Donato v. Service Experts, Llc et al

MOTION to Dismiss for Failure to State a Claim

N.D.N.Y.July 10, 2017

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JOSEPH DONATO, individually and on behalf of all other persons similarly situated, Plaintiffs, -against- SERVICE EXPERTS, LLC, d/b/a SERVICE EXPERTS HEATING AND AIR CONDITIONING, SERVICE EXPERTS HEATING & AIR CONDITIONING NEW YORK, LLC, ROLAND J. DOWN SERVICE EXPERTS HEATING AND AIR CONDITIONING, ROLAND J. DOWN, individually, and any other related entities, Defendants. Civil Case No.: 1:17-cv-00436 (DNH/CFH) DEFENDANTS’ NOTICE OF MOTION TO DISMISS THE COMPLAINT PURSUANT TO RULE 12(B)(6) PLEASE TAKE NOTICE that, upon the accompanying Memorandum of Law in Support of Defendants’ Motion to Dismiss the Complaint in the above-referenced action, Defendants Service Experts Heating & Air Conditioning LLC (erroneously identified in the Complaint as “Service Experts, LLC”) and Service Experts Heating & Air Conditioning - New York LLC (collectively “Defendants” or “Service Experts”) will move this Court before the Hon. David N. Hurd on Friday, August 11, 2017 at 10:00am, at the Alexander Pirnie Federal Bldg. and U.S. Courthouse, 10 Broad Street, Utica, NY 13501, for an order dismissing the Complaint filed in this action by Plaintiff Joseph Donato, in its entirety, due to plaintiff’s failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), and for such other and further relief as the Court deems just and proper, including costs and reasonable attorneys’ fees. PLEASE TAKE FURTHER NOTICE that, pursuant to Rule 7.1 of the Local Rules of Practice of the United States District Court for the Northern District of New York, any papers to Case 1:17-cv-00436-DNH-CFH Document 20 Filed 07/10/17 Page 1 of 3 2 be submitted in opposition to the Defendants’ motion must be filed with the Court and served upon counsel for Defendants no later than seventeen (17) days prior to the motion return date. DATED: July 10, 2017 DEFENDANTS SERVICE EXPERTS HEATING & AIR CONDITIONING - NEW YORK LLC, SERVICE EXPERTS HEATING & AIR CONDITIONING LLC By: /s/ William J. Anthony William J. Anthony Vincent E. Polsinelli Christopher J. Stevens JACKSON LEWIS P.C. 677 Broadway, 9th Floor Albany, NY 12207 T: 518-512-8700 F: 518-242-7730 william.anthony@jacksonlewis.com vincent.polsinelli@jacksonlewis.com christopher.stevens@jacksonlewis.com Case 1:17-cv-00436-DNH-CFH Document 20 Filed 07/10/17 Page 2 of 3 3 CERTIFICATION OF SERVICE I hereby certify that on July 10, 2017, a copy of the foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF System. /s/ William J. Anthony William J. Anthony 4830-1944-3759, v. 1 Case 1:17-cv-00436-DNH-CFH Document 20 Filed 07/10/17 Page 3 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JOSEPH DONATO, individually and on behalf of all other persons similarly situated, Plaintiffs, -against- SERVICE EXPERTS, LLC, d/b/a SERVICE EXPERTS HEATING AND AIR CONDITIONING, SERVICE EXPERTS HEATING & AIR CONDITIONING NEW YORK, LLC, ROLAND J. DOWN SERVICE EXPERTS HEATING AND AIR CONDITIONING, ROLAND J. DOWN, individually, and any other related entities, Defendants. Civil Case No.: 1:17-cv-00436 (DNH/CFH) DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS THE COMPLAINT PURSUANT TO RULE 12(B)(6) William J. Anthony Vincent E. Polsinelli Christopher J. Stevens JACKSON LEWIS P.C. 677 Broadway, 9th Floor Albany, New York 12207 Telephone: (518) 512-8700 Facsimile: (518) 242-7730 Attorneys for Defendants Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 1 of 17 i TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 BACKGROUND ............................................................................................................................ 1 ARGUMENT: THE APPLICABLE STANDARD OF REVIEW UNDER RULE 12(B)(6) ........ 2 POINT I: THE COMPLAINT FAILS TO STATE A PLAUSIBLE FLSA CLAIM ..................... 5 POINT II: THE COMPLAINT FAILS TO STATE A PLAUSIBLE CLAIM UNDER STATE LAW ............................................................................................................................................... 8 A. NYLL Minimum Wage Claim (Second Cause of Action) ................................................. 8 B. NYLL Unpaid Overtime Claims (Third Cause of Action) ................................................. 9 C. Call-In Pay Claim (Fourth Cause of Action) ...................................................................... 9 D. Spread-of-Hours Pay Claim (Fifth Cause of Action) ....................................................... 10 E. Plaintiff’s Generic “Failure to Pay Wages” Claim (Sixth Cause of Action) .................... 11 POINT III: IF THE COURT REFUSES TO DISMISS PLAINTIFF’S NYLL CLAIMS ON THE MERITS, IT SHOULD DECLINE TO EXERCISE SUPPLEMENTAL JURISDICITON OVER THOSE CLAIMS.................................................................................. 12 CONCLUSION ............................................................................................................................ 12 Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 2 of 17 ii TABLE OF AUTHORITIES Page(s) Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) .....................................................................................................2, 3, 4, 12 Azeez v. Ramaiah¸ 2015 U.S. Dist. LEXIS 46574 (S.D.N.Y. Apr. 9, 2015) ..........................................................10 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .........................................................................................................3, 4, 12 Bustillos v. Acad Bus, LLC, 2014 U.S. Dist. LEXIS 3980 (S.D.N.Y. Jan. 13, 2014).......................................................7, 12 Cromwell v. N.Y. City Health & Hosps. Corp., 2013 U.S. Dist. LEXIS 69414 (S.D.N.Y. May 15, 2013)....................................................7, 12 DeJesus v. HF Mgmt. Servs., Inc., 726 F.3d 85 (2d Cir. 2013).............................................................................................4, 6, 7, 9 Gregory, 2015 U.S. Dist. LEXIS . Accordingly, Plaintiff’s Sixth Cause of Action .........................10, 11 Gregory v. Stewart’s Shops Corp., 2015 U.S. Dist. LEXIS 24412 (March 1, 2015) ................................................................6, 7, 9 Kone v. Joy Constr. Corp., 2016 U.S. Dist. LEXIS 26981 (S.D.N.Y. Mar. 3, 2016) .........................................................11 Lundy v. Catholic Health Sys. of Long Island, Inc., 711 F.3d 106 (2d Cir. 2013)............................................................................................. passim Nakahata v. New York-Presbyterian Healthcare Sys., 723 F.3d 192 (2d Cir. 2013)...................................................................................................4, 7 Oram v. SoulCycle LLC, 979 F. Supp. 2d 498 (S.D.N.Y. Oct. 28, 2013) ..........................................................................9 Williams v. City of New York, 03 Civ. 5342, 2005 U.S. Dist. LEXIS 26143 (S.D.N.Y. Nov. 1, 2005) ....................................2 Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 3 of 17 PRELIMINARY STATEMENT Defendants Service Experts Heating & Air Conditioning LLC (erroneously identified in the Complaint as “Service Experts, LLC”) and Service Experts Heating & Air Conditioning - New York LLC (collectively “Defendants” or “Service Experts”)1 respectfully submit this Memorandum of Law in Support of their Motion to Dismiss the Complaint filed by Plaintiff Joseph Donato (“Plaintiff”) on April 19, 2017 (hereafter, the “Complaint”), pursuant to Federal Rule of Civil Procedure 12(b)(6). The Complaint asserts six wage-related causes of action-one under the Fair Labor Standards Act (“FLSA”) for an alleged failure to pay overtime and minimum wages and five under various sections of the New York Labor Law (“NYLL”). As set forth below, all six of these causes of action fail to satisfy the pleading requirements for wage and hour claims within the Second Circuit, which require the plaintiff to do more than merely pair the terms of the statute with threadbare assertions and legal conclusions. Because the Complaint fails to state any plausible claim for relief, it should be dismissed in its entirety pursuant to Rule 12(b)(6). BACKGROUND Plaintiff has been employed by Service Experts in New York as a plumbing technician since July 2013, and currently remains employed in that same capacity. On April 19, 2017, Plaintiff filed the Complaint, purportedly on behalf of himself and all other similarly situated employees, alleging that Defendants violated the law by failing to pay employees for all hours worked. Generally, Plaintiff claims that he and other similarly situated employees “repeatedly and routinely worked in excess of forty (40) hours per workweek” because they were, essentially, 1 Roland J. Down Service Experts Heating and Air Conditioning and Roland J. Down, individually, were named as defendants in the Complaint, but have been voluntarily dismissed from this action without prejudice via stipulation. See Dkt. 18. Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 4 of 17 2 always on “on-call.” See Dkt. 1, ¶¶ 17-18. The remainder of Plaintiff’s claims likewise appear to hinge on this general allegation that employees were not paid for “on-call” time that Plaintiff claims was compensable. The Complaint asserts one federal claim and five state-law claims. The federal claim alleges that Defendants violated the FLSA by failing to pay employees the applicable federal minimum wage and/or failing to pay employees overtime for all hours worked over forty per week. The five state law claims under the NYLL allege as follows: (1) failure to pay the applicable New York minimum wage; (2) failure to pay overtime for all hours worked over forty per week; (3) failure to provide “call-in pay”; (4) failure to provide “spread-of-hours” pay to employees who worked more than ten hours per day; and (5) failure to pay wages (in general). As set forth below, none of these causes of action are pled with the specificity required by the Second Circuit and this Court. Accordingly, Defendants respectfully request that the Court dismiss the Complaint in its entirety, pursuant to Rule 12(b)(6), for failure to state a claim upon which relief can be granted. ARGUMENT THE APPLICABLE STANDARD OF REVIEW UNDER RULE 12(B)(6) In reviewing a motion to dismiss under Rule 12(b)(6), Defendants recognize that a court should “construe the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” See Williams v. City of New York, 03 Civ. 5342, 2005 U.S. Dist. LEXIS 26143, at *5 (S.D.N.Y. Nov. 1, 2005) (internal citations omitted). Notably, however, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As a result, to be considered by the court, legal conclusions “must be supported by factual allegations.” Id. at 679. Thus, to survive a motion to dismiss under Rule 12(b)(6), “a Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 5 of 17 3 complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Under Federal Rule of Civil Procedure 8(a)(2), a ‘plausible’ claim contains ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Lundy v. Catholic Health Sys. of Long Island, Inc., 711 F.3d 106, 114 (2d Cir. 2013) (quoting Iqbal, 556 U.S. at 678). “[A] plaintiff’s obligation to provide the grounds of his entitlement 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, the factual allegations must “possess enough heft to show that the pleader is entitled to relief.” Id. at 557. Thus, unless a plaintiff’s well-pleaded allegations have “nudged [his] claims across the line from conceivable to plausible, [the plaintiff’s] complaint must be dismissed.” Id. at 570; see also Iqbal, 556 U.S. at 680. In Iqbal, the Supreme Court set forth a three-step process for courts to apply when considering a motion to dismiss for failure to state a claim. First, the court must identify the elements of the cause of action in light of interpreting case authority. See Iqbal, 556 U.S. at 674 (2009). Second, the court should begin “by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 678. A court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 544. Essentially, the court should ignore all unsupported conclusory allegations in the pleading. Third, the court must consider any remaining factual allegations to “determine whether they plausibly give rise to an entitlement of relief.” Iqbal, 556 U.S. at 679. Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 6 of 17 4 Under this standard, “a complaint [will not] suffice if it tenders naked assertions devoid of further factual enhancement.” Id. at 678 (internal citations omitted). “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the ‘mere possibility of misconduct,’ the complaint has alleged-but it has not ‘shown’-that the pleader is entitled to relief.” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). The Second Circuit has interpreted Iqbal and Twombly in a series of FLSA overtime cases, articulating a more rigorous pleading requirement for plaintiff’s alleging wage and hour violations. See DeJesus v. HF Mgmt. Servs., Inc., 726 F.3d 85 (2d Cir. 2013); Nakahata v. New York- Presbyterian Healthcare Sys., 723 F.3d 192 (2d Cir. 2013); Lundy, 711 F.3d 106. At a bare minimum, “a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of 40 hours.” Lundy, 711 F.3d at 115. The purpose of this requirement is “to require plaintiffs to provide some factual context that will ‘nudge’ their claim ‘from conceivable to plausible.’” DeJesus, 726 F.3d at 90 (citing Twombly, 550 U.S. at 570). While the courts in this Circuit do not require plaintiffs “to keep careful records and plead their hours with mathematical precision,” they do require plaintiffs to draw on the “memory and experience that lead them to claim in federal court that they have been denied overtime . . . in the first place.” Id. Here, as discussed below, Plaintiff has failed to satisfy this standard not just with respect to his FLSA claim, but for all six causes of action. The Complaint merely recites the terms of various statutes, and relies solely on threadbare generalizations and legal conclusions for support. Thus, Plaintiff has failed to meet his burden under cases such as Iqbal, Twombly, and Lundy and Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 7 of 17 5 is not entitled to “unlock the doors of discovery.” See ABB, Inc. v. Workstations Express, LLC¸ 2012 U.S. Dist. LEXIS 38147, *5 (N.D. Ohio Mar. 21, 2012). Instead, the Complaint should be dismissed in full. POINT I THE COMPLAINT FAILS TO STATE A PLAUSIBLE FLSA CLAIM Plaintiff’s First Cause of Action under the FLSA merely recites the elements of that statute. See Dkt. 1, ¶¶ 48-55. The balance of the Complaint offers little more details to support Plaintiff’s federal claims. Most notably, the Complaint fails to identify a single workweek in which Plaintiff allegedly worked in excess of 40 hours and was not paid overtime or was paid less than the federal minimum wage. Instead, the Complaint simply relies on the general allegation that Plaintiff “repeatedly and routinely” worked in excess of 40 hours week and was not paid overtime and/or earned less than the minimum wage. See Dkt. 1, ¶¶ 17, 52. It is well-settled in this Circuit that such allegations are insufficient to clear the pleading threshold necessary to state a plausible claim. See Lundy, 711 F.3d at 114 (dismissing an FLSA claim “because Plaintiffs have not alleged a single workweek in which they worked at least 40 hours and also worked uncompensated time in excess of 40 hours”). Plaintiff has attempted to avoid the obligation of identifying a specific workweek in which he was not compensated for overtime or was not paid the minimum wage by alleging that the practice occurred “routinely.” 2 2 With respect to Plaintiff’s conclusory “on-call” allegations, the Complaint is unclear (and arguably contradictory) in that it alleges both (a) that “Plaintiff was, repeatedly and routinely, required to be ‘on call’ each day outside his regular full-time workday and/or during weekends”- an allegation suggesting that Plaintiff was “on-call” at all times, and (b) that Plaintiff was on call “for approximately one full week (7 days) each month and for twenty-hour hours of each of those seven days . . .” See Dkt. 1, ¶ 18. Obviously, the first allegation (Plaintiff was constantly on call) cannot be squared with the second, more limited allegation (Plaintiff was on call for one week per month), but even if the more limited allegation is considered, the Lundy threshold is still not satisfied because Plaintiff fails to identify a specific workweek, or even month, during which he was allegedly not compensated for any compensable “on-call” time. See Lundy, 711 F.3d at 115. Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 8 of 17 6 See Dkt 1, ¶ 17. This precise practice has been rejected by the Second Circuit, which has cautioned that Lundy “was not an invitation to provide an all-purpose pleading template alleging overtime in ‘some or all workweeks.’” DeJesus, 726 F.3d at 90. Applying these rules, this Court has recently held that stock or boilerplate allegations like those in the Complaint must be dismissed. See Gregory v. Stewart’s Shops Corp., 2015 U.S. Dist. LEXIS 24412, at *6-7 (March 1, 2015). In Gregory, a case in which the allegations were arguably more specific than they are here, the Court rejected the plaintiffs’ overtime claims. Indeed, although the plaintiffs in Gregory at least attempted to offer an estimate of the amount of unpaid overtime which they allegedly worked each shift, Judge McAvoy nonetheless held that such allegations were “insufficient to state viable claims for unpaid overtime under the FLSA or NYLL.” Id. at *5-6. Other courts in this Circuit have similarly dismissed claims akin to those made by Plaintiff in this case. For example, in Boutros v. JTC Painting & Decorating Corp., the district court dismissed a complaint wherein plaintiffs alleged that they “regularly worked in excess of 35 hours a week, as well as regularly in excess of 40 hours per week,” but were not paid overtime for hours worked in excess of 40 hours per week as required by the FLSA. See 2013 U.S. Dist. LEXIS 86878, at *3 (S.D.N.Y. Jun. 19, 2013). Moreover, the Boutros plaintiffs’ complaint was supplemented by declarations by the plaintiffs which alleged that they “regularly worked more than 40 hours a week.” Id. Citing Lundy, however, the Boutros court held that the plaintiffs’ contentions failed to satisfy the pleading requirements in this Circuit, explaining as follows: Plaintiffs’ allegations in this case are akin to the vague, conclusory pleadings in Lundy. Plaintiffs simply state that they “regularly” worked in excess of 40 hours per week but were paid only straight time wages for that work. That is all the detail that is provided-nowhere is there any reference Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 9 of 17 7 to any particular week in which either plaintiff worked more than 40 hours. Plaintiffs’ pleadings, therefore, lack sufficient particularity to state a plausible FLSA claim. Id. at *10. Another illustrative example can be drawn from Bustillos v. Acad Bus, LLC, 2014 U.S. Dist. LEXIS 3980 (S.D.N.Y. Jan. 13, 2014). In that case, the plaintiff alleged that he “regularly worked in excess of forty (40) hours per workweek” and was not paid overtime for those excess hours. Id. at *5. In addition to that conclusory allegation, Plaintiff explained that his “weekly schedule varied from week to week during his tenure with Defendants,” but that he “would regularly work between 60 to 90 hours per week.” Id. The court observed that those allegations were “equivalent to the allegations in DeJesus and Nakahata in which the plaintiffs claimed they ‘regularly worked’ in excess of forty hours per week or did so during ‘some or all weeks.’” Id. (citations omitted). Such allegations, the court noted, “boil[] down to a conclusory assertion, without any supporting factual context, that the defendants violated the FLSA overtime provision because the plaintiff worked some number of excess hours in some unidentified week.” Id. at *11. Accordingly, the allegations were insufficient to clear the pleading threshold, and the court dismissed the claim. See id.; see also Gregory, 2015 U.S. Dist. LEXIS 24412, at *6-7; Cromwell v. N.Y. City Health & Hosps. Corp., 2013 U.S. Dist. LEXIS 69414, at *10-*11 (S.D.N.Y. May 15, 2013). The same result is warranted here. The allegations in the Complaint, like those discussed above, boil down to nothing more than conclusory assertions that Defendants violated the FLSA by failing to pay Plaintiff minimum wage at some unspecified time or for some unidentified number of overtime hours worked during some unidentified week(s). Clearly, any claims based on such conclusory allegations are insufficient to meet the pleading requirements established by Lundy and its progeny, and must therefore be dismissed. Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 10 of 17 8 POINT II THE COMPLAINT FAILS TO STATE A PLAUSIBLE CLAIM UNDER STATE LAW The Second through Sixth Causes of Action allege various violations of the NYLL, each of which suffers from the same fatal flaw as Plaintiff’s FLSA claim: it is simply not pled with enough specificity to “nudge” it from conceivability to plausibility. Accordingly, Plaintiff’s NYLL claims should also be dismissed. A. NYLL Minimum Wage Claim (Second Cause of Action) Like his FLSA claim, Plaintiff’s minimum wage claim under the NYLL (which is erroneously labeled as a claim for “New York Overtime Violations”) merely recites the elements of that cause of action. See Dkt. 1, ¶¶56-63. It does not contain any specific factual details that could potentially nudge his claim from the conceivable to the plausible. To the contrary, the Complaint itself acknowledges that Defendants “pay employees on call for the time they spent responding to a call, performing the work, and for the first 30 minutes of travel time from the employee’s last work site to their homes.”3 See Dkt. 1, ¶ 21. Moreover, despite claiming that “[t]he period between each call, while employees are engaged to wait at home, is not compensated,” the Complaint acknowledges that in addition to paying employees for time spent responding to a call, Defendants also pay their employees an extra $10.00 per weekday or $15.00 per weekend day as a premium for being on call. See Dkt. 1, ¶ 20. After acknowledging all of these specific facts regarding the ways in which Plaintiff was actually compensated for his work, the Complaint completely fails to assert any specific facts to 3 Notably, the Complaint does not even attempt to acknowledge the indisputable fact that Plaintiff and other employees in his position are paid their regular hourly or overtime rate when responding to calls-or that said rates are always substantially greater than the applicable New York minimum wage. Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 11 of 17 9 support the conclusory assertion that Defendant ever paid Plaintiff (or any other employee) less than the minimum wage for any hour(s) worked. Indeed, “to survive a motion to dismiss, Plaintiff’s claim for minimum wage violations under the NYLL must be supported by factual allegations sufficient to establish that his weekly [pay] rate divided by his hours worked fell under that of the applicable minimum wage for specified workweeks.” Oram v. SoulCycle LLC, 979 F. Supp. 2d 498, 506 (S.D.N.Y. Oct. 28, 2013). Because the Complaint in this case is devoid of any such allegations, Plaintiff’s minimum wage claim must be dismissed. See id. B. NYLL Unpaid Overtime Claims (Third Cause of Action) For his Third Cause of Action, Plaintiff seeks to recover unpaid overtime under the NYLL. This claim is, in substance, identical to Plaintiff’s conclusory FLSA overtime claim and is likewise unsupported by any additional factual allegations. The Second Circuit has previously held under similar circumstances that “[i]n light of the fact that [t]he relevant portions of New York Labor Law do no diverge from the requirements of the FLSA, [the Court’s] conclusions…about the FLSA allegations appl[y] equally to [the NYLL] state law claims.” See DeJesus, 726 F.3d at 89, n. 5; see also Gregory¸ 2015 U.S. Dist. LEXIS 24412 at *7. Because the relevant portions of the NYLL pertaining to overtime do not materially diverge from the requirements of the FLSA, this claim should be dismissed for the same reasons. See id. C. Call-In Pay Claim (Fourth Cause of Action) A plaintiff alleging failure to provide call-in pay must provide more than mere threadbare recitals of the elements of such a claim. See Gregory, 2015 U.S. Dist. LEXIS 24412 at *19 (citing Iqbal, 556 U.S. at 678). But Plaintiff has failed to do so here. Indeed, the Complaint is bereft of any non-conclusory facts to support a call-in pay claim. Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 12 of 17 10 Notably, the Complaint does not specifically allege that Plaintiff ever worked less than four hours when reporting to work for a non-regular shift-an essential requirement to be entitled to call-in pay. See 12 N.Y.C.R.R. § 142-2.3. To the contrary, the Complaint asserts that Plaintiff worked the entire time that he was required to be “on call,” and appears to seek damages for all of that time by way of the other causes of action. Where, as here, Plaintiff’s contentions “are nothing more than unadorned, the-defendant- harmed-someone accusations which do not satisfy Iqbal’s plausibility standard,” they must be dismissed. Gregory, 2015 U.S. Dist. LEXIS at *20. D. Spread-of-Hours Pay Claim (Fifth Cause of Action) A plaintiff asserting a spread-of-hours claim must do so with a degree of particularity akin to that required when pleading an FLSA claim. See Azeez v. Ramaiah¸ 2015 U.S. Dist. LEXIS 46574, at *15-*18 (S.D.N.Y. Apr. 9, 2015). Thus, courts have previously dismissed spread-of- hours claims where, as here, the Plaintiff “has not identified . . . a single day on which he worked more than 10 hours.” Id. at *17 (citing Lundy, 711 F.3d at 114). Plaintiff has failed to identify a single day on which he allegedly worked more than ten hours. Rather, as with the rest of his claims, Plaintiff relies solely on the alleging that he “routinely” or “regularly” worked more than ten hours in a day. Such allegations are insufficient under Lundy and its progeny.4 See id. 4 It is well-settled under the NYLL that employees who are subject to the Minimum Wage Order for Miscellaneous Industries are only entitled to spread-of-hours pay under circumstances where the employer’s alleged failure to make such a payment would drop their weekly wages below the applicable minimum wage. Plaintiff makes no such allegation in the Complaint, which further highlights the pleading deficiencies with respect to this claim (as well as his claim for call-in pay). Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 13 of 17 11 E. Plaintiff’s Generic “Failure to Pay Wages” Claim (Sixth Cause of Action) Plaintiff’s Sixth Cause of Action is generically labeled as one for “failure to pay wages.” As a purported basis for this claim, the Complaint cites to NYLL §§ 191 and 193. But neither of these statutes has any relevant application to this case. In particular, NYLL § 191 generally governs how frequently various types of employees must be paid, while NYLL § 193 prohibits certain types of unlawful deductions from wages. As their basic subject matter suggests, these statutes are inappropriate vehicles for recovery where, as here, “the gravamen of plaintiffs complaint is that the sums paid were not equal to what plaintiffs claim they were entitled to receive,” as opposed to a case where a plaintiff claims that an unlawful deduction was made from his wages or that he was not paid frequently enough. See Kone v. Joy Constr. Corp., 2016 U.S. Dist. LEXIS 26981, at *13-14 (S.D.N.Y. Mar. 3, 2016) (quoting Jara v. Strong Steel Door, Inc., 872 N.Y.S.2d 691 (Sup. Ct. Kings Cnty. Aug. 15, 2008)). Here, the Complaint does not contain a single allegation that Plaintiff was ever paid in an untimely manner. Nor does it allege that any unlawful deduction was ever made from any of Plaintiff’s paychecks (nonetheless a particular paycheck). Instead, this claim appears to seek nothing more than recovery for allegedly unpaid minimum wages and overtime compensation (see Dkt., ¶ 87), and is therefore wholly duplicative of Plaintiff’s other claims. Moreover, in addition to being redundant, this claim is far too general to satisfy the pleading requirements discussed at length above, making it precisely the sort of “unadorned, the- defendant-harmed-someone” accusation that has previously been rejected by this Court. See Gregory, 2015 U.S. Dist. LEXIS at *20. Accordingly, Plaintiff’s Sixth Cause of Action must be dismissed, as a matter of law. Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 14 of 17 12 POINT III IF THE COURT REFUSES TO DISMISS PLAINTIFF’S NYLL CLAIMS ON THE MERITS, IT SHOULD DECLINE TO EXERCISE SUPPLEMENTAL JURISDICITON OVER THOSE CLAIMS As set forth in Point I, supra, Plaintiff’s FLSA claim must be dismissed because it fails to state a plausible claim under Lundy and its progeny. Because Plaintiff’s federal claim under the FLSA is the only one that confers original jurisdiction upon this Court, once it is dismissed, the Court would be acting well within its discretion if it declined to exercise supplemental jurisdiction over Plaintiff’s state law claims. See e.g., Bustillos, 2014 U.S. Dist. LEXIS 3980, at *16 (“Having dismissed [Plaintiff’s] federal claims, the Court declines to exercise supplemental jurisdiction over his state law claims.”); Cromwell, 2013 U.S. Dist. LEXIS 69414, at *12 (declining to exercise supplemental jurisdiction over NYLL claims after dismissing Plaintiff’s FLSA claim). Accordingly, if the Court properly dismisses Plaintiff’s FLSA claims but decides not grant outright dismissal of his NYLL claims for the reasons set forth in Point II, supra, Defendants respectfully request that, in the alternative, the Court exercise its discretion and decline to exercise supplemental jurisdiction over those state-law claims. CONCLUSION For all of the foregoing reasons, Defendants respectfully submit that Plaintiff has completely failed to plead sufficient facts to satisfy the pleading standards established by the Supreme Court in Iqbal and Twombly, as well as the Second Circuit’s application of those standards to wage-and-hour cases (like this one) in Lundy and its progeny. The Complaint should therefore be dismissed, in its entirety, under Rule 12(b)(6)). Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 15 of 17 13 In the alternative, should the Court elect to dismiss only the federal FLSA claim over which it has original jurisdiction, Defendants respectfully request that the Court decline to exercise supplemental jurisdiction over Plaintiff’s NYLL claims and dismiss those state-law claims for that reason. DATED: July 10, 2017 DEFENDANTS SERVICE EXPERTS HEATING & AIR CONDITIONING - NEW YORK LLC, SERVICE EXPERTS HEATING & AIR CONDITIONING LLC By: /s/ William J. Anthony William J. Anthony Vincent E. Polsinelli Christopher J. Stevens JACKSON LEWIS P.C. 677 Broadway, 9th Floor Albany, NY 12207 T: 518-512-8700 F: 518-242-7730 william.anthony@jacksonlewis.com vincent.polsinelli@jacksonlewis.com christopher.stevens@jacksonlewis.com Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 16 of 17 14 CERTIFICATION OF SERVICE I hereby certify that on July 10, 2017, a copy of the foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF System. /s/ William J. Anthony William J. Anthony Case 1:17-cv-00436-DNH-CFH Document 20-1 Filed 07/10/17 Page 17 of 17