Moses et al v. Griffin Industries, LLC et al

Filing 650

OPINION & ORDER re: 603 MOTION to Dismiss The FLSA Claims of 121 of the Opt-In Plaintiffs. filed by Consolidated Edison Company of New York, Inc. Defendants motion to dismiss is GRANTED. The Clerk of the Court is respectfully directed to terminate ECF No. 603. (Signed by Judge Andrew L. Carter, Jr on 9/30/2022) (ate)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
9/30/2022

RAVEN MOSES, individually and on behalf of
all others similarly situated, et al.,
Plaintiffs,
-againstCONSOLIDATED EDISON COMPANY OF
NEW YORK, INC., ET AL.,

18-cv-1200 (ALC)
OPINION & ORDER

Defendants.
ANDREW L. CARTER, United States District Judge:
Plaintiffs, a group of workers employed as flagmen or flaggers, brought this putative
class action against a group of Defendants, including Consolidated Edison of New York
(“ConEd”). Plaintiffs allege that Defendant Griffin Industries and Griffin Securities (together,
“Griffin”) failed to pay their wages at the prevailing rates. They bring suit against ConEd under
a joint-employer theory. Magistrate Judge Ona Wang previously granted Plaintiffs motion to
conditionally certify a FLSA collective. ECF No. 172.
Defendant ConEd moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure to dismiss 116 of the opt-in FLSA plaintiffs. The Court assumes familiarity with
the facts of the case. For a full recitation of the facts, see Moses v. Griffin Indus., LLC, No. 18cv-1200-ALC-OTW, 2020 WL 5813737, at *1 (S.D.N.Y. Sept. 30, 2020).
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
for relief that is plausible on its face’” to survive a motion to dismiss pursuant to Rule 12(b)(6).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (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.” Id. (citing Twombly, 550 U.S. at 556). The plaintiff must allege sufficient facts to
show “more than a sheer possibility that a defendant has acted unlawfully.” Id. When ruling on
a Rule (12)(b)(6) motion, a court must accept the factual allegations set forth in the complaint as
true and “draw all reasonable inferences in [plaintiff’s] favor.” See, e.g., Faber v. Metro. Life
Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011).
Defendant argues that FLSA claims of 116 opt-in plaintiffs should be dismissed because
their claims are time-barred. Plaintiff appears to argue that dismissal of these plaintiffs would be
premature because their class certification motion has not yet been decided. One does not
preclude the other. They also argue that discovery is ongoing, but, notably, Plaintiffs do not
argue that further discovery would change the employment dates they provided to Defendant.
The FLSA imposes a two–year statute of limitations period for actions brought under that
statute unless the defendants’ violation was willful. 29 U.S.C. § 255(a). That period may be
extended to three years for willful violations. Using the three-year statute of limitations as the
outward date, Judge Wang surmised that FLSA claims for plaintiffs who worked for ConEd
before July 20, 2017 were time barred. The Court sees no reason to contradict Judge Wang.
Given this, the FLSA claims for Plaintiffs who either (i) ceased working for Griffin before July
20, 2017 or (ii) although still employed by Griffin, did not work on a ConEd project after
July 20, 2017.
Defendant’s motion to dismiss is GRANTED. The Clerk of the Court is respectfully
directed to terminate ECF No. 603.
SO ORDERED.
Dated:

September 30, 2022
New York, New York

___________________________________
ANDREW L. CARTER, JR.
United States District Judge