Green v. Sinai Van Service
OPINION re: 9 FIRST MOTION to Dismiss filed by Sinai Van Service, 15 MOTION for Summary Judgment. filed by Andre Green: For the foregoing reasons, the Defendant's motion to dismiss is granted, and the Plaintiff' s motion for summary judgment is rendered moot. The Plaintiff is granted leave to replead within sixty (60) days. (Signed by Judge Robert W. Sweet on 1/5/2018) (jwh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
17 Civ. 3913
SINAI VAN SERVICE,
A P P E A RA N C E S:
ELECTROi'.ICALLY FILF Y\ .
DATE FLED: f
Pro Se Plaintiff
316 West 97 th Street, Apt.
New York, NY 100 2 5
Attorneys for Defendant
SCHLOSS & SCHLOSS, PLLC
420 Route 59
Airmont, NY 10952
Jonathan B. Schloss, Esq.
Defendant Sinai Van Service ("Sinai Van Service" or
the "Defendant" ) has moved pursuant to Federal Rule of Civil
Procedure 12 (b) (6) to dismiss the comp laint ("Comp laint" ) of
Plaintiff Andre Green ("Green" or the "Plaintiff" ) , in which the
Plaintiff alleged claims pursuant to the Fair Labor Standards
Act ("FLSA"), 29 U.S.C.
201-219. 1 Plaintiff has cross-moved
for summary judgment pursuant to Federal Rule of Civil Procedure
56. Based on the facts and conc lu sions set forth below, the
Defendant's motion to dismiss is granted, and the Plaintiff's
motion for summary judgment is denied as moot.
The pro se Plaintiff commenced this action on May 23 ,
2017 , alleging that he did not receive full payment from his
employer, Sinai Van Service, for his work completed from May 1,
2017 through May 5, 2017. Plaintiff has alleged his injuries as
The Court has liberally construed the Plaintiff's
allegations as claims brought pursuant to the FLSA given that "when
[a] plaintiff proceeds pro se, . . . a court is ob liged to construe
his pleadings liberally." (See Order , July 25 , 2017 , ECF No. 5 . ) The
Complaint alleges the Defendant's failure to provide full payment for
employment services rendered, failure to provide pay stubs for any
completed pay period, the Defendant's withholding of the Plaintiff's
pay check , and wrongful termination. (Compl.)
unpaid wages, $50,000 in compensatory and punitive damages, and
$50,000 in mental anguish and emotional distress. Defendant
filed the present motion to dismiss on September 15, 20 17, and
Plaintiff filed this motion for summary judgment on October 12,
2017 . Both motions were thereafter scheduled to be taken on
submission on November 29 , 2017 ,
(see Order , Oct . 1 7, 2017 , ECF
No. 16), at which time both motions were marked fully submitted.
The Complaint sets f orth the following facts, which
are assumed true for the purpose of this motion to dismiss. 2 See
Koch v. Christie ' s Int'l PLC,
699 F.3d 141, 145 (2d Cir . 2012) .
The Plaintiff began his employment with the Defendant
on April 27 , 2017 , was trained on Apr il 27 and 28, 20 17, and
While the Plaintiff has set forth some additional
information in his motion for summary judgment, these details are not
considered on this motion to dismiss as "a district court must limit
itself to the facts stated in the complaint, documents attached to the
complaint as exhibits and documents incorporated by reference in the
complaint. If a judge l ooks to additional materials, the motion should
be converted into a motion for summary judgment." See Hayden v. Cnty .
of Nassau, 180 F.3d 42, 54 (2d Cir . 1999) (citation omitted). The
Court declines to convert th e Defendant's motion to dismiss into one
for summary judgment at this time. Therefore, the information provided
by the Plaintiff in his motion for summary judgment is not considered
in evaluating this motion to dismiss.
began as a driver on April 29, 2017. 3 On May 5 , 2017 , the
Plaintiff noticed that he had not received all of his calculated
time for hours worked, and that , specifically , he had not
received his payments due according to his calculated time for
May 1 through 5 , 2017 . On May 9, 2017 , the Plaintiff ' s manager
(the "Plaintiff ' s Manager") allegedly informed the Plaintiff
that he was being terminated for being too slow for the work.
The Plaintiff's Manager further informed the Plaintiff that his
check was being held for "a week" in order to see whether the
Plaintiff had accrued any driving tickets on the van during his
tenure. The Plaintiff alleges that he requested his pay check on
several occasions, but these requests were denied . He further
alleges that he did not receive a time card or a pay summary of
his wages and earnings , and that he remains unaware of his work
deductions because of this. The Plaintiff also alleges that he
received inconsistent payment from the Defendant on May 5 and May
19 because one pay check was unlawfully retained by the
In the handwritten Complaint , the Plaintiff listed these
dates as occurring in May . However, chronology and common sense
support the inference that the Plaintiff actually intended to list
these dates as occurring in April. Accordingly, the aforementioned
dates are treated as referring to April 27 through 29 .
III. The Applicable Standard
On a Rule 12(b) (6) motion to dismiss, all factual
allegations in the complaint are accepted as true and all
inferences are drawn in favor of the pleader. Mills v. Polar
Molecular Corp., 12 F. 3d 1170, 1174 (2d Cir. 1993). A complaint
must contain "sufficient factual matter, accepted as true, to
'state a cla im to relief that is plausible on its face.'"
Ashcroft v . Iqbal,
Corp . v. Twombly,
556 U.S. 662, 663 (2009)
(quoting Bell Atl.
550 U.S. 544, 555 (2007)) . A claim is facially
plausible when "the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal,
556 U.S. at 663
550 U.S. at 556). In other words, the factual
allegations must "possess enough heft to show that the pleader
is entitled to relief." Twombly,
550 U.S. at 557
quotation marks omitted).
While "a plaintiff may plead facts alleged upon
information and belief 'where the belief is based on fa ctua l
information that makes the inference of culpability plausible,'
such allegations must be 'ac companied by a statement of the
facts upon which the belief is founded.'" Munoz-Nagel v. Guess,
Inc., No. 12 Civ. 1 3 12
(ER), 2013 WL 1809772, at *3 (S.D.N.Y.
Apr. 30 , 2013)
(quoting Arista Records, LLC v . Doe 3,
110, 120 (2d Cir . 2010)) ; Prince v . Madison Square Garden,
2d 372 , 384
(S .D.N. Y. 2006); Williams v . Calderoni , 11
Ci v . 3 0 2 0 ( CM ) , 2 0 12 WL 6 918 3 2 , at * 7 ( S . D. N . Y . Mar . 1 , 2 0 12 ) ) .
The pleadings, however, "must contain something more than
a statement of facts that merely creates a suspicion [of] a
legally cognizable right of action." Twombly,
550 U.S. at 555
(citation and internal quotation omitted).
In considering a motion to dismiss, "a district court
may consider the facts alleged in the complaint , documents
attached to the complaint as exhibits, and documents
incorporated by reference in the complaint." DiFolco v . MSNBC
622 F.3d 104, 111 (2d Cir . 2010).
The Defendant's Motion to Dismiss Plaintiff's Complaint Is
Construing the Complaint liberally, the Plaintiff has
failed to state any claim upon which relief may be granted. The
Plaintiff has asserted four claims against the Defendant: the
Defendant's failure to provide full payment for employment
services rendered; failure to provide pay stubs for any
completed pay period; the Defendant's withholding of the
Plaintiff's pay check ; and wrongful termination. However, the
Plaintiff has failed to assert in the Complaint either the
federal laws or statutes upon which he hopes to rest his claims,
or sufficient facts or details supporting these allegations.
Given that a district court may not look outside of "the
complaint, documents attached to the complaint as exhibits, and
documents incorporated by reference in the complaint," the Court
is limited to only the few, vague details provided in the
Complaint and previously mentioned in deciding this motion to
dismiss. See DiFolco, 622 F.3d at 111. Without more, the
Compla int, even construed liberally, "merely creates a suspicion
[of] a legally cognizable right of action." See Twombly,
U.S. at 555. Accordingly, the Defendant's motion to dismiss the
Complaint is granted, and the Plaintiff is granted sixty (60)
days to file a revised complaint . 4
Although the Plaintiff has provided further details in
support of his claims in his motion for summary judgment, such as the
hours he allegedly worked and the amount of pay allegedly provided and
not provided to him by the Defendant, these allegations are not
cons idered on review of the Defendant's motion to dismiss for the
aforementioned reasons. See Hayden, 1 80 F.3d at 54. If the Plaintiff
repleads, any factual details may be relevant to his claims under any
applicable federal la ws or statutes. As with regards to any pro se
plaintiff, the Plaintiff is advised to seek assistance from the Office
of Pro Se Litigation with respect to procedural questions. The New
York Legal Assistance Group may be available to assist pro se
For the foregoing reasons, the Defendant ' s motion to
dismiss is granted , and the Plaintiff ' s motion for summary
judgment is rendered moot. The Plaintiff is granted leave to
replead within sixty (60) days.
It is so ordered .
New York , NY
ROBERT W. SWEET
U . S.D . J.
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