements

that they determine to be fair, reasonable and adequate, have a duty to enter that
settlement and its release as judgment. Grimes v. Vitalink Communications Corp.,
17 F.3d 1553, 1557 (3d Cir. 1994). The terms of the settlement agreement’s release
provisions define the preclusive effect of that judgment. See Gotthelf, 525 Fed.
Appx. at 13. Thus, Plaintiff has released, and already received judgment on all
“claims pursuant to N.J.S.A. 34:11-56a et seq. and N.J.S.A. 34:11-56.25 et seq.,
the Fair Labor Standards Act, the Davis-Bacon and Related Acts, the Service
Contract Act, claims under ERISA or RICO related to wages or hours of work . . .
and all claims that were asserted or could have been asserted in [Mulroy].”
Conceicao Objection to Mulroy Settlement (“Objection”) at 9, available at D.N.J.
Case No. 12-3669, ECF No. 43.1
Second, the previous suit included these same parties. Plaintiff Conceicao
received notice of the settlement, which carefully detailed his options to object or
opt-out. He did not opt-out. See Mulroy, 2014 WL 7051778 at *6 (finding that
Plaintiff’s objection could not also function as an opt-out request, despite his
ambiguous language). He thus remained a class member bound by the settlement.
Both Defendants were also among the parties released by the settlement
agreement. See Letter dated June 24, 2015.
Third, the Mulroy case was based on the same causes of action. Plaintiff
brings this action under the New Jersey Prevailing Wage Act, Fair Labor Standard
Act, Davis-Bacon Act, and the McNamara Service Contract Act. His class in
Mulroy brought their claims under the New Jersey Prevailing Wage Act and the
New Jersey Wage and Hour law. And in the settlement agreement, the class
expressly released these claims and all other claims based on the laws that Plaintiff
now cites in his Complaint. Further, all Athlone factors lead to the conclusion that
the causes of action here are identical here to those in Mulroy. First, Plaintiff bases
his Complaint off of allegations of the same wrongful wage practices considered in
Mulroy. He also demands the same relief as he did in his objection to the Mulroy
“…all Settlement Class Members who do not submit a valid Request for Exclusion shall be
deemed to… unconditionally release, remise and discharge the Related Parties from any and all
suits…based on putative violations of any federal, state or local law pertaining to hours of work,
payment of wages, benefits, or retaliation related to wages or hours of work, including without
limitation claims for minimum wages, prevailing wages or overtime; claims pursuant to N.J.S.A.
34:11-56a et seq. and N.J.S.A. 34:11-56.25 et seq., the Fair Labor Standards Act, the DavisBacon and Related Acts, the Service Contract Act, claims under ERISA or RICO related to
wages or hours of work. . . and all claims that were asserted or could have been asserted in the
Action regarding events that occurred or are alleged to have occurred from the beginning of time
through the Effective Date [except for certain claims asserted in a separate, ongoing lawsuit in
the District of Massachusetts].”
1

settlement. Compare Objection at 3 with Resp. at 9, ECF No. 9.2 Second, the
theory of recovery is the same. Both complaints allege that the same Defendants
unlawfully withheld wages and owed compensation for transportation between
jobs. Plaintiff also seeks to rehash another issue that he raised in his objection,
arguing that Defendants violated the wage and hour laws by deducting money to
pay for various benefits. Judge Falk considered this argument and upheld the
legality of this standard industry practice. See Mulroy, 2014 WL 7051778 at *6.
Third, the witnesses and documents at trial would be the same. In fact, Plaintiff has
submitted documents in support of this action that he already submitted with his
objection to the settlement agreement. Compare Objection with Resp. Fourth, the
material facts here are exactly the same as those in Mulroy. Thus, in Mulroy, Judge
Falk has already considered and resolved each cognizable point that Plaintiff raises
here.
Finally, to the extent that Plaintiff attempts to bring claims also based on
alleged violations occurring a year earlier than the dates defining the settlement
classes, the settlement agreement bars those claims as well. As a member of the
class, Plaintiff forfeited “all claims that…could have been asserted in the Action
regarding events that occurred or are alleged to have occurred from the beginning
of time to the Effective Date [December 12, 2014].” Objection at 9. Likewise, res
judicata “prohibits reexamination not only of matters actually decided in a prior
case, but also those that parties might have, but did not, assert in that action.”
Edmundson, 4 F.3d at 189. In Plaintiff’s objection to the Mulroy settlement, he
demanded payment for lost wages dating back to May 4, 2006. He could have
demanded payment for wages dating back to April 9, 2005 just as easily.
Furthermore, his objection contains no mention of any inadequacy of the dates on
which the parties based the settlement’s calculations.
The Court thus finds that res judicata bars Plaintiff from bringing the claims
stated in the instant Complaint. The Court accordingly dismisses Plaintiff’s claims
with prejudice.
IV. CONCLUSION
For the reasons set forth above, the Complaint is DISMISSED WITH
PREJUDICE. An appropriate order accompanies this opinion.

In fact, Plaintiff files almost exactly the same “Remedies” document, except for the presently
inconsequential omission of a moral argument.
2

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: June 26, 2015