Dejesus v. HF Management Services, LLC
ORDER granting 10 Motion to Dismiss for Failure to State a Claim. Ordered by Judge Edward R. Korman on 10/23/2012. (Davies, Jamison)
UNITED STATES DISTRICT COURT
NOT FOR PUBLICATION
EASTERN DISTRICT OF NEW YORK
: MEMORANDUM & ORDER
- against :
HF MANAGEMENT SERVICES, LLC A/K/A : 1:12-CV-1298 (ERK)(RML)
On March 15, 2012, plaintiff Ramona Dejesus filed the instant action against HF
Management Services LLC a/k/a Healthfirst alleging four causes of action: (1) failure to pay
overtime under the Fair Labor Standards Act (“FLSA”); (2) failure to pay overtime under the
New York Labor Law (“NYLL”); (3) nonpayment of wages due under the NYLL; and (4) breach
of contract. The defendant filed a motion to dismiss for failure to state a claim on May 7, 2012.
Plaintiff filed her response on May 29, and the defendant filed a reply on June 6.
Plaintiff is a Queens County resident and the defendant is a corporation organized under
New York law.
Compl. ¶¶ 8-9.
Until her termination, plaintiff provided “support and
administrative services to Health First Insurance and promote[d] to the public, insurance
programs offered by Health First.” Compl. ¶ 18. She was employed as a promoter and recruiter
for Health First’s insurance programs for “about three years” ending on or about August 31,
2011. Compl. ¶ 20. Plaintiff does not mention her exact title, but, according to defendant, her
title was “Medicare Marketing Representative.” Def. Mot. to Dismiss at 5.
Plaintiff was paid sales commissions for each person she recruited to enroll in Health
First’s insurance programs, as well as non-commission wages. Compl. ¶ 21. Plaintiff alleges
that she was not paid for commissions earned and owed to her at the time her employment ended
and that she worked in excess of forty hours per week “[t]hroughout her employment with
defendant” in “some or all weeks,” without receiving payment at one and a half times her hourly
rate. Compl. ¶ 23-24.
Plaintiff also alleges that defendant “breached the employment agreement/contract”
between her and defendant by failing to pay the wages due, though she does not attach a copy of
the purported contract between the parties or describe its material terms. Compl. ¶ 39.
The bare-bones complaint devotes only a few paragraphs to outlining the relevant facts,
and many of those paragraphs are, in fact, legal conclusions. As such, it is in some places
difficult to make out what exactly plaintiff is alleging and the complaint lacks the context
necessary to understand her employment circumstances.
STANDARD OF REVIEW
In reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “[t]he court accepts all
well-pleaded allegations in the complaint as true, drawing all reasonable inferences in the
plaintiff’s favor.” Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC,
595 F.3d 86, 91 (2d Cir. 2010). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
To properly state a claim under the FLSA, the plaintiff must allege that: (1) she was an
employee eligible for overtime pay; and (2) that she actually worked overtime without proper
compensation. See DeSilva v. North Shore-Long Island Jewish Health Sys., Inc., 770 F. Supp.
2d 497, 507 (E.D.N.Y. 2011); Zhong v. August August Corp., 498 F. Supp. 2d 625, 628
(S.D.N.Y. 2007). Both the FLSA and the NYLL require “‘more than vague legal conclusion to
survive a [Rule] 12(b)(6) motion.’” James v. Countrywide Fin. Corp., 849 F. Supp. 2d 296, 321
(E.D.N.Y. 2012) (quoting Nakahata v. New York-Presbyterian Healthcare Sys., 2011 WL
321186, at *4 (S.D.N.Y. Jan. 28, 2011)). “At a minimum, [the complaint] must set forth the
approximate number of unpaid overtime hours allegedly worked.” Id. (citations and quotations
omitted); see also Wolman v. Catholic Health Sys. of Long Island, Inc., 853 F. Supp. 2d 290, 304
(E.D.N.Y. 2012) (“To survive a motion to dismiss, the [Complaint] must also approximate the
number of overtime hours worked per week in excess of forty for which the  Plaintiffs did not
receive overtime pay.”). The plaintiff should also set forth the “applicable rate of pay and the
amount of . . . overtime wages due.” Zhong, 498 F.Supp.2d at 629.
Taking the complaint on its face, plaintiff fails to set forth the precise position she held,
any approximation of the number of unpaid overtime hours worked, her rate of pay, or any
approximation of the amount of wages due. While it is true that plaintiffs are “not required to
state every single instance of overtime worked or to state the exact amount of pay which they are
owed,” DeSilva, 770 F. Supp 2d at 509, plaintiff’s sole allegation is that she worked more than
forty hours per week and was denied overtime compensation in “some or all weeks” for the time
that she worked for Healthfirst. See id. (dismissing FLSA claim where plaintiffs merely alleged
they “regularly” worked more than forty hours per week). She also gives only a very vague
description of her duties as a “promoter” for Healthfirst. As such, the complaint lacks the
minimal allegations necessary to state a claim for unpaid overtime under the FLSA.
Nevertheless, plaintiff’s claims will be dismissed without prejudice and she will be
allowed to replead to correct the complaint’s defects. While plaintiff is outside the time limit to
amend the pleadings as a matter of right, see Fed. R. Civ. P. 15(a)(1)(B), the Second Circuit
“strongly favors liberal grant of an opportunity to replead after dismissal of a complaint under
Rule 12(b)(6).” Porat v. Lincoln Towers Cmty. Ass’n, 464 F.3d 274, 276 (2d Cir. 2006).
Nothing in the complaint or the papers suggests that there is no possibility that a valid claim
could be stated, given more factual detail and contextual information. Moreover, there is no
prejudice to defendant if plaintiff is allowed to replead.
The parties devote substantial time to a discussion of whether plaintiff was properly
categorized as exempt from the FLSA overtime requirements due to the “outside sales
exemption,” which exempts from employees employed “in the capacity of an outside salesman.”
29 U.S.C. § 213(a)(1). If so, the claim would fail as a matter of law and amendment would be
futile. However, the question cannot be resolved absent a much more detailed pleading or a
motion for summary judgment. A claim of exemption under the FLSA is an affirmative defense,
on which the employer bears the burden of proof. See Schwind v. EW & Associates, Inc., 357 F.
Supp. 2d 691, 697 (S.D.N.Y. 2005) (citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392
(1960); Wright v. Aargo Sec. Services, Inc., 2001 WL 91705, at *2 (S.D.N.Y. Feb. 2, 2001)). In
general, affirmative defenses are not properly available on a motion to dismiss for failure to state
a claim, unless the “the defense appears on the face of the complaint.” Pani v. Empire Blue
Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998).
To take advantage of the FLSA’s exemptions, the employer must offer proof of the
“actual duties” of the employee, not just her job description, title, or the general duties of
similarly situated employees. Khan v. IBI Armored Services, Inc., 474 F. Supp. 2d 448, 456
(E.D.N.Y. 2007). As such, the claim of exemption is likely to be heavily fact-intensive and
inappropriate for resolution at the motion to dismiss stage. The complaint does not detail
plaintiff’s actual duties in a thorough enough manner such that the “defense appears on the face
of the complaint.” Pani, 152 F.3d at 74. Though she does allege that she was paid a commission
on sales, it is not apparent from the face of the complaint that the exemption is applicable
because it is not clear where the sales took place or how much of her role involved making
outside sales, among other issues.
In attempt to circumvent this limitation, defendant argues that plaintiff is bound by the
allegations contained in the complaint in another case, Alburquerque v. Healthfirst, Inc., Civ. No.
11-2634 (FB) (E.D.N.Y.), which contained more detailed descriptions of the duties of employees
in her position. See Def. Br. at 5, 9. Defendant relies on 380544 Canada, Inc. v. Aspen Tech.,
Inc., 544 F. Supp. 2d 199 (S.D.N.Y. 2008), to argue that the complaint necessarily incorporates
by reference the Alburquerque complaint and, therefore, that its factual allegations are
attributable to plaintiff in the instant case. 380544 Canada is distinguishable, however. In that
case, the earlier complaint was “quoted extensively in the Complaint and [was] undisputably
incorporated by reference.” 380544 Canada, Inc., 544 F. Supp. 2d at 213-14 (S.D.N.Y. 2008).
The district judge in that case also found it important that the allegations in the complaint were
directly contradicted by the prior complaint, which necessarily raised the issue of which set of
allegations controlled. See id. at 215.
Here, in contrast, the sole reference to any other Healthfirst employee is in paragraph
twenty-six of the Complaint, where plaintiff alleges that the defendant has a “common policy” of
not paying overtime to “a class of over a hundred other current and former employees who are
similarly situated” to plaintiff. Compl. ¶ 26. Plaintiff does not quote or otherwise cite to the
earlier Albuquerque complaint, and, indeed, disclaims any knowledge of it prior to defendant
raising it as an issue. Pl. Br. at 6. This is a far cry from 380544 Canada, and the Albuquerque
complaint is certainly not quoted or relied upon so extensively as to be “undisputably
incorporated by reference” as it was in that case. Moreover, the allegations that defendant
wishes to import from the prior case do not directly contradict anything in the complaint. Thus,
the rationale of preventing a party from advancing contradictory positions does not apply here.
Consequently, plaintiff’s status as an exempt “outside salesperson” cannot be resolved as a
matter of law at this stage.
Defendant’s motion to dismiss the FLSA claim is granted without prejudice and with
leave to replead within 30 days. Under these circumstances, I decline jurisdiction over the
remaining state law claims at this juncture. See, e.g., Klein & Co. Futures, Inc. v. Bd. of Trade,
464 F.3d 255, 262 (2d Cir. 2006) (“It is well settled that where . . . the federal claims are
eliminated in the early stages of litigation, courts should generally decline to exercise pendent
jurisdiction over remaining state law claims.”).
Brooklyn, New York
October 23, 2012
Edward R. Korman
Edward R. Korman
Senior United States District Judge
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