Xue Lian Lin et al v. Comprehensive Health Management, Inc. et al, No. 1:2008cv06519 - Document 24 (S.D.N.Y. 2009)
Court Description: MEMORANDUM AND ORDER granting 14 Motion to Dismiss and plaintiff's request for leave to amend is denied. (Signed by Judge P. Kevin Castel on 4/8/09) (cd)
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Xue Lian Lin et al v. Comprehensive Health Management, Inc. et al Doc. 24 ELECTRONICALLY FLED UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK .............................................................. X XUE LlAN LIN, CHING YEUNG, CHI YEUNG, W TING HUANG, W K KAM YEUNG, W ZHANG, YAN YUN ZHAO, Individually and on Behalf of Others Similarly Situated, 08 Civ. 6519 (PKC) MEMORANDUM AND ORDER Plaintiffs, COMPREHENSIVE HEALTH MANAGEMENT, INC. d/b/a WELLCARE, DANIEL PARITTI, TAMARA ROMERO, ANTHONY WOODS, GUANGNAN Y1 &/a FERNANDO YI, SHUK P. LEUNG aMa IVY LEUNG, KWOCKCHING HO aMa JOSEPH HO, NAMTIN CHAN aWa ALEX CHAN, Defendants. .............................................................. X P. KEVM CASTEL, District Judge: Plaintiffs bring this action against their former employer, Comprehensive Health Management, Inc. ("CHMI"), and several of its individual employees, Daniel Paritti, Tamara Romero, Anthony Woods, Guangnan Yi, Shuk P. Leung, Kwockching Ho, and Namtin Chan ("Individual Defendants"), under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. m,and New York Labor Law ("NYLL") $8 190 $5 201 gt ses.and 650 & seq. The Individual Defendants move to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim, arguing that the complaint fails to allege facts sufficient to support a determination that each Individual Defendant was an "employer" within the meaning of the FLSA and NYLL. CHMI does not join in the motion. For the reasons explained below, the motion is granted. Dockets.Justia.com BACKGROUND A. Facts The following facts alleged in the complaint are accepted as true for the purposes of this motion. Plaintiffs began working for CHMl between January 2005 and June 2007, and ceased working for CHMI on May 22,2008. (Compl. worked as marketing representatives. ( Iper week. d 7 3 1.) 32-38.) During this period, plaintiffs (Id.7 29.) Plaintiffs often worked in excess of forty hours "Defendants willfully failed to pay Plaintiffs the applicable minimum wage for hours worked over 40, overtime compensation of one and one-half times the applicable minimum wage, and for an extra hour in each day Plaintiff worked over ten or more hours, in violation of the FLSA and the New York Labor Law." (Id.) Defendants did not post or keep posted a notice explaining the minimum wage and overtime pay rights provided by law. (Id.7 38.) Defendants failed to make, keep and preserve records of the wages paid to plaintiffs or the hours worked by plaintiffs. (Id.7 47.) B. Procedural History Plaintiffs filed their complaint on July 22,2008. In the Civil Case Management Plan and Scheduling Order filed September 26,2008, the Court granted plaintiffs leave to amend their complaint by October 24,2008. (Doc. #I I .) No amended complaint was filed by that date and the Individual Defendants thereafter moved to dismiss. DISCUSSION A. Motion to Dismiss I . Leaal Standard Rule 8(a)(2), Fed. R. Civ. P., requires only "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Com. v. Twombly, 550 U.S. 544,555 (2007) (quotation omitted) (alteration in original). For a complaint to survive dismissal under Rule 12(b)(6), the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Id.at 570. This "flexible 'plausibility standard,' . . . obligates a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hastv, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis in original), cert. aanted, 128 S.Ct. 293 1 (2008). "[A] plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (quotation omitted) (alteration in original). In deciding a motion to dismiss, the court "must accept as true all of the factual allegations set out in plaintiffs complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally." Roth v. Jenninas, 489 F.3d 499,510 (2d Cir. 2007) (quotation omitted). However, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236,240 (2d Cir. 2002) (quotation omitted) (alteration in original). 2. "Emplover" Under the FLSA and NYLL The FLSA applies to all those who qualify as "employers," defined as "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. 6 203(d). Under the FLSA, an entity "employs" an individual if it "suffer[s] or permit[s]" that individual to work. Id.5 203(g). "This definition is necessarily a broad one, in accordance with the remedial purpose of the FLSA." Zhenn v. Liberty Apparel Co., 355 F.3d 61,66 (2d Cir. 2003). "The definition of 'employer' is similarly expansive under New York law, encompassing any 'person employing any [employee]."' Doo Nam Yann v. ACBL Corn., 427 F.Supp.2d 327, 342 (S.D.N.Y. 2005) (quoting N.Y. Lab. L. 5 2(6)) (alteration in original). To determine whether an individual qualifies as an "employer" under the FLSA, "the overarching concern is whether the alleged employer possessed the power to control the workers in question, . . . with an eye to the 'economic reality' presented by the facts of each case." Herman v. RSR Sec. Sews. Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (quoting Goldbern v. Whitaker House Coop., Inc., 366 U.S. 28,33 (1961)) (citation omitted). To assess the "economic reality" of the situation, courts evaluate whether the individual (I) was able to hire and fire employees; (2) controlled work schedules or employment conditions; (3) determined the rate and method of payment; and (4) maintained employment records. Id.; see also Zheng, 355 F.3d at 71-72 (noting that Herman factors are not exclusive). This same analysis applies to claims brought under the NYLL. See Cannon v. Dounlas Elliman. LLC, 06 Civ. 7092(NRB), 2007 WL 4358456, at '4 (S.D.N.Y. Dec. 10,2007). 3. Auulication To state a claim under the FLSA, plaintiff must allege that the Individual Defendants "possessed the power to control the workers in question." Herman, 172 F.3d at 139. Mere conclusory assertions are insufficient. See. e.e., Bravo v. Eastuoint Int'l. Inc., 99 Civ. 9474(WK), 2001 WL 314622, at *2 (S.D.N.Y. Mar. 30,2001) (granting motion to dismiss because plaintiffs' allegation that individual defendant was "the principle [sic] owner and chairperson" of corporate defendant would not "tend to establish her power to control the plaintiff workers"); Johnson v. A.P. Prods., Ltd., 934 F.Supp. 625,629 (S.D.N.Y. 1996) (granting motion to dismiss because plaintiff failed to allege that defendant had "substantial control over the aspect of employment alleged to have been violated" where complaint "merely allege[d] that [defendant] is manager of human resources . . . and that she . . . terminated [plaintiff]"). The complaint does not allege any facts regarding the positions held by the Individual Defendants or their power to control plaintiffs' hours, wages, or other terms and conditions of employment. The complaint merely alleges that "upon information and belief, Defendants were employers. . . within the meaning of the FLSA," and that "Defendants employed Plaintiffs within the meaning of the FLSA." (Compl. W 40-41; see also id. 7 29 (alleging that "Plaintiffs were employed . . . for Defendants"); plaintiff "was employed by the Defendants"); id.fl32-37 (alleging that each id.7 52 (alleging that "Plaintiffs were employed by the Defendants within the meaning of the New York Labor Law").) Such allegations are inadequate to state a claim because they are legal conclusions. See Twomblu, 550 U.S. at 555 ("labels and conclusions" or "a formulaic recitation of the elements of a cause of action" are insufficient to avoid dismissal under Rule 12(b)(6)). Plaintiff has not plead "enough facts to state a claim to relief that is plausible on its face." Id.at 570. For example, there is no allegation that any Individual Defendant had power to making hiring or firing decisions, control work schedules or employment conditions, determine the rate or method of payment, or maintain employment records. See Herman, 172 F.3d at 139. Indeed, the complaint does not even allege that the Individual Defendants held supervisory or managerial positions at CHMI. Thus, the complaint fails to adequately allege that the Individual Defendants were "employers" under the FLSA or NYLL. B. Leave to Amend Plaintiff seeks leave to amend the complaint. (&PI. Mem. at 7.) Leave to amend should be "freely give[n] . . . when justice so requires." Fed. R. Civ. P. 15(a)(2). But leave should be denied in the case of delay, bad faith, futility, or prejudice to the non-moving party. Foman v. Davis, 371 U.S. 178, 182 (1962); Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566,603-04 (2d Cir. 2005). First, to permit an amendment at this point would cause unjust delay. On September 26, 2008, the Court granted plaintiffs leave to amend their complaint by October 24, 2008, but plaintiffs declined to do so. (Doc. #I 1 (Civil Case Management Plan and Scheduling Order).) At this point, the deadline for the completion of fact discovery has passed (see,d )i. and granting leave to amend would prejudice defendants. Second, it appears that an amendment would be futile. Plaintiffs request leave to amend "in order to remove any named defendants judged not to be Plaintiffs' employers." (PI. Mem. at 7.) Such an amendment would not cure the defects in the complaint described above. I CONCLUSION For the foregoing reasons, the motion of Daniel Paritti, Tamara Romero, Anthony Woods, Guangnan Yi, Shuk P. Leung, Kwockching Ho, and Namtin Chan to dismiss for failure to state a claim is granted, and plaintiffs request for leave to amend is denied. SO ORDERED. United States District Judge Dated: New York, New York April 8,2009
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