Gomez et al v. Dynaserv Industries, Inc.
ORDER denying 11 Motion to Dismiss without prejudice. See attached. Plaintiff is granted leave to file a second proposed amended complaint by October 21, 2016. The parties are expected to appear on October 25, 2016 at 9:30am. Ordered by Judge Sterling Johnson, Jr on 10/17/2016. (Figeroux, Davina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MARIO GOMEZ, et al.,
15 CV 3452 (SJ) (PK)
DYNASERV INDUSTRIES, INC.,
P.O. Box 3353
Church Street Station
New York, NY 10008
Attorney for Plaintiffs
ALI LAW GROUP, P.C.
775 Park Avenue
Huntington, NY 11743
Sima Asad Ali
Attorneys for Defendant
On June 15, 2015, plaintiffs Mario Gomez (“Gomez”) and Javier Cortez
(“Cortez”) filed the instant action against defendant Dynaserv Industries
(“Defendant” or “Dynaserv”), a New York corporation engaged in the business of
bus shelter maintenance.
The complaint alleged violations of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et. seq (Gomez and Cortez will
collectively be referred to as “Plaintiffs”). On November 20, 2015, Dynaserv filed
a motion to dismiss the complaint, arguing both that Dynaserv is not subject to the
requirements of the FLSA and that Plaintiffs are exempt from coverage under the
In response to the motion to dismiss, Plaintiff filed motion to amend the
complaint. The proposed amended complaint attempts to cure the jurisdictional
defects of the initial complaint. Specifically, the amended complaint alleges that
Dynaserv operates in interstate commerce, employs at least 80 workers, and
typically brings in at least $2,000,000 in revenue each year. Dynaserv opposes the
proposed amendment of the complaint as futile.
Based on the submissions of the parties, and for the reasons stated below,
the motion to dismiss is denied with leave to renew and the motion to amend is
denied with leave to renew.
Motion to Amend
Federal Rule of Civil Procedure 15(a) governs motions to amend. Rule
15(a)(2) provides that “[t]he court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Indeed:
[i]n the absence of any apparent or declared reason – such as undue
delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of the
allowance of the amendment, futility of amendment, etc., -- the
leave sought should be . . . freely given.
Forman v. Davis, 371 U.S. 178, 182 (1962).
In this case, Dynaserv argues that the amendment would be futile for two
First, Dynaserv claims that Plaintiffs are FLSA exempt.
Dynaserv asks the Court to hold that, in any event, Plaintiffs failed to allege unpaid
overtime work with sufficient particularity. Thus, both motions turn on the merits
of the action.
1. FLSA Exemptions
Dynaserv primarily argues that because Gomez refers to himself in the
proposed amended complaint as a “manager,” and Cortes a “supervisor,” they are
both exempt from the FLSA’s overtime requirements under the executive
exemption. See 29 U.S.C. § 213(a)(1). However, “because the FLSA is a remedial
act, its exemptions, such as the ‘bona fide executive’ exemption claimed in this
case, are to be narrowly construed.” Martin v. Malcolm Pirnie, Inc., 949 F.2d 611,
614 (2d Cir. 1991) (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392
(1960); Mitchell v. Lublin, McGaughty & Assocs., 358 U.S. 207, 211 (1959)). The
exemption is an affirmative defense that may only form the basis for a Rule
12(b)(6) dismissal if it “appears on the face of the complaint.” Pani v. Blue Cross
Blue Shield, 15 F.3d 67, 74 (2d Cir. 1998).
For FLSA purposes, an “executive” is any employee (1) who is
compensated at least $455 per week on a salary basis; (2) whose primary duty is
management of the enterprise; (3) who customarily directs the work of two or more
other employees; and (3) who either has the authority to hire and fire or whose
recommendations as to same are given “particular weight.”
29 C.F.R. §
The proposed amended complaint uses the terms “manager” and
“supervisor” without any indication as to whether these plaintiffs meet the
requirements of the above-defined regulation. Thus, defendants cannot ask the
court to dismiss according to that affirmative defense. It is not satisfied, as “[t]he
determination of whether an employee is exempt from the overtime requirements of
the FLSA is a ‘highly fact intensive inquiry that must be made on a case-by-case
basis in light of the totality of the circumstances.’” Scott v. SSP Amer., Inc., 2011
WL 1204406, at *6 (E.D.N.Y. Mar. 29, 2011) (collecting cases). Some discovery
is required to determine whether Plaintiffs fall under this exception.
2. Hours Worked
Both Gomez and Cortes claim to have typically worked 40-45 hour work
weeks over the span of approximately five days without the benefit of overtime
pay. These allegations are insufficient to allege an FLSA violation, which requires
– at a minimum – that each plaintiff plead the existence of a workweek during
which his compensable hours exceeded 40 and during which he was paid for 40
hours or less. See, e.g., 29 U.S.C. 207(a)(1); Lundy v. Catholic Health Sys. Of
Long Island, Inc., 711 F.3d 106, 114 (2d Cir. 2013) (affirming dismissal of
overtime wages claim where “Plaintiffs have not alleged a single workweek in
which they worked at least 40 hours and also worked uncompensated time in
excess of 40 hours”).
The “approximate” five day work week cited by Plaintiffs could as easily be
four days as six, such that this approximation does not approximate (or even
establish) overtime hours. See Nakahata v. New York Presby. Healthcare Sys. Inc.,
723 F.3d 192, 201 (2d Cir. 2013) (“[A]bsent any allegation that Plaintiffs were
scheduled to work forty hours in a given week, these allegations do not state a
plausible claim” under the FLSA).
Substitution of the proposed amended complaint for the initial complaint
would therefore be futile. Rather than dismiss the complaint, however, this Court
thinks it more efficient to grant Plaintiffs a second (and final) opportunity to
replead the allegations to include additional details regarding the type of schedule
they typically worked and the amount of overtime pay typically or periodically
withheld. See, e.g., Wolman v. Catholic Health Sys. of Long Island, Inc., 2010 WL
5491182, at *6-7 (E.D.N.Y. Dec. 30, 2010) (permitting the filing of a Third
Amended Complaint due to liberal amendment rules where defects in FLSA
overtime claims found “potentially curable”), rev’d on other grounds sub nom.
Lundy v. Catholic Health Sys. Of Long Island, Inc., 711 F.3d 106 (2d Cir. 2013).
Defendant’s remaining claims are without merit.
For the foregoing reasons, Defendant’s motion to dismiss is denied without
prejudice. Plaintiffs are permitted leave to file a second proposed amended
complaint no later than October 21, 2016. The parties are directed to appear on
October 25, 2016 at 9:30am.
Dated: October 17, 2016
Sterling Johnson, Jr., U.S.D.J.
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