Aman Faty v. US Pack Logistics, Llc et al

MOTION to Dismiss for Failure to State a Claimand Motion to Strike Complaint

D. Md.December 2, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MARIAM AMAN FATY, Individually and on Behalf of Other Similarly Situated Employees, Plaintiff, v. US PACK LOGISTICS, LLC, PETER GLAZMAN, & MARK GLAZMAN Defendants. Case No. 1:16-cv-03411-ELH Hon. Ellen L. Hollander DEFENDANTS’ MOTION TO DISMISS AND STRIKE PLAINTIFFS’ COMPLAINT Defendants US Pack Logistics, LLC, Peter Glazman, and Mark Glazman, by and through undersigned counsel, and pursuant to Rule 12(b)(6) and Rule 12(f) of the Federal Rules of Civil Procedure, move for the partial dismissal of the complaint (“Complaint”) filed by Mariam Faty, on behalf of herself and others, with prejudice, and the striking of certain of Plaintiffs’ allegations. As explained more fully in the accompanying memorandum of points and authorities: 1. Defendants Peter Glazman and Mark Glazman, pursuant to Rule 12(b)(6), seek dismissal of all counts brought against them individually, as Plaintiffs have failed to plead specific facts sufficient to establish, even at the initial pleading phase, that either Messrs. Glazman and Glazman constituted Plaintiffs’ “employer” for the purposes of the Fair Labor Standards Act, the Maryland Wage and Hour Law, or the Maryland Wage Payment and Collection Act; and 2. Defendants, pursuant to Rule 12(f), request that the Court strike all allegations in Counts I, II, and III regarding supposed wrongdoing that occurred prior to September 8, 2015 as Case 1:16-cv-03411-ELH Document 11 Filed 12/02/16 Page 1 of 3 2 Plaintiff has failed to sufficiently plead the existence of successor liability. 3. Defendants request the Court strike all collective action allegations in Counts I, that took place outside of Ms. Faty’s contractual term with US Pack Logistics, LLC due to lack of personal knowledge and similarity between Ms. Faty and the potential collective action members. 4. The Court should strike Plaintiff’s Maryland Wage and Hour Law class claim in Count II from the Complaint as to all Defendants as Plaintiff does not have standing to bring this claim, nor is she an adequate representative for any purported class. 5. The Court should strike Plaintiff’s Maryland Wage Payment and Collection Law class claim in Count III from the Complaint as to all Defendants, as Plaintiff has not pled a single allegation to satisfy any of the requirements under Federal Rule of Civil Procedure 23. Dated: December 2, 2016 Respectfully submitted, /s/ Joshua B. Waxman Joshua B. Waxman, Bar No. 17990 Rachel Fendell Satinsky (pro hac vice) Meredith Schramm-Strosser, Bar No. 18537 LITTLER MENDELSON, P.C. 815 Connecticut Avenue, NW, Suite 400 Washington, DC 20006-4046 Telephone: 202.842.3400 Facsimile: 202.842.0011 jwaxman@littler.com rsatinsky@littler.com mschramm-strosser@littler.com Counsel for Defendants US Pack Logistics, LLC, Peter Glazman, & Mark Glazman Case 1:16-cv-03411-ELH Document 11 Filed 12/02/16 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that, on December 2, 2016, I electronically filed the foregoing Motion to Dismiss and Strike Complaint, and Memorandum in Support thereof, with the Clerk of Court using the CM/ECF filing system, and that copies were served electronically via the Court’s ECF system, upon the following: George E. Swegman, Esq. Benjamin L. Davis, Esq. The Law Offices of Peter T. Nicholl 36 South Charles Street, Suite 1700 Baltimore, MD 21201 gswegman@nicholllaw.com bdavis@nicholllaw.com /s/ Joshua B. Waxman Joshua B. Waxman Case 1:16-cv-03411-ELH Document 11 Filed 12/02/16 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MARIAM AMAN FATY, Individually and on Behalf of Other Similarly Situated Employees, Plaintiff, v. US PACK LOGISTICS, LLC, PETER GLAZMAN, & MARK GLAZMAN Defendants. Case No. 1:16-cv-03411-ELH Hon. Ellen L. Hollander DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS AND STRIKE PLAINTIFF’S COMPLAINT Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 1 of 26 TABLE OF CONTENTS PAGE i. I. INTRODUCTION ............................................................................................................. 1 II. ARGUMENT ..................................................................................................................... 3 A. Plaintiff Have Not Alleged Facts Sufficient to Establish, if True, that the Individual Defendants Were Their Employer Under the FLSA, MWHL or MWPCL ................................................................................................................. 3 1. Standard of Review .................................................................................... 3 2. FLSA and MWHL ..................................................................................... 5 3. MWPCL ..................................................................................................... 8 B. The Court Should Strike All Reference To Time Periods Before September 8, 2015 Because Plaintiff Has Not Established Successor Liability ................................................................................................................ 10 1. Standard of Review .................................................................................. 10 2. Continued Reference to the Relationship Between Washington Courier and Plaintiffs Is Improper ........................................................... 10 C. Any Allegations Outside Plaintiff’s Tenure with US Pack Should Be Stricken From the Complaint Due to Lack of Personal Knowledge ................... 14 D. Plaintiff’s Class Action Claims Under the Maryland Wage and Hour Law Should Be Dismissed for Lack of Standing ......................................................... 16 E. Plaintiff’s Class Action under the Maryland Wage Payment and Collection Act Should Be Dismissed/Stricken for Failure to State a Claim ......................... 19 III. CONCLUSION ................................................................................................................ 20 Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 2 of 26 i TABLE OF AUTHORITIES Page(s) Cases Amchem Prod., Inc. v. Windsor, 521 U.S. 591 (1997) .................................................................................................................18 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .......................................................................................................1, 3, 6, 7 Attai v. Delivery Dudes, LLC, No. 15-CIV-62522, 2016 U.S. Dist. LEXIS 27298 (S.D. Fla. Mar. 2, 2016) ...........................8 Bailey v. Patterson, 369 U.S. 31 (1962) ...................................................................................................................18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................................................... passim Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465 (9th Cir. 1981) ...................................................................................................5 Bouthner v. Cleveland Const. Inc., No. CIV.A. RDB-11-244, 2011 WL 2976868 (D. Md. July 21, 2011) .....................................9 Calder v. GGC-Baltimore, LLC, No. BPG-12-2350, 2013 WL 3441178 (D. Md. July 3, 2013) ................................................15 Carillo et al. v. Borges Construction, LLC No. GJH-13-641, 2016 WL 5716186 (D. Md. Sept. 30, 2016) .............................10, 11, 12, 13 Chalk v. Lender Process Servs., Inc., No. CIV. CCB-13-1593, 2013 WL 6909425 (D. Md. Dec. 31, 2013) ....................................16 Erikson v. Pardus, 551 U.S. 89 (2007) .....................................................................................................................3 Everett v. PP&G, Inc., No. CIV. A. RDB-14-0102, 2014 WL 2548124 (D. Md. June 5, 2014) ...................................7 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) .................................................................................................................17 Giarratano v. Johnson, 521 F.3d 298 (4th Cir. 2008) .....................................................................................................4 Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 3 of 26 ii Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28 (1961) .....................................................................................................................5 Joaquin v. Coliseum, Inc., No. A-15-CV-787, 2016 U.S. Dist. LEXIS 91265 (W.D. Tex. July 13, 2016) .........................7 Linehart v. Dryvit Sys., Inc., 255 F.3d 138 (4th Cir. 2001) ...................................................................................................19 McFeeley v. Jackson St. Entm’t, LLC, 47 F. Supp. 3d 260 (D. Md. 2014) .............................................................................................5 Munoz v. Baltimore Cty., No. CIV.A. RDB-11-02693, 2012 WL 3038602 (D. Md. July 25, 2012) .................................9 Murphy v. Ajinomoto Windsor, Inc., No. 1:15-CV-120, 2016 U.S. Dist. LEXIS 55261 (E.D. Mo. Apr. 26, 2016) ...........................7 Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009) .....................................................................................................4 Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013) ...................................................................................................17 PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161 (4th Cir. 2013) ...................................................................................................12 Robinson v. Empire Equity Grp., Inc., No. CIV. WDQ-09-1603, 2014 WL 6698407 (D. Md. Nov. 24, 2014) ....................................9 Roman et al. v. ESB, Inc., 550 F.2d 1343 (4th Cir. 1976) .................................................................................................19 Roman v. Guapos III, Inc., 970 F. Supp. 2d 407 (D. Md. 2013) .................................................................................4, 5, 17 Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298 (4th Cir. 2006) .....................................................................................................5 Shelton v. Pargo, Inc., 582 F.2d 1298 (4th Cir. 1978) .................................................................................................16 Smith v. ABC Training Ctr. of Md., Inc., No. CIV. JFM-13-306, 2013 WL 3984630 (D. Md. Aug. 1, 2013) ..........................................8 Soutter v. Equifax Info. Servs., LLC, 307 F.R.D. 183 (E.D. Va. 2015) ..............................................................................................18 Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 4 of 26 iii Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .............................................................................................................17 U.S. v. Carolina Transformer Co., 978 F.2d 832 (4th Cir. 1992) ...................................................................................................13 Uche v. Montgomery Hospice, Inc., No. 13-CV-00878-AW, 2013 WL 11331378 (D. Md. June 19, 2013) ......................................7 Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599 (4th Cir. 2009) .....................................................................................................4 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) .................................................................................................................20 Watkins v. Brown, 173 F. Supp. 2d 409 (D. Md. 2001) .......................................................................................5, 8 White v. Classic Dining Acquisition Corp., No. 1:11-cv-712-JMS-MJD, 2012 WL 1252589 (S.D. Ind. Apr. 13, 2012) ...........................8 Xerox Corp. v. ImaTek, Inc., 220 F.R.D. 244 (D. Md. 2004) .................................................................................................10 Statutes 29 U.S.C. §§ 201, et seq......................................................................................................... passim Md. Code, Lab. & Empl., §§ 3-401, et. seq. .......................................................................... passim Md. Code, Lab. & Empl., §§ 3-501, et. seq ................................................................................6, 8 Md. Code, Lab. & Empl., §§ 3-901, et. seq. ....................................................................................9 Other Authorities Fed. R. Civ. P. 8 ...............................................................................................................................3 Fed. R. Civ. P. 12(b)(6)..........................................................................................................2, 3, 10 Fed. R. Civ. P. 23 ................................................................................................................... passim Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 5 of 26 1 Defendants US Pack Logistics, LLC, Peter Glazman, and Mark Glazman submit this Memorandum of Points and Authorities in support of their Motion to Dismiss and Strike Plaintiff’s Complaint, and states as follows: I. INTRODUCTION In her Complaint, Plaintiff Mariam Aman Faty (“Ms. Faty” or “Plaintiff”), individually and on behalf of others similarly situated, allege that Defendant US Pack Logistics, LLC (“US Pack”), as well as Peter Glazman, Founder & Chief Operating Officer, and Mark Glazman, Manager (collectively referred to herein as the “Individual Defendants”) violated the Fair Labor Standards Act (“FLSA”), the Maryland Wage and Hour Law (“MWHL”), and the Maryland Wage Payment and Collection Law (“MWPCL”) by allegedly misclassifying drivers as independent contractors, and therefore, exempt from minimum wage and overtime requirements. Plaintiff’s Complaint, however, fails to satisfy the pleadings standards articulated by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). In particular, Plaintiff fails to plead specific facts sufficient to establish that either of the Individual Defendants was actually her “employer” for purposes of the FLSA, MWHL, or MWPCL. The only specific factual allegation Plaintiff makes with respect to either of the Individual Defendants is that they allegedly own US Pack. See Compl. ¶ 3. Plaintiff’s Complaint otherwise fails to plead any specific facts relating to the Individual Defendants and, instead, conclusorily bundles them with US Pack as “Defendants,” inferring that they were all her employer even though she pled no facts to establish that either of the Individual Defendants employed her. Ultimately, the Complaint fails to adequately plead any purported employment relationship between Plaintiff and the Individual Defendants, and her Complaint thus fails to state a claim upon which relief can be granted as to Peter Glazman and Mark Glazman. For this reason, and pursuant to Federal Rule of Civil Procedure (“Rule”) Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 6 of 26 2 12(b)(6) and Local Rule 105 of this Court, Defendants respectfully request that the Court dismiss the Complaint with respect to the Individual Defendants. Plaintiff also admits in her complaint that Defendants did not have any involvement with Plaintiff’s alleged employment prior to September 8, 2015, but nevertheless seek to hold Defendants liable for other periods. Because Ms. Faty does not plead facts sufficient to support a claim for successor liability, any reference to actions taken prior to September 8, 2015, along with any of Plaintiff’s individual, class, and/or collective action allegations prior to that date, must be stricken from the Complaint pursuant to Rule 12(f). Additionally, as Plaintiff does not have personal knowledge of Defendants’ practices outside of the limited period of her contractual relationship, Plaintiff is not substantially similar to other potential collective action members. Consequently, any FLSA collective action claim for any time period prior to September 2015, or subsequent to April 2016 should be stricken from the Complaint pursuant to Rule 12(f). The Court should also strike Plaintiff’s class action claims brought under the Maryland Wage and Hour Law (Count II) because Plaintiff neither has standing to bring a class claim, nor is she an adequate representative of that class. Finally, the Court should strike Plaintiff’s class action claims brought under the Maryland Wage Payment and Collection Law (Count III), because Plaintiff has failed to plead any allegations to satisfy Rule 23’s requirements. Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 7 of 26 3 II. ARGUMENT A. Plaintiff Have Not Alleged Facts Sufficient to Establish, if True, that the Individual Defendants Were Their Employer Under the FLSA, MWHL or MWPCL. 1. Standard of Review Rule 12(b)(6) permits a defendant to move to dismiss a complaint because it fails to state a claim upon which relief can be granted. When ruling on a defendant’s motion to dismiss, “a judge must accept as true all of the factual allegations contained in the complaint.” Erikson v. Pardus, 551 U.S. 89, 93-4 (2007) (citations omitted). However, the United States Supreme Court has explained that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s 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. Rather, a complaint’s specific “[f]actual allegations must be enough to raise a right of relief above the speculative level,” and plaintiffs must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 555, 570. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court reemphasized the Twombly pleading standards and highlighted: (1) a pleading offering only “labels and conclusions” or a “formulaic recitation of the elements of a cause of action” does not comply with Fed. R. Civ. P. 8; (2) Fed. R. Civ. P. 8 “demands more than an unadorned, the defendant-unlawfully- harmed me accusation . . . ”; and, (3) a complaint will not survive a motion to dismiss if it contains merely “naked assertions devoid of further factual enhancement.” Id. at 678 (internal quotations and citations omitted). Accordingly, the Court held that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 8 of 26 4 statements, do not suffice,” and only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 678-79. Indeed, “[a] court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth.” Id. at 664. Although “[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff,” it does not consider “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Moreover, a court cannot accept as true “unwarranted inferences, unreasonable conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009). Indeed, the Fourth Circuit has held that the Supreme Court’s decision in Twombly establishes a review that is “more favorable to dismissal of a complaint” at the earliest stages of a case. Giarratano v. Johnson, 521 F.3d 298, 304 n.3 (4th Cir. 2008). In order to state a viable claim under the FLSA, MWHL, or MWPCL, plaintiffs must plead facts that if true, establish that a defendant who allegedly owes them unpaid wages is actually their statutory employer. Plaintiff’s Complaint fails to meet this standard with respect to the Individual Defendants because it contains nothing more than threadbare recitals and conclusory allegations, which are insufficient, as a matter of law, to establish a purported employment relationship between Plaintiff and the Individual Defendants. Accordingly, under Twombly and its progeny, the Complaint must be dismissed as to Peter Glazman and Mark Glazman. Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 9 of 26 5 2. FLSA and MWHL The FLSA applies only to “employees” who are “employed” by “employers.” See 29 U.S.C. § 207(a)(1); see also 29 U.S.C. § 203(e)(1). More simply stated, “FLSA liability is predicated on an employer-employee relationship. Plaintiffs must allege in their complaint sufficient facts that each . . . [named party] is their employer, either singularly or jointly . . . .” Roman v. Guapos III, Inc., 970 F. Supp. 2d 407, 414 (D. Md. 2013). The MWHL is Maryland’s equivalent of the FLSA and defines “employer” virtually the same as the FLSA. See Md. Code, Lab. & Empl., § 3-401(b) (“‘Employer’ includes a person who acts directly or indirectly in the interests of another employer with an employee.”); Watkins v. Brown, 173 F. Supp. 2d 409, 416 (D. Md. 2001). Therefore, when a plaintiff fails to sufficiently plead an alleged employment or joint employment relationship under the FLSA, the plaintiff’s claims under the MWHL likewise fail. McFeeley v. Jackson St. Entm’t, LLC, 47 F. Supp. 3d 260, 276 (D. Md. 2014) (The requirements under the MWHL are so closely linked to the FLSA that “[p]laintiffs’ claim under the MWHL stands or falls on the success of their claim under the FLSA.” (quoting Turner v. Human Genome Sci., Inc., 292 F. Supp. 2d 738, 744 (D. Md. 2003))). To determine whether an entity is an “employer” for purposes of the FLSA and MWHL, courts in this Circuit analyze the “economic reality” of the relationship between the parties. See Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961); Roman, 970 F. Supp. 2d at 417 (D. Md. 2013) (“As in the corporate employer context, “courts generally look at the ‘economic reality’ of an individual’s status in the workplace before determining liability.” (quoting Gionfriddo v. Jason Zink, LLC, 769 F. Supp. 2d 880, 890 (D. Md. 2011))); see also Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298, 306 (4th Cir. 2006) (“The joint employment inquiry must take into account the real economic relationship . . . . The ultimate determination of joint Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 10 of 26 6 employment must be based upon the circumstances of the whole activity.” (internal quotation marks and citations omitted)). Under the “economic reality” test, courts examine whether the putative employer is someone who: (1) had authority to hire and fire the employee; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records. Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1981); see also Roman, 970 F. Supp. 2d at 413 (“[C]ourts in this district have largely applied some variation of the . . . four factors laid out in Bonnette.”). Within this rubric, Plaintiff must allege facts (as opposed to legal conclusions) that if true show that the Individual Defendants are either her employers or joint employers with another person or entity. Plaintiff fails to do so. Instead, Plaintiff simply makes sweeping, conclusory assertions that each of the Individual Defendants (and US Pack) is her “employer” under the FLSA and MWHL. See, e.g., Compl. ¶¶ 8, 9, 35, 52. Indeed, in all of her allegations, except for Paragraph 3, Plaintiff does not distinguish between US Pack and the Individual Defendants, and simply lumps them together as the “Defendants.” For example, Plaintiff states: • “At all times relevant to this Complaint, Plaintiff engaged in interstate commerce by the nature of the duties she performed as part of her employment with Defendants.” • “Plaintiff worked for Defendants, who, at all times throughout Plaintiff’s employment, fell within the definition of the term “employer” under the FLSA, 29 U.S.C. § 203(d), MWHL, § 3-401(b), as well as MWPCL § 3-501(b), although her status with the employer was characterized by the employer as an independent contractor.” • “Defendants controlled and supervised the work that Plaintiff performed.” Id. at ¶¶ 7-8, 12. These conclusory allegations, which include no facts to establish that either of the Individual Defendants employed Plaintiff, or stood in a joint employer relationship with any Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 11 of 26 7 other potential employer, are insufficient under the pleading standards articulated in Iqbal and Twombly. Plaintiff’s attempt to plead facts regarding the role of the Individual Defendants in her work with US Pack is undeniably threadbare. In that regard, Plaintiff’s Complaint includes one statement about the Individual Defendants: “Defendant, US Pack is owned by PETER GLAZMAN and MARK S. GLAZMAN . . . adult residents of New Jersey and New York, respectively.” Id. at ¶ 3 (emphasis added). Glaringly absent from Plaintiff’s Complaint are any factual allegations showing which, if any, of the Defendants purportedly hired Plaintiff, and which, if any, were responsible for supervising her work, setting her work schedules, determining other terms and conditions of her work, payment, or otherwise deciding her rates and methods of payment. Both Iqbal and Twombly necessitate that Plaintiff provides “[f]actual allegations . . . enough to raise a right of relief above the speculative level,” and “enough facts to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570. Indeed, this Court itself held that complaints attempting to attribute employer liability based solely on mere conclusions cannot withstand a motion to dismiss. See Everett v. PP&G, Inc., No. CIV. A. RDB-14-0102, 2014 WL 2548124, at *3 (D. Md. June 5, 2014) (dismissing the plaintiffs’ FLSA and MWHL claims against an individual defendant and holding that the plaintiffs’ “vague generalizations provide no actual factual allegations as to [the individual defendant’s] conduct from which it could be inferred that he is liable to the Plaintiffs.”). Where, as here, Plaintiff has not sufficiently pled “employer” or “joint employer” status for the Individual Defendants in the context of the economic reality factors, Plaintiff’s Complaint with respect to the Individual Defendants must be dismissed.1 E.g., Joaquin v. Coliseum, Inc., 1 While some courts have found that certain plaintiffs have sufficiently pled employer status for individual Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 12 of 26 8 No. A-15-CV-787, 2016 U.S. Dist. LEXIS 91265, at *13-14 (W.D. Tex. July 13, 2016) (granting motion to dismiss a named individual defendant for failing to allege facts relevant to the economic reality factors); Murphy v. Ajinomoto Windsor, Inc., No. 1:15-CV-120, 2016 U.S. Dist. LEXIS 55261, at *18 (E.D. Mo. Apr. 26, 2016) (dismissing individual defendants where “Plaintiff’s complaint as submitted makes blanket, unspecific allegations with regard to these several Defendants, and there is no basis for the Court to find that any named individual Defendant had sufficient control over Plaintiff to qualify him or her as an ‘employer’ under the FLSA’s very particular use of that term.”); Attai v. Delivery Dudes, LLC, No. 15-CIV-62522, 2016 U.S. Dist. LEXIS 27298, at *14 (S.D. Fla. Mar. 2, 2016) (dismissing FLSA claims against corporate and individual defendants and noting, “Plaintiff promptly combines the eight Defendants into one collective term, ‘Defendants,’ without little explanation [sic] as to how the entities and individuals are associated.”); White v. Classic Dining Acquisition Corp., No. 1:11- cv-712-JMS-MJD, 2012 WL 1252589, at *2-3 (S.D. Ind. Apr. 13, 2012) (dismissing claims against twenty-six of the twenty-eight defendants for failure to allege employment relationship). 3. MWPCL In contrast to the FLSA and MWHL, the MWPCL defines “employer” as “any person who employs an individual in the State or a successor of the person.” Md. Code, Lab. & Empl., § 3-501(b). This definition of “employer” is, thus, even more restrictive than its FLSA and MWHL counterparts. See Watkins, 173 F. Supp. 2d at 416. defendants, those plaintiffs pled far more detail concerning the individuals’ duties and level of control with respect to the specific plaintiffs’ employment. See, e.g., Uche v. Montgomery Hospice, Inc., No. 13-CV-00878-AW, 2013 WL 11331378, at *2 (D. Md. June 19, 2013) (denying individual supervisor’s motion to dismiss because the plaintiff specifically alleged that the plaintiff’s supervisor: “(1) threatened disciplinary action against her, including possible termination; (2) directed Plaintiff to work off the clock; (3) was responsible for reviewing and approving timesheets; (4) had the authority to hire employees at the Hospice; (5) had the authority to terminate employees at the Hospice, and effectively terminated Plaintiff’s employment; (6) had the power to create policies for the Hospice, including hours, scheduling, and other conditions of employment; and (7) conducted performance reviews of employees.”). Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 13 of 26 9 Plaintiff’s MWPCL claim against the Individual Defendants must be dismissed based upon a plain reading of the statute. Indeed, “[t]he MWPCL does not contain a . . . provision that explicitly expands employer liability to those acting on behalf of the employer.” Id. As a result, “[c]ourts analyzing the MWPCL have rejected any interpretation that would encompass supervisors, officers, or other agents acting on behalf of the corporate employer.” Smith v. ABC Training Ctr. of Md., Inc., No. CIV. JFM-13-306, 2013 WL 3984630, at *12 (D. Md. Aug. 1, 2013) (“The definition of the term “employer” found in the MWPCL is more restrictive than the definition of ‘employer’ in the FLSA because ‘the MWPCL does not contain a provision that expands employer liability to those acting on behalf of the employer.” (quoting Caseres v. S&R Mgmt. Co., 2012 WL 5250561, at *4 (D. Md. Oct. 24, 2012))); see also Robinson v. Empire Equity Grp., Inc., No. CIV. WDQ-09-1603, 2014 WL 6698407, at *8 (D. Md. Nov. 24, 2014) (“‘Employer’ does not include supervisors, officers, or other agents who act on behalf of a corporate employer.”). This, alone, is sufficient grounds to dismiss Plaintiff’s MWPCL claims against the Individual Defendants. Even if individual liability was recognized under the MWPCL, Plaintiff’s MWPCL claim fails for the same reason that her FLSA and MWHL claims fail: Plaintiff fails to present sufficient facts that if true establish that the Individual Defendants are her employer or joint employer. In this regard, Bouthner v. Cleveland Const. Inc., is instructive. No. CIV.A. RDB-11- 244, 2011 WL 2976868, at *7-8 (D. Md. July 21, 2011) (Bennett, J.). There, this Court dismissed the plaintiffs’ MWPCL and Maryland Wage Fraud Act claims against individual defendants because “[o]ther than naming the various titles of the Individual Defendants, Plaintiffs’ Complaint contains virtually nothing more than mere labels and conclusions, which are not entitled to the assumption of truth.” See also Munoz v. Baltimore Cty., No. CIV.A. RDB- Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 14 of 26 10 11-02693, 2012 WL 3038602, at *12 (D. Md. July 25, 2012) (“[I]n cases interpreting the statutory definition of an ‘employer’ in the [MWPCL], this Court has held that a supervisor is not an ‘employer.’” (internal citations omitted)). These cases underscore the futility of Plaintiff’s MWPCL claim against the Individual Defendants, and the Court should, consistent with Bouthner and Munoz, dismiss the MWPCL claims asserted against the Individual Defendants. B. The Court Should Strike All Reference To Time Periods Before September 8, 2015 Because Plaintiff Has Not Established Successor Liability. 1. Standard of Review Federal Rule of Civil Procedure 12(f) permits the Court, sua sponte or by motion of a party, to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). While striking portions of a pleading requires serious consideration, “the courts are granted considerable discretion to determine motions to strike, especially if the allegations in the complaint will cause prejudice at a later date in the litigation.” Xerox Corp. v. ImaTek, Inc., 220 F.R.D. 244, 245 (D. Md. 2004) (citing 5A Charles Alan Wright, Arthur R. Miller and Edward H. Cooper, § 1382 (1986)). 2. Continued Reference to the Relationship Between Washington Courier and Plaintiffs Is Improper. Plaintiff alleges that US Pack is a successor in interest to The R.A. Davis Company (a.k.a “Washington Courier”), the company with which Plaintiff previously contracted. Compl. ¶ 4. The basis for Plaintiff’s argument is their belief that US Pack received all of Washington Courier’s assets and contracts effective September 8, 2015. Id. Plaintiffs have failed to plead sufficient facts to establish successor liability, and so any reference to actions taken prior to September 8, 2015 must be stricken from the Complaint pursuant to Rule 12(f). Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 15 of 26 11 Judge Hazel of this district just recently, on September 30, 2016, addressed successor liability in the context of the FLSA, and by extension the MWHL and MWPCL, in Carillo et al. v. Borges Construction, LLC, No. GJH-13-641, 2016 WL 5716186 (D. Md. Sept. 30, 2016). Borges recognized the well-established rule that “a corporation that merely purchases the assets of another corporation will not be liable for the debts or other liabilities of that corporation.” Id. at *4 (quoting Progressive Septic, Inc. v. SeptiTech, LLC, 2011 WL 939022, at *2 (D. Md. Mar. 15, 2011) (discussing successor liability in the context of breach of contract cases)). The Court, however, recognized a narrow exception to this rule where “the transferee corporation is merely a continuation or reincarnation of the transferor corporation; to wit, a change in corporate form, but not in substance, has occurred.” Id. Recognizing that the Fourth Circuit Court of Appeals “has not opined on whether or not successor liability is available under the FLSA”, the Court looked to other federal courts to determine if the “continuation in business theory” was applicable in the FLSA context, and concluded it was, provided certain circumstances are met. Id. at *5.2 Under this test, the Court found that instances where a corporation was “merely a continuation of reincarnation of the transferor corporation . . . support[ed] a finding of successor liability,” at least at the initial pleading stage. Id. In concluding that the plaintiffs pled facts sufficient to support successor liability at the pleading stage, the Court looked to the following allegations: “that Defendants Lu-Ma Construction, LLC, Deco Inc., and LMS Contractors Inc. were ‘merely a continuation or reincarnation of the transferor corporation,’ Borges Construction, LLC”; the fact that each of the corporate defendants ceased and began operations in a successive manner, each taking over the business of the latter, for the specific purpose of limiting their liabilities; all the corporate defendants shared the same or very similar officers, directors and 2 The Borges Court noted that the same successor liability analysis is applicable to examine claims under the MWHL and the MWPCL. See id. at *6 & n.5. Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 16 of 26 12 stockholders; the corporate defendants held “themselves out to the public as identical or near identical businesses”; and the corporate defendants performed “the same or similar services for the same clientele.” Id. at *5. The Complaint presently before the Court stands in stark contrast to the complaint in Borges as it does not include any of the dispositive factors recognized in Borges. The sparse allegations in the Complaint here about the relationship between Washington Courier and US Pack are as follows: US Pack acquired the entity formerly known as The R.A. Davis Company (a.k.a “Washington Courier”) effective September 8, 2015. Washington Courier, Plaintiff’s former employer, transferred all of its assets, as well as its contracts, to US Pack. US Pack knew, or should have known, that Plaintiff and other similarly situated employees had been classified as independent contractors. US Pack continued the independent contractor relationship and to exercise the same degree of control over Plaintiff and others similarly situated as Washington Courier. Any liability incurred by Washington Courier was transferred to US Pack, the surviving company, because of this knowledge. Compl. ¶ 4. Unlike in Borges, the Complaint is silent to whether US Pack and Washington Courier have the same or similar officers, directors, and/or stockholders, US Pack was established in an effort to avoid liabilities created by Washington Courier, or US Pack holds itself out as the identical business of Washington Courier. Instead, in direct contravention of the well-established principle above, Plaintiff’s allegations seek to impute successor liability upon US Pack based upon merely its purchase and transfer of assets from Washington Courier. Borges, 2016 WL 5716186 at *4. Even at the initial pleadings stage, such allegations are woefully insufficient to establish even the possibility that US Pack is subject to successor liability for any of Washington Courier’s alleged wrongdoing. Consequently, these allegations should be stricken from the Complaint. Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 17 of 26 13 Even under an alternative, less restrictive theory of successor liability, Plaintiffs have failed to plead the required elements. While not specifically in the FLSA context, the Fourth Circuit Court of Appeals and other district courts in this Circuit have addressed principles of successor liability that may be illustrative here. For example, in PCS Nitrogen Inc. v. Ashley II of Charleston LLC, the Fourth Circuit examined successor liability in the context of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). 714 F.3d 161, 173 (4th Cir. 2013). In that case, the Fourth Circuit examined the following common law principles of successor liability: [A]s at common law, a corporation that acquires the assets of another corporation typically does not acquire its liabilities, unless ‘(1) the successor expressly or impliedly agrees to assume the liabilities of the predecessor; (2) the transaction may be considered a de facto merger; (3) the successor may be considered a ‘mere continuation’ of the predecessor; or (4) the transaction is fraudulent.’ In the past, we have also recognized successor liability where ‘substantial continuity’ exists between a predecessor and successor corporation. Id. at *173 (quoting U.S. v. Carolina Transformer Co., 978 F.2d 832, 837 (4th Cir. 1992) (internal citations omitted)). As demonstrated above, Plaintiffs have not sufficiently pled facts to establish that US Pack is the “mere continuation” of Washington Courier. Plaintiffs have not, and cannot, allege that US Pack either expressly or impliedly agreed to assume Washington Courier’s liabilities. Nor does the Complaint allege that the asset purchase could be considered a “de facto merger,” or that the transaction was fraudulent and/or an attempt by Washington Courier to avoid liabilities. Neither have Plaintiffs pled facts sufficient to demonstrate that “substantial continuity” exists between US Pack and Washington Courier. As explained in Carolina Transformer Co., “substantial continuity” of business is found in instances where there has been the: (1) retention of the same employees; (2) retention of the same supervisory personnel; (3) retention of the same production facilities in the same location; (4) Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 18 of 26 14 production of the same product; (5) retention of the same name; (6) continuity of assets; (7) continuity of general business operations; and (8) whether the successor holds itself out as the continuation of the previous enterprise. 978 F.2d at 838. While Plaintiff has alleged that the US Pack has continued a contractual relationship with (at least some) of the same delivery drivers as Washington Courier, and US Pack is performing delivery services under the same contracts that Washington Courier once held, these are merely two (2) of eight (8) factors. Nowhere does Plaintiff present factual allegations that US Pack has retained the same supervisory personnel, retained the same physical business location, continued the same general business operations, retained the same name (which it has not, as is evidenced by the allegations), or that US Pack holds itself out as a continuation of Washington Courier. Balancing these factors and the allegations contained in the Complaint, even at this early pleading stage the weight of evidence is against finding successor liability under the “substantial continuity” test. Consequently, regardless of which theory of successor liability Plaintiffs present, the Complaint’s allegations are inadequate. The continuation of the impertinent allegations would prejudice US Pack by subjecting it to expensive and futile discovery and litigation expenses, as well as possible improper consideration by a jury or other fact finder. As such, Defendants respectfully request that the Court strike all allegations that Defendant US Pack is liable for any possible FLSA, MWHL, or MWPCL violations by The R.A. Davis Company (a.k.a. “Washington Courier”), which occurred prior to September 8, 2015.3 C. Any Allegations Outside Plaintiff’s Tenure with US Pack Should Be Stricken From the Complaint Due to Lack of Personal Knowledge. As it relates to all three Defendants, the Court should limit the scope of the Complaint, whether for the named Plaintiff or for any potential collective action members, to the time period 3 Plaintiffs do not allege any facts which would form the basis for successor liability on behalf of any of the individual Defendants. Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 19 of 26 15 of September 2015 to April 2016 because Ms. Faty does not have personal knowledge of Defendants’ pay practices outside of this time period. Indeed, Plaintiff has failed to plead any allegations to support any basis for liability prior to September 2015, as she expressly states that she worked as a Delivery Driver “from approximately September 2015 to the end of her employment in April 2016.” Compl. ¶ 22; see also id. at ¶ 10 (“From approximately September 2015 to April 2016, Plaintiff Aman Faty worked for Defendants and held the title of ‘Delivery Driver.’”); ¶ 26 (“From approximately September 2015 to December 6, 2015, Plaintiff and others similarly situated would call Defendants’ dispatchers at the start of their day to let them know they were ready to work.”); ¶ 37 (“For the aforementioned work as a delivery driver from September 2015 to November 2015, Plaintiff Aman Faty received weekly payments”). Since Plaintiff has not alleged that she worked as a Delivery Driver prior to September 2015, she lacks standing to bring any claims against Defendants prior to that date, and she fails to allege that she was similarly situated to any other individuals prior to that date. Additionally, because Plaintiff has not alleged that she worked as a Delivery Driver after April, 2016, or that she otherwise has personal knowledge of Defendants’ payment practices since that time, such claims must be stricken from the Complaint. In Calder v. GGC-Baltimore, LLC, Magistrate Judge Gesner limited the scope of the collective action to the time period in which the named plaintiffs had personal knowledge. Civil No. BPG-12-2350, 2013 WL 3441178 (D. Md. July 3, 2013). In Calder, the named plaintiff attempted to certify a class for the entire three year statute of limitations period, even though they did not have personal knowledge of the defendant’s practices for the time period other than their employment. Id. (“The only time period for which plaintiffs have provided any factual support is the period of plaintiff Calder’s employment, March 1, 2012 through June 26, 2012. Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 20 of 26 16 Plaintiff Calder has offered no basis to establish any personal knowledge of any time frame other than when she worked for defendant.”). The Court held that, despite the modest pleading standard at the initial phases of litigation, the burden nevertheless remained on the plaintiffs, and that plaintiffs “failed to allege any facts that justify conditional certification as to exotic dancers who did not work at the Club during the time that plaintiff Calder alleges to have worked there.” Id. On that basis, the Court refused to grant conditional certification due to plaintiffs’ failure to meet their “preliminary burden to show that they are similarly situated to” persons who worked either before or after her tenure. Id. The same should occur in this case. Plaintiff has alleged that she only performed delivery services from September 2015 to April 2016. Compl. ¶ 10. Ms. Faty has not alleged that she has any personal knowledge of Defendants’ practices either prior to, or after, this time period. Consequently, just as in Calder, even at this preliminary stage of the litigation, Ms. Faty has failed to establish that she is similarly situated to any person who contract with Defendants outside of this September 2015 to April 2016 timeframe. As a result, the collective allegations against Defendants should also be struck prior to September 8, 2015, and after April, 2016. D. Plaintiff’s Class Action Claims Under the Maryland Wage and Hour Law Should Be Dismissed for Lack of Standing. It is a well-established principle that under Rule 23, a class does not exist prior its certification by the court. Shelton v. Pargo, Inc., 582 F.2d 1298, 1304 (4th Cir. 1978) (“It is the actual certification of the action as a class action under 23(c) and (a) which alone gives birth to ‘the class as a jurisprudential entity,’ changes the action from a mere individual suit with class allegations into a true class action qualifying under 23(a), and provides that sharp line of demarcation between an individual action seeking to become a class action and an actual class action.” (internal footnotes omitted)). Consequently, “if a named plaintiff’s individual claims are Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 21 of 26 17 found to be without merit prior to certification, then dismissal of the entire complaint [or claim] is appropriate.” Chalk v. Lender Process Servs., Inc., No. CIV. CCB-13-1593, 2013 WL 6909425, at *7 (D. Md. Dec. 31, 2013). In order to bring a class action, Plaintiff must demonstrate that she both has Article III standing to bring the suit, and also meets Rule 23’s criteria to be a class representative. To meet her burden of demonstrating Article III standing, Plaintiff must show that she has (1) suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). “Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating’ each element.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). Plaintiff’s obligation to prove standing is not changed in the class action context, “for even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong.’” Id. at 1547 n.6 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 40, n.20 (1976)). Here, Plaintiff does not have standing to bring a class action under the MWHL because she is not a member of the class she seeks to represent and, therefore, does not have the same injury as those of the purported class members. In the Complaint, Plaintiff defines the MWHL class as “all individuals who are or were employed by Defendants as ‘Delivery Drivers’ for any period ranging October 10, 2016 to the present . . . .” Compl. ¶ 62 (emphasis added). By her own admission, Plaintiff terminated her contractual relationship with Defendants in April 2016. Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 22 of 26 18 E.g., Compl. ¶¶ 10, 22, 26. Having ceased her working relationship with Defendants nearly seven months prior to the period at issue in the MWHL class, Plaintiff cannot demonstrate that she has an actual injury for the time period at issue. Instead, she incorrectly relies solely on injuries that may have been suffered by others; an effort that is not permissible in this Circuit. See Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013) (“When the case is a class action lawsuit, the named class representatives ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong.’” (quoting Blum v. Yaretsky, 457 U.S. 991, 1001 n.13 (1982)); cf. Roman, 970 F. Supp. 2d at 414 (finding that plaintiffs did not have standing to bring class action claims on behalf of workers at other Guapos restaurant locations because standing cannot be based on potential future class members). Consequently, without standing to bring a claim for the period of October, 2016 to the present on behalf of herself, Plaintiff does not have standing to be a class representative for the same period, and these class claims should be stricken. Even if this Court were to find that Plaintiff had standing, the MWHL class claim should be dismissed because Plaintiff does not meet the Rule 23 requirements for being a class representative because she is not a member of that class herself. Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997) (“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. ‘[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.’” (quoting E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)) (internal citations omitted)); Bailey v. Patterson, 369 U.S. 31, 32-33 (1962) (“It is axiomatic that the lead plaintiff must fit the class definition.”). Here, Plaintiff is not, and cannot, be a member of the MWHL class as defined in the Complaint because she has not worked as a Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 23 of 26 19 delivery driver since April, 2016. As demonstrated above, assuming arguendo, that Plaintiff has even suffered an injury, it is not the same potential injury as the purported class members she seeks to represent. Soutter v. Equifax Info. Servs., LLC, 307 F.R.D. 183, 210 n.15 (E.D. Va. 2015) (“There is nothing typical about a plaintiff who does not meet the class definition. And, if a plaintiff is not typical, she cannot be adequate.” (citing William Rubenstein, Alba Conte, Herbert Newberg, Newberg on Class Actions § 3:32 (5th ed. 2011))). Consequently, because Plaintiff is not an adequate class representative as required by Rule 23, the Court should strike the MWHL class allegations from the Complaint. E. Plaintiff’s Class Action under the Maryland Wage Payment and Collection Act Should Be Dismissed/Stricken for Failure to State a Claim. When presented with a class action claim, if the Court determines that the prerequisites of Rule 23 are not satisfied, then the Court may issue an order “requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons.” Fed. R. Civ. P. 23(d)(4); Linehart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001) (“Actions such as this one, . . . may be brought only if the numerosity, commonality, typicality, representativeness, predominance, and superiority requirements of both Rule 23(a) and (b)(3) are met.”). Therefore, if it is clear that the proposed class cannot be certified as a matter of law, class allegations can, and should, be stricken from the Complaint, even at the early stages of litigation. For any suit to proceed as a class action, the court must determine if a class exists and if so what it includes. See Roman et al. v. ESB, Inc., 550 F.2d 1343, 1348 (4th Cir. 1976). Here, in Count III, Plaintiff seeks to pursue a class action claim for herself and others for alleged violations of the MWPCL. Compl. ¶¶ 80-84. The necessary inquiry of whether a class exists under this Count, however, is not susceptible to analysis here, as Ms. Faty does not present any allegations to demonstrate that this case satisfies the Rule 23 requirements for the MWPCL class Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 24 of 26 20 claim. While Ms. Faty captions her class action allegations as those occurring “under Maryland Wage Laws,” she only pleads allegations for a class action for purported violations of the MWHL, and never pleads anything with respect to the required elements for a class action for her MWPCL claim. E.g., Compl. ¶¶ 61 (“Denial of overtime wages under MWHL . . .), 62 (“The class Plaintiff seeks to represent is defined as: MWHL Class . . . worked over forty (40) in a workweek in violation of the MWHL.”); 64 (alleging the existence of commonality because common questions of law and fact exist as to “[w]hether Defendants employed the Class within the meaning of MWHL . . . ); 65 (referencing “direct violation[s] of [the] MWHL” when discussing typicality). Indeed, Plaintiff does not plead even a single paragraph in which she demonstrates how the Rule 23 requirements are met for the Count III MWPCL class action claim. Rule 23 prerequisites are not to be taken lightly and do “not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). To proceed with a class action, Plaintiff must affirmatively demonstrate her compliance with each element of Rule 23. Id. As she has not presented any allegations to satisfy Rule 23’s requirements for her MWPCL claim, she has failed to carry this burden, and the Court should exercise its authority to dismiss or strike Plaintiff’s MWPCL class action claim from the Complaint. III. CONCLUSION For all of the foregoing reasons, Defendants respectfully request that the Court issue an Order granting their Motion to Dismiss Plaintiff’s Complaint and (1) dismissing Plaintiff’s Complaint with respect to Peter Glazman and Mark Glazman with prejudice; (2) striking any allegations that Defendants are liable, either on an individual or collective basis, for any violations prior to September 8, 2015; (3) striking any allegations that Defendants are liable on a collective basis for any violations prior to September 8, 2015 or after April 2016; and (4) striking Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 25 of 26 21 Plaintiff’s MWHL and MWPCL class claims for lack of standing and failure to meet Rule 23’s requirements, and to grant any additional relief the Court deems just and proper. Dated: December 2, 2016 Respectfully submitted, /s/ Joshua B. Waxman Joshua B. Waxman, Bar No. 17990 Rachel Fendell Satinsky (pro hac vice) Meredith Schramm-Strosser, Bar No. 18537 LITTLER MENDELSON, P.C. 815 Connecticut Avenue, NW, Suite 400 Washington, DC 20006-4046 Telephone: 202.842.3400 Facsimile: 202.842.0011 jwaxman@littler.com rsatinsky@littler.com mschramm-strosser@littler.com Counsel for Defendants US Pack Logistics, LLC, Peter Glazman, & Mark Glazman Case 1:16-cv-03411-ELH Document 11-1 Filed 12/02/16 Page 26 of 26 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MARIAM AMAN FATY, Individually and on Behalf of Other Similarly Situated Employees, Plaintiff, v. US PACK LOGISTICS, LLC, PETER GLAZMAN, & MARK GLAZMAN Defendants. Case No. 1:16-cv-03411-ELH Hon. Ellen L. Hollander ORDER Upon consideration of Defendants’ Motion to Dismiss and Strike Plaintiff’s Complaint, briefs submitted in opposition thereto, and any oral argument in support or against, it is hereby: ORDERED that Defendants’ Motion to Dismiss and Strike Plaintiff’s Complaint is GRANTED; ORDERED that Counts I, II, and III are DISMISSED with prejudice as to Defendants Peter Glazman and Mark Glazman; ORDERED that any allegations (whether individual, collective or class) as to Counts I, II, and III of the Complaint related to actions occurring prior to September 8, 2015 be stricken as to all Defendants; ORDERED that all collective action allegations in Count I related to actions occurring prior to September 8, 2015 and subsequent to April 2016 be stricken as to all Defendants; ORDERED that the class action allegations in Counts II and III as to all Defendants are stricken from the Complaint; and it is further Case 1:16-cv-03411-ELH Document 11-2 Filed 12/02/16 Page 1 of 2 2 ORDERED that Defendant(s) shall have fourteen (14) days from the entry of this Order to submit any Answer or other responsive pleading to any remaining allegations in the Complaint. IT IS SO ORDERED _________________ ______________________________ Date The Honorable Ellen L. Hollander Judge for the U.S. District Court for the District of Maryland Case 1:16-cv-03411-ELH Document 11-2 Filed 12/02/16 Page 2 of 2