Moses et al v. Griffin Industries, LLC et al
AMENDED OPINION & ORDER: Defendant's motion to dismiss is GRANTED. The Clerk of Court is respectfully directed to terminate ECF No. 603. This amended order is issued pursuant to Rule 60(a) and supersedes the prior order at ECF 650. (Signed by Judge Andrew L. Carter, Jr on 12/21/2022) (ate)
Case 1:18-cv-01200-ALC-OTW Document 667 Filed 12/21/22 Page 1 of 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RAVEN MOSES, individually and on behalf of
all others similarly situated, et al.,
-againstCONSOLIDATED EDISON COMPANY OF
NEW YORK, INC., ET AL.,
AMENDED OPINION & ORDER
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 Services (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 an FLSA collective. ECF No. 172.
Defendant ConEd moves to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, several of the opt-in FLSA plaintiffs. 1 The Court assumes familiarity with the
facts of the case. For a full recitation of the facts, see Moses v. Griffin Indus., LLC, No. 18-cv1200-ALC-OTW, 2020 WL 5813737, at *1 *S.D.N.Y. Sept. 30, 2020).
In its pre-motion conference letter, Defendants sought to dismiss 116 plaintiffs. In the motion, Defendants sought
to dismiss 121 plaintiffs. Due to an editing error, the Court’s prior order, dated September 30, 2022, was not clear
as to whether the claims that were dismissed belonged to 116 plaintiffs, 121 plaintiffs, or another number, based
on plaintiffs’ discovery that some plaintiffs, previously thought to have untimely claims, have claims that are not
time barred. This amended order is being issued pursuant to Rule 60(a) to clarify the prior order.
Case 1:18-cv-01200-ALC-OTW Document 667 Filed 12/21/22 Page 2 of 3
“[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 Atlantic 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.” I e.g., Faber v. Metro Life Ins.
Co., 648 F.3d 98, 104 (2d Cir. 2011).
Defendant argues that the FLSA claims of several 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.
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, Magistrate 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
Case 1:18-cv-01200-ALC-OTW Document 667 Filed 12/21/22 Page 3 of 3
after July 20, 2017 are dismissed as time barred. To be clear, the Court dismisses the claims of
those people who did not perform flagging work through Griffin for ConEd on or after July 20,
Defendant’s motion to dismiss is GRANTED. The Clerk of Court is respectfully directed
to terminate ECF No. 603. This amended order is issued pursuant to Rule 60(a) and supersedes
the prior order at ECF 650.
/s/ Andrew L. Carter, Jr.
ANDREW L. CARTER, JR.
United States District Judge
December 21, 2022
New York, New York
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