NAIDER v. A-1 LIMOUSINE, INC.
OPINION filed. Signed by Judge Freda L. Wolfson on 10/8/2014. (eaj)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 14-2212 (FLW)
A-1 LIMOUSINE, INC.,
WOLFSON, United States District Judge:
This civil action, brought by Plaintiff Natan Naider (“Plaintiff”), arises out of
allegations that Defendant A-1 Limousine, Inc. (“Defendant”) violated the Fair Labor
Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”), for failure to pay overtime wages to
Plaintiff and other similarly situated employees. Presently before the Court is a
motion to dismiss filed by Defendant, arguing that Plaintiff has failed to sufficiently
plead a valid collective action under the FLSA because Plaintiff does not make
substantial allegations that other employees were treated similarly. For reasons set
forth below, the Court DENIES Defendant’s motion.
For the purpose of this motion, the Court will take the allegations in the
Complaint as true, and only recount pertinent facts. Plaintiff was hired by Defendant
on July 18, 2008 as a limousine driver. Compl. ¶ 11. Defendant also hired other
drivers during the 3 year period prior to the filing of the Complaint, who performed
similar job functions as Plaintiff. Compl. ¶¶ 12-13. According to the Complaint,
Plaintiff and other drivers routinely worked in excess of 40 hours a week, but were
compensated for the same hourly rate for all hours worked, regardless of whether any
of those hours were overtime. Compl. ¶¶ 15-17. Plaintiff avers that although he and
other drivers received additional compensation in the form of “gratuities,” these
gratuities are not tips for the purpose of FLSA because Defendant charged them as
flat fees/service charges that were not at the discretion of the customers. Compl. ¶¶
18-19. Therefore, Plaintiff alleges that he and other similarly situated employees are
entitled to overtime compensation for hours worked in excess of 40 hours a week
during the relevant period, which is one and one half times the base hourly rate as
required by the FLSA. Compl. ¶¶ 29-30.
In the instant matter, Defendant moves to dismiss the collective action
allegations on the basis that Plaintiff has failed to provide factual averments that
other employees, i.e., drivers, were denied overtime compensation. Thus, Defendant
claims that Plaintiff’s collective action under the FLSA cannot stand.
STANDARD OF REVIEW
Under Rule 12(b)(6), “courts are required to accept all well-pleaded allegations
in the complaint as true and to draw all reasonable inferences in favor of the nonmoving party.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008) (citing
In re Rockefeller Ctr. Props. Secs. Litig., 311 F.3d 198, 215-16 (3d Cir. 2002)).
However, the factual allegations set forth in a complaint “must be enough to raise a
right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
The pleading must contain more than “labels and conclusions or a
formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 555) (internal citations and quotations
omitted). Thus, a complaint will survive a motion to dismiss if it contains “sufficient
factual matter, as accepted as true, to state a claim to relief that is plausible on its
face.” Id. (quoting Twombly, 550 U.S. at 570) (internal citations and quotations
omitted). “A claim has facial plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
Under the FLSA, “[a]n action to recover the liability . . . may be maintained
against any employer . . . by any one or more employees for and in behalf of himself
or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). When an
employee brings an action against an employer on behalf of other similarly situated
employees, this is commonly known as a “collective action.” Genesis Healthcare Corp.
v. Symczyk, 133 S.Ct. 1523, 1527 (2013).
“In deciding whether a suit brought under § 216(b) may move forward as a
collective action, courts typically employ a two-tiered analysis. During the initial
phase, the court makes a preliminary determination whether the employees
enumerated in the complaint can be provisionally categorized as similarly situated to
the named plaintiff. If the plaintiff carries her burden at this threshold stage, the
court will ‘conditionally certify’ the collective action for the purposes of notice and
pretrial discovery.” Symczyk v. Genesis Healthcare Corp., 656 F.3d 189, 192 (3d Cir.
2011). Plaintiff must make a “modest factual showing” that the prospective party
plaintiffs are similar situated. Id. at 192-93. Under the “modest factual showing”
standard, Plaintiff must “produce some [allegations], beyond speculation, of a factual
nexus between the manner in which the employer’s alleged policy affected him and
the manner in which it affected other employees.” Id. at 193.
In the instant matter, although Plaintiff has not moved for an initial
certification of the collective action, Defendant is seeking to preemptively strike the
collective action claims based on insufficient pleadings. However, the Court finds
that Plaintiff has made sufficient factual allegations, assessed through the lens of
12(b)(6), that could state a collective action. In the Complaint, Plaintiff alleges a
specific class of employees as being similarly situated: employees who only
“perform[ed] routine shuttle services, limousine driving, and other local (intrastate)
transportation services, consisting solely of non-exempt functions.” Compl. ¶ 13.
Essentially, employees who are similarly situated are drivers hired by Defendant to
provide transportation services. Plaintiff does not allege that any other types of
employees are similarly situated. Importantly, Plaintiff alleges that the subject
policies in violation of the FLSA -- no overtime hourly wages and the use of flat
fees/service charges as de facto gratuities -- are practices that apply to all similarly
situated employees. In fact, there is no allegation that Plaintiff, and no one else, was
individually subjected to these policies; indeed, Plaintiff alleges that these practices
and policies were applicable to all putative plaintiffs. Compl. ¶¶ 17-19.
In that regard, for the purposes of this motion, Defendant does not dispute that
Plaintiff was subjected to the alleged practices, but argues instead that the Complaint
lacks any substantial allegations that these practices applied to similarly situated
employees. However, at this juncture, based on Plaintiff’s pleadings, it is reasonable
for the Court to infer that all drivers, employed by Defendant, were treated similarly.
Accordingly, Plaintiff’s collective action allegations are “enough to raise a right to
relief above the speculative level” that would lead to the discovery of other similarly
situated employees. See Evancho v. Sanofi-Aventis U.S. Inc., 2007 U.S. Dist. LEXIS
93215, at *7 (D.N.J. Dec. 19, 2007) (stating that “allegations that putative class
members were together the victims of a single decision, policy, or plan” are sufficient
to establish that members are similarly situated); see, e.g., Felix De Asencio v. Tyson
Foods, Inc., 130 F. Supp. 2d 660, 663 (E.D. Pa. 2001) (holding that allegations that
employees that were (1) all production employees, and (2) employer failed to pay these
employees minimum wage and overtime wages, were sufficient to establish that the
employees were similarly situated for the purpose of FSLA when the case was still in
the pre-discovery stage); Landsman & Funk PC v. Skinder-Strauss Associates, 640
F.3d 72, 93 (3d Cir. 2011) ("[Only in a] rare [case does] the complaint itself
demonstrate that the requirements for maintaining a class action have not been
For the reasons stated above, Defendant’s Motion to Dismiss is DENIED. An
appropriate Order shall follow.
October 8, 2014
/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
United States District Judge
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