TAVERAS v. PSC INDUSTRIAL OUTSOURCING LP et al
Filing
26
OPINION. Signed by Judge Claire C. Cecchi on 6/28/2018. (ld, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Plaintiffs,
Civil Action No.: 17-6833 (CCC)
I
RUBEN TAVERAS, et al.,
OPINION
I
V.
PSC INDUSTRIAL OUTSOURCING LP
D/B/A PSC iNDUSTRIAL SERVICES, et al.,
Defendants.
CECCHI, District Judge.
I.
INTRODUCTION
This matter comes before the Court on P$C Industrial Outsourcing LP’s (“PSC”) Motion
to Dismiss Plaintiff Ruben Taveras’ (“Taveras” or “Plaintiff’) First Amended Complaint
pursuant
to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 6 (“Mot.”)). Tavera
s opposes
PSC’s Motion. (ECF No. 11 (“Opposition”)). No oral argument was heard. Fed. R. Civ.
P. 78.
For the reasons set forth below, PSC’s motion is granted.
II.
BACKGROUND
Plaintiff brings this action on behalf of himself and a putative class of individuals who
performed utility work for PSC and its affiliates (collectively, “Putative Class Memb
ers”). (ECF
No. 1 (“Compi.”)
¶
1). Defendants are P$C, a Delaware-incorporated company which describes
itself as a “provid[er] [of] industrial cleaning services” (Compi.
¶ 5,
Mot. at 2) and “any other
entities affiliated with, controlling, or controlled by [PSC]” and John Doe Bonding
Company
(“Bonding Co.”) (collectively, “Defendants”). (Compl.
¶
1).
Plaintiff alleges that he was employed by PSC in 2016’ and worked on various utility
projects in New York and New Jersey during that time. (Id.
¶J 26-27).
Plaintiff contends that
Defendants have failed to pay prevailing wages and benefits owed to him for his work with PSC
and to the Putative Class Members for their work on PSC-related utility projects in New York and
New Jersey. (Id.
¶
1 ).2 Initially, Plaintiff argued that he and the Class Members were entitled to
these wages under project contracts to which PSC was a party, as well as under New Jersey
Prevailing Wage statutes. (Id.
¶J 35,
39). In his Opposition, however, Plaintiff withdrew his
contract-based argument (Opposition at 1, fN 1) and elected to rely on his statutory argument
instead.
Plaintiff filed his Complaint on September 9, 2017, bringing three causes of action: breach
of contract (Count I); failure to pay New Jersey Prevailing Wage (Count II); and suretyship (Count
III). (Compi.
¶J 32-36,
37-40, 4l-44). On November 6, 2017, Defendant filed the Motion to
Dismiss now before the Court. On December 5, 2017, Plaintiffs filed an Opposition to the Motion,
withdrawing Count I of the Complaint.
(Opposition at 1, FN 1).
On December 11, 2017,
Defendants filed their Reply in further support of their Motion to Dismiss.
(ECF No. 15
(“Reply”)).
‘Notably, PSC contests this allegation, asserting that Plaintiff was employed and paid by ROl
Staffing, a subcontractor who provided labor on cleanup projects managed by PSC. (Mot. at 3).
2
Plaintiff alleges that the Bonding Co. furnished bonds insuring they would pay unpaid wages
and benefits to PSC workers in the event PSC did not. (Id. 23).
¶
Plaintiff has withdrawn this Count in his Opposition. (Opposition at 1, fN I (“Plaintiff
withdraws his first cause of action for breach of contract”)). The Court therefore need not
adjudicate the matter in this Opinion.
Plaintiff brought Counts I and II against PSC and Count III against the Bonding Co.. (Compl.
¶ 36 40, 44).
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III.
LEGAL STANDARDS
A.
Rule 12(b)(1)
A motion to dismiss for lack of standing is properly brought pursuant to federal Rule of
Civil Procedure 12(b)(1), because standing is a matter of jurisdiction. See Ballentine v. United
States, 486 f.3d 806, 810 (3d Cir. 2007).
“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and
‘Controversies.” Lance v. Coffman, 549 U.S. 437, 439 (2007). One key aspect of this case-or
controversy requirement is standing. See id. “The standing inquiry focuses on whether the party
invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” Constitution
Party ofPa. v. Aichele, 757 F.3d 347, 360 (3d Cir. 2014) (citing Davis v. FEC, 554 U.S. 724,
734
(2008)).
To establish standing, a plaintiff must satisfy a three-part test, showing: “(1) an ‘injury in
fact,’ i.e., an actual or imminently threatened injury that is ‘concrete and particularized’ to the
plaintiff; (2) causation, i.e., traceability of the injury to the actions of the defendant; and (3)
redressability of the injury by a favorable decision by the Court.” Nat? Collegiate Athletic Ass ‘n
v. Governor ofNJ, 730 F.3d 208, 218 (3d Cir. 2013) (citing Summers v. Earth Island Inst., 555
U.S. 488, 493 (2009)). “The party invoking federal jurisdiction bears the burden of establishing
these elements.” Lujan v. Defenders of Wildflfe, 504 U.S. 555, 561 (1992). Although a plaintiff
bears the burden of establishing the elements of standing, at the motion to dismiss stage, the Court
“must accept as true all material allegations set forth in the complaint, and must construe those
facts in favor of the nonmoving party.” Ballentine, 486 f.3U at 810.
B.
Rule 12(b)(6)
For a complaint to survive dismissal pursuant to federal Rule of Civil Procedure I 2(b)(6),
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it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ati. Corp.
v. Twombly,
550 U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court
must accept all
well-pleaded factual allegations in the complaint as true and draw all reasonable inferen
ces in favor
of the non-moving party. See Phillips v. Cly, ofAllegheny, 515 F.3d 224, 234 (3d
Cir. 200$).
“Factual allegations must be enough to raise a right to relief above the specul
ative level.”
Twombly, 550 U.S. at 555. “A pleading that offers ‘labels and conclusions.
.
.
will not do.’ Nor
does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.”
Iqbal, 556 U.S. at 67$ (citation omitted). However, “the tenet that a court must accept
as true all
of the allegations contained in a complaint is inapplicable to legal conclusions. Thread
bare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice
.” Id.
Thus, when reviewing complaints for failure to state a claim, district courts should
engage in a
two-part analysis: “first, the factual and legal elements of a claim should be separa
ted
.
Second, a District Court must then determine whether the facts alleged in the compl
aint are
sufficient to show that the plaintiff has a ‘plausible claim for relief.” Fowler v. UPMC
$hadyside,
57$ F.3d 203, 210-11 (3d Cir. 2009) (citations omitted).
IV.
DISCUSSION
PSC moves to dismiss all remaining claims for lack of standing and for failure to
state a
claim, for the reasons set forth below, this Court will grant the Motion to Dismiss.
A.
Failure to Pay the New Jersey Prevailing Wage (Count II)
As a threshold matter, the Court must examine whether Plaintiff has standing under Article
III to assert his New Jersey Prevailing Wage claims. The Court will then proceed to
the merits of
Plaintiffs claims.
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The Court notes that, although the Complaint does not state a definitive statutory basis for
Count II, it appears that Plaintiff relies on two statutes in his pleading and subsequent filings: the
New Jersey Prevailing Wage Act, N.J. Stat. Ann.
Disputes in Public Utilities Act, N.J. Stat.
§
§
34:11-56.25 et seq. (“NJPWA”) and the Labor
34:13B-2.1 (“LDPUA”). The Court will address each
of these statutes in turn.
1.
New Jersey Prevailing Wage Act, N.J.S.A.
§ 34:11-56.25 et seq.
Although it appears to the Court that Plaintiff may have withdrawn his arguments under
the NJPWA, to the extent Plaintiff pursues such claims, they fail for lack of standing and as
insufficiently pleaded.5
The NJPWA holds in relevant part that, “if any workman is paid by an employer less than
the prevailing wage to which such workman is entitled under the provisions of this act, such
workman may recover in a civil action the full amount of such prevailing wage less any amount
actually paid to him or her by the employer.” N.J.$.A.
§
34:11-56.40. Plaintiff alleges that
Defendants have failed to pay him and the other Putative Class Members the “prevailing wage” to
which they are entitled, and now seeks recovery by way of class action. (Compi.
¶ 3 9-40).
However, Plaintiff lacks standing to pursue his NJPWA claim because he has not pleaded
that he conducted work under a public work contract and therefore does not fall under the
protection of the NJPWA. New Jersey Courts have established that “the [NJPWA] was passed to
The parties dispute the extent to which Plaintiff has withdrawn his arguments under the
NJPWA. ($ee Opposition at 6 (“PSC. [argues] that Plaintiff is only seeking prevailing wages
pursuant to [the NJPWA] . . [however] Plaintiffs underlying claim is based on N.J. Stat.
§ 34:13B-2.1 . .“); Reply at 1 (“[D]espite having pled his second cause of action under the
[NJPWA], Plaintiff now insists that he is bringing his statutory wage claim solely under the
Labor Disputes in Public Utilities Act” (emphasis added). Indeed, it is unclear to the Court
whether Plaintiff continues to pursue his claims under the NJPWA. Nonetheless, the Court will
address the matter herein.
.
.
.
.
.
5
protect the compensation rates paid to laborers under a public work contract” and held that the
NJPWA “afforded no protection” to Plaintiffs not employed on a public works project. Bankston
v. Housing Authority ofCity ofNewark, 342 N.J.Super. 465, 469 (N.J. Super. Ct. App. Div. 2001)
(emphasis added) (citing Horn v. Serritetla Bros., Inc., 190 N.J.Super. 280, 283 (N.J. Super. Ct.
App. Div. 1983). Under the NIPWA, “public work” applies to assorted tasks either “done under
contract and paid for in whole or in part out of the funds of a public body” or “done on any property
or premises.. .if, at the time of the entering into of the contract the property or premises is owned
by the public body.” (N.J.S.A.
§ 34.11—56.26(5).
Nothing in the Complaint suggests that Plaintiff
was employed under a public work contract, as would be necessary to fall under the protection of
the NJPWA. Accordingly, it does not appear to the Court that Plaintiff has pleaded standing under
the Act.
Nonetheless, even if Plaintiff had standing, Plaintiffs NJPWA claim fails under federal
Rule of Civil Procedure 1 2(b)(6) for similar reasons which have been addressed at the federal
level. Applying the NJPWA, the Court in Porter v. Sunbelt Rentals, Inc. held that, in order to state
a claim under the NIPWA, a Plaintiff must allege that they 1) did public work for a public body,
2) did public work on property or premises owned by a public body, or 3) did public work on
property or premises leased or to be leased by a public body. See Porter v. Sunbelt Rentals, Inc.,
No. 13—6901, 2014 WL 2586939, at*3 (D.N.J. June 10, 2014) (citing N.J. Stat. Ann.
§
34:11—
56.27). As stated in the Court’s discussion of standing under the NJPWA, “public work” applies
to assorted tasks either “done under contract and paid for in whole or in part out of the funds of a
public body” or “done on any property or premises... if, at the time of the entering into of the
contract the property or premises is owned by the public body.” N.J.S.A.
§
34.11—56.26(5).
Furthermore, the NIP WA defines “public body” as “the State of New Jersey, any of its political
6
subdivisions, any authority created by the Legislature of the State of New Jersey and any
instrumentality or agency of the State of New Jersey or of any of its political subdivisions.”
N.J.S.A.
§
34.11—56.26(4). Here, Plaintiff has not alleged that he performed either public work or
work for a public body as defined by the statute, and his NJPWA claim must accordingly fail. See
Porter 2014 WL 2586939 at*3 (dismissing plaintiffs NJPWA claim under Fed. R. Civ. Pro.
12(b)(6) for failure to allege that he conducted work for a “public body” as defined by the
NJPWA).
2.
Labor Disputes in Public Utilities Act, N.J.S.A.
§ 34:13B-2.1
To the extent Plaintiff pursues claims under the LDPUA,6 his claims fail as insufficiently
pleaded.
The LDPUA holds in relevant part that “any employee employed by a construction
contractor engaged in construction work on a public utility shall be paid the wage rate for their
craft or trade as determined by the Commissioner of Labor and Workforce Development pursuant
to the provisions of the ‘New Jersey Prevailing Wage Act.” N.J.S.A.
§
34:13B-2.l. Unlike the
NJP WA’s principles of “public work” and “public body,” which bar Plaintiffs suit here (see supra
Part IV(A)(l)), the LDPUA’s definition of “public utility” appears consistent with Plaintiffs
pleadings. Compare N.J.S.A.
§
34:13B-16(a) (“The term ‘public utility’ shall include.. .electric
light, heat and power companies.., gas companies... sewer companies; steam and water power
companies. .tunnel companies; water companies) with Compi.
.
6
1 (alleging Plaintiff and the
In his Opposition brief, Plaintiff clarifies that “[his] underlying claim is based on N.J. Stat §
34:133-2.1.” (Opposition at 6). The Court acknowledges PSC’s argument that, in pleading his
second cause of action, Plaintiff did not specifically cite to the Labor Disputes in Public Utilities
Act, N.J. Stat. § 34:13B-2.l. (Reply at 3). Nonetheless, the Court will adjudicate the matter here
in light of Plaintiffs reference to the statute in his Complaint (see Compl. ¶ 19) and Defendant’s
thorough and substantive briefing on the issue.
7
Putative Class Members worked on utility projects with companies including Consolidated Edison,
National Grid, and Public Service Electric and Gas Company).
Nevertheless, PSC argues that Plaintiff does not have standing as he has not alleged that
he performed “construction work” within the definition of the LDPUA. (Reply at 12-14). The
LDPUA defines “construction work” as “construction, reconstruction, installation, demolition,
restoration, and alteration of facilities of the public utility.” N.J.S .A.
§ 34:133-16(g).
The LDPUA
specifically states that “construction work on a public utility’ shall not be construed to include
operational work, including flaggers, snow plowing, vegetation management in and around utility
rights of way, mark outs, janitorial services, landscaping, leak surveyors, meter work, and
miscellaneous repairs.” Id. (emphasis added). In the Complaint, Plaintiff alleges that he and the
Putative Class Members “performed utility work, such as clean-up, waste removal, restoration,
and remediation, and similar tasks” in utility projects with PSC, Consolidated Edison, Public
Service Electric and Gas Company, and other utility companies. (Compl.
¶
1, 8). For the
purposes of a motion to dismiss, Plaintiff has sufficiently alleged that his work may fall within the
ambit of the LDPUA. (Compare N.J.S.A.
§
34:133-16(g) (listing “restoration” as an example of
the type of “construction work” covered by the LDPUA) with Compl.
¶8
(stating that Plaintiff
engaged in, inter alia, “waste removal, restoration, and remediation” efforts (emphasis added)).
Plaintiffs claim fails, rather, as he does not allege that the Labor Commissioner has found
PSC to be in violation of the LDPUA. The LDPUA provides relief for “[a] construction contractor
who is found by the Commissioner of Labor and Workforce Development to be in violation of the
provisions of [the LDPUA].” N.J.S.A.
§
34:l3B-2.l. Thus, by the plain language of the statute,
a plaintiff is only entitled to relief on a finding from the Commissioner of Labor and Workforce
Development that the defendant has violated the LDPUA. Plaintiff has failed to allege as much
8
anywhere in his Complaint. Accordingly, Court dismisses Plaintiffs claims brought under the
LDPUA.
B.
Suretyship (Count III)
Plaintiff also brings a claim against the Bonding Co. for suretyship, arguing that “by issuing
[payment bonds] to PSC in connection with each Utility Contract, Defendant [Bonding Co.]
assumed joint and several liability with PSC to pay [Plaintiff] and the other members of the
putative class any and all wages and supplements.” Compl. ¶ 42. Because Plaintiff has withdrawn
his claim for breach of contract (Opposition at 1 FN 1) and because the Court dismisses Plaintiffs
remaining statutory claims (supra Part IV(A)), Count III of the Complaint fails as Plaintiff has no
remaining cause of action on which to hold P$C and the Bonding Co. jointly liable. (See Hudson
County v. Terminal Const, Corp., 154 N.J.Super. 264, 270 (N.J. Super. Ct. App. Div. 1977)
(“Therefore, since plaintiffs did not have a cause of action against [defendant], they had no cause
of action against [the surety]”); see also Knecht, Inc. v. United Paci/Ic Ins. Co., 860 F.2d 74, 83
(3d Cir. 198$) (Cowen, R., concurring in part and dissenting in part) (“Under general principles of
suretyship law, the liability of the surety can be no greater than the liability of its principal”). The
Court accordingly dismisses Count III.
V.
CONCLUSION
For the reasons set forth above, P$C’s Motion to Dismiss is granted. To the extent Plaintiff
9
can cure the pleading deficiency by way of amendment, Plaintiff shall have thirty (30) days to file
an amended complaint. An appropriate order accompanies this opinion.
CLAIRE C. CECCHI, U.S.D.J.
Dated:
2
2_c) t
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