Filing 46

OPINION. Signed by Judge Evelyn Padin on 11/17/2022. (ld, )

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Case 2:21-cv-11987-EP-JSA Document 46 Filed 11/17/22 Page 1 of 7 PageID: 335 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY FRANCIS FENWICK, Individually, and on behalf of all others similarly situated, Plaintiff, No. 21cv11987 (EP) (JSA) v. OPINION -10, and JOHN DOES 1-10, Defendants. PADIN, District Judge Presently before the Court is Defendant Plaintiff 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 below, motion is GRANTED. 1 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. Case 2:21-cv-11987-EP-JSA Document 46 Filed 11/17/22 Page 2 of 7 PageID: 336 I. BACKGROUND2 A. Factual Background April 3, 2017 until June 30, 2020. See D.E. 19 ¶¶ 61, as opposed to an independent contractor. 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 correctly classified dismiss employee misclassification claim only, and the remainder of the Co recitation will accordingly focus on that particular claim. 3 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. Id. 2 For the purposes of this Opinion, the Court accepts as true all of the c allegations. 3 Fenwick notes that tha 2 -pled factual Case 2:21-cv-11987-EP-JSA Document 46 Filed 11/17/22 Page 3 of 7 PageID: 337 (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 Id. jus and giving him standard feedback that an employer gives to an employee Id. leave, paid time off, health insurance, unemployment and worker s compensation coverage, Id. benefits like his co- Id. ¶ 71. being in violation of applicable laws, including the Fair Labor Standards Act and other 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. 1. 3 Case 2:21-cv-11987-EP-JSA Document 46 Filed 11/17/22 Page 4 of 7 PageID: 338 , 18. On May 3, 2022, Fenwick filed his amended complaint. 4 D.E. 19. On May 17, 2022, inter alia 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 II. LEGAL STANDARD 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. 2013). the reasonable inference that t Ashcroft v. Iqbal, 4 basis of, inter alia, diversity jurisdiction. D.E. 19 ¶¶ 22-27. 4 Case 2:21-cv-11987-EP-JSA Document 46 Filed 11/17/22 Page 5 of 7 PageID: 339 556 U.S. 662, 678 (2009) (citing Twombly . Id. 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). III. ANALYSIS 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. First, i 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 5 Case 2:21-cv-11987-EP-JSA Document 46 Filed 11/17/22 Page 6 of 7 PageID: 340 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 6 Case 2:21-cv-11987-EP-JSA Document 46 Filed 11/17/22 Page 7 of 7 PageID: 341 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 Opinion. IV. CONCLUSION For the reasons above, motion is GRANTED amended complaint is accordingly dismissed without prejudice. Dated: November 17, 2022 __________________ Evelyn Padin, U.S.D.J. 7

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