Ennocenti et al v. Unisys Technical Services LLC et al
Filing
22
ORDER granting 9 Motion to Dismiss for Failure to State a Claim and granting Plaintiffs' request to amend the complaint. Plaintiffs shall have 30 days from the date of this order to file an amended complaint. Signed by Hon. Michael A. Telesca on November 7, 2012. (MES)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
DAVID ENNOCENTI AND JON STEWART,
on behalf of themselves and all
other employees similarly situated,
Plaintiffs,
12-CV-6367
DECISION AND ORDER
v.
UNISYS TECHNICAL SERVICES, LLC,
AND THE UNISYS CORPORATION
Defendants,
________________________________________
INTRODUCTION
Plaintiffs, David Ennocenti and Jon Stewart (“Plaintiffs”),
bring this class action on behalf of themselves and all other
employees similarly situated, pursuant to the Fair Labor Standards
Act, 29 U.S.C. § 201 et seq. (“FLSA”), the New York Labor Law, and
Rule 23 of the Federal Rules of Civil Procedure. (Docket No. 1.)
Plaintiffs allege that their employer, Unisys Technical Services,
LLC,
a
wholly
(collectively,
owned
subsidiary
“Defendants”),
of
failed
The
to
Unisys
pay
all
Corporation,
overtime
and
bonuses due to Plaintiffs.
Defendants move to dismiss Plaintiffs’ complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure, contending
that Plaintiffs have not set forth a plausible claim to relief.
(Docket No. 9.)
Plaintiffs oppose the motion and seek to amend the
complaint. (Docket Nos. 13-14.) For the reasons discussed herein,
the Court grants Defendants’ motion to dismiss.
Page -1-
Plaintiffs’
complaint is dismissed without prejudice and plaintiffs are granted
30 days to amend the complaint to state a plausible claim to
relief.
BACKGROUND
The following facts are taken from the complaint. (Docket No.
1.) Plaintiffs allege that they were or are employed by Defendants
in call centers in Henrietta, New York, Salt Lake City, Utah and
Austin, Texas. Plaintiffs “primary job function was to answer
customer calls” under the following job titles: Help Desk Analyst,
Help Desk Agent, Technical Help Desk Agent, Computer Technical
Support Representative, and/or Customer Service.
Plaintiffs allege that they “were not paid for all hours
suffered or permitted to work, including overtime pay for hours
worked more than forty (40)” for the last six years.
They state,
“[t]o meet Defendants’ production goals and complete their required
job duties, Named Plaintiffs and Class Members were required to
perform work before their scheduled shift and before they were
logged onto Defendants’ phone system”.
They allege that they also
performed work after their scheduled shifts, when they were “logged
out” of the phone system.
However, they allege that they were only
paid for the time that they were logged onto the phone system.
Plaintiffs state, “Defendants knew Named Plaintiffs and Class
Members
were
not
being
paid
based
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on
the
actual
hours
they
[worked]...because they tracked the arrival and departure of Named
Plaintiffs and Class Members using identification swipe cards.”
Plaintiffs also allege that “Defendants failed to pay agreedupon commissions...according to the terms of their commission
plan[,]” and that when they did pay these “non-discretionary”
commissions or bonuses, “Defendants failed to account for [them] in
calculating...overtime pay”.
Plaintiffs
allege
that
Defendants
practices
constitute
a
policy or practice to “willfully deprive” them of regular and
overtime pay as well as bonuses.
Lastly, they allege, “Defendants
do not maintain accurate time records”.
DISCUSSION
In reviewing a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6)(“Rule 12(b)(6)”), the Court must accept
the factual allegations set forth in the complaint as true, and
draw all reasonable inferences in favor of the plaintiff. See ATSI
Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007);
Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006). The
Court generally may only consider “facts stated in the complaint or
documents attached to the complaint as exhibits or incorporated by
reference.” See Nechis v. Oxford Health Plans, Inc., 421 F.3d 96,
100 (2d Cir.2005); accord Kramer v. Time Warner Inc., 937 F.2d 767,
773 (2d Cir.1991).
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The
plaintiff
must
satisfy
“a
flexible
‘plausibility
standard.’” See Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir.2007).
“[O]nce a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in the
complaint.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955,
1969
(2007).
The
Court,
therefore,
does
not
require
“heightened fact pleading of specifics, but only enough facts to
state a claim to relief that is plausible on its face.” See id. at
1974.
However,
conclusions,
the
court
deductions
may
disregard
a
plaintiff’s
or
opinions
couched
as
“legal
factual
allegations.” See, e.g., In re NYSE Specialists Sec. Litig., 503
F.3d 89, 95 (2d Cir.2007) (citation omitted). The court is also not
required to credit conclusory statements unsupported by factual
allegations. See, e.g., Otor, S.A. v. Credit Lyonnais, S.A., 2006
WL 2613775, at *2 (S.D.N.Y.2006); see also Davey v. Jones, 2007 WL
1378428,
at
*2
(S.D.N.Y.2007)
(citation
omitted)
(“[B]ald
contentions, unsupported characterizations, and legal conclusions
are not well-pleaded allegations, and will not suffice to defeat a
motion to dismiss.”).
Defendants first argue that Plaintiffs’ FLSA overtime claims
must
be
dismissed
because
Plaintiffs
failed
to
allege
approximate number of overtime hours worked without payment.
the
Def.
Mem of Law at 8-10, Docket No. 9-3. Plaintiffs allege that they
were not paid for hours worked in excess of forty hours per week.
Page -4-
They have not alleged when such hours were worked, what they were
required to do during such hours, or approximately how many hours
over forty they worked each week.
District Courts in this Circuit
and others have found that such allegations are insufficient to
state a plausible claim for relief under the FLSA, and that a
plaintiff must at least attempt an approximation of the number of
overtime hours worked. See Smith v. Master craft Decorators, Inc.,
2011
WL
5191755,
*3
(W.D.N.Y.
Oct.
31,
2011)(citing
cases);
see also DeSilva v. North Shore-Long Island Jewish Heath System,
Inc., 770 F.Supp.2d 497, 509 (E.D.N.Y. 2011)(citing cases); Mell v.
GNC
Corp.,
2010
WL
4668966,
at
*7
(W.D.Pa.
Nov.
9,
2010).
Plaintiffs must set forth factual allegations to support their
conclusion that Defendants violated the FLSA by failing to pay them
for overtime.
However, Plaintiffs allegations merely state that
Plaintiffs worked more than 40 hours per week over the course of
several years without adequate pay, without providing facts to
support this conclusory allegation.
For example, Plaintiffs have
not alleged when they worked overtime, approximately how much
overtime was worked or what tasks were performed.
Therefore, this
Court finds that Plaintiffs allegations are insufficient to state
a plausible claim to relief for unpaid overtime under the FLSA.
Further,
Plaintiffs
allegations that
they
performed
work
before and after they were logged onto the Defendants’ phone system
does not provide the factual support necessary to render their
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complaint plausible.
There is no indication on the face of the
complaint what work was performed during the time that Plaintiffs
were
not
logged
into
the
compensable under the FLSA.
phone
system
or
how
such
work
is
The fact that the Defendants are
alleged to have used a swipe card system to keep track of when
Plaintiffs entered and exited the call centers does not support an
inference that they performed compensable work from the time they
entered the call center using the swipe card until they logged onto
the phone system.
Not all time spent at work is compensable. See
IBP, Inc. v. Alvarez, 546 U.S. 21 (2005); see also DeSilva, 770
F.Supp.2d at 510.
Plaintiffs also allege that they were paid non-discretionary
bonuses
and
that
such
bonuses
were
not
included
within
the
calculation of overtime under the FLSA, and that the Defendants
failed to keep adequate time records in violation of the FLSA.
However, the Plaintiffs offer no facts in support of these claims.
For example, Plaintiffs have not alleged when such bonuses were
earned in addition to overtime such that they should have been
included within the calculation for overtime pay.
The complaint
also does not contain facts regarding the nature of the bonus plans
or how such bonuses fall within the definition of payments required
to be included within the overtime calculation under the FLSA. With
respect to the allegation that the Defendants failed to keep
adequate time records, Plaintiffs do not identify which time
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records
were
improperly
improperly
maintained
allegations
are
maintained
under
the
nothing
or
how
the
records
were
these
FLSA.
Without
more,
more
than
“unadorned,
the-defendant-unlawfully-harmed-me
accusation[s]”,
which
are
insufficient to state a claim to relief under the FLSA. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Twombly, 550
U.S. at 555).
Therefore, Plaintiffs’ claims under the FLSA are
dismissed without prejudice.
As all of the federal claims have been dismissed at this early
stage, the Court declines to exercise its supplemental jurisdiction
over Plaintiffs’ remaining state law claims. See Carnegie-Mellon
University
v.
Cohill,
484
U.S.
343,
350
(1988)(“...when
the
federal-law claims have dropped out of the lawsuit in its early
stages and only state-law claims remain, the federal court should
decline the exercise of jurisdiction by dismissing the case without
prejudice.”); see also Valencia ex rel Franco v. Lee, 316 F.3d 299,
305 (2d Cir. 2003). Therefore, Plaintiffs’ state law claims are
dismissed without prejudice.1
Rule 15 of the Federal Rules of Civil Procedure (“Rule 15”)
provides that a Court should “freely give leave [to amend the
complaint] when justice so requires.”
1
Leave to amend a complaint
Defendants also argue that Plaintiffs’ complaint should be dismissed for other reasons.
However, because the Court finds that Plaintiffs have not adequately plead a claim under the
FLSA and declines to exercise its supplemental jurisdiction over the remaining state law claims,
the Court need not address these remaining arguments.
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dismissed pursuant to Rule 12(b)(6) should ordinarily be granted.
See Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d
Cir. 1991).
amend
the
Accordingly, the Court grants Plaintiffs’ request to
complaint
to
state
a
plausible
claim
to
relief.
Plaintiff must file any amended complaint within 30 days of the
date of this order.
CONCLUSION
For
the
reasons
set
forth
herein,
the Court
finds
that
Plaintiffs have not stated a plausible claim to relief under the
FLSA. The Court declines to exercise its supplemental jurisdiction
over Plaintiffs’ state law claims.
Plaintiff is granted 30 days
from the date of this order to file an amended complaint.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
November 7, 2012
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