Crawford et al v. Fhg Realty Urban Renewal Llc et al

REPLY BRIEF to Opposition to Motion

D.N.J.February 27, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY PATRICIA CRAWFORD, JESSICA HOWLEY, DANIELLE LAWRENCE, COLLEEN MONAGHAN-GIRARDO, on behalf of herself, individually, and on behalf of all others similarly situated, Plaintiffs, v. FHG REALTY URBAN RENEWAL, LLC d/b/a THE RIVERWINDS RESTAURANT, JNB RIVERWINDS, INC., FOTIOS FARMAKIS, GEORGE DRAKOS, and HELENA BALIS. Defendants. : : : : : : : : : : : : : : : : Civil Action No. 1:16-cv-7797 Return Date: March 6, 2017 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT OR, IN THE ALTERNATIVE, TO STRIKE CERTAIN ALLEGATIONS IN PLAINTIFFS’ COMPLAINT JACKSON LEWIS P.C. 220 Headquarters Plaza East Tower, 7th Floor Morristown, New Jersey 07960 (973) 538-6890 ATTORNEYS FOR DEFENDANTS JNB RIVERWINDS, INC., FOTIOS FARMAKIS, GEORGE DRAKOS & HELENA BALIS On the brief: James M. McDonnell, Esq. Saranne E. Weimer, Esq. Beth L. Braddock, Esq. Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 1 of 16 PageID: 192 i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ......................................................................................................... iii PRELIMINARY STATEMENT .....................................................................................................1 LEGAL ARGUMENT .....................................................................................................................2 POINT I ...........................................................................................................................................2 PLAINTIFFS’ COMPLAINT FAILS TO STATE CLAIMS FOR OVERTIME VIOLATIONS, MINIMUM WAGE VIOLATIONS, UNLAWFUL DEDUCTIONS FROM WAGES AND UNJUST ENRICHMENT. ......................................................................................................2 A. Plaintiffs Cannot State Plausible Claims For Overtime Violations Under The FLSA And New Jersey Law (Counts Two and Four)..............................................................................................2 B. Plaintiff’s Reference to the Requirements of the Meal Credit Fail to Save Counts One and Three from Dismissal. ........................3 C. Plaintiffs’ Focus on the Elements of a Service Charge Fails to Correct the Deficiencies in Plaintiff’s Complaint....................................4 POINT II ..........................................................................................................................................5 PLAINTIFFS’ CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS MUST BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED... ...........................................................................................................5 POINT III .........................................................................................................................................7 THE ENTIRE CONTROVERSY DOCTRINE BARS PLAINTIFFS’ COMPLAINT ..................................................................................7 POINT IV.........................................................................................................................................9 THE CLASS ALLEGATIONS SHOULD BE STRICKEN OR DISMISSED BECAUSE PLAINTIFFS CANNOT ADEQUATELY REPRESENT THE INTERESTS OF THE CLASS. ....................................................................................................................9 Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 2 of 16 PageID: 193 ii CONCLUSION ..............................................................................................................................11 Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 3 of 16 PageID: 194 iii TABLE OF AUTHORITIES Page(s) Cases Archbrook Laguna, LLC v. Marsh, 414 N.J. Super. 97 (App. Div. 2010) ...................................................................................8, 10 In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997).....................................................................................................3 Cogdell v. Hospital Ctr., 116 N.J. 7 (N.J. 1989) ................................................................................................................9 Connelly v. Hilton Grand Vacations, 2012 U.S. Dist LEXIS 81332 (S.D. Cal. June 11, 2012) .........................................................10 Davis v. Abington Mem. Hosp., 765 F.3d 236 (3d Cir. 2014)...................................................................................................2, 3 DiTrolio v. Antiles, 142 N.J. 253 (N.J. 1995) ............................................................................................................9 Durso v. Samsung Elecs. Am., Inc., 2013 U.S. Dist. LEXIS 160596 (D.N.J. Nov. 6, 2013)............................................................10 Federman v. Bank of Am., N.A., Civil Action No. 14-0441, 2014 U.S. Dist. LEXIS 175565 (D.N.J. Dec. 16, 2014) ......................................................................................................................................6, 7 Gillibeau v. City of Richmond, 417 F.2d 426 (9th Cir. 1969) ...................................................................................................10 Grp. Against Smog & Pollution Inc. v. Shenago, Inc., 810 F.3d 116 (3rd Cir. 2015) ......................................................................................................3 J-M Manufacturing Co., Inc. v. Phillips & Cohen, LLP, 443 N.J. Super 447 (App. Div. 2015) ........................................................................................8 Karn v. Borough, 2011 U.S. Dist. LEXIS 59154 (W.D. Pa. June 2, 2011) ........................................................3, 8 Maldonado v. BTB Events & Celebrations, Inc., 990 F. Supp. 2d 282 (S.D.N.Y. 2013)........................................................................................5 Martinez v. Bank of Am., N.A., No. 16-2754, 2016 U.S. App. LEXIS 20219 (3d Cir. Nov. 9, 2016) ......................................10 Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 4 of 16 PageID: 195 iv Mechmet v. Four Seasons Hotels, Ltd., 639 F. Supp. 330 (N.D. Ill. 1986) ..............................................................................................5 Mori v. Hartz Mountain Dev. Corp., 193 N.J. Super. 47 (App.Div.1983) ...........................................................................................9 Pellon v. Business Representation Intl., Inc., 528 F. Supp. 2d 1306 (S.D. Fla. 2007) ......................................................................................5 River Rd. Dev. Corp. v. Carlson Corp. - Ne., 1990 U.S. Dist. LEXIS 6201 (E.D. Pa. May 23, 1990) ...........................................................10 Rycoline Prods. v. C & W Unlimited, 109 F.3d 883 (3d Cir. 1997).............................................................................................7, 8, 10 Thompson v. Real Estate Mortg. Network, 748 F.3d 142 (3d Cir. 2014)...................................................................................................6, 7 Tonka Corp. v. Rose Art Indus., 836 F. Supp. 200 (D.N.J. 1993) ...............................................................................................10 Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591 (2015) ...................................................................................................................9 Yucesoy v. Uber Techs. Inc., 2015 U.S. Dist. 98515 (N.D. Cal. July 28, 2015) ....................................................................10 Zas v. Can. Dry Bottling Co., 2013 U.S. Dist. LEXIS 90418 (D.N.J. 2013) ............................................................................5 Statutes FLSA ........................................................................................................................................1, 2, 3 New Jersey Wage and Hour Law.....................................................................................................3 Other Authorities 29 C.F.R. § 531.52 ...........................................................................................................................4 Fed. R. Civ. P. 8 ...............................................................................................................................3 Fed. R. Civ. P. 12(b)(6)....................................................................................................................7 Rule 23 ...........................................................................................................................................10 Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 5 of 16 PageID: 196 1 PRELIMINARY STATEMENT Defendants submit the within memorandum of law in further support of their motion to dismiss Plaintiffs’ complaint for failure to state a claim upon which relief can be granted. Plaintiffs, in their opposition, seek to justify and support allegations in the complaint through the provision of additional facts and explanations that plainly belonged in the initial pleading. Moreover, Plaintiffs seek to avoid dismissal by asserting Defendants raised facts or introduced evidence outside the pleadings. Plaintiffs’ assertions are disingenuous since Plaintiffs included a payroll document in the complaint and reference wages which are reflected in payroll documents Defendant supplied. Plaintiffs focus on the validity of defenses Defendants have not even asserted (e.g., the meal credit and service charges)1 rather than the sufficiency of their own pleading. Plaintiffs clearly allege - in both the section entitled “Tip Skimming” and the fifth and sixth counts of the complaint - that Defendants “skimmed” what they deem “regularly contracted tip amounts” although the law clearly provides that tips must be voluntary rather than contracted. Similarly, Plaintiffs focus on the elements required to demonstrate individual liability under the FLSA yet still fail to demonstrate how the complaint sets forth anything beyond a formulaic recitation of the law or legal conclusions to support the allegations of individual liability. Lastly, the concurrent litigation of additional claims in a separate matter clearly bars this litigation and renders Plaintiffs inadequate representatives of the class they seek to represent in this matter. As such, Defendants reiterate their request for the Court to dismiss Plaintiff’s complaint in its entirety. 1 Defendants reserve the right to assert these defenses but this motion is more properly focused on the sufficiency of Plaintiffs’ allegations rather than the validity of any defenses that might be asserted. Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 6 of 16 PageID: 197 2 LEGAL ARGUMENT POINT I PLAINTIFFS’ COMPLAINT FAILS TO STATE CLAIMS FOR OVERTIME VIOLATIONS, MINIMUM WAGE VIOLATIONS, UNLAWFUL DEDUCTIONS FROM WAGES AND UNJUST ENRICHMENT Despite Plaintiffs’ assertions to the contrary, the complaint fails to state claims upon which relief may be granted. Plaintiffs’ focus on defenses not yet asserted - rather than the sufficiency of their allegations - underscores the factual deficiencies in the complaint. Accordingly, the complaint should be dismissed in its entirety. A. Plaintiffs Cannot State Plausible Claims For Overtime Violations Under The FLSA And New Jersey Law (Counts Two and Four). Contrary to Plaintiffs’ assertions, they still have failed to identify any workweek in which they worked in excess of forty (40) hours. Plaintiffs’ formulaic recitation that they “regularly worked” in excess of 40 hours is insufficient to state a claim for overtime violations under both the FLSA and New Jersey Law. In the Plaintiffs’ Complaint, they do not allege that they worked in excess of forty (40) hours during a given workweek and were denied receipt of overtime compensation during such a week. See DE No. 1. Plaintiffs’ rely on Paragraph 25 of their Complaint which alleged they were “denied overtime pay when they worked in excess of forty hours in a workweek.” Id. While Plaintiffs must not identify the exact dates and times they allegedly performed overtime work, allegations that one “frequently” worked extra time have been found to be inadequate to form an overtime claim. Davis v. Abington Mem. Hosp., 765 F.3d 236, 243 (3d Cir. 2014). In Davis, the court agreed with the Lundy decision and held: “in order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege [forty] hours of work in a given workweek as well as Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 7 of 16 PageID: 198 3 some uncompensated time in excess of the [forty] hours.” Id. at 241-42 (citations omitted). The court held that a plaintiff must claim he or she “‘typically’ worked forty hours per week, worked extra hours during such a forty-hour week, and was not compensated for extra hours beyond forty hours he or she worked during one or more of those forty-hour weeks.” Id. at 243. Similarly, Plaintiffs’ allegation that Plaintiffs and Tipped Employees “regularly” worked in excess of forty (40) hours per week does not identify whether or not Plaintiffs received overtime compensation for a week in which they worked in excess of forty (40) hours. Defendants are not seeking any heightened specificity from Plaintiffs. Rather, Plaintiffs broad allegations and inability to identify a week in which they both worked over forty (40) hours and were denied overtime compensation is detrimental to their overtime claims. Therefore, Plaintiffs are unable to satisfy the pleading requirement of Fed. R. Civ. P. 8 and have failed to sufficiently articulate a claim for recovery for overtime wages under either the FLSA or New Jersey Wage and Hour Law. B. Plaintiff’s Reference to the Requirements of the Meal Credit Fail to Save Counts One and Three from Dismissal. Plaintiffs, in both the complaint and opposition, assert Defendants paid them below the $2.13 minimum for tipped employees and, in support of same, reference the paystub of Plaintiff Colleen Monaghan-Girardo. (D.E. No. 1 at ¶ 4). The document Plaintiffs incorporated in the complaint as “facts” supporting the legal allegations, however, clearly demonstrates that Plaintiff Monaghan-Girardo received $8.50 for meals during the course of that workweek, i.e., an additional $0.34 per hour for $2.19 per hour worked.2 Plaintiffs’ complaint is utterly devoid of 2 The Court can consider documents integral to the complaint and any matters of public record. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997); Grp. Against Smog & Pollution Inc. v. Shenago, Inc., 810 F.3d 116, 127 (3d Cir. 2015); see also Karn v. Borough, 2011 U.S. Dist. LEXIS 59154, at *17 (W.D. Pa. June 2, 2011) (taking judicial notice of previously filed lawsuits). Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 8 of 16 PageID: 199 4 any allegations regarding the validity of the meal credit or the manner in which it allegedly impacts the rate paid to Plaintiffs. Plaintiffs spend the majority of the opposition on this point discussing the validity of a meal-credit defense which Defendants have yet to assert rather than on the sufficiency of the pleading. Defendant’s motion neither discusses nor sets forth any justification for the amount of the meal credit. Plaintiffs’ complaint mis-states or misinterprets the paystub upon which they rely to support their allegations because it demonstrates Plaintiffs received $2.19 per hour inclusive of a meal credit. The entire foundation of Plaintiffs’ complaint, that the Restaurant compensated them at a rate of $1.94 per hour, is clearly incorrect and, therefore, the Court should dismiss the first and third counts of the complaint for failure to pay the minimum wage. C. Plaintiffs’ Focus on the Elements of a Service Charge Fails to Correct the Deficiencies in Plaintiff’s Complaint. Similarly, Plaintiffs focus on the elements of a “service charge” rather than the sufficiency of the allegations in the complaint. The fifth and sixth counts of the complaint unquestionably challenge the alleged treatment of “regularly-contracted tip” amounts paid by customers: Defendants have an unlawful policy and practice of retaining tips from employees’ wages, including keeping 6% of a 20% tip paid by a customer. Defendant Farmakis systematically took 6% of the regularly-contracted tip amount (20% of the total bill) paid by customers for parties, luncheons, banquets, and other events, thereby cheating Plaintiffs and Class Members of 30% of their hard-earned tips. (D.E. No. 1 at ¶¶ 105 and 116). Plaintiffs, however, fail to address the gravamen of Defendants’ argument - that to constitute a tip under applicable law the amount must be voluntarily provided by the customer. See 29 C.F.R. § 531.52 (“Whether a tip is to be given, and its amount, are matters determined solely by the customer[.]”). Moreover, the case law cited clearly explains Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 9 of 16 PageID: 200 5 that non-negotiable or stipulated payments do not constitute tips. See Maldonado v. BTB Events & Celebrations, Inc., 990 F. Supp. 2d 282, 388-89 (S.D.N.Y. 2013); Mechmet v. Four Seasons Hotels, Ltd., 639 F. Supp. 330, 338 (N.D. Ill. 1986); Pellon v. Business Representation Intl., Inc., 528 F. Supp. 2d 1306, 1315-16 (S.D. Fla. 2007). Here, Plaintiffs’ complaint fails to allege that the “regularly-contracted tip amount” constitutes a voluntary payment by the customer. To the contrary, the allegations clearly characterize the payments as mandatory and non-negotiable, i.e., wholly lacking in the voluntariness character required of a tip. Accordingly, Plaintiffs’ complaint clearly fails to state a claim for unlawful deduction from wages or unjust enrichment because the complaint fails to assert that Defendant withheld or processed deductions from “tips” -- voluntary payments by customers to Plaintiffs - rather than from mandatory customer payments. POINT II PLAINTIFFS’ CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS MUST BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED Plaintiffs are unable to assert sufficient facts to impose individual liability on defendants Fotios Farmakis, George Drakos and Helena Balis. Again Plaintiffs rely on a formulaic recitation of facts that fails to demonstrate an employer-employee relationship between the individual defendants and Plaintiffs. Contrary to Plaintiffs’ assertions, their Complaint does not meet all the “economic reality” testing including demonstrating individual defendants: (1) had the power to hire and fire the employees; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records. Zas v. Can. Dry Bottling Co., 2013 U.S. Dist. LEXIS 90418, at *11-13 (D.N.J. 2013). Plaintiffs simply state that each Individual Defendant “established and Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 10 of 16 PageID: 201 6 implemented the pay practices, labor relations, and personnel policies and practices at Riverwinds” with no additional support. While Defendants do not refute that individual liability may be found in certain circumstances, Plaintiffs have not demonstrated sufficient facts to bring such allegations in this matter. As an initial matter, Plaintiffs’ reliance on Thompson v. Real Estate Mortg. Network is misguided as Plaintiffs in this case conveniently fail to identify the actual allegations against the Individual Defendants. In Thompson, not only were the individual defendants identified as making decisions in the “day-to-day operations, hiring, firing, promotions, personnel matters, work schedules, pay policies, and compensation” but the complaint also stated that when a work or personnel issue arose, the immediate supervisors would consult with the individual defendants and the plaintiff even identified a specific instance when he questioned the individual defendants about overtime compensation. 748 F.3d 142, 154 (3d Cir. 2014). The court held that plaintiff provided enough information including “allegations of the scope of the individual defendants' workplace authority and of specific statements by [individual defendant] as to overtime pay.” Id. Similarly, in Federman, the plaintiff identified that the individual defendant had directed his hiring; supervised and controlled his work by approving his term schedule; instructed him to complete projects, systems, applications and installations; set his rate of pay through his term schedule, including refusing to pay him for any hours worked over 40; and maintained employment records reflected in electronic log-in and security records. Federman v. Bank of Am., N.A., Civil Action No. 14-0441, 2014 U.S. Dist. LEXIS 175565, at *14-16 (D.N.J. Dec. 16, 2014). In this matter, Plaintiffs have not identified any of the Individual Defendants had a role in failing to pay overtime compensation and have failed to establish that an employer-employee Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 11 of 16 PageID: 202 7 relationship exists. None of the factual specifics provided in Thompson and Federman have been pled in Plaintiffs’ Complaint. In fact, Plaintiffs have not identified any specific statements made by Individual Defendants or any specific actions which would permit the court to infer they may be liable for any purported misconduct. Of note, Individual Defendants George Drakos and Helena Balis are mentioned by name in only one paragraph of the Complaint each in which the Plaintiffs simply recite vague conclusions in an effort to attempt to justify some sort of employer-employee relationships. Therefore, Plaintiffs have failed to identify sufficient facts to impose any individual liability upon Individual Defendants and these claims must be dismissed with prejudice. POINT III THE ENTIRE CONTROVERSY DOCTRINE BARS PLAINTIFFS’ COMPLAINT In response to Defendants’ motion to dismiss the complaint pursuant to the entire controversy doctrine, Plaintiffs rely on Rycoline Prods. v. C & W Unlimited, 109 F.3d 883 (3d Cir. 1997) for the proposition that the Court cannot consider an affirmative defense on a motion to dismiss. (Pl. Opp. Br. at 23). However, in Rycoline, the court noted that “an affirmative defense could properly be the grounds for a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).” Rycoline Prods., 109 F.3d at 886. In Rycoline, the court would not resolve the Entire Controversy issue on the motion to dismiss because the Entire Controversy bar was not apparent on the face of the complaint. Id. In addition, the district court in Rycoline “referred to several factual matters outside the pleadings, matters that Rycoline disputes, such as that Cavallo is legally incompetent and that Rycoline knew or should have known at the outset of the state litigation that defendants' alleged misconduct dated back to at least 1979.” Id. at 885 (internal citations omitted). Here, although Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 12 of 16 PageID: 203 8 the Plaintiffs do not acknowledge the existence of their State Court Action in the Complaint, the existence of the State Court Action may be judicially noticed by the Court. See Karn v. Borough, 2011 U.S. Dist. LEXIS 59154, at *17 (W.D. Pa. June 2, 2011) (taking judicial notice or prior lawsuits). The Court need not make factual findings regarding any matters within the Complaint - but just notice that Plaintiffs’ publicly filed a State Court Action against the same Defendants related to their employment. This publicly available information is within the realm of permissible information the Court can consider on a Motion to Dismiss. Next, Plaintiffs’ claim that the Entire Controversy Doctrine cannot apply until adjudication of the State Court Action. However, the Entire Controversy Doctrine is ultimately a doctrine of fairness and judicial efficiency. Although in Rycoline, the Third Circuit, interpreting New Jersey’s Entire Controversy Doctrine, stated that the Doctrine does not preclude the initiation of a second action while a prior action is still pending, subsequent New Jersey State Court decisions have used the Doctrine in such a manner when required by these guiding principles. J-M Manufacturing Co., Inc. v. Phillips & Cohen, LLP, 443 N.J. Super 447 (App. Div. 2015) (invoking entire controversy doctrine to bar claims that could have been asserted in simultaneously pending California action based on fairness and judicial efficiency). In fact, the New Jersey Appellate Division rejected any bright line rule that would always permit a second action to be filed while a first is pending. See Archbrook Laguna, LLC v. Marsh, 414 N.J. Super. 97, 107 (App. Div. 2010) (“[Plaintiff] contends it had the unfettered right to file this second suit without fear of the entire controversy doctrine solely because the first suit was still pending. We find no support for this contention. Indeed, our acceptance of the argument that such a bright line rule exists would encourage the type of forum shopping and fragmentation of controversies the entire controversy doctrine was intended to preclude”). Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 13 of 16 PageID: 204 9 Finally, Plaintiffs argue that the ECD is inapplicable because the actions are not sufficiently related. (Pl. Opp. Br. at 24). Plaintiffs’ construe the scope of the ECD too narrowly. The ECD embodies the notion that “the adjudication of a legal controversy should occur in one litigation in only one court.” DiTrolio v. Antiles, 142 N.J. 253 (N.J. 1995) (quoting Cogdell v. Hospital Ctr., 116 N.J. 7 (N.J. 1989) (emphasis added)). In determining whether the ECD applies, “it is the core set of facts that provides the link between distinct claims against the same parties . . . and triggers the requirement that they be determined in one proceeding. There is no requirement that there be a ‘commonality of legal issues.’” Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591, 605 (2015) (internal citations omitted); see, e.g., Mori v. Hartz Mountain Dev. Corp., 193 N.J. Super. 47 (App.Div.1983) (an action for rent should have been joined with an earlier partition action because both claims related to the same property and to the parties' rights therein). Here, all of the claims in both the State Court Action and this Action arise out of the Plaintiffs’ employment at JNB Riverwinds. The disputes all arise out of the same relationship between the parties and the rights of the individuals as employees of the Restaurant. In fact, as discussed in the moving papers, the Actions are inextricably linked because the calculation of damages Plaintiffs seek in the State Court Action necessarily revolves around the appropriate method of payment, which is the subject of this Action. Both lawsuits arise out of disputes related to the Plaintiffs’ employment and should be adjudicated in a single lawsuit. POINT IV THE CLASS ALLEGATIONS SHOULD BE STRICKEN OR DISMISSED BECAUSE PLAINTIFFS CANNOT ADEQUATELY REPRESENT THE INTERESTS OF THE CLASS. Lastly, Plaintiffs’ claim that Defendants cannot challenge Plaintiffs’ adequacy as class representatives in this motion. However, the cases cited by Plaintiffs on this issue are Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 14 of 16 PageID: 205 10 distinguishable. These cases addressed situations where defendants tried to adjudicate the elements of a Rule 23 analysis3 or disputed factual questions regarding the plaintiffs’ representation on a motion to dismiss.4 This situation is different. The issue of Plaintiffs’ representation is much broader than the issues in the cases relied upon by Plaintiffs. Because of the potential prejudice to the entire class the Court should either dismiss or strike the class allegations. In fact, Courts have noted that allegations can and should be stricken where they may cause prejudice to one or more parties. See e.g. Tonka Corp. v. Rose Art Indus., 836 F. Supp. 200, 217 (D.N.J. 1993); River Rd. Dev. Corp. v. Carlson Corp. - Ne., 1990 U.S. Dist. LEXIS 6201, at *7 (E.D. Pa. May 23, 1990) (Motions to strike are “not favored and usually will be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues.”) (emphasis added). Here, the existence of the State Law Action defeats any attempt to represent a class. Perhaps the most glaring concern is that, to the extent Plaintiffs are permitted to simultaneously pursue this Action and the State Court Action, a final decision in the state court action will moot the Plaintiffs’ claims in this Action. Martinez v. Bank of Am., N.A., No. 16-2754, 2016 U.S. App. LEXIS 20219, at *9 (3d Cir. Nov. 9, 2016) (“the ECD may be properly applied to bar the second of two simultaneously pending suits where, as here, the first is finally resolved prior to resolution of the second”) (citing Archbrook Laguna, LLC v. Marsh, 414 N.J. Super. 97 (N.J. Super. Ct. 3 In Durso v. Samsung Elecs. Am., Inc., 2013 U.S. Dist. LEXIS 160596, at *35-36 (D.N.J. Nov. 6, 2013), the Court found that arguments regarding Rule 23 predominance, typicality, and numerosity were premature on a 12(b)(6) motion. Similarly, in Connelly v. Hilton Grand Vacations, 2012 U.S. Dist LEXIS 81332, at *7-8 (S.D. Cal. June 11, 2012) the Court found the issue premature where defendant moved to dismiss based on the Rule 23 prerequisites. In Gillibeau v. City of Richmond, 417 F.2d 426, 432 (9th Cir. 1969), the issue was again challenging the Rule 23 factors. 4 In Yucesoy v. Uber Techs. Inc., 2015 U.S. Dist. 98515 (N.D. Cal. July 28, 2015) the Court found that the factually disputed issue of whether an potential class representative would have been terminated for allegedly driving under the influence of marijuana was more appropriately addressed on a motion for class certification. Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 15 of 16 PageID: 206 11 App. Div. 2010); Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d 883, 890 (3d Cir. 1997)). Plaintiffs’ separate litigation against Defendants may undermine the viability of the claims of an entire class and therefore the Court must dismiss or strike Plaintiffs’ class and collective claims in their entirety. CONCLUSION For the compelling reasons set forth herein, Defendants respectfully request that this Court grant the instant motion and dismiss Plaintiffs’ complaint in its entirety. Respectfully submitted, JACKSON LEWIS P.C. 220 Headquarters Plaza East Tower, 7th Floor Morristown, New Jersey 07960 By: /s/ James M. McDonnell James M. McDonnell Saranne E. Weimer Beth L. Braddock ATTORNEYS FOR DEFENDANTS JNB RIVERWINDS, INC., FOTIOS FARMAKIS, GEORGE DRAKOS & HELENA BALIS Dated: February 27, 2017 4826-8266-5539, v. 3 Case 1:16-cv-07797-RBK-KMW Document 17 Filed 02/27/17 Page 16 of 16 PageID: 207