MELL et al v. GNC CORPORATION, No. 2:2010cv00945 - Document 33 (W.D. Pa. 2010)
Court Description: MEMORANDUM OPINION granting 27 Motion to Dismiss. Signed by Judge William L. Standish on 11/9/2010. (cs)
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MELL et al v. GNC CORPORATION Doc. 33 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JENNIFER MELL and JOSE MUNOZ, individually and on behalf of those similarly situated, Plaintiffs, vs. Civil Action No. 10-945 GNC CORPORATION, a Delaware corporation, and GENERAL NUTRITION CENTERS, INC., a Delaware corporation, Defendants. MEMORANDUM OPINION Pending Corporation ("General Amended Civil be the and ("GNC") Nutrition") Complaint Procedure Court in a General (Doc. this is No. matter 12 (b) (6). For motion Nut 27), Defendants tion Centers, seeking pursuant the by to reasons to GNC Inc. dismiss Federal Rule discussed the of below, Defendants' motion is granted. I. BACKGROUND A. Factual History In normal circumstances, the Court would summarize the facts of the case according to the which the defendant seeks to have di version ssed. of the However, complaint to fully 1 Dockets.Justia.com understand compare Defendants' the initial arguments complaint herein, it is ("Complaint") and necessary the to amended version now in question (Doc. No. 22, "Am. CompI.") According to the Complaint, ntiffs, Jennifer Mell and Jose Munoz, were employees of Defendant GNC. 1 During the period between July and 2007 which the Complaint was filed, GNC retail stores, Syracuse, Ms. Mell New York area. excess of Forty (40) [his/her] the named PI July 16, in Maryland and Mr. Each and the date on Munoz in the Plaintiff "regularly worked in hours per week in one or more weeks during employment with Defendant." intiffs the they performed non-exempt work at (Compl Instead of paying overtime wages, 14.) 2007, putative members nt, <]I<]I 1-3, 13- Defendant misclassified of the collective action ass as "Managers" and considered them exempt from the overtime provisions U.S.C. records § of the 201 et seq. of Fair Labor ("FLSA.") Plaintiffs' actual Standards Moreover, start Act, GNC times, worked each day, and hours worked each week. Plaintiffs sought to represent a as amended, iled to maintain stop times, Id., <]I<]I ss of hours 17-18.) similarly situated former and current GNC employees "who have worked in the position of 'Manager' at any of Defendant's stores in the United States and have worked in excess of Forty (40) hours during one or In the initial complaint, the only defendant identified was GNCi General Nutrition was added as a defendant in the Amended Complaint. 2 29 more work weeks between July 2007 and the present but did not receive time and a half of their regular rate of pay for all of the hours they worked over Forty (40) in one or more work weeks," including work weeks while Plaintiffs and the similarly situated employees were in training for the position of 'Manager.' (Complaint, As hours 11-12.) relief, Plaintiffs worked in excess of sought overtime entitled fees, to liquidated and prej udgment for 40 per week during their employment with GNC dating back to July 2007. were knowing and willful, compensation Because Defendant's actions Plaintiffs also claimed that they were damages, costs, reasonable interest. (Complaint, GNC a 21, attorneys' and prayer for relief at 5-6.) After Defendant Procedural History below), in which they alleged filed motion to dismiss (see Plaintiffs filed an Amended Complaint that they "performed non-exempt work" while in "Manager" positions. Ms. until about December 2008; Munoz was employed from 2004 about December 2008. (Am. Mr. Compl., Mell was employed from 1983 2-3.) to They each worked more than 40 hours a week and were entitled to overtime salary because their positions were classified as non-exempt. 18.) on a GNC's Each Plaintiff and member of the putative class was paid salary basis and was "eligible to be paid overtime under uniform compensation system for 3 calculating overtime due salaried employees. 1/ (Am. Compl. , Cj[Cj[ 19-20.) However, Defendants iled to credit and pay overtime hours properly for all of the overtime hours worked by Plaintiffs and other workers in the asserted class, due in part to a policy or practice by [Defendants] of requiring or suf ring Plaintiffs and such workers to work through lunch while off the clock, to work scheduled overtime hours while off the clock, and to work additional hours or shifts while off the k, all as part of a pervasive system to control overt expense. (Am. Compl., 21.) Cj[ Plaintif specifi the (Id., assert they "cannot precisely allege with ty" the number of uncompensated hours or the extent of inaccuracies Cj[ that 22.) in Defendants' records without discovery. Moreover, [b] ecause the pay system at issue calculates overtime at a different rate for each workweek with varying hours and varying regular pay (including incentives that are part of regular pay), Plaintiffs cannot pre sely allege with specifi ty the overtime pay rates applicable to each workweek at issue without further discovery of the lar pay made to Plaintif each week, including varying incentive payments included in regular wages from time to time, and extent of uncompensated hours. (Am. Compl., The Cj[ 23.) allegations that Defendants knowingly and willfully failed to adhere to the provisions of the FLSA and the prayer for relief in the Amended Complaint original Complaint. 4 are the same as in B. Procedural History As noted above, intiffs filed a putative collective action suit in this Court on July 16, 2010. Defendant filed a motion to dismiss On August 10, (Doc. No.6), 2010, arguing that the Complaint did not provide sufficiently detailed all to satisfy the requirements of Bell Atl. U.S. 544 1937, Corp. u.s. (2007), and 173 L. Ed. v. 2d 868 (2009). to the motion to dismiss ions Twombly, , 550 129 S. Ct. Instead of filing a response as directed by the Court, PIa iffs filed the Amended Complaint summarized in the previous section. On September 28, motion to dismiss, 2010, Defendants filed the now-pending arguing that the Amended Complaint should be k of specificity. dismissed for the same thoroughly briefed their positions, The part shaving the motion is now ripe r decision. II. JURISDICTION AND VENUE This Court pursuant to 28 U.S.C. appropriate headquartered U.S.C. § in and ju has § this there sdiction over 1337 and 29 U.S.C. inasmuch strict re "reside" 1391(b). 5 in Plaintiffs' § 216(b). cl Venue is as Defendants this district. are 28 III. STANDARD OF REVIEW Federal Rule of Civil Procedure pleading which "states a claim for (2) 8(a) requires that a relief must contain. a short and plain statement of the claim showing that the pleader is entitled to relief." "[e]ach allegation must be The Rule further provides that simple, "[n]o technical form is required." touchstone of Rule 8 (a) (2) concise, and Fed. R. Civ. direct" P. 8(d). but "The is whether a complaint's statement of s is adequate to suggest an entitlement to reI f under the legal theory invoked and thereby put the defendant on notice of the nature of the Antitrust Litig., *46, n.18 plaintiff's claim." 618 F.3d 300, 2010 U.S. App. LEXIS 17107, *45- (3d Cir. Aug. 16, 2010) ) , citing Twombly, 550 U.S. at 565, n.10. In aftermath the of Twombly and Iqbal, and interpretation of those two cases by the United States Court of the Appeals for the Third Circuit in a series of p 1 opinions, the pleading standards which allow a complaint to withstand a motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (b) (6) Beginning in have taken on slightly new parameters. v. County of Allegheny, 515 F. 3d 224 (3d Cir. 2008), the Court of Appeals noted, "After is no longer sufficient to allege mere elements of a cause of 6 action;' instead [the proscribed] ______ 550 U.S. 'a complaint must allege conduct.'" at 563, 515 n.8 s suggestive F. 3d at (alteration in 0 233, ginal.) "[c]ontext matters in notice pleading," the that "some complaints will allegations to make out a to the relief, . in order to at quoting Because Court held least some factual 'showing that the pleader is entitled give the defendant fair notice of what claim is and the grounds upon which it rests.'" quoting Twombly, 550 U. S. York, 564 F.3d 636, In the require Fowler v. Court conclusory of 646 at 555; see also McTernan v. Id. City of (3d Cir. 2009). UPMC Shadyside, Appeals of noted "bare-bones" that 578 F.3d 203 (3d Cir. 2009}2 and Iqbal, following allegations unlawfully harmed meU no longer suffice. that A "the defendant 1 complaint must now include "sufficient factual matter to show that the claim is 2 We recognize that the Court of Appeals may have stepped back somewhat from its discussion in Fowler, 578 F.3d at 211, which described Twombly and Iqbal as having "repudiated" the earlier Supreme Court decision in Swierkiewizc v. Sorema N.A., 534 U. S. 506 (2002) (see Brokerage Antitrust, 2010 U.S. App. LEXIS 17107, *43-*44, n.l7), but the two-step process described by the Court of Appeals in Fowler remains the standard the reviewing court must apply. See, e.g., Culinary Serv. of Del. Valley, Inc. I v. Borough of Yardley, No. 094182, 2010 U.S. App. LEXIS 13485, *9*10 (3d Cir. June 30, 2010), stating, "First, we must distinguish between factual allegations and conclusions in the complaint; second, if the complaint sets forth wellpleaded factual allegations, we may assume their and draw inferences favorable to the nonmoving party, but then must determine whether the factual allegations show an entitlement to relief. This is essentially a summation of the process described in Fowler as quoted in the text above. II 7 facially plausible." 550 u. s. "labels at and 555, Fowler, holding conclusions" elements of a 578 F.3d at 210; that or a "a complaint formulaic cause of action will not do." see also Twombly, which offers recitation of only the The Fowler court further directed that after Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to show such an entitlement with its facts. As the Supreme Court instructed in Iqbal, "[w] here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Fowler, 578 F.3d at 210-211 The Court of Appeals (quotations and citations omitted.) explained the logic approach in Great Western Mining & Mineral Co. v. behind Fox Rothschild LLP, 615 F.3d 159 (3d Cir. 2010), stating that "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. .When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." With respect to conclusory allegations, the [Supreme] Court 8 this clari ed that "we do not reject these bald allegations on the ground that they are unrealistic or nonsensical. .It is the conclusory nature of [such] allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth." 615 F.3d at 177, quoting Iqbal, 129 S. Ct. at 1950-1951. Thus, a motion current formulation of the standard of to dismiss under Rule 12(b) (6) asks the determine if the plaintiff's claims are "plausible. has 1 fa plausibility when the plaintiff court to "A claim /I pleads ctual content that allows the court to draw the reasonable in that Iqbal, Auto. the defendant 129 S. Ins. Ct. Co., is liable at 1949i 583 F.3d for the misconduct also Gelman v. see 187, 190 (3d Cir. alleged./I State Farm Mut. 2009); Belichick, 605 F.3d 223, 230 (3d Cir. 2010)i and Bob v. Kuo, No. 20-1615, 2010 U.S. App. LEXIS 14965, (quoting standard 'asks defendant has id. for for more acted the * 4 (3d Cir. July 20, 2010) idea than a unlawfully. that sheer '/I) "[t]he plaus possibility "[W]hat lity that suffices a to withstand a motion to dismiss necessarily depends on substant law and the elements of the specific claim asserted./I Antitrust, will 2010 U.S. App. LEXIS 17107, demand relatively more factual 9 * 46, n.18. detail to Some satis aims this standard, Doe, whi others require less. 604 F.3d 110, 120 Supreme Court's pleading recent Rule 8 (Internal As noted regime of in era, a discovery for a the but held omitted; 8 not that heighten complaints alteration "marks a in the notable and hyper-technical, code-pleading does the it armed not unlock with nothing 129 S. Ct. at 1950. states a plausible claim for a compla did needed to render a claim Rule pIa inti ff conclusions./I Iqbal [where] quotation from generous decisions and "require factual amplification original. } Records LLC v. (2d Cir. 2010), stating that although the requirements, plausible." See Arista doors more of than "Determining whether relief will. .be a context specific task that requires the reviewing court to draw on its judi al 2010 Antitrust experience U.S. App. and LEXIS common 17170 at sense./I *177, quoting -I - " ' - - id.; McTernan, 577 F.3d at 530 (same.) The t's Third latest direction is that "[w [e must accept as true the ual allegations in the complaint and all reasonable that require in more rences than Dawson v. enhancement." LEXIS 21278, mere *2 quotations omi can be assertions Frias, devoid CA No. (3d Cir. Oct. 14, .) drawn 2010) therefrom, of 10-2200, but further 2010 U.S. we ual App. (internal citations and "The assumption of truth does not apply, 10 however, to to legal concl usions couched as factual allegations or '[t]hreadbare recitals of the elements of a cause of action, supported by mere Farm Mut. App. Auto. Ins. LEXIS 17033, 129 S. ct. because facts at conclusory statements.'" *3-*4 1949. it appears or Co., will Nos. 09-3868 (3d Cir. Aug. Bamigbade v. and 9, 09-4229, State 2010 u.S. quoting Iqbal, 2010), "A complaint may not be dismissed merely unlikely that ultimately the plaintiff prevail on the can prove those merits. The Supreme Court's formulation of the pleading standard in Twombly does not impose a instead probability simply requirement calls for at enough the facts pleading to raise stage, a but reasonable expectation that discovery will reveal evidence of the necessary element." omitted. ) 564 F.3d stage of McTernan, At this at the 646 (internal litigation, the quotations Court determine if Plaintiffs have sufficiently pled their claims, whether they can prove them. Servo *10 IV. of Del. Valley, No. Fowler, 09-4182, 578 F.3d at 213; 2010 u.S. App. must not Culinary LEXIS 13485, are covered (3d Cir. June 30, 2010) DISCUSSION Defendants do not dispute the fact that they employers who are required by the FLSA to pay wages at the rate of one and one-half time the regular rate to certain employees for all time worked in excess of 11 forty hours a week. See 29 u.S.C. 203 (d) § dismissal of and the (2), 207 (a) (I). § Amended Their sole argument for Compla with We begin our analysis by assuming, argue otherwise, that the Amended ., 303 F.3d 271, supe s the original ure the 276 course of (3d Cir. version a is since Plaintiffs do not Complaint replaces See Snyder v. the original complaint. enti prejudice 2002) in its Pascack Valley ("An amended complaint in providing the blueprint lawsuit.") We therefore for ignore the allegations Plaintiffs made in the original complaint that they were mis-classified as managerial overtime provisions of the FLSA, in the Amended Complaint that employees, exempt from and will accept the allegation they were entitled to overtime wages because their positions were non-exempt. We next turn to the elements entitlement to overtime pay under that in To state all a the claim that: (1) analysis under defined de by the FLSAi and but paid was U.S.C. § a prima facie case of based on the direction context-specific 216(b), a plainti task. must the defendant was "engaged in commerce" as that is week a FLSA, should be 29 phrase a of by not the FLSAi (3) (2) he was an "employee" as he worked more than forty hours in overtime 12 compensation for the hours worked in excess of forty. Supp.2d the 5, 628 (S.D. Zhong v. August August Corp., N.Y. 2007). Defendants 498 F. do not dispute rst two elements. Following how and precisely complaint. the The Iqbal, element third Third courts must Circuit be Court explicitly addressed this question, applied a have but of been ded on alleged Appeals in the has not some other courts have irly generous standard which allows the pIa iff to proceed with little more than a statement of the elements of a claim. e. g., 0229, 2007 2007) (pI U.S. Uribe v. Mainland Nursery, Dist. LEXIS 90984, *7-*8 Inc., (E.D. CA No. Cal. Dec. 0711, iffs who alleged they were non-exempt employees who had not been compensated at the appropriate overtime rates had the "liberal standard" of Twombly); satis CA No. 11751, *21 *22 06-491 (E.D. La. et al., Feb. 13, 2009) Xavier v. 2009 U.S. overtime compensation, No. *11 were overtime i 2009 U.S. 9, 2009) to work compensation, they were not paid and Qureshi LEXIS 48142, at *10- (plaintiffs' allegations in excess and Dist. that of a they forty-hour were LEXIS I and were covered employees); 08-3154, (S.D. Tex. Jun. Dist. (plaintiffs routinely worked more than forty hours per week, Belfor week employed "they without by defendants" were sufficient to state a claim under the FLSA.) 13 the Other courts allegations. complaint worked have e.g., See, should, for which at overtime, to pay Villegas 19265, wages was FLSA); Harding v. st. LEXIS 72851, that the wages Supp. not hours Chase managers (N.D. that Co., Cal. insufficient *8-*9 (S.D. willfully Inc., Cal. 2009) a CA No. failed failed that its the face"); 2009 u.S. (plaintiff's claim 09-1212, 18, to paid properly computed state Aug. and 09-261, 9, v. to avoid paying on rece to not repeatedly" CA No. she did not hours Iowa 2008) were records Mar. ("the the (S.D. "implausible & 628 received); Jones actually worked, was factual 2d at allege "regularly and Time Warner, employer were assistant wages *13 "factual" statement F. keep accurate time J.P Morgan LEXIS overtime that all overtime v. 498 detailed approximately, defendant failed to plaintiffs Dist. the plaintiff defendant least more 538 F. Supp. 2d 1094, 1102 alleging that Zhong, [overtime] 's Gen. Stores (complaint required 2009) "pay under the 2009 U.S. (allegations and properly of all hours worked calculate overtime," "keep accurate reco by its employees," and "provide all wages in a compliant manner" ions as defined by were "conclusory al assigned "no weight"); Acho v. Cort, No. LEXIS 100064, alleged the *7 *8 (N. D. dates of Cal. his Oct. 0 27, employment, 14 and would be 157, 2009) 2009 u.S. Dist. (where plaintiff described his job responsibil correct in his generally wages, not ies sufficiently for the court to infer that he was description of alleged failure s of position the as non-exempt, fendant to pay and overtime his complaint would survive dismissal even though he had identified the specific dates on which he allegedly worked overtime); Connolly v. 2009 U.S. Dist. (complaint alleged, LEXIS survived "as best in 10-158, 104991, motion [as] in some work weeks, hours Smugglers Notch Mgmt. Co., CA No. U.S. 2010) (general hours per dismiss Vt. Nov. where the [she] Dist. Anderson v. LEXIS ions and Blockbuster, 53854, that *6-*7 aintiff defendants "will ly (W.D. L.P., Tex. CA No. July plaintiffs truth") 13, alleged 10 Solis v. 31,2010 U.S. 2010) the i (complaint approximate Warner st. LEXIS survived number 2010 U.S. Dist. (plaintiffs tas and fai LEXIS 101761, to state *10-*11 a Chri (D. claim when 15 4, than 40 pay all they 69876, San *6 where overtime hours CA Mass. Cable dismissal of i to May . not entitled worked per week and provided a list of employees' identities); Cal. failed Time of CA No. worked more to Antonio, plaintiff Inc., (E.D. [and]. assumption 2009) worked 60 70 hours overtime" were "no more than conclusions the 5, worked 50 hours in other weeks and up to 45 al week to (D. she can recall, other weeks"); 2010 *5-*7 09-131, titles and/or No. S did 09 11466, 27, not 2010) allege approximately how many hours they worked per week and their hourly rate or weekly wages.) Some and cases those Stark v. Dist. distinguish brought on Audio Mktg. LEXIS 99510, behalf the FLSA purportedly *12 Stark was and applied suing of a Solutions, that Harding and Jones, under between (D. only putative Inc., Neb. supra, overtime class. CA No. Sept. 21, claims e. g. , See, 10-3150, 2010) 2010 U.S. (recognizing both involved collective actions contained to individual "generalized the entire class for himself and of allegations that plaintiffs," while could proceed without alleging specific dates or numbers of hours he worked overtime); Goal v. Retzer Res., 119352 *10-*12 Inc., (E.D. CA No. Ark. Dec. 09-137, 2009 U.S. 22,2009) Dist. (making LEXIS the same distinction as Stark and allowing the case to proceed where the plaintiff had made specific allegations about his own work history. ) In the absence of specific guidance from the Third Circuit Court of Appeals on this issue, we will consider whether, based on common facts our judicial experience and sense, sufficient have been pled that will allow us to conclude that there is more to Plaintiffs' harmed us." Fowler, allegations than a We begin, simple claim that "defendants as directed by the Court of Appeals by distinguishing between the well-pleaded facts 16 in of the Amended Complaint and the legal conclusions. We arrive at the following list of factual allegations: • Ms. Mell worked GNC retail stores in Maryland (apparently at a number of locations) between 1983 and December 2008; • Mr. Munoz worked in the Syracuse area at GNC outlets between 2004 and December 2008; • Both aintif were ent led to overtime salary because their positions , although entitled "Manager," were classified as non-exempt; • GNC had a "uniform compensation system for calculating overtime" for salaried employees (from which we infer that both Plaintiffs were paid on a salary rather than hourly basis); • The GNC pay system in question "calculates overtime at a different rate for each work week with varying hours and varying regular pay (including incentives that are part of regular pay)"; and • GNC had a policy or practice of requiring or allowing Plaintiffs and other members of the putative class to work "0 the clock" during lunch periods, scheduled overtime, and "additional hours or shi s." The allegations here are almost identical Deleon v. Time Warner Cable LLC, CA No. 09-2438, LEXIS 74345 (C. D. Cal. July 17, 2009). to 2009 U.S. There, alleged that during the relevant time period, the in excess of twelve (12) excess forty a of (40) hours in 17 hours week" in a and in Dist. plaintiff he and the other class members "consistently worked in excess of eight in a day, those day, that the (8) hours and/or in employer "willfully required" him and the class members meal periods and rest periods, but that work. Id. collective at *6. actions pleadings," the can Where Deleon f, iled to compensate them for Deleon rest complaint about Plaintiff hims *7. The to work during on court noted that more generalized "somewhat "should lege more specific if not about the entire class." did no more than while "regularly facts Id. at te[] the statutory language setting forth the elements of the claim and then slavishly repeat [] factual the statutory language as the purposed allegations," 'factual content' to he had allow the to court to "plead make a reasonable Defendants by Plaintiff." Id. at *7-*8, citing Igbal and Twombl . threshold he on our analysis requirement that of the liable for the sufficient inference that Based [were] iled similar cases complaint must claims alleged reiterating possess U.S. at 557), " that to facts establish lity of misconduct" Defendants had a policy or their employees to work "off the clock." to provide any unless we practice by ght. In accept of as a requiring Plaintiffs have failed ctual allegations to support 18 that leged we cannot even infer from the Amended Complaint that there " fail the fact, "mere poss Munoz that iffs a and conclude PIa was Mell we "enough (see Twombly, "to establish the plaintiff's right to relief 550 the s claim. For example, they provide no information about who advised them of this policy, when the were told they were required to work "off clock" or what imposed, work consisted of, approximately wi thout being pa how many hours and whether either how each the week policy was they Plaintiff or worked any other GNC employee complained to a supervisor about the practice and, if so, what GNC's response was. Plaintiffs about the timekeeping practices of GNC, provide no facts for instance, was there literally a time clock that employees used to record their time y understood that regular working hours would be or was it s from, say, 10 a.m. to 6 p.m.? Second, although P ifici ty" the number of uncompensated hours they state "with worked, vague they do not of ion descr calculating intiffs allege that they are unable to of overt neither Plainti 1/ r an approximation of such hours or a the for "uniform salaried For for example, worked that could be used to refute the hours recorded by Defendants. by the employees. system alleges that he or she kept a personal diary of the hours actual is meant compensation There is no explanation of what pay system allegedly used by Defendants that "calculates overtime at a different rate for each workweek with varying hours and varying regular pay (including incentives that are part of regular While pay)." 19 the Court agrees that discovery might get copies be of the necessary in order for rmer "uniform compensation system" policy, they would be able to estimate the time periods worked overtime compensation. without proper Vermont, CA No. Aug. 5, 2010) 10-32, 2010 U.S. employees to surely in which they See Beaulieu Dist. LEXIS 101192, *17 v. (D. Vt. (while a complaint cannot be expected provide the precise days and hours for which the plaintiff was not paid at overtime rates, "a critical component of a complaint alleging violations of Section 207 is an approximation of the number of unpaid hours weekly overtime see also Pruell, period"); worked 2010 U.S. over Dist. the LEXIS employment 101761 at *11 (plaintiffs could not avoid pleading obligations by arguing that the defendant had better access to information concerning hours worked or wages paid; they should have pled approximations of those facts based on "information and belief.") Next, Plaintiffs have alleged pervasive system to control suffering" 21), By its defendants in had combination Twombly, 550 Defendants or "a (Am. Compl., <]I to provide any details about this "system." Twombly, entered the into conspiracy" U.S. adopted overtime expense" by "requiring or employees to work off the clock but they fail analogy, that at 551 plaintiffs at to least two prevent (internal 20 had or alleged types reduce quotation of that the "contract, competition. marks omitted.) The Supreme Court conclusory found, statement however, that claim," was of "[w]ithout more, .a conclusory this sort insuffi allegation some unidentified point does not supply facts Id. illegality." unsupported expense" at claims to be 561, of a were the Here, of ent of because agreement adequate we system to type "wholly find at to show Plaintiffs' control conclusory overtime allegation Court. we "knowing" "pervasive exactly rejected by the Finally, 556-556. of find and the allegations "willful" are that Defendants' inadequately pled. actions Claims under the FLSA must be filed within two years after the cause of action was accrues "willful" reckless used U.S. in within that is, disregard r prohibi ted by 486 or 128, the Mitchel the the (1988), § 255{a). violation of the FLSA, alleged." if statute." 133 29 U.S.C. three v years if employer matter of the alleged violation "either whether McLaughlin v. interpreting "To state its word or showed conduct Richland the a knew Shoe was Co., "willful" claim for a as willful more than an ordinary violation must be C&S Wholesale Grocers CA No. 10- 2354, 2010 U.S. Dist. LEXIS 68269, *12 (D. N.J. July 8, 2010), citing Frasier v. General Electric Co., 930 F.2d 1004, 1009 (2d Cir. 1991), and I kossi Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 553 21 (5 th Cir. 2009). To satisfy "it is insuf I conduct was ual willful; the allegations support more Here, cient to merely assert that the employer's in Court the there are look complaint than an ordinary however, must at to the see if FLSA violation." no factual of complaints to allegations supervisors about they could Mi tchell, support a claim that the violations were willful, reports underlying which id. would for example, having to work 0 the clock which were rebuffed or ignored. We conclude dismissed for to "nudge that or to claims across raise their speculative level." 550 u.s. cautioned, at Amended lure to supply factual [their] plausible" Plaintiffs' 555 Phillips, and however, 570. the Complaint allegations line "right from to Courts in this to the quoting Twombly, Circuit have been that it is error to dismiss a case out of giving the plaintiff an opportunity to complaint. Phillips, vulnerable to 12 (b) (6) futile.") sufficient "above hand without curative amendment, be conceivable relief 515 F.3d at 234, must 515 F.3d at 236 ("if a amend the complaint is dismissal, a district court must permit a unless an amendment would be inequitable or Plaintiffs in this case have not only been given an opportuni ty to amend their initial complaint, GNC' s motion to dismiss that complaint explicitly pointed out the defects which made it inadequate. Plaintiffs have done little or nothing to 22 resolve those shortcomings in the Amended Complaint Court must conclude that they are unable to do so. and The Amended Complaint is therefore dismissed with prejudice. An appropriate Order follows. November __r_'_, 2010 , 23 the William L. Standish United States District Judge
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