Casci v. National Financial Network, LLC
ORDER granting 11 Motion to Dismiss. For the reasons set forth in the attached Memorandum and Order, plaintiff's claims are dismissed and his request to file the PAC is denied. The clerk of the Court is directed to close this case. Ordered by Judge Denis R. Hurley on 1/7/2015. (Kaley, Regina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NICHOLAS CASCI, individually and on behalf
of all other persons similarly situated,
MEMORANDUM AND ORDER
13 CV 1669 (DRH) (GRB)
- against NATIONAL FINANCIAL NETWORK, LLC
and/or any other entities affiliated with or controlled
by NATIONAL FINANCIAL NETWORK, LLC,
LEEDS BROWN LAW, P.C.
Attorneys for Plaintiff
1 Old Country Road, Suite 347
Carle Place, NY 11514
Daniel Harris Markowitz, Esq.
Jeffrey Kevin Brown, Esq.
Michael Alexander Tompkins, Esq.
VIRGINIA & AMBINDER LLP
Attorneys for Plaintiff
40 Broad Street, 7th Floor
New Yor, NY 10004
Lloyd Robert Ambinder, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
Attorneys for Defendant
1745 Broadway, 22nd Floor
New York, NY 10019
Melissa Jill Osipoff, Esq.
CERASIA & DEL REY-CONE LLP
Attorneys for Defendant
150 Broadway, Suite 151
New York, NY 10038
Edward Cerasia, II, Esq.
HURLEY, Senior District Judge:
Plaintiff Nicholas Casci (“plaintiff”) 1 commenced this action against defendant National
Financial Network, LLC (“defendant”) asserting claims of unpaid minimum and overtime wages
pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 206 and 216(b), and New
York Labor Laws (“NYLL”).
Presently before the Court is Defendant’s motion to dismiss the complaint pursuant to
Federal Rule of Civil Procedure (“Rule”) 12(b)(6). Defendant contends that the original
complaint filed in this action “is devoid of any factual allegations supporting the assertions that
[defendant] violated the FLSA or NYLL.” (Def.’s Mem. in Supp. at 1.) Plaintiff argues in
response that “[t]he Complaint clearly proffers specific factual allegations more than sufficient to
satisfy the pleading requirements,” (Pl.’s Mem. in Opp’n at 1), but asks that if the Court finds
any of the claims to be insufficiently plead, he be permitted to file an amended complaint, which
he has submitted along with his opposition papers and labeled Proposed Amended Complaint
(“PAC”). For the foregoing reasons, the Court dismisses plaintiff’s overtime and minimum
wage claims and denies plaintiff’s request to file the PAC.
From approximately December 2009 to May 2010, defendant employed plaintiff as a
Field Representative in New York. Plaintiff’s job responsibilities included “making ‘cold calls’
to market and sell financial and insurance products, and engaging in natural market solicitation.”
(PAC ¶ 28.) Plaintiff claims that defendant wrongfully classified him “as exempt from minimum
wages and overtime compensation.” (Id. ¶ 3.) Plaintiff “typically worked thirty-four to thirtynine (34-39) hours per week, although occasionally he worked in excess of forty (40) hours per
Although plaintiff brings this action on behalf of a proposed collective class, to date, no
motion for class certification has been made.
week, without receiving overtime compensation.” (Id. ¶ 28.) Plaintiff further alleges that he was
“required to perform work for and on behalf of Defendants without compensation,” 2 and was
“paid zero (0) dollars per hour.” (Id. ¶ 29.)
Rule 12(b)(6) Standard
Rule 8(a) provides that a pleading shall contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). In recent years, the
Supreme Court has clarified the pleading standard applicable in evaluating a motion to dismiss
under Rule 12(b)(6).
First, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court disavowed the wellknown statement in Conley v. Gibson, 355 U.S. 41, 45–46 (1957) that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.” Twombly, 550 U.S. at
561. Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege “only
enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).
Id. at 555 (citations and internal quotation marks omitted).
More recently, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court provided
further guidance, setting a two-pronged approach for courts considering a motion to dismiss.
Although it is unclear, presumably plaintiff is referring to both uncompensated regular
and over-time hours.
First, a court should “begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at 679. “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.” Id.
Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 555).
Second, “[w]hen there are well-pleaded factual allegations a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at
679. “Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. The Court defined plausibility as follows:
A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that are “merely consistent
with” a defendant’s liability, it “stops short of the line between possibility and
plausibility of ‘entitlement to relief.’ ”
Id. at 678 (quoting and citing Twombly, 550 U.S. at 556–57) (internal citations omitted).
In other words, “where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the
pleader is entitled to relief.” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
Plaintiff’s Overtime Claims
Pursuant to § 207(a)(1) of the FLSA, “no employer shall employ any of his employees . .
. for a workweek longer than forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate not less than one and one-half times
the regular rate at which he is employed.” Defendant argues that plaintiff has not adequately
alleged an FLSA overtime violation because he “fails to set forth any specific allegations
supporting the hours he claims to have worked.” (Def.’s Mem. in Supp. at 4.) The plaintiff
responds that he has sufficiently alleged an unpaid overtime claim. (Pl.’s Mem. in Opp’n at 6.)
The Court’s analysis of whether plaintiff has stated a plausible overtime claim is focused
on three recent Second Circuit decisions dismissing FLSA claims: Lundy v. Catholic Health
System of Long Island Inc., 711 F.3d 106 (2d Cir. 2013), Nakahata v. New York-Presbyterian
Healthcare System, Inc., 723 F.3d 192 (2d Cir. 2013), and DeJesus v. HF Management Services,
LLC, 726 F.3d 85 (2d Cir. 2013). In Lundy, the court held that “in order to state a plausible
FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek,
as well as some uncompensated time in excess of the 40 hours.” Lundy, 711 F.3d at 114.
Moreover, in Lundy, the Court dismissed plaintiff’s overtime claims based on allegations that she
“typically” worked 37.5 hours per week in addition to uncompensated meal breaks, time before
and after shifts, and trainings “which could theoretically put her over the 40-hour mark in one or
another unspecified week (or weeks)” because such allegations “suppl[ied] nothing but lowoctane fuel for speculation, not the plausible claim that is required.” Id. at 114-115. The Second
Circuit subsequently held in Nakahata that in order to plead a plausible FLSA claim, plaintiffs
must provide “sufficient detail about the length and frequency of their unpaid work to support a
reasonable inference that they worked more than forty hours in a given week.” 723 F.3d at 201.
The Circuit’s most recent decision, DeJesus, further clarified the standard in stating that Lundy
“declined to make an approximation of overtime hours a necessity in all cases,” even though
such an approximation might “help draw a plaintiff’s claim closer to plausibility.” DeJesus, 726
F.3d at 88 (internal quotation marks and citations omitted). Still, DeJesus dismissed plaintiff’s
claim because “[s]he did not estimate her hours in any or all weeks or provide any other factual
context or content.” Id. at 89. “Indeed, her complaint was devoid of any numbers to consider
beyond those plucked from the statute. She alleged only that in ‘some or all weeks’ she worked
more than ‘forty hours’ a week without being paid ‘1.5’ times her rate of compensation.” Id.
Furthermore, the court explained that “Lundy’s requirement that plaintiffs must allege overtime
without compensation in a ‘given’ workweek, 711 F.3d at 114, was not an invitation to provide
an all-purpose pleading template alleging overtime in ‘some or all workweeks.’ It was designed
to require plaintiffs to provide some factual context that will ‘nudge’ their claim ‘from
conceivable to plausible.’ ” Id. at 90 (quoting Twombly, 550 U.S. at 570).
Here neither the allegations in the original Complaint nor plaintiff’s PAC meet the
standard set forth in the recent Second Circuit cases cited above. The Complaint vaguely alleges
that plaintiff “worked in excess of forty (40) hours in certain weeks” (Compl. ¶ 31) and is devoid
of any detailed factual information from which the Court could reasonably infer that he worked
more than forty hours in any “given” work week. Similarly, the PAC’s allegations that plaintiff
“occasionally” or “sometimes” worked overtime do nothing more than conform to the “allpurpose pleading template alleging overtime in some” workweeks forbidden by DeJesus.
Moreover, plaintiff’s allegations do not demonstrate his efforts to comply with the Second
Circuit’s direction that “plaintiffs draw on [memory and experience] in providing complaints
with sufficiently developed factual allegations.” DeJesus, 726 F.3d at 90. Given that the
plaintiff has failed to allege sufficient facts that would “nudge” his claim from conceivable to
plausible, plaintiff’s FLSA and NYLL overtime claims are dismissed and permitting plaintiff to
file overtime claims as stated in the PAC would be futile. 3
“In light of the fact that [t]he relevant portions of New York Labor Law do not diverge
from the requirements of the FLSA, [the Court’s] conclusions . . . about the FLSA allegations
Plaintiff’s Minimum Wage Claims
The FLSA requires employers to pay employees a minimum wage of $7.25 per hour. 29
U.S.C. § 206(a)(1). Similarly, NYLL § 652 sets forth the minimum wage rate for New York
State. “For minimum-wage recovery under the FLSA, the pertinent question is whether the
amount of compensation received by an employee results in a straight-time hourly rate that is
less than the applicable federal minimum wage.” Chuchuca v. Creative Customs Cabinets, Inc.,
2014 WL 6674583, at *9 n. 10 (E.D.N.Y. Nov. 25, 2014) (internal quotation marks and citations
omitted). Furthermore, “[t]o state a FLSA minimum wage claim, it is sufficient for plaintiff to
allege facts about her salary and working hours, such that a simple arithmetical calculation can
be used to determine the amount owed per pay period.” Tackie v. Keff Enterprises LLC, 2014
WL 4626229, at *3 (S.D.N.Y. Sept. 16, 2014) (citing Zhong v. August August Corp., 498 F.
Supp 2d 625, 629 (S.D.N.Y. 2007). Here, although plaintiff alleges that he typically worked
37.5 hours per week and that he did receive some “wages” (PAC ¶ 32), neither the original
Complaint nor the PAC contains facts concerning the amount of compensation plaintiff actually
received. As a result, it is impossible to infer from the allegations that plaintiff’s compensation
resulted in a straight time hourly rate below the minimum wage. Accordingly, plaintiff’s FLSA
and NYLL minimum wage claims are dismissed, see Tackie, 2014 WL 4626229 at *3 (analyzing
FLSA and NYLL minimum wage claims similarly), and his request to file the minimum wage
claims as stated in the PAC is denied as futile.
appl[y] equally to [the NYLL] state law claims.” DeJesus, 726 F.3d at 89 n. 5 (internal
quotation marks and citations omitted).
For the foregoing reasons, plaintiff’s claims are dismissed and his request to file the PAC
Dated: Central Islip, New York
January 7, 2015
Denis R. Hurley
Unites States District Judge
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