PALMISANO et al v. CROWDERGULF, LLC et al

Filing 35

MEMORANDUM and ORDER granting 21 Motion to Dismiss with prejudice. Signed by Judge Peter G. Sheridan on 5/29/2018. (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

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JOSEPH PALMISANO, et aL,

Civil Action No:
17-cv-9371 (PGS)(TJB)

Plaiiitif/
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)

V.

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CR0 WDERGULF, LLC, et al.,

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)
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Defendants.

MEMORANDUM
AND
ORDER

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)
)
Presently before the Court is Defendants James R. Johnson, David L. Joimson, and Carolyn
J. Hordichuks (hereinafter, Bil-Jim Defendants”) Motion to Dismiss Plaintiffs’ Complaint, as it
relates to Bil-Jim Defendants, for failure to state a claim. (ECF No. 21). Specifically, because the
New Jersey Prevailing Wage Act does not impute personal liability, Defendants contend that
Plaintiffs’ claim against the Bil-Jim Defendants should be dismissed. For the reasons discussed
herein, Defendants’ Motion to Dismiss is granted.
BACKGROUND
This is a putative class action based on alleged violations of the New Jersey Prevailing
Wage Act (hereinafter, “PWA”), N.J.S.A. § 34:11-56.25 et seq. Plaintiffs Joseph Palmisano, Jay
Hajeski, Sean Wall, and Walter Everett filed this complaint, individually and behalf of others
similarly situated, based on Defendants CrowderGuif, LLC; Bil-Jim Construction Co., Inc.; Maple
Lake, Inc.; R. Kremer and Son Marine Contractors, LLC; John C. Ramsay; Lyman W. Ramsay,
Jr.; James R. Johnson, Jr.; David L. Johnson; and Carolyn J. Hordichuk (collectively,

“Defendants”) failure to properly pay Plaintiffs their prevailing wage for work they perfornied on
public work projects. (Complaint at ¶ 1).
In January 2013, CrowderGulf entered into contracts with the State of New Jersey to
perform “waterway debris removal services,” from the damage caused by Hurricane Sandy
(hereinafter, “Sandy Project”). (Complaint at ¶ 6). The project took place in the “Central Region”
of New Jersey, primarily the Bamegat Bay waterway and nearby beaches, and involved the
“dredging of ‘displaced sand’ from the bay, transporting it, and using it
beaches, sand dunes, and sand bars.” (Id. at

¶

.

.

.

to rebuild nearby

9, 36). On February 28, 2013, CrowderGulf

subcontracted its work with the State to Bil-Jim, which then subcontracted with other entities,
including Kremer Marine, to perform various services under the Sandy Project. (Id. at

¶J

14, 22).

Plaintiffs Palmisano and Hajeski were both employees with Kremer Marine and worked as, among
other things, tug boat operators and operator engineers on the Sandy Project. (Id. at

¶J

30-3 1).

According to the Complaint, from May 2013 to September 2013, both worked “in excess of 40
hours per week, over 8 hours per day, more than a single shift in a day, on weekends, and on
holidays.” (Id.). Similarly, Plaintiffs Wall and Everett worked for Bil-Jim as, among other things,
mechanics and engineers on the Sandy Project. (Id. at ¶J 32-33). From November 2012 to March
2013, both claimed to have worked “in excess of 40 hours per week, over 8 hours per day, more
than a single shift in a day, on weekends and on holidays.” (Id.).
According to the Complaint, the Sandy Project was paid entirely out of the funds of a
“public body” and involved work performed exclusively on land owned by a public body, as within
the meaning of N.J.S.A.

§

34:1 1-56.26(4)-(5). (Id. at

¶J 40-41).

Moreover, Plaintiffs claim they

“did not receive prevailing wages for the work they performed on the Sandy Project, including but
not limited to full prevailing wages

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.

.

,

Shift Differentials’, PWA-detined ‘Overtime’, ‘Double

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Time’ for work performed on Sundays and Holidays, and/or other PWA benefits
in the PW Rate Sheets. (Id. at

—

as delineated

¶ 43).

In addition to bringing suit against Bil-Jim, Plaintiffs have named as defendants Bil-Jirn’s
officers: President, James Johnson: Vice President, David Johnson; and Secretary/Treasurer
Carolyn J. Hordichuk. (Id. at

¶

28).

Plaintiffs claim that, as officers, principals, directors,

supervisors, or managers,” they were “responsible for [Bil-Jim’s] failure to comply with the PWA
—

to their employees and to the employees of their subcontractors and sub-subcontractors.” (Id. at

¶ 64).

As such, Plaintiffs claim, “Defendants violated the PWA by failing to pay Plaintiffs for the

subject public work, at prevailing wage rates (‘Base’ plus ‘Fringe’ rate), ‘Shift Differentials’,
Overtime’, Double Time’ for work performed on Sundays and Holidays, and/or other PWA
benefits

—

all as defined in the applicable PW Rate Sheets; and therefore Defendants are liable to

Plaintiffs.’ (Id. at

¶ 65).

The Court was presented with essentially the same factual allegations in a related matter,
Wall, et al. v. Bil-Jim Construction Co., Inc., et al., 15-cv-8982 (D.N.J. Mar. 7, 2016). In that
case, the Court granted the Bil-Jim Defendants’ Motion to Dismiss for failure to state a claim.
(ECF No. 26). In a written order, the Court granted Plaintiffs thirty days to file an amended
complaint to address these deficiencies, which they did not do. (ECF No. 22).
The Bil-Jim Defendants again seek dismissal of Plaintiffs’ Complaint, since individual
liability is not permissible under the PWA.
LEGAL STANDARD

On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), the Court is required to accept as true all allegations in the Complaint and all
reasonable inferences that can be drawn therefrom, and to view them in the light most favorable

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to the non-moving party. See Oshiver v. Leviii, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384
(3d Cir. 1994). ‘To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqhal, 556 U.s.
662, 678 (2009) (quoting Bell Atl. Coip. v. Twombly, 550 U.S. 544, 570 (2007)). While a court
will accept well-pleaded allegations as true for the purposes of the motion, it will not accept bald
assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast
in the form of factual allegations. Iqbal, 556 U.S. at 678-79; see also Morse v. Lower Merion
School District, 132 F.3d 902, 906 (3d Cir. 1997). A complaint should be dismissed only if the
well-pleaded alleged facts, taken as true, fail to state a claim. See In re Waifarin Sodium, 214 F.3d
395. 397-98 (3d Cir. 2000).
ANALYSIS

I. Personal Liability Under the PWA
Defendants seek dismissal of the Complaint as to the Bil-Jirn Defendants, in their
individual capacities, since the PWA does not penriit personal liability.

Plaintiffs respond,

contending that the PWA applies the New Jersey Wage Payment Law’s (“WPL”) definition of
“employer,” which would hold the Bil-Jim Defendants individually liable. The Court disagrees.
The PWA provides that laborers on certain public works projects are to be paid the
prevailing wage. N.J.S.A.

§ 34:11-56.27. The purpose of the Act was “to establish a prevailing

wage level for workmen engaged in public works in order to safeguard their efficiency and general

well-being and to protect them as well as their employers from the effects of serious and unfair
competition resulting from wage levels detrimental to efficiency and well-being.” N.J.S.A.

§

34:11-56.25. The Act also authorizes civil actions by workmen to recover the difference between
the prevailing wage and actual wage paid:

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If any workman is paid by an employer less than the prevailing wage to which such
this act such workman may recover in
workman is entitled under the
a civil action the full amount of such prevailing wage less any amount actually paid
to him or her by the employer together with costs and such reasonable attorney’s
fees as may be allowed by the court, and any agreement between such workman
and the employer to work for less than such prevailing wage shall be no defense to
the action.
provisions of

N.J.S.A.

§ 34:11-56.40. Although the PWA does not explicitly define “employer,” the regulations

promulgated under the authority of the PWA define “employer” as “any natural person, company,
firm, subcontractor or other entity engaged in public work.” N.J.A.C.
N.J.S.A.

§ 12.60-2.1;

see also

§ 34.11-56.43. The issue at the heart of this motion is whether the Bil-Jim Defendants fit

within this definition of employer.
Relying on the plain language of the regulation, Defendants contend that “employer” is
limited to the entity or individual that obtains and performs work under the contract, which would
be Bil-Jim, not the individual defendants. (Defs’ Brief in Support at 7-8). In support, Defendants
note that under the debarment provisions of the PWA, any contractor or subcontractor who is found
to have violated the PWA is ineligible to perform public work contracts for three years. See
N.J.S.A.

§ 34:11-56.38. Here, the regulation defines a contractor as “a person who undertakes to

perform ajob or piece of a public works project... and who retains control of the means, method
and maimer of accomplishing the desired result. Contractor includes the officers and directors of
a corporate contractor.” N.J.A.C.

§ 12:60-7.2. As such, Defendants contend that, under the PWA

framework, “corporate officers and directors can be subjected to personal debarment by the New
Jersey Department of Labor and Workforce Development, but they cannot be subjected to personal
liability for any alleged failure by the corporation to pay the appropriate wages.” (Defs’ Brief in
Support at 8).

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Plaintiffs respond, contending that the phrase any natural person” places the Bil-Jim
Defendants within the definition of employer.’ Here, Plaintiffs rely on the WPL’s definition of
employer in support of their contention that the Bil-Jim Defendants remain personally liable. The
WPL defines employer as:
[Amy individual, partnership, association, joint stock company, trust, corporation,
the administrator or executor of the estate of a deceased individual, or the receiver,
trustee, or successor of any of the same, employing any person in this State.
For the purposes of this act the officers of a corporation and any agents having the
management of such corporation shall be deemed to be the employers of the
employees of the corporation.
N.J.S.A.

§ 34:11-4.1(a). Relying on this language, Plaintiffs contend that both Bil-Jim and the

individual defendants remain individually liable for violating the PWA since they paid them below
the prevailing wage. Essentially, Plaintiffs seek for the Court to invoke the doctrine of in para
materia and read the WPL’s definition of employer into the PWA. However, “[t]he doctrine is

not invoked to engraft the terms of one statute onto another merely because the general subject
matters of the two enactments are similar.” Int’l Bhd. of Elec. Workers v. Gil/en, 416 A.2d 446.
447-48 (N.J. Super. Ct. App. Div. 1980). In fact, courts have rejected similar attempts by parties
seeking to read the WPL’s language or regulations into the PWA. For example, in Troise v. Extel
Communications, Inc., 784 A.2d 748, 753 (N.J. Super. Ct. App. Div. 2001) the New Jersey
Appellate Division refused to impute the statute of limitations under the New Jersey Wage and
Hour Law (hereinafter, “WHL”). a statute related to the WPL, to the PWA. In doing so. the court
noted that while the WHL and PWA are similar laws that use similar language, “they are separate
and distinct legislative enactments.” Id. Similarly, in New Jersey v. Haig ‘S Service Corporation,
No. 12-497, 2016 U.S. Dist. LEXIS 113188, at *37 (D.N.J. Aug. 24, 2016), Judge Martini refused
to find the defendant’s branch manager and contractor individually liable for failing to properly

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pay employees for prevailing wage work. Id. The court explained that, unlike the Fair Labor
Standards Act and the WPL, both of which impose individual liability on officers of a corporation,
“the NJPWA employs the narrowest definition of employer, providing for no individual liability.”
Id. (citing N.J.S.A.

§ 12:60-2.1).

For the above reasons, because the Bil-Jim Defendants cannot be held individually liable
under the PWA, Defendants’ Motion to Dismiss is granted. Moreover, because the Court in Wall
gave Plaintiffs an opportunity to amend their complaint, which they failed to do so, and since the
present matter has the same deficiencies that plagued the prior cause of action, further opportunity
to amend would be futile. Therefore, the Court dismisses Plaintiffs Complaint with prejudice.
II. Collateral Estoppel
The Court briefly notes Plaintiffs’ collateral estoppel argument is misplaced.

Here,

Plaintiffs seek to invoke the doctrine of collateral estoppel to deny Defendants’ motion to dismiss,
since this issue was previously adjudicated in the Wall case.
“Offensive collateral estoppel occurs whenever a plaintiff seeks to estop a defendant from
relitigating an issue which the defendant previously litigated and lost against another plaintiff.”
Raytech Corp. v. White, 54 F.3d 187, 190 n.5 (3d Cir. 1995) (citing Parkiane Hosiery Co. v. White,
439 U.S. 322, 329 (1979)). Moreover, “in cases where a plaintiff could easily have joined in the
earlier action or where

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.

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the application of offensive estoppel would be unfair to a defendant, a

trial judge should not allow the use of offensive collateral estoppel.” Parklane, 439 U.S. at 331.
Here, fatal to Plaintiffs’ use of the doctrine is the fact that Defendants prevailed in the earlier
proceeding; as such, offensive estoppel is inapplicable. See Parklane, 439 U.S. at 329 (‘in both
the offensive and defensive use situations, the party against whom estoppel is asserted has litigated
and lost in an earlier action”). Therefore, Plaintiffs’ equitable estoppel argument is without merit.

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ORDER

Having carefully reviewed and taken into consideration the submissions of the parties, as
well as the arguments and exhibits therein presented, and for good cause shown, and for all of the
foregoing reasons,
ITlSonthis

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day of1Gj ,2018,

ORDERED that Defendants’ Motion to Dismiss (ECF No. 21) is GRANTED with prejudice.

PETER G. SHERIDAN, U.S.D.J.

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