PBA LOCAL 183 et al
Filing
54
OPINION. Signed by Judge Stanley R. Chesler on 10/15/2019. (sm)
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 1 of 27 PageID: 1118
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PBA LOCAL 183, DOLORES M.
PALADINO and MARISOL PAGAN,
Plaintiffs,
v.
COUNTY OF ESSEX,
Defendant.
___________________________________
PBA LOCAL 183, STEVEN
SALVATORIELLO, CARMELO VINCI,
MICHAEL TESEI and ROBERT
SUTTON,
Plaintiffs,
v.
COUNTY OF ESSEX,
Defendant.
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
CONSOLIDATED ACTIONS
Civil Action No. 17-06962 (SRC)
Civil Action No. 19-13296 (SRC)
OPINION
CHESLER, District Judge
This matter comes before the Court on Plaintiffs’ motion for leave to amend the
Complaint, Defendant’s cross-motion to dismiss the Complaint (“PBA I”) and enforce
settlement, and Defendant’s motion to dismiss the Complaint (“PBA II”) and enforce
settlement.1 On June 7, 2019, PBA Local 183, Dolores M. Paladino and Marisol Pagan (“PBA I
Plaintiffs”) filed a motion to amend the Complaint in the PBA I action. Defendant filed a cross-
1
PBA I refers to the original action brought by PBA Local 183, Dolores Paladino, and Marisol Pagan in 2017 (No.
17-6962). PBA II refers to the subsequent action brought by PBA Local 183, Steven Salvatoriello, Carmelo Vinci,
Michael Tesei, and Robert Sutton in 2019 (No. 19-13296).
1
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 2 of 27 PageID: 1119
motion to dismiss the Complaint and enforce settlement, and Defendant filed an additional
motion to dismiss the PBA II Complaint and enforce settlement. On July 1, 2019, Magistrate
Judge Cathy Waldor issued an order consolidating the PBA I and PBA II actions.
The motions have been fully briefed, and the Court has reviewed the papers filed by the
parties. It proceeds to rule on the motions without oral argument. See Fed. R. Civ. P. 78(b). For
the reasons that follow, the Court will deny Plaintiffs’ motion to amend the Complaint, deny
Defendant’s motion to dismiss the Complaint and enforce settlement, and grant-in-part and denyin-part Defendant’s motion to dismiss the PBA II Complaint.
I.
BACKGROUND
This is a civil action wherein PBA I Plaintiffs seek judgment against Defendant based on
the following claims: violations of the Fair Labor Standards Act; promissory estoppel;
reimbursement for damage to and maintenance of Plaintiffs’ personal vehicles; and violation of
the Attorney General K-9 Training Standards and Qualification Requirements for New Jersey
Law Enforcement. PBA I Plaintiffs’ proposed Amended Complaint removes its claim for
reimbursement for damage to Plaintiffs’ personal vehicles and adds the following claims:
violation of the anti-retaliation provision of the Fair Labor Standards Act and violation of the
Conscientious Employee Protection Act.
PBA II Plaintiffs seek judgment against Defendant based on the following claims:
violations of the Fair Labor Standards Act; violation of the anti-retaliation provision of the Fair
Labor Standards Act; violation of the Conscientious Employee Protection Act; and violation of
the Attorney General K-9 Training Standards and Qualification Requirements for New Jersey
Law Enforcement.
2
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 3 of 27 PageID: 1120
The factual summary below is based on the allegations within the PBA I and PBA II
Complaints, and the PBA I Amended Complaint. The facts are taken as true for purposes of the
motions to dismiss and the motion to amend the complaint only.
a. PBA I COMPLAINT
Dolores Paladino and Marisol Pagan serve as Detectives within the Essex County
Sheriff’s Department. Plaintiff Paladino joined the Essex County Sheriff’s Department in 2001
and was assigned to the K-9 Unit in 2005; Plaintiff Pagan was hired by the Sheriff’s Department
in 2005 and joined the K-9 Unit in 2010. In accordance with the practices of the Essex County
Sheriff’s Department, Plaintiffs Paladino and Pagan paid for and adopted their canine partners.
Plaintiffs were responsible for the daily care of their canine partners, including “training,
walking, feeding, grooming, cleaning, bonding, exercise, daily health inspections and veterinary
visits,” while the County of Essex was responsible for “funding the lifetime care and
maintenance of the canine.” (PBA I Compl. ¶ ¶ 11-12.)
In 2005, Plaintiff Pagan was assigned and partnered with a three-year-old German
Shepherd named “Nero,” who was trained in explosives detection. Plaintiff Pagan and Nero were
partners from 2005 until 2009, when Nero was diagnosed with cancer and Defendant retired
Nero from service. Upon Nero’s retirement, Defendant ordered Plaintiff Pagan to adopt Nero,
and Plaintiff Pagan complied with this order. Thereafter, Defendant refused to pay for Nero’s
maintenance and medical care. Rather, Plaintiff Pagan incurred significant expenses as a result of
Nero’s medical care and euthanasia, which occurred in 2009. Plaintiff Pagan concedes that the
statute of limitations to recover for expenses related to Nero’s medical care and maintenance has
passed.
3
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 4 of 27 PageID: 1121
In 2009, Plaintiff Paladino adopted and paid for “Justin,” a German Shepherd trained in
explosives detection. Plaintiff Paladino and Justin were partnered together from 2009 to 2015,
when Defendant obtained a new canine named, “Marko.” Upon receiving Marko, Defendant
partnered Plaintiff Paladino with Marko and forced Justin into retirement. Since Justin’s
retirement, Defendant has refused to pay for Justin’s medical care, and Plaintiff Paladino
continues to be financially responsible for these expenses.
As members of the K-9 Unit, Plaintiffs Pagan and Paladino were assigned patrol vehicles
that were specially equipped for use with their canine partners. It was an established practice
within the K-9 Unit that members of the Unit were equipped with such vehicles and permitted to
transport their canines in same when traveling to and from work. However, upon learning that a
retired member of the K-9 Unit filed a lawsuit against the county for violations of the FLSA,
Essex County Sheriff Armando Fontoura “grounded” the vehicles assigned to members of the K9 Unit. By ordering that the vehicles be grounded, members of the K-9 Unit were no longer
permitted to drive their vehicles home at the end of their shifts. Additionally, Sheriff Fontoura
ordered members of the K-9 Unit to kennel their canines at the Unit’s headquarters whenever the
canines were not “on duty.” The Complaint asserts that compliance with this order was and
remains detrimental to the “Bond Based Approach” of canine partnership employed by the Essex
County Sheriff’s Department K-9 Unit. One of the integral elements of the approach is that the
canine resides in the home with their human partner, so as to strengthen the bond between the
two.
Because of the significant safety risks associated with the forced kenneling of their
canine partners whom they legally own, Plaintiffs Pagan and Paladino refused to comply with
Sheriff Fontoura’s order that the canines be kenneled at headquarters when off duty. Rather,
4
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 5 of 27 PageID: 1122
Plaintiffs Pagan and Paladino continue to have their canine partners reside in their homes and
transport their canines to and from their homes in their personal vehicles. Plaintiffs contend that
they have incurred substantial financial costs by transporting their canines in their personal
vehicles.
The Complaint alleges that Plaintiffs are entitled to overtime pay for the time spent
caring for their canine partners outside of their assigned working hours. Despite being aware of
this, Defendant has failed to compensate Plaintiffs for the care that they have provided and
continue to provide to their canines. Additionally, Defendant has failed to compensate Plaintiffs
for overtime hours at the appropriate overtime rate per the FLSA.
Plaintiffs allege that Defendant has failed to comply with the mandatory K-9 Training
Standards set forth by the New Jersey Attorney General in 1992, which were revised in 1995 and
2002. The Attorney General Mandatory Guidelines establish training standards and provide that
“‘law enforcement agencies with K-9 units or teams should establish clear policy and issue
standard operating procedures on the use of police dogs.’” (PBA I Compl. ¶ 48 (quoting K-9
Training: K-9 Training Standards and Qualification Requirements for New Jersey Law
Enforcement (revised July 2002), at 2).) Plaintiffs contend that they “have never seen Essex
County Sheriff’s K-9 Unit’s standard operating procedures on the use of police dogs, if same
even exists.” (PBA I Compl. ¶ 49.) Moreover, the guidelines mandate that “specialty teams”
consisting of a police officer handler and canine partner complete in-service field training
exercises a minimum of four times a year. Plaintiffs allege that they are members of such
specialty teams, yet they have failed to complete said in-service field training exercises. Finally,
the Complaint notes that Defendant does not employ a trainer in accordance with the guidelines,
does not provide requested off-site training to Plaintiffs, and does not comply with requirements
5
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 6 of 27 PageID: 1123
related to the training course located at the K-9 Unit’s headquarters in West Orange, NJ.
Plaintiffs have notified superior officers of these problems, but no corrective measures have been
taken.
b. PBA I AMENDED COMPLAINT
In Plaintiff’s Amended Complaint, Plaintiffs plead the same facts alleged in their original
Complaint and assert that, “once Plaintiffs and other members of the Essex County Sheriff’s
Department K-9 Unit began exercising their rights under the FLSA, Essex County Sheriff
Armando B. Fontoura began engaging in acts of retaliation against Plaintiffs individually, as well
as the K-9 Unit as a whole.” (PBA I Am. Compl. ¶ 19.) Based on the alleged retaliatory acts,
Plaintiffs claim that Defendant violated the anti-retaliation provision of the FLSA and violated
the New Jersey Conscientious Employee Protection Act.
c. PBA II COMPLAINT
Steven Salvatoriello, Carmelo Vinci, Michael Tesei and Robert Sutton work for the Essex
County Sheriff’s Department. During the statutorily relevant time period, Plaintiffs Carmelo
Vinci, Michael Tesei and Robert Sutton served as Detectives and were assigned as Handlers to
the K-9 Unit. During the same time period, Plaintiff Steven Salvatoriello was a Sergeant and was
also assigned to the K-9 Unit. While serving in the K-9 Unit, and in accordance with the
common practices of the Unit, Plaintiffs adopted their canine partners. The canine partners
resided with Plaintiffs in their respective homes, and each Plaintiff was responsible for “walking,
feeding, grooming, cleaning, bonding, exercise, health inspections and cleaning up after their
canine partner(s), 365 days per year.” (PBA II Compl. ¶ 13.) As a result of Plaintiffs’ caring for
their canine partners outside of their standard work hours, Plaintiffs contend that Defendant is
obliged to compensate Plaintiffs for overtime. However, despite being aware of this obligation,
6
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 7 of 27 PageID: 1124
Defendant has failed to pay Plaintiffs for this work. Plaintiffs claim that, “[a]s a result of
Defendant’s actions, Plaintiffs have suffered and continue to suffer severe and substantial
monetary damages.” (PBA II Compl. ¶ 16.)
Plaintiffs further claim that “once members of the Essex County Sheriff’s Department K9 Unit began exercising their rights under the FLSA, Essex County Sheriff Armando B. Fontoura
began engaging in acts of retaliation against Plaintiffs individually, as well as the K-9 Unit as a
whole.” (PBA II Compl. ¶ 17.) Plaintiffs allege that “[t]here exists a causal connection between
the protected acts of the plaintiffs and the retaliatory actions of Essex County Sheriff Armando
B. Fontoura,” and claim that as a result of these retaliatory acts, Plaintiffs have suffered “severe
and substantial monetary damages.” (PBA II Compl. ¶¶ 17, 19.) Finally, the Complaint alleges
that Defendant “refuses to allow training” in accordance with the Attorney General K-9 Training
Standards and Qualification Guidelines for New Jersey Law Enforcement, and by doing so, has
placed the canines, handlers, and the general public at a “significant safety risk.” (PBA II Compl.
¶ 20-21.) Plaintiffs also claim that Defendant’s refusal to allow such training has resulted in
monetary damages, public humiliation and loss of reputation.
d. SETTLEMENT NEGOTIATIONS
The Court makes the following observations regarding the procedural history and alleged
settlement of this matter: The original complaint in the PBA I action was filed on September 11,
2017. According to the certifications submitted by counsel for both Plaintiffs and Defendant, the
parties initially engaged in settlement discussions during the Summer of 2018. From 2018 to
2019, counsel had conferred on various occasions via email and had sent drafts of the proposed
memorandum of understanding to one another. Many of these emails were provided to the Court
as exhibits that were referenced in and attached to counsel’s certifications. The emails provided
7
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 8 of 27 PageID: 1125
to the Court show that settlement negotiations were ongoing between July 23, 2018 and March 7,
2019. On March 7, 2019, Plaintiffs’ counsel emailed Defendant’s counsel and agreed to the
terms of the proposed settlement on behalf of Plaintiffs Pagan, Paladino, and PBA Local 183.
Counsel advised that she would inform Judge Waldor’s chambers that the matter had been
settled. Thereafter, this Court issued an Order administratively terminating the action on March
11, 2019. On March 25, 2019, after Defendant’s counsel filed an appeal of Judge Waldor’s
March 7, 2019 Order denying Defendant’s motion for a protective order, Plaintiff’s counsel filed
a letter requesting that this Court reopen the litigation. Subsequently, on May 22, 2019, this
Court issued an order reopening the action and returning the matter to the active calendar.
Shortly thereafter, the instant motions were filed.
Based on the record before this Court, all settlement negotiations in this action were
conducted independently by counsel for PBA I Plaintiffs and counsel for Defendant. Moreover,
it appears that a material aspect of all proposed Memorandums of Understanding was the waiver
of future claims, lawsuits or grievances for overtime payment relating to the care of the handlers’
canine partners. Notably, the agreed upon settlement that defense counsel asks this Court to
enforce includes the following provision: “The parties agree that so long as all parties remain in
full compliance with the terms of this Agreement, no party shall file a lawsuit, grievance or
unfair labor practice charge pertaining to the compensation of Handlers for time spent caring for
and maintaining their canine partner.” (ECF 46-3, Memorandum of Agreement, at 3.) Although
this provision does not specifically include non-party handlers, defense counsel understood nonparty handlers to be bound by this agreement based on their membership in PBA Local 183,
which is a named party in the PBA I lawsuit. Thus, defense counsel asks the court to dismiss the
PBA II lawsuit based on the aforementioned litigation waiver.
8
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 9 of 27 PageID: 1126
II.
SUBJECT MOTIONS
On June 7, 2019, Plaintiffs filed a motion for leave to amend the Complaint. Plaintiffs
seek to add retaliation claims to the Complaint. Specifically, Plaintiffs allege that Defendant
violated the anti-retaliation provision of the Fair Labor Standards Act, and allege that Defendant
violated the New Jersey Conscientious Employee Protection Act (“CEPA”).
In response, Defendant filed a cross motion to dismiss the Complaint, and a motion to
dismiss the PBA II Complaint. In its motions to dismiss, Defendant argues that the PBA I action
settled and a material element of the settlement was the parties’ agreement that no further
lawsuits or grievances would be filed for time spent caring for officers’ canine partners.
Defendant argues that PBA Local 183 agreed to this settlement on behalf of its members, thereby
binding the PBA II individual Plaintiffs, namely Steven Salvatoriello, Carmelo Vinci, Michael
Tesei and Robert Sutton, to the settlement agreement. Thus, Defendant argues that the settlement
agreement in the PBA I matter should be enforced, noting that enforcement of this settlement
would bar all additional claims.
Defendant further argues that the retaliation claims should be dismissed because
Plaintiffs fail to plead that they engaged in protected activity under the FLSA or whistleblowing
activity under the CEPA. Moreover, Defendant argues that Plaintiffs’ CEPA claims are time
barred and that PBA Local 183 lacks standing to maintain a claim under the FLSA.
In Plaintiffs’ response to Defendant’s motions to dismiss, Plaintiffs contest whether the
parties ever reached an agreed-upon settlement in the PBA I matter; further, Plaintiffs note that
defense counsel was expressly advised that PBA Local 183 could not bind the non-party handlers
to the Memorandum of Agreement, and that neither PBA Local 183 nor counsel had the express
or apparent authority to waive the individual rights of the non-party handlers to retroactive relief
9
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 10 of 27 PageID: 1127
under the FLSA. Plaintiffs argue that the motions to dismiss must be denied because Plaintiffs
state a claim upon which relief can be granted, the motion to dismiss the PBA I complaint is
barred because Defendant already answered the complaint, and the motion to dismiss the
amended complaint is premature since the amended complaint has yet to be filed.
III.
DISCUSSION
a. MOTION TO AMEND THE COMPLAINT
Plaintiff moves for leave to amend the Complaint in the PBA I matter. Plaintiff seeks to
add claims that Defendant violated the anti-retaliation provision of the Fair Labor Standards Act
and violated New Jersey’s Conscientious Employee Protection Act. See 29 U.S.C. § 215(a)(3);
N.J.S.A. 34:19-1.
Federal Rule of Civil Procedure 15(a) directs that leave to amend a pleading “shall be
freely given when justice so requires.” Grounds for denying leave to amend include but are not
limited to undue delay, bad faith, undue prejudice, and futility of the proposed amendment.
Foman v. Davis, 371 U.S. 178, 182 (1962). “Futility ‘means that the complaint, as amended,
would fail to state a claim upon which relief could be granted.’” Great Western Mining &
Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010) (quoting In re Merck &
Co. Sec., Derivative, & ERISA Litig., 493 F.3d 393, 400 (3d Cir. 2007) (other citations
omitted)). When assessing the viability or futility of a proposed amendment, the court must apply
the same legal standard of legal sufficiency as applies under Rule 12(b)(6). In re Burlington Coat
Factory Sec. Lit., 114 F.3d 1410, 1434 (3d Cir. 1997).
In the matter at bar, Defendant filed a motion to dismiss PBA II Plaintiffs’ claims that
Defendant violated the anti-retaliation provision of the FLSA and violated the CEPA. Defendant
filed this motion under Rule 12(b)(6), claiming that Plaintiffs fail to state a claim. The claims
10
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 11 of 27 PageID: 1128
that Plaintiff seeks to add to the PBA I Complaint in its motion to amend the complaint are the
same claims that Defendant moves to dismiss for failure to state a claim. Significantly, the facts
pled in both Complaints are nearly identical. Because courts are to apply the same legal standard
when evaluating both motions, the Court will address Plaintiff’s motion for leave to amend the
Complaint within the Court’s discussion herein of Defendant’s motion to dismiss the same
claims brought in the PBA II Complaint, in Section III(b)(ii). The Court will determine whether
granting Plaintiffs’ motion would be futile based on its decision regarding Defendant’s Rule
12(b)(6) motion.
b. MOTIONS TO DISMISS & ENFORCE SETTLEMENT
In response to Plaintiff’s motion for leave to amend the Complaint, Defendant filed a
cross-motion to dismiss based on several, independent grounds. Defendant also filed a motion to
dismiss the Complaint in the PBA II matter for the same reasons. Defendant argues that the
Complaints should be dismissed because the matter settled and the parties agreed that Plaintiffs
would not file any further claims under the FLSA. Defendant asks this Court to enforce the
settlement thereby barring further litigation. Alternatively, Defendant moves to dismiss
Plaintiff’s retaliation claims under the FLSA and the CEPA based on the following grounds:
Plaintiffs fail to plead that they engaged in protected activity under the FLSA or whistleblowing
activity under the CEPA, and Plaintiffs’ CEPA claims are time-barred. Finally, Defendant moves
to dismiss claims brought under the FLSA by the union, PBA Local 183, based on its argument
that PBA Local 183 lacks standing to maintain a claim brought under the FLSA.
Accordingly, the Court will address each of Defendant’s arguments made in support of its
motion to dismiss the PBA I action and its motion to dismiss the PBA II action.
11
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 12 of 27 PageID: 1129
i. Enforcement of Settlement
Defendant filed a motion to dismiss and enforce the March 2019 settlement agreement
that was allegedly reached in the PBA I action.2 A provision of this settlement is that “no party
shall file a lawsuit, grievance or unfair labor practice charge pertaining to the compensation of
Handlers for time spent caring for and maintaining their canine partner.” (ECF 46-3,
Memorandum of Agreement, at 3.) Thus, enforcement of the settlement would result in the
termination of the PBA I action and the dismissal of the PBA II action. The critical issue before
this Court is whether the parties entered into a valid settlement agreement.
The Court notes that New Jersey has a strong public policy in favor of settlements. See
Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). Courts will therefore “strain to give effect to the
terms of a settlement wherever possible.” Dep’t of Pub. Advocate v. N.J. Bd. of Pub. Util., 206
N.J. Super. 523, 528 (App. Div. 1985). Moreover, a settlement agreement is a form of a contract.
Mortellite v. Novartis Crop Prot., Inc., 460 F.3d 483, 492 (3d Cir. 2006) (citing Borough of
Haledon v. Borough of N. Haledon, 358 N.J. Super. 289, 305, (App. Div. 2003)). When parties
voluntarily enter into a settlement agreement to resolve a lawsuit, the resulting contract is
binding upon them. Green v. John H. Lewis. & Co., 436 F.2d 389, 390 (3d Cir. 1970).
Typically, when disputes about settlement agreements arise, courts must look to general
principles of local contract law to resolve the issues. See id. Notably, the proposed settlement
agreement that Defendant seeks to enforce primarily addresses the settlement of claims for
2
The Court will address the pending motion as a motion to enforce settlement, rather than a motion to dismiss. The
Court’s decision regarding Defendant’s motion to enforce the settlement may result in the dismissal of the action,
but the Court recognizes that in order to adjudicate the subject motion, the Court must consider more than the
Complaint and accompanying documents. See Tiernan v. Devoe, 923 F.2d 1024, 1032 (3d Cir. 1991) (applying the
same standard of review when deciding a motion for summary judgment and a motion to enforce a settlement).
Thus, the Court will treat Plaintiffs’ assertions as true, and will grant defendant’s motion only if defendant is
“entitled to enforcement of the agreement[] as a matter of law.” Id.
12
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 13 of 27 PageID: 1130
overtime compensation brought by Plaintiffs under the Fair Labor Standards Act. Because there
exist specific requirements that must be met when settling claims brought under the FLSA, the
Court will determine whether the parties adhered to these statutory and common law
requirements and whether a valid, enforceable settlement was reached in this case. If the Court
finds that these requirements were met, the Court will then look to the principles of contract law
to determine whether an enforceable contract was created. See United States v. Lightman, 988 F.
Supp. 448, 458 (D.N.J. 1997) (finding that a “contract is enforceable if the parties agree on
essential terms, and manifest an intention to be bound by those terms”).
“The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees
that cannot be modified by contract.” Genesis Healthcare v. Symczyk, 569 U.S. 66, 69 (2013).
The statute mandates that employers pay employees for all hours worked, including a “time-andone-half” overtime premium for all hours worked over 40 hours in one workweek. 29 U.S.C. §§
206-207. Under Department of Labor regulations, an employer must compensate employees if it
“knows or has reason to believe that [the employee] is continuing to work . . . .” 29 C.F.R. §
785.11; see also Mumbower v. Callicott, 526 F.2d 1183, 1188 (8th Cir. 1975) (“The term ‘work’
is not defined in the FLSA, but it is settled that duties performed by an employee before and after
scheduled hours, even if not requested, must be compensated if the employer ‘knows or has
reason to believe’ the employee is continuing to work, 29 C.F.R. § 785.11 (1974), and the duties
are an ‘integral and indispensable part’ of the employee’s principal work activity.”).
District courts throughout the United States have held that the settlement of a claim under
the Fair Labor Standards Act requires 1) supervision of the Department of Labor, or 2) approval
from the district court. See Brumley v. Camin Cargo Control, Inc., Nos. 08-1798, 10-2461, 096128, 2012 WL 1019337, at *1 (D.N.J. March 26, 2012) (“Employees have two avenues for
13
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 14 of 27 PageID: 1131
compromising an FLSA claim: (1) a compromise supervised by the Department of Labor
pursuant to 29 U.S.C. § 216(c); and (2) a district court-approved compromise pursuant to 29
U.S.C. § 216(b).”).
While not controlling in this circuit, the Eleventh Circuit’s decision in Lynn’s Food
Stores, Inc. v. United States is often cited by district courts to support the proposition that FLSA
settlements require either supervision from the Department of Labor, or approval by the district
court. See Bettger v. Crossmark, Inc., 13-2030, 2015 WL 279754, at *3 (M.D.Pa. Jan. 22, 2015)
(“In the absence of guidance from the Third Circuit, courts have routinely employed the
considerations set forth by the Eleventh Circuit in Lynn's Food Stores to evaluate proposed
settlement agreements.”). In Lynn’s Food, the Eleventh Circuit stated:
There are only two ways in which back wage claims arising under
the FLSA can be settled or compromised by employees. First,
under section 216(c), the Secretary of Labor is authorized to
supervise payment to employees of unpaid wages owed to them.
An employee who accepts such a payment supervised by the
Secretary thereby waives his right to bring suit for both the unpaid
wages and for liquidated damages, provided the employer pays in
full the back wages.
The only other route for compromise of FLSA claims is provided
in the context of suits brought directly by employees against their
employer under section 216(b) to recover back wages for FLSA
violations. When employees bring a private action for back wages
under the FLSA, and present to the district court a proposed
settlement, the district court may enter a stipulated judgment after
scrutinizing the settlement for fairness.
Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1352-53 (11th Cir. 1982) (citing
Schulte, Inc. v. Gangi, 328 U.S. 108 (1946); Jarrard v. Southeastern Shipbuilding Corporation,
163 F.2d 960, 961 (5th Cir. 1947)).
Recognizing that the Third Circuit has yet to address whether claims brought under the
FLSA can be settled privately, district courts within the Third Circuit have consistently held that
14
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 15 of 27 PageID: 1132
either supervision from the Department of Labor or approval from the district court is required to
settle such claims. See Rabbenou v. Dayan Foods, Ltd. No. 17-1330, 2017 WL 3315263, at *1,
n.1 (D.N.J. Aug. 3, 2017) (“District courts in the Third Circuit have held that FLSA claims can
be settled in two ways: (i) with the Department of Labor supervising the payment of unpaid
minimum wages or overtime compensation pursuant to § 29 U.S.C. 216(c); or (ii) with the
district court's approval of a settlement under 29 U.S.C. § 216(b).”).3
Based on the foregoing, this Court finds that a settlement of claims under the FLSA
requires 1) that the settlement be supervised by the Department of Labor, or 2) that the
settlement agreement be approved by the District Court. 4 Here, Defendant’s proposed settlement
agreement fails to meet either of these requirements. There is no evidence in the record that the
Department of Labor had any involvement in, much less supervised, the settlement negotiations
and purported agreement. Nor did this Court approve the proposed settlement. Rather, the parties
independently negotiated the agreement amongst themselves. Thus, because the settlement was
not supervised by the Department of Labor nor approved by this Court, the Court finds that the
settlement agreement is invalid and cannot be enforced.
3
The District Court, in Rabbenou v. Dayan Foods, cites the following cases which have similarly found that the
settlement of claims under the FLSA requires either the supervision of the Department of Labor or the approval by
the District Court: Gabrielyan v. S.O. Rose Apartments LLC, No. 15–1771, 2015 WL 5853924, at *1 (D.N.J. Oct. 5,
2015); Brumley v. Camin Cargo Control, Inc., No. 08–1798, 2012 WL 1019337, at *1 (D.N.J. Mar. 26, 2012); In re
Chickie's & Pete's Wage & Hour Litig., No. 12–6820, 2014 WL 911718, at *2 (E.D. Pa. Mar. 7, 2014). See also
Kraus v. PA Fit II, LLC, 155 F.Supp.3d 516, 524-25 (E.D. Pa. 2016).
4
The FLSA was enacted to ensure that employees are properly compensated for their work and prevent workers
from working oppressive hours. The principles animating the Eleventh Circuit’s decision in Lynn’s Foods are the
same principles that resulted in the enaction of this statute: namely, the need to protect employees from “substandard wages and excessive hours which endangered the national health and well-being and the free flow of goods
in interstate commerce.” See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706 (1945).
In the matter at bar, the legitimacy of the settlement is disputed which only serves to highlight the need for
and significance of the requirements promulgated by the Eleventh Circuit, which have since been adopted by
numerous Courts of Appeals and District Courts throughout the United States. Without supervision by the
Department of Labor or approval by the District Court, contested and arguably unfair settlement agreements could
potentially become legal contracts. Allowing this would circumvent the important protections created by the FLSA.
15
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 16 of 27 PageID: 1133
The Court further notes that the agreement that was seemingly agreed upon by both
parties’ counsel on March 7, 2019 included a monetary figure that was to be paid to non-party
handlers for overtime pay as well as a litigation waiver that was to be binding upon non-party
handlers. The payment for overtime was to settle any potential compensation claims for overtime
pay, claims which would fall under the purview of the FLSA, that may have been brought by the
non-party handlers. This settlement amount was to be awarded to the non-party handlers and
would foreclose these individuals from filing their own lawsuits under the FLSA. Additionally,
the litigation waiver would bar any further suits for both the named PBA I Plaintiffs and the nonparty handlers.
Here, PBA I Plaintiffs attempted to reach a settlement with Defendant that would bind
similarly situated employees, the non-party handlers, to the same agreement. Section 216(b) of
the FLSA provides “employees the right to bring a private cause of action on their own behalf
and on behalf of ‘other employees similarly situated’ for specified violations of the FLSA.”
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 1523, 1527 (2013). “A suit brought on behalf of
other employees is known as a ‘collective action.’” Id. (citing Hoffmann–La Roche Inc. v.
Sperling, 493 U.S. 165, 169–170 (1989)).
In order to become party plaintiffs to an FLSA collective action lawsuit, such similarly
situated employees must affirmatively “opt in” by filing express, written consent. 29 U.S.C. §
216(b) (“[n]o employee shall be a party plaintiff to any such action unless he gives his consent in
writing to become such a party and such consent is filed in the court in which such action is
brought.”). “An employee's failure to opt in does not prevent him or her from bringing a separate
suit at a later date.” Brumley v. Camin Cargo Control, Inc., Nos. 08-1798, 10-2461, 09-6128,
16
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 17 of 27 PageID: 1134
2012 WL 1019337, at *1 (D.N.J. Mar. 26, 2012) (citing Pentland v. Dravo Corp., 152 F.2d 851,
853 (3d Cir. 1945); Lusardi v. Lechner, 855 F.2d 1062, 1070 (3d Cir. 1988)).
In the matter at bar, not only is the purported settlement agreement invalid, but neither
party presents any evidence that the non-party handlers affirmatively “opted in” to the PBA I
action. In order to potentially bind the non-party handlers to the March 2019 settlement
agreement, the parties must present evidence that these individuals joined an FLSA collective
action lawsuit. See 29 U.S.C. § 216(b). Rather, the record is clear that the non-party handlers
rejected the settlement that Defendant and the PBA I Plaintiffs attempted to reach, and after
being presented with the negotiated settlement terms, the non-party handlers filed their own
lawsuit (PBA II). Moreover, the non-party handlers did not participate in any settlement
negotiations because they had never joined the collective action lawsuit, as required under 29
U.S.C. § 216(b). The fact that this statutory requirement was not met provides this Court with an
alternative basis to deny defendant’s motion to enforce the settlement.
ii. Motion to Dismiss Retaliation Claims
Defendant moves to dismiss Counts III and IV of the PBA II Complaint, and Counts IV
and V of the proposed Amended Complaint in the PBA I action under Fed. R. Civ. P. 12(b)(6).5
Defendant argues that Plaintiffs’ retaliation claims should be dismissed because Plaintiffs fail to
plead that they engaged in protected activity under the FLSA or whistleblowing activity under
the CEPA.
Plaintiffs contend that Defendant’s motion to dismiss counts IV and V of the proposed Amended Complaint in the
PBA I action are premature because the Amended Complaint has yet to be filed. For reasons already stated in this
Opinion, the Court will address Plaintiffs’ motion for leave to amend the Complaint under the legal standard applied
in a motion to dismiss under Rule 12(b)(6). Thus, by ruling on Defendant’s motion to dismiss, the Court will
simultaneously address and then rule on Plaintiff’s motion for leave to amend the Complaint.
5
17
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 18 of 27 PageID: 1135
The issue before the Court on a Rule 12(b)(6) motion to dismiss “is not whether plaintiff
will ultimately prevail but whether the claimant is entitled to offer evidence in support of the
claims.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). To make that determination, the Court must
employ the standard of review articulated by the Supreme Court in Bell Atlantic Corp. v.
Twombly and Ashcroft v. Iqbal. A complaint will survive a motion under Rule 12(b)(6) only if
it states “sufficient factual allegations, accepted as true, to ‘state a claim for relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v.
Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard will be met if the complaint
“pleads factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556.) While the
complaint need not demonstrate that a defendant is probably liable for the wrongdoing to meet
the pleading standard of Federal Rule of Civil Procedure 8(a), allegations that give rise to the
mere possibility of unlawful conduct will not do.6 Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at
557.
To plead a retaliation claim under the FLSA, one must plead facts establishing that: “(1)
the employee engaged in protected employee activity; (2) adverse action by the employer either
In response to Defendant’s argument that Plaintiffs fail to adequately plead claims under the FLSA or CEPA,
Plaintiffs cite Swierkiewicz v. Sorema, N.A., a 2002 Supreme Court decision holding that a complaint “must simply
give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests” in order to satisfy
the pleading requirements. 534 U.S. 506, 512 (2002) (internal quotations omitted). The Court’s decision in
Swierkiericz was pre-Twombly and Iqbal, and was based on Conley v. Gibson. See Petruska v. Reckitt Benckiser,
LLC, 14-3663, 2015 U.S. Dist. LEXIS 38935, at *10-*11) (“The pleading requirements as discussed in
Swierkiewicz were based on the Conley v. Gibson standard which permitted district courts to dismiss a complaint
for failure to state a claim only if “it appear[ed] beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.” (quoting Conley v. Gibson, 355 U.S. 41, 45-46, (1957))). After the
Court established the heightened pleading standard under Twombly and Iqbal, the Third Circuit held that “because
Conley has been specifically repudiated by both Twombly and Iqbal, so too has Swierkiewicz, at least insofar as it
concerns pleading requirements and relies on Conley.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.
2009). This Court accordingly rejects the pleading standard cited by Plaintiff and will apply that which is required
under Twombly and Iqbal.
6
18
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 19 of 27 PageID: 1136
after or contemporaneous with the employee’s protected activity; and (3) a causal connection
between the employee’s protected activity and the employer’s adverse action.” Goins v. Newark
Hous. Auth., No. 15-2195, 2019 U.S. Dist. LEXIS 54493, at *31 (D.N.J. Mar. 29, 2019) (citing
Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007)). Similarly, to plead a cause of
action under CEPA, the Complaint must plead facts establishing the following elements: “(1) she
had a reasonable belief that her employer’s conduct violated a law, regulation, or clear mandate
of public policy; (2) she performed a “whistle-blowing” activity under the act; (3) the employer
took an adverse employment action against her; and (4) a causal connection exists between the
whistle-blowing activity and the adverse employment action.” Id. at *41-*42 (citing Dzwonar v.
McDevitt, 177 N.J. 451 (N.J. 2003); Samowski v. Air Brooke Limousine, Inc., 510 F.3d 398,
404 (3d Cir. 2007)).
In order to plead a colorable retaliation claim under the FLSA, the Complaint must plead
factual allegations establishing that the employer engaged in an adverse action “either after or
contemporaneous with the employee’s protected activity.” Id. at *31 (citations omitted). In both
the PBA I Amended Complaint and PBA II Complaint, Plaintiffs assert that the alleged
retaliatory acts by Essex County Sheriff Armando B. Fontoura included:
[R]efusal by Essex County Sheriff Armando B. Fontoura to replace
an inoperable agility course at the K-9 Unit Headquarters, which is
required for proper training of canines in the Unit and also
mandated to be functional by the Attorney General Mandatory
Guidelines; refusal by Essex County Sheriff Armando B. Fontoura
to allow K-9 Handlers to attend training with an outside agency,
refusal by Essex County Sheriff Armando B. Fontoura to allow
retirement of uncertified canines and adoption of new canines;
General Order by Essex County Sheriff Armando B. Fontoura that
Handlers leave their canine partners at the K-9 Unit Headquarters
at all times they are not on duty; verbal order of Essex County
Sheriff Armando B. Fontoura directing Handlers to transport their
canine partners to and from work in personal vehicles, rather than
specially designed County-issued vehicles which contain numerous
19
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 20 of 27 PageID: 1137
safety features for the canine and the Handler; threats by Essex
County Sheriff Armando B. Fontoura to close the K-9 Unit if the
within Plaintiffs proceeded with the instant litigation.
(PBA II Compl. ¶ 18; See PBA I Am. Compl. ¶ 20.)
It is apparent that orders and policies enacted in the 2016 General Order cannot be the
basis for a retaliation claim as these acts occurred before the initial complaint in the PBA I action
was filed. Specifically, it appears that the mandate that “[h]andlers leave their canine partners at
the K-9 Unit Headquarters at all times they are not on duty” was put into effect on January 19,
2016 through the General Order which was issued on January 4, 2016. (PBA II Compl. ¶ 18; see
Essex County Sheriff’s Office General Order, G.O. No. 2016-02 (Jan. 4, 2016).) At the time
Defendant imposed this mandate, Plaintiffs had yet to file their original Complaint and therefore
had not exercised their rights under the FLSA nor had they engaged in any whistleblowing
activity. Any claims based on this order therefore lack the temporal nexus necessary in
establishing a valid retaliation claim. Thus, since Defendant could not retaliate against actions
that had yet to occur, Plaintiffs fail to show how any actions taken by Defendant through the
enforcement of the 2016 General Order support a retaliation claim under the FLSA or CEPA.
In both the PBA II Complaint and the PBA I Amended Complaint, Plaintiffs allege that
Defendant began engaging in acts of retaliation “once members of the Essex County Sheriff’s
Department K-9 Unit began exercising their rights under the FLSA.” (PBA II Compl. ¶ 17; see
PBA I Am. Compl. ¶ 20.) The Complaints further assert that “[t]here exists a causal connection
between the protected acts of the plaintiffs and the retaliatory actions of Essex County Sheriff
Armando B. Fontoura.” (PBA II Compl. ¶ 17; PBA I Am. Compl. ¶ 19.) Significantly, both the
PBA II Complaint and the PBA I Amended Complaint fail to include any factual allegations
20
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 21 of 27 PageID: 1138
explaining what Plaintiffs’ protected acts consisted of, and instead, simply claim that Plaintiffs
participated in “protected acts.”
While the Court must accept all factual allegations as true and construe the Complaint in
the light most favorable to the Plaintiffs, it need not accept a “legal conclusion couched as a
factual allegation[.]” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. Here, Plaintiffs fail to identify the protected acts they engaged
in, and their claim simply includes a conclusory statement alleging that Plaintiffs filed a
complaint and participated in “protected acts,” and in response, Defendants engaged in
retaliatory acts. However, without including some type of factual allegation establishing a causal
nexus between the filing of the Complaint and defendant’s actions, the Complaint cannot survive
Defendant’s motion under Rule 12(b)(6). The Court cannot determine what protected activities
Plaintiffs’ engaged in, other than the filing of the Complaint, and cannot find a causal nexus
between the unidentified acts of Plaintiffs and Defendant’s alleged response to these acts. See
Preobrazhenskaya v. Mercy Hall Infirmary, 71 Fed. Appx. 936, 939 (3d Cir. 2003) (affirming the
district court’s finding that Plaintiff failed to establish a prima facie retaliation claim under the
FLSA because Plaintiff failed to show a causal link between Plaintiff contacting the Department
of Labor and Defendant firing her when the firing decision was made by an individual who had
no knowledge that the employee had contacted the Department of Labor). Based on this, the
Court finds that Plaintiffs fail to sufficiently plead a retaliation claim under the FLSA. Thus,
Defendant’s motion to dismiss count III of the PBA II Complaint alleging that Defendant
violated the anti-retaliation provision under the FLSA is granted for failure to state a claim.
21
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 22 of 27 PageID: 1139
Applying the same legal standard, Plaintiff’s motion for leave to amend the PBA I Complaint,
thereby allowing Plaintiff to add this claim to the Complaint, is denied based on futility.
Similarly, the Court finds that Plaintiffs fail to plead a claim under the CEPA. In their
Complaints, neither the PBA I or PBA II Plaintiffs allege that they engaged in any
whistleblowing activity, nor do they allege that they engaged in activities that could be
considered whistleblowing activities or protected activities under the CEPA. Rather, with respect
to their claims that Defendant violated the CEPA, both the PBA I Amended Complaint and the
PBA II Complaint state that “[u]pper management members of Defendant County of Essex . . .
committed acts of retaliation against Plaintiffs” and claim that “[t]hese acts of retaliation were
committed as a direct result of Plaintiffs exercising their rights under the FLSA.” (PBA II
Compl. ¶¶ 38, 39; PBA I Am. Compl. ¶¶ 45, 46.) The Complaints conclude that, “[a]s Plaintiffs’
employer, Defendant and upper management agents thereof, violated the Conscientious
Employee Protection Act.” (PBA II Compl. ¶ 39; PBA I Am. Compl. ¶ 46.) Notably, the
Complaints fail to allege that Plaintiffs “performed a ‘whistle-blowing’ activity under the act.”
Goins v. Newark Hous. Auth., No. 15-2195, 2019 U.S. Dist. LEXIS 54493, at *41-*42 (D.N.J.
Mar. 29, 2019) (citations omitted). A factual allegation pleading this is a required element of a
cause of action under the CEPA. See N.J.S.A. § 34:19-3; Stapleton v. DSW, Inc., 931 F. Supp.
2d 635, 639 (D.N.J. 2013) (finding that Plaintiff asserted a CEPA claim when Plaintiff pled facts
establishing that she “was terminated in retaliation for her refusal to participate in DSW’s policy
. . . because she reasonably believed that her failure to do so would be incompatible with a clear
mandate of public policy concerning the safety and welfare of children”). Moreover, the
Complaint must plead facts that establish “a causal connection exists between the whistleblowing activity and the adverse employment action.” Goins v. Newark Hous. Auth., 15-2195,
22
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 23 of 27 PageID: 1140
2019 U.S. Dist. LEXIS 54493, at *41-*42 (D.N.J. Mar. 29, 2019) (citations omitted). However,
without identifying what the whistle-blowing activity was, the Complaint fails establish this
required causal nexus, and the Complaint cannot survive Defendant’s motion to dismiss for
failure to state a claim. Based on this, Defendant’s motion to dismiss count IV of the PBA II
Complaint alleging that Defendant violated New Jersey’s CEPA is granted for failure to state a
claim. Applying the same legal standard, Plaintiff’s motion for leave to amend the PBA I
Complaint is denied based on futility.
iii. CEPA Time Bar
Defendant moves to dismiss Plaintiffs’ CEPA claims and argues that these claims are
time barred. This argument applies to Count IV of the PBA II Complaint and Count V of the
PBA I Amended Complaint.
The Third Circuit has indicated that motions to dismiss under Rule 12(b)(6) are generally
disfavored when they are based on statute of limitations arguments because “the applicability of
the statute of limitations often involves questions of fact for the jury.” Jodek Charitable Trust,
R.A. v. Vertical Net Inc., 412 F. Supp. 2d 469, 474 (E.D. Pa. 2006) (citing Southern Cross
Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 425 (3d Cir. 1999)).
In order to grant a motion to dismiss based on a statute of limitations argument, the time bar
must be apparent on the face of the Complaint. See Bethel v. Jendoco Constr. Corp., 570 F.2d
1168, 1174 (3d Cir. 1978).
New Jersey’s Conscientious Employee Protection Act provides a one-year statute of
limitations. N.J.S.A. § 34:19-5 (“Upon a violation of any of the provisions of this act, an
aggrieved employee or former employee may, within one year, institute a civil action in a court
of competent jurisdiction.”). The first CEPA claim filed in this matter was filed on June 2, 2019
23
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 24 of 27 PageID: 1141
and was included in the PBA II Complaint. Thus, Defendant’s actions underlying Plaintiffs’
CEPA claims must have occurred no earlier than June 3, 2018.
Although Plaintiffs failed to include dates stating when any of Defendant’s alleged
retaliatory actions took place, the Court notes that the 2016 General Order was issued on January
4, 2016 and went into effect on January 19, 2016. In this order, Sheriff Fontoura took a discrete
action by mandating that “K-9 handlers are to ensure all K-9s are lodged in K-9/Bomb
Headquarters when the [sic] not in service.” (Essex County Sheriff’s Office General Order, G.O.
No. 2016-02 (Jan. 4, 2016).) The 2016 General Order also enacted other policies and procedures
related to protocol responses as well as the care and maintenance of the department’s canines. In
the one year period following issuance of this order, neither the PBA I Plaintiffs nor the PBA II
Plaintiffs filed a CEPA claim and, consequently, the statute of limitations has expired. Therefore,
to the extent that any of the CEPA claims are based on the 2016 General Order, the Court finds
that these claims are time barred. The court hereby dismisses with prejudice any claims brought
under the Conscientious Employee Protection Act which are predicated upon the 2016 General
Order.
iv. PBA Local 183’s Standing to Maintain a Claim Under the FLSA
Defendants argues that several claims in both the PBA I and PBA II matters must be
dismissed because the claims were brought by PBA Local 183, rather than the individually
named Plaintiffs. Defendant argues that PBA Local 183 does not have standing to maintain a
claim as an individual plaintiff under the FLSA. In response, Plaintiffs clarify that only Count II
of the PBA I Complaint and Count II of the PBA II Complaint are brought exclusively by the
union. Plaintiffs contend that these claims are distinguishable from the other claims for
compensation in the Complaints, which were brought by the individual Plaintiffs themselves,
24
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 25 of 27 PageID: 1142
because these counts seek a bar to continued violations of the FLSA. Plaintiffs recognize that
only an individual can plead a cause of action for compensation under the FLSA, but argues that
PBA Local does have standing to seek an order directing Defendant to comply with the FLSA
moving forward.
The parties correctly agree that PBA Local 183 does not have standing to plead a cause of
action for compensation under the FLSA as these claims can only be brought by “one or more
employees for and on behalf of himself or themselves and other employees similarly situated.”
29 U.S.C. § 216(b). However, in the matter at bar, PBA Local is not pleading a claim for
compensation. Rather, the union is seeking an Order directing Defendant to comply with the
compensation procedures required under the FLSA. By bringing this action on behalf of its
members, PBA Local 183 asserts that it has representative standing to plead this claim. The
question before this Court is whether PBA Local 183 has the required standing to bring such a
claim.
The Constitution and the courts have imposed requirements for plaintiffs to have proper
standing to bring suits in order to ensure that a plaintiff possesses “such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends . . . .” Baker v. Carr, 369 U.S.
186, 204 (1962). Associational standing may permit an organization to redress injuries to its
members, even without a showing of any injury to the organization itself. United Food and
Commercial Workers Union v. Brown Group, Inc., 517 U.S. 544, 552 (1996). The Supreme
Court has set out three requirements for an associational plaintiff like PBA Local 183 to have
standing under Article III to sue on behalf of its members: (1) its members must have standing to
sue on their own; (2) the interests it seeks to protect must be germane to the organization's
25
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 26 of 27 PageID: 1143
purpose; and (3) neither the claim asserted nor the relief requested may require the participation
of individual members in the lawsuit. Hunt v. Washington State Apple Adver. Comm'n, 432 U.S.
333, 343 (1977); see also Int’l Union v. Brock, 477 U.S. 274, 282-290 (1986) (applying the Hunt
factors and finding that International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, had associational standing to bring suit on behalf of its
members).
Here, the Court finds that PBA Local 183 has associational standing to bring a claim
barring future violations of the FLSA. Hunt requires that at least one of PBA Local 183’s
members would have had “standing to present, in his or her own right, the claim (or the type of
claim) pleaded by the association.” United Food, 517 U.S. at 555. In both the PBA I and PBA II
Complaints, Plaintiffs have presented facts establishing that individual members of the union
have suffered tangible injury as a result of Defendant’s violations of the FLSA, thereby
warranting the requested relief that PBA Local 183 seeks on behalf of its members. “At the
pleading stage, general factual allegations of injury resulting from the defendant's conduct may
suffice, for on a motion to dismiss we ‘presume that general allegations embrace those specific
facts that are necessary to support the claim.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992) (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990)). Accordingly, the Court
is satisfied that the Plaintiff has sufficiently demonstrated, for purposes of evaluating the
Defendant's motion for dismissal, that at least some of their members have standing to sue in
their own right - thereby satisfying the first requirement of Hunt. Second, Hunt requires that the
interests the organization seeks to protect be germane to the organization’s purpose. Clearly, this
prong is satisfied. Through its claim, the union seeks to protect its members from unfair
employment practices and seeks to ensure that its members are properly compensated for their
26
Case 2:17-cv-06962-SRC-CLW Document 54 Filed 10/15/19 Page 27 of 27 PageID: 1144
work. This is one of the key interests of the union, and accordingly, the Court finds that the
second Hunt prong is met. Finally, Hunt requires that neither the claim asserted nor the relief
requested require the participation of individual members in the lawsuit. Here, the union is
seeking an Order that Defendant complies with the requirements of the FLSA. The Court notes
that this claim can be brought and the requested relief may be granted without the participation
of the union’s individual members thereby satisfying the third requirement under Hunt and
conferring associational standing upon PBA Local 183.
Thus, because PBA Local 183 has associational standing permitting it to bring a claim
barring further violations of the FLSA, the Court denies Defendant’s motion to dismiss as it
relates to Count II of the PBA I Complaint and Count II of the PBA II Complaint.
IV.
CONCLUSION
For the foregoing reasons, the Court will deny Plaintiff’s motion to amend the Complaint
and deny Defendant’s motion to dismiss the Complaint and enforce settlement. The Court will
grant-in-part and deny-in-part Defendant’s motion to dismiss the PBA II Complaint.
Accordingly, Counts III and IV of the PBA II Complaint are dismissed without prejudice.
Finally, any claims brought under New Jersey’s Conscientious Employee Protection Act that are
predicated on the issuance of the 2016 General Order are dismissed with prejudice. An
appropriate Order will be filed.
s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: October 15, 2019
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?