Sosa Teoba v. Trugreen Landscape L.L.C.

Filing 73

ORDER granting 51 Motion to Approve Notice to Class and Method of Distribution subject to the Court's review of both the proposed notice and the method of distribution; granting 62 Motion for Leave to File. Counsel are directed to confer and agree on a similar Notice and distribution procedure. Signed by Hon. Jonathan W. Feldman on 8/11/2011. (RJO)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
OTONIEL SOSA TEOBA, individually and
on behalf of others similarly
situated, FRANCISCO NOEL FERNANDEZ,
JESUS CAMORA VICTORIA, LUIS ALBERTO
GOMEZ DELGADO, JUAN LUIS GOMEZ,
ALEJANDRO TIBURCIO MALDONADO,
ALEJANDRO RODERIGUEZ RASCON, GABRID
MORALES CONTRETAS, FERNANDO FERNANDEZ
HERNANDEZ, LUIS GABRIEL HERNAND CRUZ,
RAFAEL OLMOS SANCHEZ, BERTIN MORALES
and CARLOS MUNUZ,

ORDER
10-CV-6132

Plaintiff(s),
v.
TRUGREEN LANDCARE, L.L.C.,
Defendant(s).

On February 15, 2011, Judge Siragusa denied the defendant’s
motion to dismiss the complaint.

(Docket #49).

Before the Court

now are plaintiffs’ Motion to Approve Notice to Class and Method of
Distribution (Docket #51) and plaintiffs’ Motion to File an Amended
Complaint (Docket #62).

On August 11, 2011, a hearing was held and

arguments were heard from both sides.

After review of the motion

papers and consideration of the arguments therein as well as the
arguments of counsel made during the hearing, it is hereby
ORDERED that plaintiffs’ Motion to File a Second Amended
Complaint

(Docket

#62)

arguments

against

the

is

granted.

factual

and

While
legal

defendant

merits

of

presses

adding

a

prevailing wage claim to the Complaint, those arguments are not
well

suited

for

the

limited

review

evaluating an Amended Complaint.

this

Court

engages

when

As to defendant’s first argument, while the scope of federal
preemption in actions alleging violations of the FLSA may still be
developing, plaintiffs should be given the opportunity to plead a
contractual prevailing wage claim.

For purposes of amending the

Complaint, I find that the prevailing wage claim set forth in the
proposed Amended Complaint may assert a theory of recovery that is
separate and independent from the obligations imposed by the FLSA
and,

if

successful,

available

under

would

the

provide

FLSA.

The

for

relief

plaintiffs

different

allege

that

than
their

prevailing wage claim is based on a contractual obligation that is
independent of the obligations required by the FLSA and indeed
would entitle them to recovery of wages significantly higher than
the FLSA minimum wage.

See Barrus v. Dick’s Sporting Goods, Inc.,

732 F. Supp. 2d 243, 255 (W.D.N.Y. 2010)(“[I]t is clear that the
FLSA would preempt only state laws that mandated lower minimum
wages

or

longer

maximum

workweeks.”)(quoting

DeKeyser

v.

Thyssenkrupp Waupaca, Inc., 589 F. Supp. 2d 1026, 1031 (E.D. Wis.
2008).

The contractual promise breached here is based on an

allegedly express agreement to pay a particular prevailing wage and
is not an FLSA claim “in disguise.”
&

Sons

Trees,

Inc.,

497

See De Leon-Granados v. Eller

F.3d

1214,

1219

(11th

Cir.

2007)(distinguishing a prevailing wage claim from an FLSA claim).
Second,

defendant’s

argument

that

plaintiffs’

breach

of

contract claim is deficient because whatever promises were made by

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defendant to pay prevailing wages were made to the government and
not to the plaintiffs unfairly limits the claims asserted in the
Amended

Complaint.

Plaintiffs

assert,

inter

alia,

that

the

defendant explicitly promised in the employment contracts to pay
plaintiffs the prevailing wage.

Whether the employment contract

can be construed to support this allegation is best left for a
dispositive motion.
Finally, defendant’s claim that the Supreme Court’s recent
decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ----, 131 S.
Ct. 2541 (2011) somehow precludes plaintiffs from seeking to amend
their Complaint to add a breach of contract claim is misplaced, at
least at this juncture.

As noted by Judge Siragusa in denying

defendant’s motion to dismiss, this case involves a uniform policy
and practice of the defendant to not reimburse plaintiffs for
recruitment,

visa

or

transportation

expenses.

Whatever

the

“commonality” contours of Wal-Mart Stores, Inc. v. Dukes, it
strikes this Court as inappropriate to deny plaintiffs the right to
even plead class status when challenging what appears to be a
uniform reimbursement policy implicating issues of fact common to
all putative plaintiffs. Whether class certification is ultimately
appropriate is for another day.
And it is further ORDERED that plaintiffs’ Motion to Approve
Notice to Class and Method of Distribution (Docket #51) is granted
subject to the Court’s review of both the proposed notice and the
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method of distribution.

As the Court explained during the motion

hearing, the Notice approved for distribution in Rivera v. Brickman
Grp., Ltd., No. 05-1518, 2008 WL 81570 (E.D. Pa. Jan. 7, 2008) will
be the template for the Notice and method of distribution in this
case.

Accordingly, counsel are directed to confer and agree on a

similar Notice and distribution procedure in this matter.

To the

extent disputes remain, counsel shall notify the Court of the
specific dispute and the Court will resolve it.
SO ORDERED.

JONATHAN W. FELDMAN
UNITED STATES MAGISTRATE JUDGE
Dated: August 11, 2011
Rochester, New York

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