Bustamante v. D.O. Productions, Llc et al

REPLY BRIEF to Opposition to Motion

D.N.J.December 6, 2016

JACKSON LEWIS P.C. 220 Headquarters Plaza East Tower, 7th Floor Morristown, New Jersey 07960 (973) 538-6890 ATTORNEYS FOR DEFENDANT D.O. PRODUCTIONS, LLC UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY HERMES BUSTAMANTE, on behalf of Himself and all others similarly situated, Plaintiff, -against- D.O. PRODUCTIONS, LLC and MCCAIN FOODS USA, INC. Defendants. : : : : : : : : : : INDIVIDUAL AND COLLECTIVE ACTION FOR UNPAID OVERTIME UNDER FLSA Civil Action No. 2:16-CV-04618-JMV-JBC DEFENDANT’S REPLY BRIEF IN FURTHER SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND TO DEPOSIT FUNDS WITH THE COURT Of Counsel and on the brief: Gregory T. Alvarez, Esq. Linda J. Posluszny, Esq. Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 1 of 16 PageID: 969 i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 LEGAL ARGUMENT .....................................................................................................................2 THE COMPLAINT SHOULD BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION. ..................................................................2 A. Consistent With The Decision Of The USDOL And Well- Established Case Law, Liquidated Damages Are Not Warranted As A Matter of Law. ..................................................................3 B. Offers Of Judgment Made To Plaintiff And The Ten (10) Remaining Opt-In Plaintiffs Moot Their Claims. ........................................5 C. Valid And Effective Releases Waiving The Opt-In Plaintiffs’ FLSA And NJWHL Hour Claims Should Be Enforced By This Court. ..............................................................................7 D. Plaintiff Fails To Offer Any Support For Successor Liability. .....................................................................................................10 E. Six (6) Opt-In Plaintiffs Are Not Entitled To Payment From Defendant. ........................................................................................11 CONCLUSION ..............................................................................................................................12 Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 2 of 16 PageID: 970 ii TABLE OF AUTHORITIES Page(s) Cases Bank v. Alliance Health Networks, LLC, 2016 U.S. App. LEXIS 18849 (2d Cir. 2016) ...........................................................................6 Berardi v. Swanson Memorial Lodge No. 48 of Fraternal Order of Police, 920 F.2d 198 (3d Cir. 1990)...................................................................................................2, 3 Brooks v. Village of Ridgefield Park, 978 F. Supp. 613 (D.N.J. 1997) .............................................................................................3, 4 Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) .................................................................................................................6 Davis v. Abington Mem. Hosp., 765 F.3d 236 (3d Cir. 2014).....................................................................................................11 Featsent v. City of Youngstown, 70 F.3d 900 (6th Cir. 1995) .......................................................................................................4 Genesis Healthcare Corp. v. Symczyk, 656 F.3d 189 (3d Cir. 2011).....................................................................................................12 Gotha v. United States, 115 F.3d 176 (3d Cir. 1997).......................................................................................................3 Kaiser v. At the Beach, Inc., 2010 U.S. Dist. LEXIS 130728 (N.D. Ok. 2010) ....................................................................10 Konsuvo v. Netzke, 91 N.J. Super. 353 (Ch. Div. 1966) ...........................................................................................8 Li v. Renewable Energy Sols., Inc., 2012 U.S. Dist. LEXIS 22312 (D.N.J. 2012) ..........................................................................11 Min Fu v. Hunan of Morris Food Inc., 2013 U.S. Dist. LEXIS 159556 (D.N.J. 2013) ......................................................................8, 9 Mullen v. New Jersey Steel Corp., 733 F. Supp. 1534 (D.N.J. 1990) ...............................................................................................8 Pingatore v. Town of Johnston, 2011 U.S. Dist. LEXIS 140473 (D.R.I. 2011) ...........................................................................4 Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 3 of 16 PageID: 971 iii Ribot v. Farmers Insurance Group, 2013 U.S. Dist. LEXIS 100812 (C.D. Cal. 2013) ....................................................................10 Rudy v. City of Lowell, 777 F. Supp. 2d 255 (D. Mass. 2011) ........................................................................................4 Salem Iron Co. v. Lake Superior Consol. Iron Mines, 112 F. 239 (3d Cir. 1901)...........................................................................................................8 Shri Lakshmi Cotsyn Ltd. v. HN Int’l Group Inc., 2013 U.S. Dist. LEXIS 41211 (D.N.J. 2013) ............................................................................8 Thompson v. Real Estate Mortgage Network, 748 F. 3d 142 (3d Cir. 2014)................................................................................................2, 10 United States v. Balter, 91 F.3d 427 (3d Cir. 1996).........................................................................................................9 Woods v. RHA/ Tennessee Group Homes, Inc., 803 F. Supp. 2d 789 (M.D. Tenn. 2011) ................................................................................8, 9 Statutes Fair Labor Standards Act (“FLSA”) 29 U.S.C. § 201, et seq...........................................................................1, 3, 4, 5, 7, 8, 9, 10, 11 New Jersey Wage and Hour Law (“NJWHL”) N.J.S.A. 34:11-56a, et seq..........................................................................................................7 Other Authorities Fed. R. Civ. P. 12(b) ............................................................................................................2, 11, 12 Fed. R. Civ. P. 67 ...................................................................................................................6, 7, 12 Fed. R. Civ. P. 68 .............................................................................................................................6 Model Rules of Professional Conduct 4.2 (1992) ............................................................................9 Restatement (Second) of Contracts § 164 (1) (1981) ......................................................................8 Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 4 of 16 PageID: 972 1 PRELIMINARY STATEMENT Plaintiff Hermes Bustamante’s (“Plaintiff”) opposition to the motion to dismiss filed by Defendant D.O. Productions, LLC (“Defendant”) confirms dismissal of the complaint in its entirety as to Defendant is warranted. Importantly, Plaintiff’s opposition points to no facts or law to contradict Defendant’s assertion that it has paid or tendered 100% of any wages allegedly owed to Plaintiff and every other opt-in plaintiff and putative class member. Plaintiff also fails to directly address the case law relied upon by Defendant to demonstrate that liquidated damages are not owed when the policy allegedly violating the Fair Labor Standards Act (“FLSA”) is found in a collective bargaining agreement (“CBA”). In fact, as set forth in the newly received report of the United States Department of Labor (“USDOL”), this is the precise reasoning relied on by it in finding liquidated damages were not owed. The remaining factual and legal issues further support dismissal of the Complaint. For instance, because Plaintiff is not entitled to liquidated damages, the Offer of Judgment made to him (and other opt-in plaintiffs and putative class members) fully satisfies any alleged claim. This Court should not allow Plaintiff to pursue a case that is effectively moot. Importantly, this case is not like a “pick-off” strategy cases where only the named plaintiff is offered full satisfaction. Rather, all opt-in plaintiffs and putative class members who are entitled to any payment have been paid or offered payment. These calculations have been reviewed and approved by the USDOL and, thus, there is nothing left to litigate. To the extent the status of the other opt-in plaintiffs and putative class members is at issue, those who signed releases also have waived their claims. In short, even if these potential class members challenge the enforceability of the releases they signed, Plaintiff has not offered Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 5 of 16 PageID: 973 2 any valid legal basis for why continued retention of the payment received does not ratify the release they signed. This is basic contract law. To the extent Plaintiff criticizes Defendant for offering payments and releases directly to its current and former employees, without going through counsel, these communications were directed by the USDOL and Defendant. Counsel was not involved in this process. No ethical obligation has been violated. Similarly, Plaintiff’s ad hominem attacks on Defense counsel are not legitimate, and smack of desperation. Lastly, to the extent Plaintiff relies on Thompson v. Real Estate Mortgage Network and the successorship doctrine, this clearly has no application here since Plaintiff fails to allege that D.O. Productions and McCain Foods are not clearly separate and distinct entities, or that either are not fully capable of satisfying any judgment. No factual or legal basis has been alleged to maintain such a claim, which would nevertheless be frivolous. Dismissal with prejudice of the Complaint in its entirety is therefore warranted. LEGAL ARGUMENT THE COMPLAINT SHOULD BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION. Plaintiff’s assertion that Defendant’s motion should be denied based on its timing, i.e. before an Answer to the complaint was filed, is legally incorrect. Pl.’s Br., pp. 7-9. In particular, in Berardi v. Swanson Memorial Lodge No. 48 of Fraternal Order of Police, 920 F.2d 198 (3d Cir. 1990), the Third Circuit specifically held that the timing of the filing of a motion to dismiss for lack of subject matter jurisdiction does not determine whether the attack is facial or factual: Long before Mortensen, the Supreme Court made clear that a facially sufficient complaint may be dismissed before an answer is served if it can be shown by affidavits that subject matter jurisdiction is lacking. . . .This court has followed this approach both before and after Mortensen. Moreover, the requirement in Fed. Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 6 of 16 PageID: 974 3 R. Civ. P. 12(b) that a motion to dismiss for lack of subject matter jurisdiction must be made “before pleading if a further pleading is required" would make little sense if the factual basis for subject matter jurisdiction could not be contested until after an answer is filed. Id. (internal citations omitted). Thus, the Third Circuit found the district court properly looked beyond the allegations in the Complaint in ruling upon the motion to dismiss for lack of subject matter jurisdiction. Similarly, the Court here is not confined to the allegations in Plaintiff’s Complaint, “but could consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction.” Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir. 1997). A. Consistent With The Decision Of The USDOL And Well-Established Case Law, Liquidated Damages Are Not Warranted As A Matter of Law. The facts in this matter make abundantly clear that liquidated damages are not warranted. This is so because Defendant has established the good faith defense to liquidated damages as a matter of law. First, contrary to Plaintiff’s assertion, Defendant does not argue that a CBA can waive an employee’s rights under the FLSA. See Brooks v. Village of Ridgefield Park, 978 F. Supp. 613, 619-20 (D.N.J. 1997) (denying plaintiffs’ summary judgment motion for liquidated damages where the employer, acting pursuant to the terms of a CBA, may have acted in good faith although its actions violated the FLSA). Defendant is not relying on the CBA as a defense to alleged wages owed, which is evidenced by the fact the alleged wages have been fully paid or offered. Rather, Defendant argues where, as here, the language in a CBA was fully negotiated and there was no concealment of any alleged violations, liquidated damages are not warranted. Second, the cases cited by Plaintiff in his opposition brief are inapposite to the facts and arguments established in this case, i.e., where the alleged FLSA violation is based on a policy in a CBA. Indeed, the presence of the CBA, which was negotiated by and between the employer with counsel and the Union with employees, makes this case entirely different than those cases Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 7 of 16 PageID: 975 4 relied upon by Plaintiff. This is the specific situation addressed in Rudy v. City of Lowell, 777 F. Supp. 2d 255, 262-64 (D. Mass. 2011). In Rudy, the Court held as follows: . . . the City had collectively bargained in good faith with the Union for a regular rate of pay that specifically included a Water Utility Compensation augmentation but not the 5% Night-Time Shift Differential, the $3 Snowplow Driver Stipend or the standby pay. When an employer's decision is "made above board and justified in public", such as during collective bargaining, the employer is more likely to be found to have acted in good faith because “[d]ouble damages are designed in part to compensate for concealed violations, which may escape scrutiny.” (citations omitted). Here, the lack of any evidence that the City knowingly concealed its violation of the FLSA weighs against awarding liquidated damages. Id. at 262-64; see also Pingatore v. Town of Johnston, 2011 U.S. Dist. LEXIS 140473, at *19-20, n.5 (D.R.I. 2011) (finding that liquidated damages are not appropriate where an employer paid employees pursuant to a CBA bargained for in good faith between the employer and the Union). In addition, although Plaintiff contends that the three cases cited by Defendant are inapposite to its position, Plaintiff fails to include any substantive argument with respect to all but one of these cases, Brooks, 978 F. Supp. at 613. Plaintiff’s efforts to distinguish Brooks by asserting that it involved a “technical” violation disregards the primary considerations of the Court in determining whether an employer acted reasonably and in good faith. In Brooks, the Court relied primarily on the fact there was a CBA in place that explicitly permitted the practices in question, which is similar to the facts present in this case. Id. at 620. Further, the cases cited by Plaintiff regarding representation by counsel are inapplicable. Rather, the facts in Featsent v. City of Youngstown, 70 F.3d 900, 906-07 (6th Cir. 1995) are directly on point with those present here. As in Featsent, the alleged FLSA violation was based on a CBA, and Defendant’s labor counsel was involved throughout negotiations. As such, Defendant is “entitled to the reasonable belief that the [CBA] did not violate the law, including the FLSA.” Id. at 907. Brooks similarly held that, where “the employer acted consensually with Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 8 of 16 PageID: 976 5 its employees pursuant to collective bargaining in good faith under the Labor Relations Act,” and the employer relied on labor counsels’ advice during negotiations, a finding of an employer’s good faith should not be precluded. Finally, the USDOL itself found that neither civil monetary penalties nor liquidated damages were warranted in this matter. The USDOL, which reached this conclusion based on the same reasoning as the above cases, recommended the following: Neither civil money penalties nor liquidated damages are recommended because the firm has no history of investigation and has a good-faith defense. The violations found resulted from the firm’s compliance with a collective bargaining agreement, which the firm entered into after review by an attorney. The same terms regarding breaks had been in place for years, long before the firm began operating the establishment. USDOL FLSA Case Narrative, Case File #1792924 (emphasis added), attached to the Supplemental Declaration of Gregory T. Alvarez (“Alvarez Supp. Decl.”), at Exhibit 1. The USDOL’s decision and expressly stated reasoning directly reinforces the correctness of Defendant’s position that liquidated damages are not warranted here, and full payment has been made or tendered. B. Offers Of Judgment Made To Plaintiff And The Ten (10) Remaining Opt-In Plaintiffs Moot Their Claims. Because Plaintiff is not entitled to liquidated damages, the Offer of Judgment made to him (and the other opt-in plaintiffs and putative class members) fully satisfies any claim he alleges. The money has been tendered, and is available if Defendant’s request to deposit the back wages is granted. Therefore, Plaintiff should not be permitted to pursue a case that is moot. Unlike the cases cited by Plaintiff, this case is not a “pick-off” strategy case. Here, Defendant has paid or made the same offer to all opt-in plaintiffs and putative class members. These calculations have been reviewed and approved by the USDOL. There is no putative class Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 9 of 16 PageID: 977 6 member who will be left without relief, and there is nothing left to litigate on either an individual or class basis. Plaintiff and the putative class members have no further stake in the outcome. Additionally, Plaintiff’s opposition ignores the fact that Defendant not only served valid Offers of Judgment pursuant to Fed. R. Civ. P. 68, but also sought to deposit the proffered funds with the Court pursuant to Fed. R. Civ. P. 67. Pl.’s Br. 12-14. The majority in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), specifically declined to address the situation presented in this case where a “defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.” However, in his dissent, Chief Justice Roberts did address the situation presented here and concluded a defendant’s Offer of Judgment, which affords the plaintiff full redress for any alleged injuries, extinguished the plaintiff’s personal stake in the litigation and rendered the case moot. Id. 136 S. Ct. at 679 (Roberts, J., dissenting). This precise issue was also recently addressed in Bank v. Alliance Health Networks, LLC, 2016 U.S. App. LEXIS 18849 (2d Cir. 2016).1 The trial court entered judgment for the plaintiff pursuant to an unaccepted Offer of Judgment made by the defendants, which provided complete relief. Id. at *1-2. Thereafter, the trial court dismissed the complaint because the plaintiff no longer had the required standing as his claims were moot. Id. In upholding the dismissal, the Second Circuit found that “where judgment has been entered and where the plaintiff’s claims have been satisfied . . . any individual claims are rendered moot.” Id. at *2. Here, as in Bank and a host of other cases discussed at length in Defendant’s moving brief, judgment for Defendant is appropriate as the proffered Offers of Judgment provide Plaintiff and the opt-in plaintiffs with an amount equal to, or greater than, the full amount of 1 A true and correct copy of the decision in Bank, is attached to the Alvarez Supp. Decl., Exhibit B. Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 10 of 16 PageID: 978 7 damages the Plaintiff and opt-in plaintiffs sought or could achieve under the FLSA or New Jersey Wage and Hour Law (“NJWHL”). Accordingly, leave to deposit funds should be granted pursuant to Fed. R. Civ. P. 67, and judgment entered for Defendant. C. Valid And Effective Releases Waiving The Opt-In Plaintiffs’ FLSA And NJWHL Hour Claims Should Be Enforced By This Court. Plaintiff improperly urges this Court to disregard that 43 current and former employees have accepted payment and signed valid and effective waivers of their right to continue participation in the present litigation. This is so even though Plaintiff readily acknowledges a WH-58 form “waives the signatory’s right to bring this lawsuit[.]” Pl.’s Br., 12. Plaintiff also argues that the releases signed by employees are not valid due to fraud and misrepresentation. To support this argument, Plaintiff asserts the cover letter and rider distributed with the WH-58 forms were not approved by the USDOL, as asserted in Defendant’s moving papers. Pl’s Br., 11-17. This dispute, however, was addressed at length in a letter submitted by Defendant to the Court on November 2, 2016. See Docket Entry No. 73. As noted in the letter, there was an obvious misunderstanding between the DOL and Defendant since some form of cover letter was necessary to explain to employees what they were receiving and why. Beyond this misunderstanding Plaintiff offers no evidence to support his argument, and does not even challenge the substance of the cover letter, but merely speculates about what was said to each employee prior to signing the release; whether employees were aware a USDOL investigation was ongoing; whether employees were aware they were signing releases; and whether the Spanish translation of documents is accurate.2 Pl.’s Br., 10-11. This is not a sufficient basis to challenge Defendant’s motion. 2Defendant provided Plaintiff’s counsel with the documents distributed on September 9, 2016. Plaintiff’s counsel, therefore, has had sufficient time to determine whether the translated documents were somehow inaccurate. Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 11 of 16 PageID: 979 8 Nevertheless, assuming arguendo that Plaintiff can show fraud or misrepresentation, which he cannot, the releases would merely be voidable. See Konsuvo v. Netzke, 91 N.J. Super. 353, 367 (Ch. Div. 1966) (“Intentional misrepresentation and concealment of material facts renders a transaction voidable at the option of the defrauded party.”); Restatement (Second) of Contracts § 164 (1) (1981) (“If a party’s manifestation of assent is induced by either a fraudulent or a material misrepresentation . . . the contract is voidable by the recipient.”). It is well-recognized that, even if a release is voidable, it can nevertheless be ratified. See Salem Iron Co. v. Lake Superior Consol. Iron Mines, 112 F. 239, 242 (3d Cir. 1901) (even where a contract is voidable, it can be ratified by the parties); Shri Lakshmi Cotsyn Ltd. v. HN Int’l Group Inc., 2013 U.S. Dist. LEXIS 41211 (D.N.J. 2013) (“A voidable contract is one in which a party has the power, ‘by a manifestation of election to do so,’ . . . to ratify the agreement, mandating performance of the contractual obligations[.]”)3 (citations omitted). Here, even if the releases are voidable, the 43 current and former employees who have accepted and retained payment have ratified the releases. Plaintiff’s opposition completely ignores the issue of ratification. Essentially, Plaintiff urges this Court to conclude that any payments Defendant made to opt-in plaintiffs—as directed by the USDOL—should be considered gratuitous because Defendant improperly issued checks and bypassed counsel. Pl.’s Br., 29. Plaintiff offers no case law to support this position. To the contrary, the ratification of the releases is supported by statute and well-established case law cited by Plaintiff in his own brief. See 29 U.S.C. § 216(c); Min Fu v. Hunan of Morris Food Inc., 2013 U.S. Dist. LEXIS 159556 (D.N.J. 2013);4 Mullen v. New Jersey Steel Corp., 733 F. 3 A true and correct copy of the decision in Shri Lakshmi Cotsyn, is attached to the Alvarez Supp. Decl., Exhibit C. 4 Plaintiff’s reliance on Min Fu v. Hunan of Morris Food Inc., 2013 U.S. Dist. LEXIS 159556 (D.N.J. 2013) and Woods v. RHA/ Tennessee Group Homes, Inc., 803 F. Supp. 2d 789 (M.D. Tenn. 2011) is misplaced because the Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 12 of 16 PageID: 980 9 Supp. 1534, 1548 (D.N.J. 1990) (holding that, even if the release was not effective when signed, the plaintiff’s acceptance of the benefits of the . . . [a]greement and failure to complain until all checks had been delivered would ratify the contract.”). Finally, throughout his opposition, Plaintiff makes several inappropriate comments that can only be characterized as personal attacks on defense counsel. Most of these inappropriate comments do not warrant a response. However, Plaintiff’s assertion that “defendant’s counsel bypassed plaintiff’s counsel and secured releases which it now submits to the Court” is specious. At no time did defense counsel communicate with anyone represented by counsel. Rather, Defendant was directed by the USDOL to communicate with its employees regarding the payments the USDOL determined were due. The USDOL was fully aware the litigation was pending. Such communications do not violate New Jersey Rule of Professional Conduct 4.2, nor the Rules of Professional Conduct, including, but not limited to, “Model Rule of Professional Conduct 4.2, upon which New Jersey Rule of Professional Conduct 4.2 is based.” United States v. Balter, 91 F.3d 427, 435 (3d Cir. 1996). These rules are directed to lawyers, not to the parties. See Model Rules of Professional Conduct 4.2, cmt. 4 (1992) (“[p]arties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make”). This position is further supported by the cases cited in Defendant’s brief, which discuss situations similar to the case at bar where an FLSA collective action has been filed after the facts in those cases are inapposite to those presented here. For example, in Min Fu, the employer presented the plaintiff with a blank release form; represented that it was routine paperwork; and demanded that the plaintiff sign the form. Id. After the plaintiff signed the form, the employer altered the document by adding language. Id. The Court found that, under this extreme set of facts where the employer acted intentionally to induce the plaintiff’s signature and subsequently changed the document that was signed, there was a potential for fraud and misrepresentation. Id. However, none of the facts in Min Fu are present here. Nevertheless, Min Fu makes clear it is an employee’s “obligation to ensure he understands the contract before signing”. Id. at *16-17. Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 13 of 16 PageID: 981 10 USDOL investigation was commenced, but before payment was made pursuant to the USDOL investigation. See, e.g., Kaiser v. At the Beach, Inc., 2010 U.S. Dist. LEXIS 130728, at *35-36 (N.D. Ok. 2010); Ribot v. Farmers Insurance Group, 2013 U.S. Dist. LEXIS 100812, at *7-12 (C.D. Cal. 2013) (finding WH-58 releases signed by employees after a lawsuit was initiated were valid). Thus, as in Kaiser and Ribot, the releases here are valid and enforceable. D. Plaintiff Fails To Offer Any Support For Successor Liability. In his opposition, Plaintiff incorrectly argues that Defendant’s Offers of Judgment do not provide full relief because they do not account for potential successor liability. Pl.’s Br., 31-32. However, Plaintiff fails to point to any facts or law to support the position that Defendant should somehow be liable for any alleged unpaid wages by McCain. Although Plaintiff does cite to Thompson v. Real Estate Mortgage Network, 748 F. 3d 142 (3d Cir. 2014), it is clearly inapplicable to the facts present in this matter for several reasons. First, in Thompson, the predecessor company was defunct. By contrast, McCain is a thriving multi-national corporation, which has more than sufficient assets to pay any potential judgment. Second, the facts in Thompson suggest the two (2) companies involved there were not separate and distinct entities, but may have been “sister” companies. Here, Defendant and McCain are clearly separate and distinct entities, and do not have any common ownership. Third, McCain has answered and has not denied it was Plaintiff’s employer prior to the sale of assets to Defendant. Fourth, unlike the defendant in Thompson, Plaintiff does not allege Defendant was on notice of any alleged violation of the FLSA, a necessary element for successorship liability under Thompson. Lastly, Plaintiff fails to include any allegations to suggest Defendant assumed the liabilities of McCain for any alleged unpaid wages in any agreement. Thus, Plaintiff has failed to set forth any basis to extend liability to Defendant for alleged unpaid wages by McCain. Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 14 of 16 PageID: 982 11 E. Six (6) Opt-In Plaintiffs Are Not Entitled To Payment From Defendant. Plaintiff argues that Cesar Melendez Colon, who was never employed by Defendant, should nevertheless be permitted to move forward with his claim. Pl.’s Br., 33. According to Plaintiff, Mr. Colon is not required to establish employment status at the motion to dismiss stage, but should be permitted to engage in discovery. Id. Under such a theory, no FLSA claims would ever be subject to dismissal at the motion to dismiss stage. This is simply not the case. See Davis v. Abington Mem. Hosp., 765 F.3d 236, 242-43 (3d Cir. 2014) (dismissing the plaintiff’s complaint for failing to state an FLSA overtime claim). Importantly, the FLSA makes clear that only employees have the right to bring a private cause of action for violations of the FLSA. See 29 U.S.C. §216(b) (“Any employer who violates the provisions of . . . this Act shall be liable to the employee or employees affected[.]”). Despite this extremely low hurdle, i.e. establishing an individual was an employee, Plaintiff has failed to overcome this hurdle. See Li v. Renewable Energy Sols., Inc., 2012 U.S. Dist. LEXIS 22312, at *5 (D.N.J. 2012)(“[E]mployee status under the FLSA is a jurisdictional question and. . .the proper procedural method for adjudicating a [] motion challenging. . .status is through Rule 12(b)(1).”).5 Accordingly, any claims by Mr. Colon should be dismissed as a matter of law. Similarly, the claims of Robert Bromfield, Pablo Colon, Raul Corporan, Walter Quispehuaman, and William Taipe, who were employed as Sanitors, should likewise be dismissed. Plaintiff admits in his opposition that Sanitors may have been paid for two (2) 20- minute rest periods and overtime wages, but should nevertheless be permitted to move forward with discovery in this regard. However, because these individuals are represented by counsel, counsel presumably has access to their records to determine whether they are “similarly situated” 5 A true and correct copy of the decision in Li, is attached to the Alvarez Supp. Decl., Exhibit D. Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 15 of 16 PageID: 983 12 as alleged in the Complaint. To establish an individual is similarly situated, a plaintiff “must produce some evidence, ‘beyond mere speculation,’ of a factual nexus between the manner in which the employer’s alleged policy affected her and the manner in which it affected other employees.” Genesis Healthcare Corp. v. Symczyk, 656 F.3d 189, 193 (3d Cir. 2011). Plaintiff’s opposition improperly relies on nothing more than mere speculation that the Sanitors are similarly situated to the remaining production employees involved in this litigation and, therefore, these claims must be dismissed. CONCLUSION For the foregoing reasons, as well as those set forth in Defendant’s moving brief, this Court should grant Defendant’s motion to dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12 (b)(1) and 12 (b)(6), and to deposit funds with the Court pursuant to Fed. R. Civ. P. 67. Respectfully submitted, JACKSON LEWIS P.C. 220 Headquarters Plaza East Tower, 7th Floor Morristown, New Jersey 07960 (973) 538-6890 By: s/Gregory T. Alvarez Gregory T. Alvarez Linda J. Posluszny ATTORNEYS FOR DEFENDANT D.O. PRODUCTIONS, LLC Dated: December 6, 2016 4851-1813-4589, v. 7 Case 2:16-cv-04618-JMV-JBC Document 79 Filed 12/06/16 Page 16 of 16 PageID: 984 JACKSON LEWIS P.C. 220 Headquarters Plaza East Tower, 7th Floor Morristown, New Jersey 07960 (973) 538-6890 ATTORNEYS FOR DEFENDANT D.O. PRODUCTIONS, LLC UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY HERMES BUSTAMANTE, on behalf of Himself and all others similarly situated, Plaintiff, -against- D.O. PRODUCTIONS, LLC and MCCAIN FOODS USA, INC. Defendants. : : : : : : : : : : Civil Action No. 2:16-CV-04618-JMV-JBC SUPPLEMENTAL DECLARATION OF GREGORY T. ALVAREZ Gregory T. Alvarez, of full age, pursuant to 28 U.S.C. §1746, declares under penalty of perjury as follows: 1. I am a Shareholder with the law firm of Jackson Lewis P.C., attorneys for Defendant D.O. Productions, LLC (“Defendant”) in the within matter. I make this supplemental declaration in further support of Defendant’s motion to dismiss Plaintiff Hermes Bustamante’s (“Plaintiff”) Complaint. I am fully familiar with the facts stated herein. 2. A true and correct copy of the FLSA Case Narrative, Case File #1792924, from the United States Department of Labor is attached hereto as Exhibit A. 3. A true and correct copy of Bank v. Alliance Health Networks, LLC, 2016 U.S. App. LEXIS 18849 (2d Cir. 2016) is attached hereto as Exhibit B. 4. A true and correct copy of Shri Lakshmi Cotsyn Ltd. v. HN Int’l Group Inc., 2013 U.S. Dist. LEXIS 41211 (D.N.J. 2013) is attached hereto as Exhibit C. Case 2:16-cv-04618-JMV-JBC Document 79-1 Filed 12/06/16 Page 1 of 2 PageID: 985 5. A true and correct copy of Li v. Renewable Energy Sols., Inc., 2012 U.S. Dist. LEXIS 22312 (D.N.J. 2012) is attached hereto as Exhibit D. I declare under penalty of perjury that the foregoing statements made by me are true. By: s/ Gregory T. Alvarez Gregory T. Alvarez Dated: December 6, 2016 378011 4845-3935-7242, v. 1 Case 2:16-cv-04618-JMV-JBC Document 79-1 Filed 12/06/16 Page 2 of 2 PageID: 986 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 1 of 23 PageID: 987 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 2 of 23 PageID: 988 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 3 of 23 PageID: 989 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 4 of 23 PageID: 990 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 5 of 23 PageID: 991 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 6 of 23 PageID: 992 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 7 of 23 PageID: 993 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 8 of 23 PageID: 994 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 9 of 23 PageID: 995 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 10 of 23 PageID: 996 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 11 of 23 PageID: 997 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 12 of 23 PageID: 998 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 13 of 23 PageID: 999 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 14 of 23 PageID: 1000 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 15 of 23 PageID: 1001 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 16 of 23 PageID: 1002 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 17 of 23 PageID: 1003 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 18 of 23 PageID: 1004 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 19 of 23 PageID: 1005 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 20 of 23 PageID: 1006 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 21 of 23 PageID: 1007 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 22 of 23 PageID: 1008 Case 2:16-cv-04618-JMV-JBC Document 79-2 Filed 12/06/16 Page 23 of 23 PageID: 1009 Case 2:16-cv-04618-JMV-JBC Document 79-3 Filed 12/06/16 Page 1 of 1 PageID: 1010