SIDA v. PINTURA CONSTRUCTION LLC et al

Filing 39

OPINION. Signed by Judge Mark R. Hornak on 11/30/18. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RAYMOND SIDA, individually and on
behalf of all persons similarly situated,

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Plaintiffs,
V.

2: 18-cv-00806

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PINTURA CONSTRUCTION LLC, ET AL.
Defendants.

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OPINION
Mark R. Hornak, United States District Judge
Raymond Sida ("Plaintiff') is the named plaintiff representative of a putative class
bringing suit against a litany of businesses and individuals ("Defendants"). Plaintiff alleges that
he performed various forms of manual labor as an employee of the Defendants and is entitled to
unpaid overtime pay. (Compl. at

11 74-78,

ECF No. 1). Plaintiff brings claims under the Fair

Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., the Pennsylvania Minimum Wage Act
("PMWA"), 43 Pa.C.S. §§ 333.101 et seq., and the Pennsylvania Wage Payment and Collection
Law ("WPCL"), 43 Pa.C.S. §§ 260.1 et seq. Plaintiff also alleges a claim of unjust enrichment
under Pennsylvania common law. The Defendants timely filed a Motion to Dismiss all claims
asserted against them. (ECF No. 15). The matter has been fully briefed, (ECF Nbs. 16, 35, 38),
and is ripe for disposition. For the following reasons, the Motion to Dismiss is GRANTED and
all Counts in the Complaint (ECF No. I) will be dismissed without prejudice, with the exception
of those claims that are plainly and facially time-barred, which will be dismissed with prejudice.
Plaintiff will be granted leave to amend the Complaint.
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I. Legal Standard
A pleading for relief must contain "a short and plain statement of the claim showing that
the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A claim may be dismissed for "failure to
state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When reviewing a Rule
12(b )( 6) motion, the Court conducts a two-part analysis and first separates the factual and legal
elements of a claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). The
Court "may disregard any legal conclusions," id., and then must "accept all factual allegations as
true, construe the complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v.

Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). However, the Court need not accept as true
any unsupported conclusions, unsupported inferences, nor "threadbare recitals of elements of a
cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiffs factual allegations
must "raise a right to relief above the speculative level" and state a "plausible claim for relief' to
survive a motion to dismiss. Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The
plausibility standard is not akin to a "probability requirement," but it asks for more than the sheer
possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678.

II. Analysis
a. FLSA and PMW A Claims (Counts I and II)
The Court will analyze Plaintiffs FLSA and PMWA claims together because the statutes
parallel each other "in requiring employers to compensate employees for overtime hours worked,
and [have] an identical standard of liability." Rummel v. Highmark, Inc., 2013 WL 6055082, at
*3 (W.D. Pa. Nov. 15, 2013) (quoting Alers v. City of Phi/a., 919 F. Supp. 2d 528, 557-60 (E.D.
Pa. 2013 )). Both the FLSA and PMW A prohibit "employers" from employing "employees" for

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more than forty hours per week unless the employee is paid an overtime wage for hours worked
in excess of forty. 29 U.S.C. § 207(a)(l); 43 Pa. C.S.A. § 333.104(c).
The "first inquiry in most FLSA cases is whether the plaintiff has alleged an actionable
employer-employee relationship." Thompson v. Real Estate Mortgage Network, 748 F.3d 142,
148 (3d Cir. 2014 ). The FLSA defines "employer" as "any person acting directly or indirectly in
the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). Thus, the employeremployee relationship is defined expansively under the FLSA and "cover[ s] some parties who
might not qualify as such under a strict application of traditional agency law principles."

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992). The Complaint alleges that all
Defendants are "joint employers." (Compl.

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67). "A single individual may stand in the relation

of an employee to two or more employers at the same time under the [FLSA]." 29 C.F.R. §
791.2(a).
Defendants assert that Plaintiff has failed to satisfy the Twombly/ Iqbal pleading standard
in this regard because Plaintiff has failed to plead sufficient facts to plausibly establish that any
of the Defendants was the Plaintiffs "employer" for FLSA and PMWA purposes. (Br. in Supp.
at 3). Defendants claim that Plaintiff must plead sufficient facts to satisfy the "Enterprise"
factors for determining whether an entity is an employer. See In re Enterprise Rent-A-Car Wage

& Hour Employment Prac. Litig., 683 F.3d 462 (3d Cir. 2012). These factors are whether the
alleged employer has "(1) authority to hire and fire employees; (2) authority to promulgate work
rules and assignments, and set conditions of employment, including compensations, benefits, and
hours; (3) day-to-day supervision, including employee discipline; and (4) control of employee
records, including payroll, insurance, taxes, and the like." Id. at 469-70.

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Defendants slightly misstate the rule in Enterprise insofar as a plaintiff, in establishing a
joint employment relationship, is not required to plead facts that would satisfy each of the
factors. The Third Circuit stressed that these factors are not "exhaustive" and "cannot be 'blindly
applied' as the sole considerations necessary to determine joint employment." Id.; see also
Lepkowski v. Telatron Marketing Grp., Inc., 766 F. Supp. 2d 572, 578 (W.D. Pa. 2011) ("It is the

totality of the circumstances, rather than any particular factor, that governs the determination of
whether joint employment exists.") (internal quotations and alterations omitted). Determining
whether an alleged employer is an employer for FMLA purposes is "based on a consideration of
the total employment situation and the economic realities of the work relationship." Enterprise,
683 F.3d at 469 (internal quotations omitted). District courts "must consider all the relevant
evidence, including evidence that does not fall neatly within one of the above factors." Id.
But, even though the Enterpise test is less formalistic than what Defendants propose,
Plaintiff has plead nothing aside from bare assertions that would support finding that any of the
named Defendants jointly employed Plaintiff or members of the supposed class. For each
business named as a Defendant, Plaintiff states that that entity "employed Plaintiff and similarly
situated employees." (Compl. ,, 7, 13, 19, 25, 31, 37, 43, 49, 55, 61). Plaintiff also fails to plead
with the requisite level of particularity and detail to show that the two individuals named as
Defendants are "employers" at all. Plaintiff only alleges that each of the two individuals is "an
individual who is the owner of one or more of the above companies and was acting as the
employer of Plaintiff and similarly situated employees." (Compl. ,, 65-66). Even if such
statements are sufficient to suggest "ownership and broad control" of one or more of the
companies (they are not, as they are merely general and conclusory assertions), "common

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ownership or membership in a common enterprise is insufficient to yield liability under the
FLSA." Acosta v. Gaudin, No. l 7-366, 2017 WL 4685548, at *5 (W.D. Pa. Oct. 18, 2017).
One of this Court's decisions from last year, Gaudin, is instructive to illustrate why these
pleadings are insufficient. 2017 WL 4685548 at *4-5. There, the Court dismissed the complaint
against Robert Gaudin, CEO of Holland Acquisitions, in part because "the Complaint as [] pled
embodies a pleading filled with conclusory allegations and not the requisite "showing" of a
plausible claim for relief." Id. at *4 (citing Fowler, 578 F.3d at 210). The pleadings in that case
actually went further than the allegations in this Complaint insofar as they at least recited the
relevant Enterprise factors to seek to establish a joint employment relationship, though they did
so in a bare and conclusory fashion without adequate factual support. Gaudin, 2017 WL 4685548
at *5.
Here, it is even more plain that the claims are insufficiently pied so as to plausibly
suggest that a joint employment relationship existed between the Plaintiff and Defendants. There
are no facts plead that show that any of the particular defendants "employed" the Plaintiff aside
from Plaintiff's bare assertion that they did so. There is no discussion of any of the Enterprise
factors, nor facts pied that would support finding an employment relationship with any of the
Defendants. Plaintiff does allege that he "performed various manual labor duties, including
painting, plaster work, sheet rock repair, roofing, plumbing, and carpentry." (Compl.

1 75).

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Plaintiff does not identify which of the Defendants he performed the work for, who supervised
him, who exercised control over him, or any facts whatsoever that link his job duties, the work
he performed, and the overtime he is allegedly owed, to any alleged employer in particular.
There is plainly insufficient factual detail to allege a joint employment relationship between any
of the Defendants, and without additional factual detail demonstrating which, if any, of the

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Defendants actually employed Plaintiff, there would be no basis to award Plaintiff the relief he
seeks vis-a-vis any particular Defendant. Cf Boone v. Salameh, No. 11-171, 2012 WL 1435555,
at *4 (W.D. Pa. Mar. 28, 2012) (dismissing a§ 1983 claim in part because the "Plaintifffail[ed]
to specify how and when each individual Defendant" committed an actionable wrong against
him, and instead "lump[ ed] all three Defendants together and state[ d] that they collectively"
violated his constitutional rights). In sum, by pleading only that each Defendant "employed"
Plaintiff and other similarly situated individuals, Plaintiff does nothing more than plead
"threadbare recitals of elements of a cause of action." Iqbal, 556 U.S. at 678. This is insufficient
to state a cause of action, and thus Counts I and II will be dismissed without prejudice.

b. WPCL Claims (Count III)
Plaintiff alleges that Defendants have intentionally failed to pay wages due, in violation
of the Pennsylvania WPCL. See 43 Pa.C.S.A. § 260.3. The WPCL "does not create a right to just
compensation, rather it provides a statutory remedy when the employer breaches a contractual
obligation to pay earned wages." Smeltzer v. Eaton Corp., No. 17-843, 2018 WL 3496948, at *3
(W.D. Pa. July 20, 2018) (quoting Weldon v. Kraft, Inc., 896 F.2d 793,801 (3d Cir. 1990)). The
Plaintiff bears the burden of establishing that there was a written employment contract, an oral
agreement, or an implied oral agreement to pay overtime wages in order to make out a claim
under the WPCL. Smeltzer, 2018 WL 3496948 at *3. Plaintiff pleads no such facts, nor does he
argue that he has. Rather, Plaintiff argues that a contractual agreement is not necessary for a
WPCL claim. This assertion is inaccurate. Because Plaintiff has failed to plead facts that suggest
that a contractual agreement to pay earned wages existed between Plaintiff and any of the
Defendants, Plaintiff fails to sufficiently plead a claim under the WPCL. Count III will therefore
be dismissed without prejudice.

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c. Unjust Enrichment Claims (Count IV)
The elements of unjust enrichment under Pennsylvania law are "(1) benefits conferred on
defendant by plaintiff; (2) appreciation of such benefits by defendant; and (3) acceptance and
retention of such benefits under such circumstances that it would be inequitable for defendant to
retain the benefit without payment of value." Mitchell v. Moore, 729 A.2d 1200, 1203-04 (Pa.
Super. Ct. 1999). Plaintiff does nothing more than plead "threadbare recitals of elements of [this]
cause of action," Iqbal, 556 U.S. at 678, in the Complaint. (Compl. ,-r 118-21). For similar
reasons as discussed above in relation to the FLSA and PMWA claims, Plaintiffs pleading of
this Count fails due to a lack of specificity. For instance, Plaintiff did not identify what work was
performed for which Defendant, nor did Plaintiff plead what benefits were conferred on which
Defendant.
Because the Court concludes that Plaintiff has failed to plead sufficient facts to support a
claim of unjust enrichment under Pennsylvania law, the Court need not address (and expresses
no opinion on) whether Plaintiff's unjust enrichment claims are preempted by the FLSA, as
argued by Defendants in their brief. (Br. in Supp. at 7, ECF No. 16). This claim is also dismissed
without prejudice.
d. Time-Barred Claims
A statute of limitations defense may be raised in a Rule 12(b)(6) motion if "the time
alleged in the statement of a claim shows that the cause of action has not been brought within the
statute of limitations." Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). Unless granting
leave to amend would be inequitable or futile, "a district court must permit a curative
amendment" when a claim is subject to dismissal under Rule 12(b)(6). Phillips, 515 F.3d at 236
(citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)).

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Claims for overtime compensation or liquidated damages under the FLSA must be
brought within two years from when the cause of action accrued, except that willful violations
may be brought within three years after the cause of action accrued. 29 U.S.C. § 255(a). A threeyear limitations period applies to claims bought under the PMWA and WPCL and no showing of
willfulness is required. 43 Pa. C.S.A. § 260. 9a(g) (establishing a three-year limitations period for
the WPCL); Cerutti v. Frito Lay, Inc., 777 F. Supp. 2d 920, 925 n.4 (W.D. Pa. 2011) ("The
applicable statute of limitations under the PMWA is three years."). A four-year limitations
period applies to unjust enrichment claims under Pennsylvania law. Sevast v. Kakouras, 915
A.2d 1147, 1153 (Pa. 2007).
The Complaint alleges that Plaintiff and similarly situated individuals are entitled to
compensation for overtime work performed between June 2012 and June 2017. (Compl. ,i,i 74,
97-122). The Complaint was filed on June 19, 2018. Because the Plaintiff will be granted leave
to amend the Complaint, the Court expresses no opinion as to whether the two-year or three-year
limitations period under the FLSA applies here. Nevertheless, the longest possible limitations
period for the FLSA, PMW A, and WPCL claims is three years. Any such claims accruing after
June 19, 2015, are plainly time-barred. Plaintiff appears to have conceded this point. (Br. in Opp.
at 11, ECF No. 35) ("Plaintiffs claims under the FLSA and WPCL from June 19, 2015 to the
present are not time-barred."). Even if Plaintiff were to cure the deficiencies in his Complaint
with an amendment, any FLSA, PMWA, and WPCL claims that accrued prior to June 19, 2015,
would remain barred due to the respective statutes of limitation. Thus, any amendment with
respect to the FLSA, PMWA, and WPCL claims that relate to work prior to June 19, 2015,
would be futile. Accordingly, any FLSA, PMWA, or WPCL claims in Counts I, II, and III that
relate to work prior to June 19, 2015, will be dismissed with prejudice.

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Likewise, the Court observes that even if Plaintiff were to cure the deficiencies in his
Complaint related to Count IV, the unjust enrichment claims under Pennsylvania law, any unjust
enrichment claims that accrued prior to June 19, 2014, would remain time-barred due to the fouryear limitations period for that cause of action. Thus, any amendment with respect to the unjust
enrichment claims that accrued prior to June 19, 2014, would be futile. Accordingly, any unjust
enrichment claims in Count IV that accrued prior to June 19, 2014, will be dismissed with
prejudice.
III.Conclusion

Defendants' Motion to Dismiss (ECF No. 15) is GRANTED. All claims in Plaintiffs
Complaint (ECF No. 1) are hereby DISMISSED. Any FLSA, PMWA, or WPCL claims in
Counts I, II, and III that relate to work prior to June 19, 2015, are hereby DISMISSED WITH
PREJUDICE. Any unjust enrichment claims in Count IV that accrued prior to June 19, 2014, are
hereby DISMISSED WITH PREJUDICE.
The remaining claims in the Complaint are DISMISSED WITHOUT PREJUDICE.
Plaintiff is hereby granted leave to amend the Complaint. The Amended Complaint must be filed
on or before Monday, December 31, 2018.
An appropriate Order will issue.

Mark R. Hornak
United States District Judge

Dated:
cc:

November 30, 2018
All counsel of record

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