FENWICK v. SOTHEBY'S
OPINION. Signed by Judge Evelyn Padin on 11/17/2022. (ld, )
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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FRANCIS FENWICK, Individually, and on
behalf of all others similarly situated,
No. 21cv11987 (EP) (JSA)
and JOHN DOES 1-10,
PADIN, District Judge
Presently before the Court is Defendant
motion to dismiss Count One1 of
amended complaint under Federal Rule of Civil
Procedure 12(b)(6). D.E. 21.
and decides the
motion without oral argument. See Fed. R. Civ. P. 78(b); L. Civ. R. 78.1(b). For the reasons stated
motion is GRANTED.
class allegations. See D.E. 21.
, however, are now moot
because on November 3, 2022, Fenwick formally withdrew Counts Two and Four and all class
allegations from his pleading. See
of contract claim and the unjust enrichment claim. . . . [and] is also withdrawing and dropping the
class allegations and claims in this
The Court, in turn, entered an Order formally
dismissing those claims on November 7, 2022. See D.E. 45.
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A. Factual Background
April 3, 2017 until June 30, 2020. See D.E. 19 ¶¶ 61,
as opposed to an
amended complaint, as now pled, asserts two alternative causes
of action: (1) a claim for employee misclassification, see D.E. 19 at Count One, ¶¶ 57-75, which
misclassified [him] as an independent contractor rather than an employee, see id. ¶ 34; and (2) a
claim for v
N.Y.C. Admin. Code § 20-927, et seq., see id.
at Count Three, ¶¶ 91-114, which would only be viable upon a finding that Fenwick was in fact
employee misclassification claim only, and the remainder of the Co
recitation will accordingly focus on that particular claim.
Id. ¶ 60. The first contract covered the period between April 3, 2017 to March 30,
2018; the second covered the period between January 1, 2018 to December 31, 2018. Id. ¶¶ 6162. Fenwick
Id. ¶¶ 63, 65.
For the purposes of this Opinion, the Court accepts as true all of the c
Fenwick notes that tha
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(2) the hourly rate that Mr. Fenwick would be paid by Sotheby
Mr. Fenwick; (4) the projects that he worked on and his job assignments; (5) the reporting
requirements that Mr. Fenwick had to comply with on those projects and job assignments; (6) who
Mr. Fenwick would report to and communicate with about his employment, work projects, and job
and giving him standard feedback that an employer gives to an employee
leave, paid time off, health insurance, unemployment and worker s compensation coverage,
benefits like his co-
Id. ¶ 71.
being in violation of applicable laws, including the Fair Labor Standards Act
Id. ¶ 58.
York State Department of Labor and the controlling case law both make it clear that an employer
cannot avoid its legal obligations simply by labelling employees as independent contractors.
Id. ¶ 67.
B. Procedural History
Fenwick initiated this action on May 30, 2021 via the filing of his original complaint. D.E.
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On May 3, 2022, Fenwick filed his amended complaint. 4 D.E. 19. On May 17, 2022,
misclassification claim. D.E. 21. Fenwick filed his opposition to that motion on June 21, 2022.
Thereafter, on November 3, 2022, Fenwick formally withdrew his breach of contract and
unjust enrichment claims (Counts Two and Four, respectively), as well as all class allegations. See
enrichment claim. . . . [and] is also withdrawing and dropping the class allegations and claims in
On November 7, 2022, the Court entered an Order formally dismissing those claims
See D.E. 45. This obviates the need for the Court to address those
Federal Rule of Civil Procedure 8(a) does not require that a complaint contain detailed
factual allegations. However, the
Twombly, 550 U.S. at 570; see
also West Run Student Hous. Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir.
the reasonable inference that t
Ashcroft v. Iqbal,
basis of, inter alia, diversity jurisdiction. D.E. 19 ¶¶ 22-27.
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556 U.S. 662, 678 (2009) (citing Twombly
Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a claim upon which
relief can be granted. As the moving party, the defendant bears the burden of showing that no
claim has been stated. Animal Sci. Prods., Inc. v. China Minmetals Corp., 654 F.3d 462, 469 n.9
(3d Cir. 2011). For the purposes of the motion, the facts alleged in the complaint are accepted as
true and all reasonable inferences are drawn in favor of the plaintiff. New Jersey Carpenters &
the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).
broadly alleges that
actions were improper and unlawful, including being in violation of applicable laws,
aim because: (1) he fails
to state a claim for relief under the FLSA, see D.E. 21-1 at 4-7; and (2) likewise fails to state
Id. at 8. The Court agrees
that dismissal is warranted for these reasons.
Generally speaking, in order to state a prima facie claim under the FLSA, a plaintiff must plead
or was not paid overtime compensation for hours worked in excess of forty in a given week. See
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Thompson v. Real Estate Mortg. Network, Inc., No. 11-CV-01494 (DMC-JAD), 2011 WL
6935312, at *2 (D.N.J. Dec. 30, 2011); Barrios v. Suburban Disposal, Inc., No. 2:12-CV-03663
(WJM), 2013 WL 1504489, at *2 (D.N.J. Apr. 10, 2013). Here, Fenwick has not alleged that any
such overtime violations were committed, and thus, the factual allegations in his pleading fail to
state a plausible FLSA claim under this pleading standard.
Furthermore, to the extent that
FLSA claim is premised on his contention he
was denied sick days, paid vacation leave, paid time off, health insurance, unemployment and
, retirement savings, and/or stock options as a result of being
classified as an independent contractor, those claims are not actionable under the FLSA. See, e.g.,
Rosario v. First Student Mgmt. LLC, No. 15-CV-6478, 2016 WL 4367019, at *6 (E.D. Pa. Aug.
following: violations of § 206
(minimum wage provision), § 207 (maximum hours provision), § 212 (child labor provision), §
211(c) (record keeping requirements) or regulations issued under § 214 (records requirement for
employment of apprentices)).
Finally, insomuch as Fenwick is instead bringing his employee misclassification claim
see D.E. 19 ¶ 58, his vague
See, e.g., Love v.
Fifth Third Bank, No. 19-CV-21215 (MAS) (DEA), 2021 WL 1139874, at *4 (D.N.J. Mar. 24,
for relief. It will accordingly be dismissed, without prejudice. Fenwick may file a second amended
complaint within 30 days to address the pleading deficiencies identified herein. The Court
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recognizes, based on the information and proofs that have already been presented by Fenwick in
support of this claim, that Fenwick may very well be unable to ever state a cognizable employee
misclassification claim. That said, l
Fed. R. Civ. P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182 (1962). The Court
finds that it is consistent with principles of fairness and justice to afford Fenwick one last
opportunity to do so. Fenwick may file an amended complaint within 30 days of the date of this
For the reasons above,
motion is GRANTED
amended complaint is accordingly dismissed without prejudice.
Dated: November 17, 2022
Evelyn Padin, U.S.D.J.
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