Mercado Mendoza et al v. Little Luke, Inc. et al

Filing 29

MEMORANDUM & ORDER denying 13 Motion to Dismiss for Failure to State a Claim; denying 21 Motion to Dismiss for Failure to State a Claim; For the foregoing reasons, Defendants' motion to dismiss the Amended Complaint (Docket Entry 21) is DENIED. Defendants' motion to dismiss the original Complaint (Docket Entry 13) is DENIED AS MOOT. So Ordered by Judge Joanna Seybert on 3/6/2015. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
OSCAR G. MERCADO MENDOZA, FRANKLIN
ORTIZ, and NOHVIS REYES, individually
and on behalf of all other persons
similarly situated,
Plaintiffs,

MEMORANDUM & ORDER
14-CV-3416(JS)(GRB)

-againstLITTLE LUKE, INC. d/b/a PEDESTALS
FLORIST; and PHILIP SAMMUT, jointly
and severally,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Justin A. Zeller, Esq.
Brandon David Sherr, Esq.
The Law Office of Justin
A. Zeller, P.C.
277 Broadway, Suite 408
New York, NY 10007
For Defendants:

Jonathan Michael Bardavid, Esq.
Jael Dumornay, Esq.
Trivella & Forte, LLP
1311 Mamaroneck Ave, Suite 170
White Plains, NY 10605

SEYBERT, District Judge:
Plaintiffs

Oscar

G.

Mercado

Mendoza

(“Mendoza”),

Franklin Ortiz (“Ortiz”), and Nohvis Reyes (“Reyes,” and together
with Ortiz and Mendoza, “Plaintiffs”) commenced this putative
collective and class action on May 30, 2014 against defendants
Little Luke, Inc. (“Little Luke”) and Philip Sammut (“Sammut,” and
together

with

Little

Luke,

“Defendants”),

asserting

several

violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.

§ 201 et seq., and the New York Labor Law (“NYLL”), N.Y. LAB. LAW
§ 190 et seq.

Defendants move to dismiss the Amended Complaint

for failure to state a claim pursuant to Federal Rule of Civil
Procedure

12(b)(6).1

(Docket

Entry

21.)

For

the

following

reasons, Defendants’ motion to dismiss is DENIED.
BACKGROUND2
Little Luke is a New York corporation doing business as
Pedestals Florist (“Pedestals”) in Garden City Park, New York.
(Am. Compl., Docket Entry 19, ¶¶ 10, 14.)

Sammut is an “owner,

officer,

(Am.

and

Defendants

manager”

employed

of

the

business.

Plaintiffs

as

florists

Compl.
at

¶

15.)

Pedestals.

Plaintiffs bring this action on behalf of themselves and other
similarly situated employees alleging various violations of the
FLSA and the NYLL.

Plaintiffs specifically claim that Defendants

failed to: (1) pay overtime compensation and minimum wage; (2) pay
uniform maintenance as required by the NYLL; and (3) post and
provide certain notices required by the FLSA and the NYLL.

Defendants moved to dismiss Plaintiffs’ original Complaint on
August 1, 2014. (Docket Entry 13.) In response, Plaintiffs
filed the Amended Complaint on August 13, 2014. (Docket Entry
19.) Accordingly, Defendants’ motion to dismiss the original
Complaint is DENIED AS MOOT.
1

The following facts are taken from the Amended Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
2

2

The Amended Complaint alleges that Plaintiffs “worked in
excess

of

forty

hours

many

workweeks”

but

that

Defendants

“willfully failed to pay [them] overtime compensation of one and
one-half times their regular rate of pay” as required by the FLSA
and the NYLL.
generalized

(Am. Compl. ¶ 39.)
allegations

The Amended Complaint contains

regarding

Plaintiffs’

work

hours--

specifically, that Mendoza worked between twenty-five and eighty
hours per week; that Ortiz worked between eighty and ninety hours
per week during the busy season each year (i.e., “approximately
from April until November each year”); and that Reyes worked
approximately seventy hours per week during the busy season each
year and “up to forty-seven and one-half hours per week during the
off season each year.”
to

these

generalized

(Am. Compl. ¶¶ 23, 28, 34.)
allegations,

the

Amended

In addition

Complaint

also

approximates each Plaintiff’s weekly hours at various points of
his employment by identifying specific start and end times for
each day of work.

Many of these approximations total well in

excess of forty hours per specific weeks.

(See, e.g., Am. Compl.

¶ 23 (alleging that in May 2012, Mendoza worked “approximately
from 7:00 a.m. until between 5:00 and 6:00 p.m. on Sundays and
approximately from 7:00 a.m. until mostly 6:00 p.m. but also often
until 7:00 p.m. from Monday through Friday each week”); Am. Compl.
¶ 28 (alleging that during the busy seasons after 2009, Ortiz
worked “approximately from 8:00 a.m. until 4:00 p.m. on Mondays,
3

approximately from 8:00 a.m. until between 4:00 and 6:00 p.m. on
Wednesdays
between

and

6:00

Thursdays,
and

8:00

approximately

p.m.

on

from

Fridays

and

7:00

a.m.

until

Saturdays,

and

approximately from 7:00 a.m. until between 7:00 and 8:00 p.m.
during approximately two Sundays per month”); Am. Compl. ¶ 34
(alleging that during the busy season each year, Reyes worked
“approximately from between 7:30 and 8:00 a.m. until 1:00 or 2:00
p.m. on Sundays and approximately from between 7:30 and 8:00 a.m.
until between 6:00 and 8:00 p.m. on Tuesdays through Saturdays”).)
The Amended Complaint further alleges that Defendants
did not pay Ortiz any wages during his last workweek and did not
pay Reyes any wages during his last two workweeks.
¶¶ 31, 37.)
uniforms.

(Am Compl.

Defendants also required Plaintiffs to wear company
However, Defendants “did not launder or maintain” the

uniforms, and they “willfully failed to pay an allowance to the
[P]laintiffs

for

uniform

maintenance.”

(Am.

Compl.

¶

40.)

Instead, Plaintiffs laundered and maintained the required uniforms
at their own expense.

(Am. Compl. ¶ 40.)

Finally, Defendants

also allegedly “failed to provide” Plaintiffs with “a notice and
acknowledgement at the time of hiring” and “a statement with each
payment of wages,” and “failed to post or keep posted notices
explaining the minimum wage rights of employees under the [FLSA]
and the [NYLL].”

(Am. Compl. ¶¶ 43-45.)

4

On August 27, 2014, Defendants moved to dismiss the
Amended Complaint for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6).

(Docket Entry 21.)

Defendants’

motion to dismiss is currently pending before the Court.
DISCUSSION
The Court will first set forth the applicable legal
standard before turning to Defendants’ motion more specifically.
I.

Legal Standard
In deciding a Rule 12(b)(6) motion to dismiss, the Court

applies a “plausibility standard,” which is guided by “[t]wo
working principles.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007);
accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir. 2009).

First,

although the Court must accept all allegations as true, this
“tenet”

is

“inapplicable

to

legal

conclusions;”

thus,

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
556 U.S. at 678; accord Harris, 572 F.3d at 72.

Iqbal,

Second, only

complaints that state a “plausible claim for relief” can survive
a Rule 12(b)(6) motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether a complaint does so is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”

Id.; accord Harris, 572 F.3d at 72.
5

II.

Unpaid Overtime
Subject to some exceptions, the FLSA and the NYLL require

employers to compensate their employees at an overtime rate of one
and one-half times their regular hourly rates for all hours worked
in excess of forty hours per week.

See 29 U.S.C. § 207(a)(1);

N.Y. COMP. CODES R. & REGS. tit. 12, § 142-2.2.

Defendants argue

that Plaintiffs have not adequately pleaded their unpaid overtime
claims under a trio of recent Second Circuit decisions applying
the Twombly/Iqbal pleading standard to FLSA overtime claims.

See

DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85 (2d Cir. 2013);
Nakahata v. N.Y.–Presbyterian Healthcare Sys., Inc., 723 F.3d 192
(2d Cir. 2013); Lundy v. Catholic Health Sys. of Long Island, Inc.,
711 F.3d 106 (2d Cir. 2013).

The Court disagrees.

In Lundy, the Second Circuit advised that “to survive a
motion to dismiss [an unpaid overtime claim], [a] [p]laintiff[ ]
must allege sufficient factual matter to state a plausible claim
that [he or she] worked compensable overtime in a workweek longer
than 40 hours.”

711 F.3d at 114.

Applying this standard, the

Second Circuit held that the plaintiffs in Lundy failed to state
plausible unpaid overtime claims because they had “not alleged a
single workweek in which they worked at least 40 hours and also

6

worked uncompensated time in excess of 40 hours.”3
114.

711 F.3d at

For example, one of the plaintiffs alleged that she was

“typically” scheduled to work 37.5 hours per week, but that she
may have worked more than forty hours per week due to an occasional
extra 12.5-hour shift, missed meal breaks, training and staff
meetings, and working before or after her scheduled shifts.
at

114-15.

The

Second

Circuit

found

these

Id.

allegations

insufficient, explaining:
[The plaintiff] has not alleged that she ever
completely missed all three meal breaks in a
week, or that she also worked a full 15 minutes
of uncompensated time around every shift; but
even if she did, she would have alleged a total
39 hours and 45 minutes worked. A monthly 30–
minute staff meeting, an installment of the
ten yearly hours of training, or an additional
or longer shift could theoretically put her
over the 40–hour mark in one or another
unspecified
week
(or
weeks);
but
her
allegations supply nothing but low-octane fuel
for speculation, not the plausible claim that
is required.
Id. at 115 (emphasis omitted).

In short, the factual allegations

“failed because of arithmetic: tallying the plausible factual
allegations, [the court] could not get beyond forty hours in any
given week, and therefore to a plausible claim for overtime.”
DeJesus, 726 F.3d at 89.

The undersigned issued the underlying orders dismissing the
plaintiffs’ unpaid overtime claims that the Second Circuit
subsequently affirmed in Lundy.
3

7

The Second Circuit revisited the pleading standard for
unpaid overtime claims shortly thereafter in Nakahata.

There, the

Second Circuit again affirmed a district court’s dismissal of
unpaid overtime claims because the plaintiffs “merely alleged that
they were not paid for overtime hours worked.”
at 201.

Nakahata, 723 F.3d

Although the plaintiffs alleged that they “were not

compensated for work performed during meal breaks, before and after
shifts, or during required trainings,” the complaint did not
include “any allegation that [the] [p]laintiffs were scheduled to
work forty hours in a given week” and therefore failed to state an
overtime claim.
In

Id.

Nakahata,

the

Second

Circuit

expanded

on

Lundy,

explaining that a plaintiff “must provide sufficient detail about
the length and frequency of [his or her] unpaid work to support a
reasonable inference that [he or she] worked more than forty hours
in a given week.”

Id.

However, the Second Circuit also noted

that “[w]hat aspects of [the] [p]laintiffs’ position, pay, or dates
of employment are necessary to state a plausible claim for relief
consistent with [Nakahata] and Lundy is a case-specific inquiry
for the trial court,” and “generalized allegations that may prove
false at trial are not necessarily the basis for dismissal at the
pleadings stage.”

Id. (emphasis in original) (citations omitted).

Finally, in DeJesus, the Second Circuit again affirmed
a district court’s dismissal of an unpaid overtime claim because
8

the plaintiff “did not estimate her hours in any or all weeks or
provide any other factual context or content.”

726 F.3d at 89.

“[H]er 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.

Stated another

way, the plaintiff’s allegations were not sufficient because her
“complaint [only] tracked the statutory language of the FLSA,
lifting its numbers and rehashing its formulation, but alleging no
particular facts sufficient to raise a plausible inference of an
FLSA overtime violation.”

Id.

The DeJesus court also clarified that Lundy did not make
an “approximation of overtime hours a necessity in all cases.”
Id. at 88 (quoting Lundy, 711 F.3d at 114).

Instead, the Second

Circuit advised that an approximation “‘may help draw a plaintiff’s
claim closer to plausibility.’”
114 n.7).

Id. (quoting Lundy 711 F.3d at

In other words, “Lundy’s requirement that plaintiffs

must allege overtime without compensation in a ‘given’ workweek
was not an invitation to provide an all-purpose pleading template
alleging overtime in ‘some or all workweeks.’” Id. at 90 (citation
omitted).

Rather, “it was designed to require plaintiffs to

provide some factual context that will ‘nudge’ their claim ‘from
conceivable to plausible.’”

Id. (quoting Twombly, 550 U.S. at

570, 127 S. Ct. at 1974).
9

Following

the

Second

Circuit’s

decisions

in

Lundy,

Nakahata, and DeJesus, several district courts have denied motions
to dismiss unpaid overtime claims where the plaintiffs alleged
that they regularly worked forty per week and also approximated
their number of overtime hours.

See, e.g., Leon v. Port Wash.

Union Free Sch. Dist., --- F. Supp. 3d ----, 2014 WL 4948640, at
*4 (E.D.N.Y. Sept. 30, 2014) (denying motion to dismiss unpaid
overtime claim where the plaintiff alleged “that she regularly
worked forty hours per week, and provided sufficient estimates of
how much additional time she worked each week--namely 1 1/2 to 2
hours per week”); Di Simone v. CN Plumbing, Inc., No. 13-CV-5088,
2014 WL 1281728, at *4 (E.D.N.Y. Mar. 31, 2014) (denying motion to
dismiss unpaid overtime claim where the plaintiff “identifie[d]
specific projects that [he] worked on and the approximate dates he
worked those projects, and allege[d] that he typically worked over
40

hours

per

appropriately

week

on

each

compensated

(or

of

these

projects

compensated

at

and

all)

was

for

not

[his]

overtime hours”); Litras v. PVM Int’l Corp., No. 11-CV-5695, 2013
WL 4118482, at *7 (E.D.N.Y. Aug. 15, 2013) (denying motion to
dismiss unpaid overtime claim where the plaintiff “attached to the
amended complaint . . . a chart that allege[d] the number of hours
plaintiff worked each workday,” which was “replete with specific
dates and an estimation of the number of hours that she worked on

10

each specific date (along with the start and end time of her work
for each date listed)”).
Other district courts have dismissed unpaid overtime
claims

where

the

plaintiffs

made

allegations regarding their hours.

generalized

and

imprecise

See, e.g., Johnson v. Equinox

Holdings, Inc., No. 13-CV-6313, 2014 WL 3058438, at *4 (S.D.N.Y.
July 2, 2014) (dismissing unpaid overtime claim where the plaintiff
“relie[d] solely upon the Complaint’s allegation that between 2006
and 2011 he ‘typically worked between twenty one and fifty hours
per week, with an additional three to four hours off the clock’”);
Perkins v. 199 SEIU United Healthcare Workers E., --- F. Supp. 3d
----, 2014 WL 4651951, at *8 (S.D.N.Y. Sept. 17, 2014) (dismissing
unpaid overtime claim where the plaintiff only alleged that “‘[a]t
all relevant times’ since 2008, he ‘was assigned and actually
worked more than 40 hours per week,’ and that the [defendant]
failed to pay him overtime compensation” (alteration in original)
(citations omitted)); Bustillos v. Acad. Bus, LLC, No. 13-CV-0565,
2014 WL 116012, at *3 (S.D.N.Y. Jan. 13, 2014) (dismissing unpaid
overtime claim where the plaintiff only alleged “that his schedule
‘varied’ and he ‘would regularly work from 60 to 90 hours per
week’” (citations omitted)).
Here, the Amended Complaint does not suffer from the
same pleading deficiencies of the complaints in Lundy, Nakahata,
DeJesus, and the other district court cases dismissing unpaid
11

overtime claims.

The problem with those complaints was that they

were so general in their allegations that it was not clear whether
any of the plaintiffs ever worked more than forty hours in any
week.

In sharp contrast, the Amended Complaint here approximates

each Plaintiff’s weekly hours at various points of his employment
along with specific start and end times for each day of work.
Thus, the Amended Complaint does much more than simply “track[ ]
the statutory language of the FLSA, lifting its numbers and
rehashing its formulation.” DeJesus, 726 F.3d at 89. Furthermore,
the Amended Complaint also provides additional factual context
from which the Court may infer that Defendants failed to pay proper
overtime, specifically: (1) that Reyes and Ortiz worked longer
hours during Little Luke’s busy seasons; and (2) that Defendants
did not pay Reyes at all for his last two workweeks, one of which
he alleges he worked sixty hours.
Plaintiffs
Accordingly,

have
the

adequately
Court

pleaded

DENIES

Thus, the Court finds that
unpaid

Defendants’

overtime
motion

to

claims.
dismiss

insofar as it seeks dismissal of Plaintiffs’ unpaid overtime
claims.4

Defendants also asked the Court to decline to extend
supplemental jurisdiction over Plaintiffs’ New York state law
labor claims in the event that Plaintiffs’ FLSA claims were
dismissed. (Defs.’ Br., Docket Entry 23, at 18-21.) However,
since the Court has not dismissed all of Plaintiffs’ FLSA
claims, Defendants’ supplemental jurisdiction argument is
rendered moot. See Chen v. Major League Baseball, No. 13-CV5494, 2014 WL 1230006, at 461 n.12 (S.D.N.Y. Mar. 25, 2014)
4

12

III. Minimum Wage
Defendants urge the Court to dismiss Plaintiffs’ minimum
wage

claim

because,

according

to

Defendants,

“the

Amended

Complaint does not contain a scintilla of evidence to support a
claim that Plaintiffs were not paid the minimum wage.”
Br. at 12.)
employers

The Court disagrees.

to

pay

their

employees

(Defs.’

The FLSA and the NYLL require
a

minimum

wage,

which

are

currently $7.25 per hour under the FLSA and $8.75 per hour under
the NYLL.

See 29 U.S.C. § 206(a)(1)(C); N.Y. LAB. LAW § 652(1).

Here, the Amended Complaint alleges that Defendants did not pay
Ortiz for his last workweek and that Defendants did not pay Reyes
for his last two workweeks.

Thus, the Amended Complaint plausibly

alleges that Defendants failed to pay Ortiz and Reyes minimum wage.
Accordingly,

the

Court

DENIES

Defendants’

motion

to

dismiss

insofar as it seeks dismissal of Plaintiffs’ minimum wage claims.5
IV.

Uniform Maintenance
Plaintiffs also allege that Defendants failed to provide

a uniform maintenance allowance in violation of the NYLL.

Under

New York’s Minimum Wage Order for Miscellaneous Industries and

(“This Court had subject-matter jurisdiction over the
plaintiff’s FLSA claims pursuant to 28 U.S.C. § 1331, and
supplemental jurisdiction over the NYLL claims pursuant to 28
U.S.C. § 1367(a).”).
The Court notes that the Amended Complaint does not state a
minimum wage claim with respect to Mendoza.
5

13

Occupations (the “Wage Order”), “[w]here an employer fails to
launder or maintain required uniforms for any employee, he shall
pay

such

employee

[a

specified

maintenance

allowance] in addition to the minimum wage.”
REGS. tit. 12, § 142-2.5(c).

and

laundering

N.Y. COMP. CODES R. &

The Wage Order defines “required

uniform” as “clothing worn by an employee, at the request of the
employer, while performing job-related duties.”
& REGS. tit. 12, § 142-2.22.

N.Y. COMP. CODES R.

However, “clothing that may be worn

as part of an employee’s ordinary wardrobe” is not included in the
definition of “required uniform.”

N.Y. COMP. CODES R. & REGS. tit.

12, § 142-2.22.
As a preliminary matter, Defendants argue that “[t]here
are no allegations regarding whether [Plaintiffs] worked in an
industry subject to the [Wage Order].”
However,

the

Wage

Order

is

a

(Defs.’ Br. at 14.)

miscellaneous

regulation

that

“appl[ies] to industries whose employees are not covered by a
specific

minimum

wage

Commissioner of Labor.”

order

promulgated

by

the

New

York

Jin v. Pac. Buffet House, Inc., No. 06-

CV-0579, 2009 WL 2601995, at *4 (E.D.N.Y. Aug. 24, 2009) (citing
N.Y. COMP. CODES R. & REGS. tit. 12, § 142-1.1(a) (“This Part shall
apply to all employees, as such term is defined in this Part,
except: (a) employees who are covered by minimum wage standards in
any

other

minimum

commissioner . . . .”)).

wage

order

promulgated

by

the

The Court is unaware of, and Defendants
14

have not identified, any separate wage order or regulation that
would cover a florist.
Defendants

The Wage Order therefore applies here.
also

argue

that

Plaintiffs’

claim

insufficiently pled and merely recites the [Wage Order].”
Br. at 13.)

The Court disagrees.

“is

(Defs.’

The Amended Complaint plainly

alleges that Defendants required Plaintiffs to wear uniforms,
specifically, “shirt with logos,” and that Defendants “did not
launder or maintain” the shirts.

(Am. Compl. ¶¶ 40, 42.)

These

allegations may not be detailed, but they are sufficient at this
stage to state a claim that Defendants failed to provide a uniform
maintenance allowance in violation of the Wage Order.

See Ramirez

v. CSJ & Co., No. 06-CV-13677, 2007 WL 700831, at *2 (S.D.N.Y.
Mar. 6, 2007) (“Although I am sorely tempted, given current dress
norms, to hold that a blue T-shirt bearing a deli’s name and logo
is clothing that may be worn as part of an employee’s ordinary
wardrobe, the question probably is better decided by a trier of
fact than as a matter of law.” (internal quotation marks omitted)).
Accordingly,

the

Court

DENIES

Defendants’

motion

to

dismiss

insofar as it seeks dismissal of Plaintiffs’ uniform maintenance
allowance claim under the NYLL.
V.

Individual Liability Against Sammut
Finally,

Defendants

argue

that

Plaintiffs

have

not

pleaded facts sufficient to hold Defendant Sammut individually

15

liable under the FLSA and the NYLL.

(Defs.’ Br. at 14-18.)

The

Court disagrees.
To be held liable under the FLSA, a person must be an
“employer,” which the FLSA defines broadly as “any person acting
directly or indirectly in the interest of an employer in relation
to an employee.”

Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132,

139 (2d Cir. 1999) (citing 29 U.S.C. § 203(d)).
further define “employer.”6

The FLSA does not

The Second Circuit has stated that

“[e]vidence that an individual is an owner or officer of a company,
or otherwise makes corporate decisions that have nothing to do
with

an

employee’s

‘employer’ status.”
(2d Cir. 2013).

function,

is

insufficient

to

demonstrate

Irizarry v. Catsimatidis, 722 F.3d 99, 109

Rather, “[i]ndividual liability under the FLSA is

premised upon personal responsibility for making decisions about
the conduct of the business that contributed to the violations of
the Act.”

Schear v. Food Scope Am., Inc., 297 F.R.D. 114, 134

(S.D.N.Y. 2014) (internal quotation marks and citation omitted).

The NYLL defines “employer” as “any person . . . employing any
individual in any occupation, industry, trade, business or
service.” N.Y. LAB. LAW § 190(3). However, “[d]istrict courts in
this Circuit have interpreted the definition of employer under
the New York Labor Law coextensively with the definition used by
the FLSA.” Sethi v. Narod, 974 F. Supp. 2d 162, 188 (E.D.N.Y.
2013) (internal quotation marks and citations omitted).
Accordingly, the Court will conduct a singular analysis of
Plaintiffs’ claims against Sammut under the FLSA and the NYLL
using the FLSA standard. See Schear v. Food Scope Am., Inc.,
297 F.R.D. 114, 134 (S.D.N.Y. 2014)
6

16

Thus, the Second Circuit employs the “economic reality” test, which
looks at “the totality of the circumstances and consider[s] whether
the alleged employer ‘(1) had the power to hire and fire the
employees, (2) supervised and controlled employee work schedules
or conditions of employment, (3) determined the rate and method of
payment, and (4) maintained employment records.’”

Id. (quoting

Herman, 172 F.3d at 139).
Defendants argue that the claims against Sammut should
be dismissed because Plaintiffs allege that Sammut is “an employer
under the FLSA based solely on his title or position.”
Br. at 17.)

This is incorrect.

(Defs.’

In addition to alleging that

Sammut is “an owner, officer, and manager,” the Amended Complaint
also alleges that Sammut “established . . . the wages and hours of
[Little Luke’s] employees,” “furnished employees their wages each
week,”
Reyes.

and

“hired

employees,”

including

(Am. Compl. ¶¶ 15, 17-19.)

Plaintiffs

Ortiz

and

These allegations state a

plausible claim that Sammut is an employer under the FLSA and the
NYLL.
at

*3

See Coffin v. MRI Enters., No. 11-CV-2453, 2014 WL 5363855,
(E.D.N.Y.

Oct.

21,

2014)

(finding

that

the

plaintiff

plausibly alleged that individuals defendants were employers under
the FLSA and the NYLL where they alleged that the individual
defendants were “owners, officers, and members of the boards [the
corporate defendants] and had power over personnel and payroll
decisions at both companies, including the power to hire and fire
17

employees,

establish

and

pay

wages,

set

work

schedules,

and

maintain employment records”); see also Shim v. Millennium Grp.,
No. 08–CV–4022, 2010 WL 409949, at *2 (E.D.N.Y. Jan. 27, 2010)
(finding both individual defendants and corporation liable under
the

FLSA

where

complaint

contained

allegations

actions taken collectively by the defendants).

of

employment

Accordingly, the

Court DENIES Defendants’ motion to dismiss insofar as it seeks
dismissal of the claims against Sammut.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss
the Amended Complaint (Docket Entry 21) is DENIED.

Defendants’

motion to dismiss the original Complaint (Docket Entry 13) is
DENIED AS MOOT.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
6 , 2015
Central Islip, New York

18