Opinion
22-CV-02216 (PAE)(KHP)
11-28-2022
RAFAEL BUENO, DAVID RIVERA, VIERI MOLINA, DESTINY DOMINGUEZ, AMADA REYNOSO, JANE DOE I-X, JOHN DOE I-X, NANCY SANTOS, YASMIN NUNEZ, EVELYN JACO, and VANESA WILLIAMS Plaintiffs, v. ALLA B. BUZINOVER, M.D., ALLCITY MEDICAL, P.C., HISPANIC MEDICAL HEALTH, P.C., K. ZARK MEDICAL, P.C., KONSTANTINOS ZARKADAS, and YAN FELDMAN, Defendants.
HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON MOTION TO DISMISS
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE
Plaintiffs are physicians' assistants and other individuals who worked in medical offices who contend that they were not paid minimum wage and overtime in accordance with federal and state law, were manual workers who were not paid weekly in violation of state law, and who were not provided accurate wage notices and statements in violation of state law.
The late payment of wages and overtime claims are limited to Plaintiffs Vieri Molina, Destiny Dominguez, Amada Reynos, Vanesa Williams, Nancy Santos, and Eveyln Jaco. (SAC ¶¶ 45-50, 64-70, 71-76)
All of the Defendants except Dr. Konstantinos Zarkadas have moved to dismiss the Second Amended Complaint (“SAC”) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, I respectfully recommend that the motion to dismiss be granted in part without prejudice and otherwise denied as set forth below.
FACTS ALLEGED IN THE COMPLAINT
Plaintiffs allege they worked for three medical offices, Defendants Allcity Medical, P.C. (“Allcity”), Hispanic Medical Health, P.C. (“HMH”), and K. Zark Medical, P.C. (“KZark”), which were located in New York City and Long Island.(SAC ¶ 2.)
The SAC conclusorily asserts that the three entities shared five addresses but also identifies a unique “principal” location for each. The addresses are 2814 Clarendon Road in Brooklyn, 345 West 145th St. in New York City, 575 West 161st St. in New York City, 5041 Broadway Ave.in New York City, and 1 Walnut Rd. in Glen Cove, New York. (SAC ¶¶ 14, 15, 16.)
Allcity was principally located at 2814 Clarendon Road in Brooklyn. (SAC ¶ 7.) Defendants Dr. Alla B. Buzinover, Dr. Konstantinos Zarkadas, and Yan Feldman are alleged to be the owners of Allcity. (SAC ¶ 8.) According to Plaintiffs, all three of these individual defendants “personally managed and oversaw the day-today operations of Allcity” and were “together, responsible for all matters with respect to determining employees' rates, methods of pay, and hours worked.” Id. Additionally, all three are alleged to have had “the power to hire and fire and approve all personnel decisions with respect to Allcity” employees and responsible for paying the employees and maintaining employment records. Id. The SAC later suggests that only Zarkadas was the on-site manager who operated the medical office on a day-to-day basis and that Buzinover and Feldman were “off-site managers, who had the power to hire and fire, determine employees' rates, methods of pay, and hours worked.” (SAC ¶¶ 17, 18.)
KZark was principally located at 575 West 161st St. in New York City. (SAC ¶¶ 9, 15.) Only Defendant Zarkadas was the owner of KZark and onsite manager. (SAC ¶ 10.) He “personally managed and oversaw the day-to-day operations” of KZark and was “responsible for all matters with respect to determining employees' rates, methods of pay, and hours worked.” Id. He had “the power to hire and fire and approve all personnel decisions” of KZark. Id. He was responsible for paying employees and maintaining their employment records. Id. The SAC conclusorily asserts that Buzinover and Feldman were “off-site managers [of KZark], who had the power to hire and fire, determine employees' rates, methods of pay, and hours worked.” (SAC ¶ 18.)
HMH was principally located at 5041 Broadway in New York City. (SAC ¶ 11.) Only Defendant Zarkadas was the owner of HMH and onsite manager. (SAC ¶ 12.) He “personally managed and oversaw the day-to-day operations” of HMH and was “responsible for all matters with respect to determining employees' rates, methods of pay, and hours worked.” Id. He had “the power to hire and fire and approve all personnel decisions” of HMH. Id. He was responsible for paying employees and maintaining their employment records. Id. The SAC conclusorily asserts that Buzinover and Feldman were also “off-site managers [of HMH], who had the power to hire and fire, determine employees' rates, methods of pay, and hours worked.” (SAC ¶ 18.)
1. Facts Specific to Plaintiffs Rafael Bueno and David Rivera
Plaintiffs Rafael Bueno and David Rivera are Physician Assistants who were employed by all three Defendant entities from November 2019 to December 2021 but “primarily worked” in the Defendants' New York City-based medical offices. (SAC ¶¶ 19-20, 29.) They assert that they were required to work an average of forty hours per week and on occasion in excess of forty hours in a week. (SAC ¶ 2.) They do not specify any particular weeks in which they worked overtime or the amount of overtime hours they worked.
Regardless, they do not appear to be asserting overtime claims. See supra note 1.
Unlike the other Plaintiffs, Rivera and Bueno each signed individual contracts of employment. (SAC ¶¶ 21-22.) Each contract purported to be between and among the plaintiff, KZark, HMH and Allcity. Zarkadas signed the employment contracts on behalf of KZark and HMH, but no person signed the contract on behalf of Allcity and “no one held themselves out as an owner or representative of [Allcity] to Plaintiffs Rafael Bueno or David Rivera.” (SAC ¶¶ 2324.) However, the SAC later asserts that Feldman told Plaintiffs Bueno and Rivera that “he built” Allcity and “kept it running” and that Bueno and Rivera “had to accept pay cuts and continue working for Defendants or he would sue” for having Zarkadas removed from the Health Maintenance Organization capitation panels. (SAC ¶ 34.) The SAC also asserts that Feldman told Bueno that Bueno “could not use his two remaining weeks of vacation.” (SAC ¶ 36.)
Bueno and Rivera allege they did not receive pay for their last two weeks of employment (the last pay period). (SAC ¶ 25.) They state that they were not provided with accurate wage notices at the time they were hired because the notices did not list their rate of pay or their employers' official names and addresses. (SAC ¶ 26.) They also state that their wage statements were inaccurate because they too did not include their employers' names and addresses, their rates of pay or gross wages. (SAC ¶ 27.) Their paychecks, however, listed their employer as KZark, HMH or Allcity. (SAC ¶ 28.) The SAC does not state the dates when each entity was listed as their employer/issued checks.
Bueno and Rivers assert that “throughout their employment” they complained about not being paid on time or not being paid at all. (SAC ¶ 30.) The SAC is silent on the dates of these complaints, the dates of the late payments and, with the exception of the last pay period, the dates of any other pay periods when they were not paid at all. However, it states that on December 21, 2021, Bueno met with Zarkadas and told him he could not work for “Defendants” if he was not going to be paid and that he could not work under Zarkadas' supervision because he had committed a crime for which his medical license would be revoked. (SAC ¶¶ 31-32.) On or about January 13, 2022, Zarkadas threatened to sue Bueno and Rivera if they practiced medicine for other medical practices. (SAC ¶ 33.)
Zarkadas was convicted of certain crimes related to his medical practice in a criminal case in the Eastern District of New York encaptioned. U.S. v. Zarkadas, M.D., 21-cr-00363 (GRB). Zarkadas was removed from Health Maintenance Organization capitation panels because of this criminal conduct. (SAC ¶ 35.)
2. Facts Specific to Remaining Plaintiffs
Plaintiff Yasmin Nunez was hired in October 2018 by Zarkadas to work as a Physician Assistant in Glen Cove, New York. (SAC ¶¶ 37-38.) She asserts that she was paid late each pay period and not paid at all for her last pay period in December 2021. (SAC ¶ 39.) The SAC does not state which Defendant entity issued her paychecks or her basis for saying she was employed by all three Defendant entities.
Zarkadas hired Plaintiffs Vieri Molina, Destiny Dominguez, Amada Reynoso, and Vanesa Williams in November 2019 to work as medical assistants and/or front desk clerks. (SAC ¶ 40.) The SAC is unclear whether these Plaintiffs served in both the medical assistant and front desk clerk positions simultaneously or at different times or whether they held only one of the two positions. The SAC does not state the location where these Plaintiffs worked. The SAC also does not state which Defendant entity issued these Plaintiffs' paychecks or their basis for saying they were employed by all three Defendant entities.
Zarkadas hired Plaintiff Nancy Santos in November 2020 to work as a medical assistant and/or front desk clerk. (SAC ¶ 41.) Zarkadas hired Plaintiff Evelyn Jaco in January 2021 to work as a medical assistant and/or front desk clerk. (SAC ¶ 42.) The SAC is unclear whether these two Plaintiffs served in both the medical assistant and front desk clerk positions simultaneously or at different times or whether they held only one of the two positions. The SAC does not state the location where these two Plaintiffs worked. The SAC also does not state which Defendant entity issued these Plaintiffs' paychecks or the basis for saying they were employed by all three Defendant entities.
According to the complaint, Molina, Dominguez, Reynoso, Williams, Santos, and Jaco's “roles as medical assistants and/or front desk clerks required them to spend more than twenty-five percent of their time performing manual work, such as drawing blood, taking blood pressure, filing medical records, and organizing medical equipment and supplies.” (SAC ¶ 43.) These Plaintiffs assert they were paid late each pay period and not paid at all in their last pay period. (SAC ¶ 44.) It later states that Defendants “made Plaintiffs wait over a month for wages earned” but does not state when this happened. (SAC ¶¶ 88, 92.) These Plaintiffs assert they worked “an average of forty hours per week or on occasion in excess of forty hours per week.” (SAC ¶ 2.) Each states she worked ten hours of overtime in each of the last two weeks of their final pay period in December 2021 but were not compensated for that overtime. (SAC ¶¶ 2, 45.) They do not specify any other weeks in which they worked overtime or the amount of overtime worked in any other weeks of their employment. The SAC states generally that “on each payday” Defendants “failed to furnish Plaintiffs with any wage statements, let alone with wage statements that accurately contained the criteria required” under New York law. (SAC ¶ 80.) It also states generally that Defendants failed to provide new hire wage notices to Plaintiffs as required by New York law. (SAC ¶ 85.) Unlike the allegations of Bueno and Rivera, the SAC does not specify how the wage notices of these other Plaintiffs were defective. The SAC states that all of the Plaintiffs were paid every two weeks, which is inconsistent with the allegation that the Plaintiffs were paid late each pay period. (SAC ¶ 8.)
LEGAL STANDARD
A complaint “does not need detailed factual allegations” to survive a Rule 12(b)(6) motion to dismiss, but the plaintiff must provide facts that plausibly suggest an entitlement to relief - “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action” is required. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up). So too, Federal Rules of Civil Procedure 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When deciding a motion to dismiss for failure to state a claim, the court must accept as true all factual allegations in the complaint. Erickson v. Pardus, 551 U.S. 89, 94, (2007) (per curiam). Additionally, it must draw all reasonable inferences in plaintiff's favor and must confine its review to the pleading, documents incorporated therein by reference, and matters of which a court may take judicial notice. Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021).
DISCUSSION
1. Standing to Assert Claims for Violations of New York Wage Theft Protection Act
Although Defendants have not raised standing in their motion to dismiss, because standing goes to the constitutional limitations on the court's power to adjudicate matters, the court may raise standing at any time sua sponte. Green Haven Prison Preparative Meeting of Religious Soc'y of Friends v. New York State Dep't of Corr. & Cmty. Supervision, 16 F.4th 67, 78 (2d Cir. 2021), cert. denied sub nom., 212 L.Ed.2d 763, 142 S.Ct. 2676 (2022); Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC, 433 F.3d 181, 198 (2d Cir. 2005). In the wake of the U.S. Supreme Court's case in TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2203 (2021), which addressed the “injury in fact” requirement for Article III standing, a number of recent decisions have evaluated whether plaintiffs asserting claims under the New York Labor Law (“NYLL”) had standing to assert such claims. In light of these cases and the Supreme Court's decision in TransUnion, the Court addresses first the important issue of standing.
In TransUnion, the Supreme Court held that a plaintiff cannot rely on the fact that the defendant committed a statutory violation to show standing because an “injury in law” does not amount to an “injury in fact” for purposes of Article III standing. 141 S.Ct. at 2205. Rather, a plaintiff must plead a “concrete” harm such as physical harm, monetary harm or another intangible harm from the violation. Id. at 2200 (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 34041 (2016)). Even when the harm is an “informational injury,” the plaintiff still needs to show the “downstream consequences” experienced “from failing to receive the required information.” Id. at 2214 (citation omitted); accord Kola v. Forster & Garbus LLP, 2021 WL 4135153, at *7 (S.D.N.Y. Sept. 10, 2021) (holding plaintiff did not show “concrete harm” after receiving a misleading letter from a debt collector because plaintiff did not rely on the statements in the letter). Such adverse harms must be pled in the complaint. Maddox v. Bank of New York Mellon Tr. Co., N.A., 19 F.4th 58, 65-66 (2d Cir. 2021); see also Epstein v. JPMorgan Chase & Co., 2014 WL 1133567, at *7 n.6 (S.D.N.Y. Mar. 21, 2014) (declining to infer standing based on harms plaintiff claimed to have suffered where plaintiff failed “to make this claim in his papers”). And, at the motion to dismiss stage, the plaintiff “bears the burden of alleging facts that affirmatively and plausibly suggest” they have standing. Calcano v. Swarovski N. Am. Ltd., 36 F.4th 68, 75 (2d Cir. 2022) (citation omitted).
Citing TransUnion, the Honorable Pamela K. Chen of the Eastern District of New York held, in three seriatim decisions, that plaintiffs lacked standing to maintain claims in federal court for violations of statutory wage statement requirements under NYLL § 195(3). See Sevilla v. House of Salads One LLC, 2022 WL 954740, at *7 (E.D.N.Y. Mar. 30, 2022); Wang v. XBB, Inc., 2022 WL 912592, at *13 (E.D.N.Y. Mar. 29, 2022); Francisco v. NY Tex Care, Inc., 2022 WL 900603, at *7 (E.D.N.Y. Mar. 28, 2022). Judge Chen explained that the plaintiffs in those cases did not demonstrate how the lack of accurate wage statements “led to either a tangible injury or something akin to a traditional cause of action.” Francisco, 2022 WL 900603, at *7. Similarly, in the context of a late payment of wages claim under NYLL § 191(1)(a), the court in Rosario v. Icon Burger Acquisition LLC, 2022 WL 198503, at *3 (E.D.N.Y. Jan. 21, 2022), held that the complaint's threadbare allegations did not sufficiently allege harm from being paid bi-weekly versus weekly. In contrast, in other cases where the plaintiff pleaded a concrete harm flowing from a violation of New York Labor Law, the plaintiffs were found to have pled an injury for the purposes of standing. See Mateer v. Peloton Interactive, Inc., 2022 WL 2751871, at *2 (S.D.N.Y. July 14, 2022) (complaint that asserted violation of wage notice/statement requirements caused plaintiffs to receive less pay than they otherwise would have stated a concrete harm sufficient for standing); Jonelle Harris v. Old Navy, LLC, 2022 WL 16941712, at *5 (S.D.N.Y. Nov. 15, 2022) (complaint that pleaded plaintiff lost the time value of money from late payment of wages stated an injury in fact for standing).
The complaint here merely alleges a technical violation of the wage notice and wage statement requirements of NYLL § 195(1) and 195(3) and states that plaintiffs were improperly paid bi-weekly instead of weekly in violation of NYLL § 191. It does not state the concrete harm to Plaintiffs caused by the violations. Therefore, the SAC does not sufficiently allege an injury in fact sufficient to establish standing for claims under Sections 191 and 195 of the NYLL. Accordingly, these claims should be dismissed for lack of standing. However, because it may be possible for Plaintiffs to add factual allegations sufficient to plead standing, they should be given one last opportunity to amend the complaint to show standing.
2. Whether the Complaint Plausibly Alleges that Defendants Are “Employers”
Defendants contend that the SAC fails to plausibly allege that Buzinover and Feldman were “employers” within the meaning of the Fair Labor Standards Act (“FLSA”) and NYLL. Defendants further allege that the claims against them should be dismissed as a result. They also assert that Plaintiffs have failed to plausibly allege that they were each employed by all three Defendant entities or that these entities operated “as a single enterprise” sufficient to state a cause of action against them.
To be held liable under the FLSA, one must be an “employer,” which the statute defines broadly as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The definition is broad, and courts must construe the statue in light of its remedial nature. Falk v. Brennan, 414 U.S. 190, 195 (1973); Herman v. RSR Sec. Servs. LTD., 172 F.3d 132, 139 (2d Cir. 1999). The critical inquiry is whether the person “possessed the power to control the workers in question ... with an eye to the ‘economic reality' presented by the facts of each case.” Herman, 172 F.3d at 139. The “economic reality” test is designed to constrain the otherwise broadly applicable plain language of the statute, which “taken literally would support liability against any agent or employee with supervisory power over [other] employees.” Johnson v. A.P. Products, LTD., 934 F.Supp. 625, 628-29 (S.D.N.Y. 1996) (citation omitted). Insofar as an employer must employ someone, the “economic reality” test applies equally to determining whether a worker is an employee and to whether managers or owners are employers. Herman, 172 F.3d at 139. In other words, it assesses the employer-employee relationship. Factors relevant to whether an employeremployee relationship exists within the meaning of the FLSA include “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Herman, 172 F.3d at 139. These factors are not exclusive and no one factor is dispositive. Id. The definition of “employer” under the NYLL is similar to that under the FLSA, and while the New York Court of Appeals has not resolved whether the NYLL's standard is parallel to the FLSA's, there is no contrary case law and many Courts in this Circuit have treated the two as similar. Gil v. Pizzarotti, LLC, 2021 WL 1178027, at *5 (S.D.N.Y. Mar. 29, 2021). The Supreme Court has explained, “the determination of the [employment] relationship does not depend on such isolated factors” as where work is done or how compensation is divided “but rather upon the circumstances of the whole activity.” Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947).
The SAC asserts that Buzinover was an owner of Allcity (SAC ¶ 8) and an “off-site manager[], who had the power to hire and fire, determine employees' rates, methods of pay, and hours worked” (SAC ¶ 18). Apart from these blanket assertions, no specific facts are pleaded to support the statement that Buzinover was an off-site manager with control over the terms of any of the Plaintiffs' employment. The SAC asserts that Zarkadas hired all of the plaintiffs, not Buzinover. Buzinover is not a signatory to the contracts with Plaintiffs Bueno and Rivera, Zarkadas is. Buzinover is not alleged to have made any specific decision about pay or any other terms and conditions of employment of any of the Plaintiffs. The conclusory allegations against Buzinover that merely recite the test for being an employer are simply insufficient to state a plausible claim that Buzinover is an “employer” of any of the Plaintiffs. See Copantitla v. Fiskardo Estiatorio, Inc., 788 F.Supp.2d 253, 311 (S.D.N.Y. 2011) (finding that bare assertions that a defendant was the sole owner and made recommendations on hiring were insufficient to find that she was an employer under the FLSA).
In contrast, there are allegations that suggest Feldman exercised some control over Allcity and its employees and over the terms and conditions of Plaintiffs Bueno's and Rivera's employment. Feldman is alleged to be an owner of Allcity (SAC ¶ 8) and an “off-site manager[], who had the power to hire and fire, determine employees' rates, methods of pay, and hours worked” (SAC ¶ 18). Feldman allegedly told Plaintiffs Bueno and Rivera that “he built” Allcity and “kept it running” and that Bueno and Rivera “had to accept pay cuts and continue working for Defendants or he would sue” for having Zarkadas removed from the Health Maintenance Organization capitation panels. (SAC ¶ 34.) Although no one signed their employment contracts on behalf of Allcity, the SAC asserts that Bueno and Rivera received paychecks from Allcity (SAC ¶ 28) and that Feldman told Bueno that Bueno “could not use his two remaining weeks of vacation.” (SAC ¶ 36.) These allegations are sufficient to plausibly allege that Feldman was an “employer” of Bueno and Rivera, as they suggest that Feldman may have had some say over the terms of their employment at Allcity. However, the SAC does not state whether any of the other Plaintiffs ever received paychecks from Allcity, worked at Allcity's “principle” location in Brooklyn or interacted with Feldman at all. The conclusory allegations that he was an offsite manager and that merely parrot the requirements of the statute for being an “employer” are insufficient to plausibly allege Feldman was an employer of the other Plaintiffs. Copantitla, 788 F.Supp.2d at 311.
Having addressed whether the SAC plausibly alleges the individual moving Defendants are “employers,” the next issue is whether the SAC plausibly alleges the Defendant entities are “employers.” All three entities are listed as parties to employment contracts with Bueno and Rivera, which is sufficient to plausibly allege all three were employers of Bueno and Rivera. The SAC fails to identify which of the defendant entities employed the other Plaintiffs. While it is possible that all three Defendant entities employed the other Plaintiffs, there are no facts stating this. The SAC is devoid of allegations as to where the other Plaintiffs worked and which entity/entities issued the other Plaintiffs' paychecks. The only specific allegation as to these other Plaintiffs is that they were hired by Zarkadas, but this does not provide any clue as to the entity that employed them.
Two or more different companies may be deemed to be a “single employer” for purposes of liability under the Fair Labor Standards Act when they are a “single integrated enterprise.” Arculeo v. On-Site Sales & Marketing, LLC, 425 F.3d 193, 198 (2d Cir. 2005). In such circumstances, liability may, where appropriate, be imposed “not only on the nominal employer but also on another entity comprising part of the single integrated employer.” Id. Thus, it could be possible that all three entities operated as a single employer of Plaintiffs. To assess whether “a group of distinct but closely affiliated entities should be treated as a single employer for FLSA purposes,” courts in this District commonly consider “(1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.” Juarez v. 449 Rest., Inc., 29 F.Supp.3d 363, 367 (S.D.N.Y. 2014). New York follows this test. See, e.g., Batilo v. Mary Manning Walsh Nursing Home Co., 140 A.D.3d 637, 638 (App. Div. 1st Dep't 2016).
The SAC contains few facts to suggest any interconnectedness of KZark, Allcity and HMH. All three entities are listed as parties to employment contracts with Bueno and Rivera, but this alone is insufficient to plausibly suggest the three entities operated as a single employer, particularly when the SAC states that the entities issued paychecks at different times to Bueno and Rivera and that Zarkadas signed the employment agreements on behalf of KZark and HMH but not Allcity-suggesting the opposite of interconnectedness. Each entity is alleged to have a unique “principle” place of operation (Allcity in Brookly; KZark on West 161st St.; HMH on Broadway). There are no allegations that the various Plaintiffs worked at multiple locations or that the entities shared staff or equipment. There are no allegations that the entities used a central administrator to book and bill patients. The entities don't have the same owners- Allcity is allegedly owned by all three individual Defendants whereas KZark and HMH are allegedly owned only by Zarkadas. Aside from the conclusory allegation that the three individual defendants were managers, there are no specific facts to plausibly suggest central control of labor relations. For example, there is no allegation that there were common employment policies or common payroll. Similarly, apart from the conclusory assertion that the three individual defendants were managers, only Zarkadas is alleged to have been an onsite manager and to have hired the Plaintiffs. In sum, the SAC does not plausibly allege that the three Defendant entities were a single employer. It also does not adequately state which entity employed Plaintiffs Vieri Molina, Destiny Dominguez, Amada Reynos, Vanesa Williams, Nancy Santos, and Eveyln Jaco. Thus, the SAC does not plausibly plead that the three entities are a single employer or identify which entity was the employer of Plaintiffs Vieri Molina, Destiny Dominguez, Amada Reynos, Vanesa Williams, Nancy Santos, and Eveyln Jaco. See Chui-Fan Kwan v. Sahara Dreams Co. II Inc., 2018 WL 6655607, at *2 (S.D.N.Y. Dec. 19, 2018) (pleading contained no non-conclusory allegations to plausibly suggest defendant entities were a single employer).
Accordingly, I recommend that the claims of all Plaintiffs except those of Bueno and Rivera, be dismissed against the moving Defendants because the SAC is devoid of facts upon which the Court can identify which entity was their employer, and, as stated above, there are insufficient facts to plausibly suggest that the entities operated as a single employer or that Buzinover or Feldman were these Plaintiffs' employer. See Chui-Fan Kwan, 2018 WL 6655607, at *4 (conclusory allegations in complaint insufficient to show defendant entities or individuals were employer within the meaning of the FLSA).
3. Whether the Complaint Plausibly Alleges a Claim for Failure to Pay Minimum Wage
Insofar as I have recommended dismissal of the claims under NYLL § 191 and § 195 for all Plaintiffs for failure to plead standing and dismissal of the remaining claims of Plaintiffs Vieri Molina, Destiny Dominguez, Amada Reynos, Vanesa Williams, Nancy Santos, and Eveyln Jaco for failure to sufficiently identify any of the moving Defendants as their employer, the only remaining claims are the minimum wage claims of Rivera and Bueno. Bueno and Rivera allege they worked full-time and were not paid at all for the last two weeks of work. A failure to pay any wages at all for work gives rise to a minimum wage claim. Cf. Lundy v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106 (2d Cir. 2013) (recognizing that minimum wage claim is premised on an employer's failure to pay minimum wage for hours worked within a pay period); Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 201 (2d Cir. 2013) (same). Thus, Bueno and Rivera have a plausible claim for failure to pay minimum wage for this last pay period, although it is unclear which Defendant(s) are responsible. Insofar as the SAC suggests that Feldman and Allcity were communicating with Bueno and Rivera at the end of their employment, it plausibly suggests Feldman and Allcity might be responsible for this failure to pay. Insofar as the SAC alleges that Bueno and Rivera were employed by all three Defendant entities under their employment contracts, it plausibly suggests that any or all entities might be responsible for this failure.
CONCLUSION
For the reasons set forth above, I recommend the motion to dismiss be granted except as to the minimum wage claims of Bueno and Rivera against Feldman, HMH, KZark and Allcity. Although the Plaintiffs have amended their complaint twice already, I nevertheless recommend that the motion to dismiss be granted without prejudice and that Plaintiffs be permitted one last chance to provide greater detail about their employment and the basis for the claims against the various Defendants.
NOTICE
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
If any party files written objections to this Report and Recommendation, the opposing party may respond to the objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Engelmayer at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).