RAMIREZ v. GROMITSARIS et al
Filing
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OPINION. Signed by Judge Joel A. Pisano on 6/3/2013. (gxh)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
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RANDY RAMIREZ, et al.
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Plaintiffs,
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v.
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PETROS GROMITSARIS, et al.
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Defendants.
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____________________________________:
Civil Action No. 13-2371 (JAP)
OPINION
PISANO, District Judge.
Plaintiff, Randy Ramirez, brings this action against defendants Petros Gromitsaris and
Peter Kritsikokas (“Defendants”) alleging violations of the Fair Labor Standards Act, 29 U.S.C.
201 et seq. (“FLSA”), as well as various state law claims. Presently before the Court is
Defendants’ motion for partial dismissal of Plaintiff’s complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). Specifically, Defendants seek dismissal of the third, sixth and seventh
counts of the complaint. Plaintiff has opposed the motion, 1 and the matter is now fully briefed
and ripe for decision. The Court decides the matter without oral argument pursuant to Federal
Rule of Civil Procedure 78. For the reasons below, Defendants’ motion is granted.
The third count of the complaint alleges that Defendants failed to account in writing for
payments made to Plaintiff pursuant to New Jersey’s Wage Payment Law, N.J.S.A. 34:11-4 et
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The Court notes that Plaintiff’s opposition brief was not timely filed, and as of the date of this Opinion, it does not
appear that Plaintiff’s opposition has yet been filed. The Court only became aware of the existence of an opposition
brief upon the filing of Defendants’ reply brief. After a request by chambers staff (who advised counsel of the need
to file his opposition brief with the Clerk’s office), a courtesy copy of the opposition brief was provided to the Court
and the Court has considered the same. With regard to all future filings, counsel for Plaintiff is reminded that
electronic filing has been mandatory in this district since January 31, 2005. See Standing Order 05-1.
seq. (“WPL”). Plaintiff’s sixth count is for restitution and the seventh count is for unjust
enrichment. Defendant argues that dismissal of these counts are warranted because, as to the
third count, there is no private right of action for statutory penalties under New Jersey’s WPL
and, as to the other counts, they are preempted by the FLSA. The Court agrees.
In his third count, Plaintiff seeks “statutory penalties and damages” under the WPL. New
Jersey courts have recognized a private right of action for an employee under the WPL to collect
wages wrongfully withheld. Palmer v. Shore Culinary LLC, 2011 WL 1466134 (N.J. Super.
App. Div. 2011); Winslow v. Corp. Exp., Inc., 364 N.J. Super. 128, 136–37 (App. Div. 2003);
N.J.S.A. 34:11-4.7. However, only New Jersey’s Department of Labor is empowered to collect
statutory penalties. See N.J.S.A. 34:11-4.10 (Commissioner of Labor can levy administrative
penalty); Palmer, 2011 WL 1466134 at *12-13 (plaintiff not entitled to “statutory penalties”
under WPL); see also Sternadori v. SCS Healthcare Mktg., Inc., 2007 WL 710298, *6 (E.D. Pa.
2007); Kronick v. Bebe Stores, Inc., 2008 WL 4509610, *7-8 (D.N.J. 2008) (“The Wage
Payment Law does not provide for statutory or punitive damages”). Thus, Plaintiff’s third count
fails and is dismissed.
The common law causes of action in counts six and seven also must be dismissed. These
claims are based exclusively on Defendants’ alleged failure to pay the minimum wage and/or
overtime. Plaintiff does not make any independent factual allegations in support of these claims
but, rather, these claims are based on the same facts and circumstances of Plaintiffs FLSA claim.
Consequently, these claims are preempted by the FLSA. See Kronick, 2008 WL 4509610 at *4
(In assessing whether state common law claims must be brought under the FLSA, “courts look to
the basis of the claims, in particular whether the ‘common law claims are based on the same facts
and circumstances as [the] FLSA claims.’”) (alteration in original); see also Guenzel v. Mount
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Olive Board of Educ., 2011 WL 559717, *6 (D.N.J. 2011) (dismissing unjust enrichment claim
as preempted by the FLSA); Shakib v. Back Bay Restaurant Group, Inc., 2011 WL 4594654, *5
(D.N.J. 2011) (dismissing unjust enrichment claim and restitution claims as preempted by the
FLSA); Kelly v. Borough of Union Beach, 2011 WL 551170, *3 (D.N.J. 2011) (dismissing unjust
enrichment claim as preempted by the FLSA).
The Third Circuit has “instructed that if a complaint is vulnerable to 12(b)(6) dismissal, a
district court must permit a curative amendment, unless an amendment would be inequitable or
futile.” Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). Because the Court
concludes that allowing Plaintiff to amend these claims would be futile, the dismissal of counts
three, six and seven is with prejudice. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2 004) (a
court need not permit a curative amendment if “amendment would be inequitable or futile”). An
appropriate Order accompanies this Opinion.
/s/ JOEL A. PISANO
United States District Judge
Dated: June 3, 2013
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