Pendelton et al v. Jevs Human Services, Inc. et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.April 28, 2017

DM2\7686263.4 F2216/00214 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Pamela Pendleton and Vernon Costin, on behalf of themselves and those similarly situated, Plaintiffs, v. JEVS Human Services, Inc. and Jewish Employment & Vocational Service, Inc. d/b/a JEVS Human Services, Defendants. Civil Action No. 16-CV-06619-JS ORDER AND NOW this ___ day of ____________, 2017, upon consideration of Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint, the Memorandum of Law in Support Thereof, and any response thereto, it is hereby ORDERED that the Motion is GRANTED and that Plaintiffs’ Amended Complaint is DISMISSED with prejudice. ____________________________________ Juan R. Sánchez United States District Judge Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 1 of 47 DM2\7686263.4 F2216/00214 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Pamela Pendleton and Vernon Costin, on behalf of themselves and those similarly situated, Plaintiffs, v. JEVS Human Services, Inc. and Jewish Employment & Vocational Service, Inc. d/b/a JEVS Human Services, Defendants. Civil Action No. 16-CV-06619-JS MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT Defendants JEVS Human Services, Inc. and Jewish Employment & Vocational Service, Inc. d/b/a JEVS Human Services move under Fed. R. Civ. P. 12(b)(6) to dismiss with prejudice the Amended Complaint of Plaintiffs. The reasons for the Motion are set forth in the attached Memorandum of Law, which is incorporated herein. Respectfully submitted, /s/ Caroline M. Austin, Esquire Caroline M. Austin Atty. I.D. No. 75228 Kathryn R. Brown Atty. I.D. No. 313834 Duane Morris LLP 30 S. 17th St. Philadelphia, PA 19103 Tel. 215.979.1000 Fax: 215.979.1020 Date: April 28, 2017 Attorneys for Defendants Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 2 of 47 DM2\7686263.4 F2216/00214 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Pamela Pendleton and Vernon Costin, on behalf of themselves and those similarly situated, Plaintiffs, v. JEVS Human Services, Inc. and Jewish Employment & Vocational Service, Inc. d/b/a JEVS Human Services, Defendants. Civil Action No. 16-CV-06619-JS DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT DUANE MORRIS LLP Caroline M. Austin Atty. I.D. No. 75228 Kathryn R. Brown Atty. I.D. No. 313834 Duane Morris LLP 30 S. 17th St. Philadelphia, PA 19103 Tel. 215.979.1000 Fax: 215.979.1020 Date: April 28, 2017 Attorneys for Defendants Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 3 of 47 DM2\7686263.4 F2216/00214 i TABLE OF CONTENTS Page I. INTRODUCTION ...............................................................................................................1 II. RELEVANT FACTUAL BACKGROUND ........................................................................3 III. PROCEDURAL HISTORY .................................................................................................4 IV. STANDARD OF REVIEW .................................................................................................4 V. ARGUMENT .......................................................................................................................5 A. Each Claim Lacks Plausibility Absent Factual Allegations Connecting Their Alleged Status or Non-Status in Various Groups to Their Conclusory Allegation That They Are “Employees” Who Are Owed Wages and Benefits. ................................................................................................ 5 1. Plaintiffs Classify Themselves as “Primary Life-Sharing Caregivers” and “Direct Service Workers.” ............................................... 6 2. Plaintiffs Classify Themselves as Employees of JEVS as a “Common Law Employer.” ........................................................................ 8 3. Plaintiffs Classify Themselves as CLHS Direct Care Employees. ............. 9 4. Plaintiffs Allege that JEVS Misclassified Them as Independent Contractors. ............................................................................................... 11 B. In the Alternative, Plaintiffs’ Claims of Breach of Contract, Unjust Enrichment, Violation of the WPCL, Accounting, Conversion, Violations of ERISA, and Violation of Section 1981 Fail as a Matter of Law. ..................... 12 1. Plaintiffs’ Breach of Contract Claim Fails Absent Any Alleged Breach of Any Provision in the Contracts Between the Parties. ............... 12 2. Plaintiffs’ Unjust Enrichment Claim Fails Because Contracts Govern the Parties’ Relationship and There Are No Facts Showing That JEVS Was Unjustly Enriched By Plaintiffs’ Services. ..................... 13 3. Plaintiffs’ WPCL Claim is Fatally Flawed Because Plaintiffs Allege No Contractual Right to Wages. ................................................... 15 4. Plaintiffs’ Claim of Conversion Fails Absent Any Facts Showing that JEVS Deprived Them of Any Right to Monies and Because It Merely Repackages Their Breach of Contract Claim. .............................. 16 Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 4 of 47 DM2\7686263.4 F2216/00214 ii a. Plaintiffs Have Not Set Forth Any Facts to Support a Plausible Claim of Conversion. .....................................................17 b. The Gist of the Action Doctrines Requires Dismissal of Plaintiffs’ Conversion Claim. ........................................................18 5. Plaintiffs’ Claims for an Accounting Are Fatally Flawed. ....................... 19 a. An Accounting is a Remedy, Not a Cause of Action. ...................19 b. Plaintiffs Cannot Show Any Contractual Obligation by JEVS to Account for Monies to Plaintiffs. ....................................19 c. Plaintiffs’ Claim for an Accounting at Law Fails Because It is Premature and It Requires a Valid Breach of Contract Claim. .............................................................................................20 d. Plaintiffs’ Claim for an Equitable Accounting Fails Because Discovery Gives Them an Adequate Remedy at Law. ...............................................................................................21 6. Plaintiffs’ Claim Under ERISA Section 502(a)(1)(B) Must be Dismissed for Failure to Exhaust Administrative Remedies and Mr. Costin’s Claim Also Fails Based on Untimeliness. ........................... 22 a. Plaintiffs Failed to Exhaust Their Administrative Remedies Under the Plan Under Which They Seek Benefits. ........................22 b. Mr. Costin’s ERISA Section 502(a)(1)(B) Claim is Time- Barred. ............................................................................................24 7. Plaintiffs’ ERISA Section 502(a)(3) Claim Fails Absent Factual Allegations of JEVS’ “Fiduciary Status” and Because It Is Duplicative of Their ERISA Section 502(a)(1)(B) Claim. ....................... 25 a. Plaintiffs Fail to State a Claim for Breach of Fiduciary Duty................................................................................................25 b. Plaintiffs’ ERISA Section 502(a)(3) Claim Must Be Dismissed as Duplicative of Their ERISA Section 502(a)(1)(B) Claim. .......................................................................26 8. Plaintiffs’ Section 1981 Claim Fails Absent Any Plausible Allegations of Race Discrimination. ......................................................... 28 a. Plaintiffs’ Section 1981 Claim Lacks Any Facts Plausibly to Suggest Differential Treatment Because of Their Race. ...........28 Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 5 of 47 DM2\7686263.4 F2216/00214 iii b. Plaintiffs Have Not Alleged Facts Sufficient to Show They Suffered an Adverse Employment Action. ....................................30 c. Plaintiffs Cannot Establish That JEVS Treated Similarly- Situated Non-Members of the Protected Class More Favorably. ......................................................................................30 C. In the Alternative, if the Court Does Not Otherwise Dismiss Plaintiffs’ Breach of Contract, Unjust Enrichment and Conversion Claims, ERISA Preempts Such Claims to the Extent They Seek Benefits. .................................... 32 VI. CONCLUSION ..................................................................................................................35 Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 6 of 47 DM2\7686263.4 F2216/00214 iv TABLE OF AUTHORITIES Federal Cases Am. Chiropractic Assoc. v. Am. Specialty Health Inc., 625 F. App’x 169 (3d Cir. 2015) ........................................................................................................................................22 Anh Truong v. Dart Container Corp., No. 09-cv-3398, 2010 WL 4237944 (E.D. Pa. Oct. 26, 2010) ....................................................................................................................29 Ankerstjerne v. Schlumberger, Ltd., 155 F. App’x 48 (3d. Cir. 2005) ..........................................14 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................5, 10 Bamgbose v. Delta-T Grp., Inc., 638 F.Supp.2d 432 (E.D. Pa. 2009) ..................................... 24-25 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................5, 11 Bennett v. Prudential Ins. Co., 192 F. App’x 153 (3d Cir. 2006) ..................................................23 Bernatowicz v. Colgate-Palmolive Co., 785 F. Supp. 488 (D.N.J. 1992), aff’d, 981 F.2d 1246 (3d Cir. 1992) .........................................................................................................34 Binary Semantics Ltd. v. Minitab, Inc., No. 07-cv-1750, 2008 WL 763575 (M.D. Pa. Mar. 20, 2008)....................................................................................................................21 Blood v. Eastman Kodak Co., No. 08-cv-6123, 2009 U.S. Dist. LEXIS 70223 (D.N.J. Aug. 10, 2009) .............................................................................................................24 Brown & Brown v. Cola, 745 F. Supp. 2d 588 (E.D. Pa. Oct. 4, 2010) ........................................17 Brown v. J. Kaz, Inc., 581 F.3d 175 (3d Cir. 2009) .......................................................................28 Clark v. Dale Property Servs., No. 11-cv-01623, 2012 U.S. Dist. LEXIS 33549 (W.D. Pa. Mar. 13, 2012).........................................................................................................33 ClubCom, Inc. v. Captive Media, Inc., No. 07-cv-1462, 2009 U.S. Dist. LEXIS 7960 (W.D. Pa. Jan. 31, 2009) .................................................................................................19 Cohen v. Prudential Ins. Co., No. 08-cv-5319, 2009 U.S. Dist. LEXIS 71422 (E.D. Pa. Aug. 12, 2009) ..........................................................................................................27 Cottillion v. United Ref. Co., 781 F.3d 47 (3d Cir. 2015) ....................................................... 23-24 Curcio v. John Hancock Life Ins. Co., 33 F.3d 226 (3d Cir. 1994) ...............................................25 D’Amico v. CBS Corp., 297 F.3d 287 (3d Cir. 2002) ....................................................................23 Danao v. ABM Janitorial Servs., 142 F. Supp. 3d 363 (E.D. Pa. 2015) ........................................31 Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 7 of 47 DM2\7686263.4 F2216/00214 v Danao v. ABM Janitorial Servs., No. 14-cv-6621, 2015 U.S. Dist. LEXIS 65418 (E.D. Pa. May 19, 2015) ..........................................................................................................30 Daniels v. Thomas & Betts Corp., 263 F.3d 66 (3d Cir. 2001) .....................................................25 Deserne v. Madlyn & Leonard Abramson Ctr. for Jewish Life, Inc., No. 10-cv- 03694, 2011 U.S. Dist. LEXIS 15377 (E.D. Pa. Feb. 16, 2011) .............................................29 Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173 (3d Cir. 2000) ....................... Passim Ferry v. Mut. Life Ins. Co., 868 F. Supp. 764 (W.D. Pa. 1994) .....................................................34 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) ..............................................................5 Funayama v. Nichia Am. Corp., No. 08-cv-5599, 2009 WL 1437656 (E.D. Pa. May 21, 2009) ..........................................................................................................................28 Gluck v. Unisys Corp., 960 F.2d 1168 (3d Cir. 1992) ...................................................................24 Golkow v. Esquire Dep. Servs., LLC, No. 07-cv-3355, 2009 WL 3030218 (E.D. Pa. Sept. 23, 2009) ...................................................................................................................21 Golod v. Bank of Am. Corp., 403 F. App’x 699 (3d Cir. 2010) ............................................... 29-30 Greer v. Mondelez Global, Inc., 590 F. App’x 170 (3d Cir. 2014) ...............................................30 Gross v. R.T. Reynolds, Inc., 487 F. App’x 711 (3d Cir. 2012) .............................................. 28-29 Grudkowski v. Foremost Ins. Co., 556 F. App’x 165 (3d Cir. 2014) ............................................13 Harle v. The Edward B. O’Reilly & Assocs., Inc. Employee Health Care Plan, No. 92-1721, 1992 U.S. Dist. LEXIS 13420 (E.D. Pa. Sept. 9, 1992) ...........................................33 Harris v. St. Joseph’s Univ., No. 13-cv-3937, 2014 WL 1910242 (E.D. Pa. May 13, 2014) ..........................................................................................................................13 Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244 (3d Cir. 2002) ....................................... 22-23 Hayes v. Reliance Std. Life Ins. Co., 92 F. Supp. 3d 276 (M.D. Pa. Mar. 17, 2015) .....................24 Haymaker v. Reliance Std. Life. Ins. Co., No. 15-cv-06306, 2016 U.S. Dist. LEXIS 56452 (E.D. Pa. Apr. 27, 2016) ...................................................................................26 Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990) ..............................................................33 Kiniropoulos v. Northampton Cnty. Child Welfare Serv., 917 F.Supp.2d 377 (E.D. Pa. 2013)............................................................................................................. 29, 32-33 Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 8 of 47 DM2\7686263.4 F2216/00214 vi Lash v. Reliance Std. Life Ins. Co., No. 16-cv-235, 2016 U.S. Dist. LEXIS 78873 (E.D. Pa. June 17, 2016) ..........................................................................................................26 Martellacci v. The Guardian Life Ins. Co. of Am., No. 08-cv-2541, 2009 U.S. Dist. LEXIS 13773 (E.D. Pa. Feb. 20, 2009)...........................................................................34 McGough v. Broadwing Commc’ns, Inc., 177 F. Supp. 2d 289 (D.N.J. 2001) ....................... 20-21 McGuckin v. Brandywine Realty Trust, 185 F. Supp. 3d 600 (E.D. Pa. 2016) ........................ 14-15 Mekuns v. Capella Educ. Co., 655 F. App’x 149 (3d Cir. 2016) ..................................................13 Menkes v. Prudential Ins. Co. of Am., 762 F.3d 285 (3d Cir. 2014) .............................................33 Miller v. Mellon Long Term Disability Plan, 721 F. Supp. 2d 415 (W.D. Pa. 2010) ....................27 Montgomery v. Fed. Ins. Co., 836 F. Supp. 292 (E.D. Pa. 1993) ............................................ 17-18 Ogden v. Blue Bell Creameries U.S.A., Inc., 348 F.3d 1284 (11th Cir. 2003) ..............................28 Oldcastle Precast, Inc. v. VPMC, Ltd., No. 12-cv-6270, 2013 WL 1952090 (E.D. Pa. May 13, 2013) ....................................................................................................................18 Perano v. Twp. of Tilden, 423 F. App’x 234 (3d Cir. 2011)..........................................................31 Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) .......................................................................33 Pollock v. Energy Corp. of Am., No. 10-cv-1553, 2011 WL 5977422 (W.D. Pa. Nov. 29, 2011) .........................................................................................................................21 Potts v. Hartford Life and Accident Ins. Co., No. 16-cv-35, 2016 U.S. Dist. LEXIS 104432 (W.D. Pa. Aug. 9, 2016) .................................................................................27 QVC, Inc. v. Resultly, LLC, 159 F. Supp. 3d 576 (E.D. Pa. 2016) ................................................18 Reyes v. XPO Last Mile, Inc., No. 15-cv-2972, 2016 WL 4063454 (E.D. Pa. July 29, 2016)...........................................................................................................................16 Rosario v. First Student Mgmt., LLC, No. 15-cv-6478, 2016 U.S. Dist. LEXIS 108172 (E.D. Pa. Aug. 16, 2016) .............................................................................................16 Scheibler v. Highmark Blue Shield, 243 F. App’x 691 (3d Cir. 2007) ..........................................34 Schirmer v. Principal Life Ins. Co., No. 08-cv-2406, 2008 WL 4787568 (E.D. Pa. Oct. 29, 2008) ..........................................................................................................................21 Schweikert v. Baxter Healthcare Corp., No. 12-cv-5876, 2013 U.S. Dist. LEXIS 67355 (D.N.J. May 10, 2013) ..................................................................................................23 Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 9 of 47 DM2\7686263.4 F2216/00214 vii Scott v. Bimbo Bakeries, USA, Inc., No. 10-cv-3154, 2012 WL 645905 (E.D. Pa. Feb. 29, 2012) ..........................................................................................................................16 Sheinman Provisions, Inc. v. Nat’l Deli, LLC, No. 08-cv-453, 2008 WL 2758029 (E.D. Pa. July 15, 2008) ...........................................................................................................14 Storey v. Burns Int’l Sec. Servs., 390 F.3d 760 (3d Cir. 2004) ......................................................30 Target Glob. Logistics Servs., Co., v. KVG, LLC, No. 15-cv-04960, 2015 WL 8014752 (E.D. Pa. Dec. 3, 2015) .............................................................................................18 U.S. Renal Care, Inc. v. Wellspan Health, No. 14-cv-2257, 2015 U.S. Dist. LEXIS 120401 (M.D. Pa. Sept. 10, 2015) ...............................................................................34 Universal Premium Acceptance Corp. v. York Bank and Trust Co., 69 F.3d 695 (3d Cir. 1995) ...........................................................................................................................17 Varity v. Howe, 516 U.S. 489 (1996) ....................................................................................... 25-28 Vives v. Rodriguez, 849 F. Supp. 2d 507 (E.D. Pa. 2012) ....................................................... 18-19 Ware v. Rodale Press, Inc., 322 F.3d 218 (3d Cir. 2003) ..............................................................12 Weldon v. Kraft, Inc., 896 F.2d 793 (3d Cir. 1990) .......................................................................16 Wilcher v. Postmaster Gen., 441 F. App’x 879 (3d Cir. 2011) ............................................... 31-32 Wilkins v. Bozzuto & Assocs., Inc., No. 09-cv-2581, 2009 U.S. Dist. LEXIS 115776 (E.D. Pa. Dec. 10, 2009) .............................................................................................30 Young v. Reconstructive Orthopaedic Assocs., II, P.C., No. 03-cv-2034, 2005 U.S. Dist. LEXIS 10377 (E.D. Pa. 2005) .......................................................................... 34-35 State Cases Ario v. Ingram Micro, Inc., 965 A.2d 1194 (Pa. Super. Ct. 2009) ..................................................6 Braun v. Wal-Mart Stores, Inc., 24 A.3d 875 (Pa. Super. Ct. 2011) .............................................15 Buczek v. First Nat’l Bank of Mifflintown, 531 A.2d 1122 (Pa. Super. Ct. 1987) ................... 20-21 Haft v. U.S. Steel Corp., 499 A.2d 676 (Pa. Super. Ct. 1985) .......................................................20 Martin v. Nat’l Sur. Corp., 262 A.2d 672 (Pa. 1970) ....................................................................17 Shonberger v. Oswell, 530 A.2d 112 (Pa. Super. Ct. 1987) .................................................... 17-18 Wiernik v. PHH US Mortg. Co., 736 A.2d 616 (Pa. Super. Ct. 1999) ..................................... 14-15 Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 10 of 47 DM2\7686263.4 F2216/00214 viii Federal Statutes 29 U.S.C. § 1002(21)(A)................................................................................................................25 29 U.S.C. § 1132(a)(1)(B) ..................................................................................................... Passim 29 U.S.C. § 1132(a)(3) ........................................................................................................... Passim 29 U.S.C. § 1144(a) .......................................................................................................................32 42 U.S.C. § 1981 .................................................................................................................... Passim State Statutes 43 P.S. § 260.1 et seq. ......................................................................................................................2 42 Pa. Cons. Stat. Ann. § 5525(a)(8) .............................................................................................24 Rules Fed. R. Civ. P. 8 ...............................................................................................................................4 Fed. R. Civ. P. 8(a) ..........................................................................................................................5 Fed. R. Civ. P. 8(a)(2) ......................................................................................................................4 Fed. R. Civ. P. 12(b)(6).......................................................................................................... Passim Pa. R. Civ. P. 1021(a) .............................................................................................................. 19-20 Regulations 55 Pa. Code § 6400 ....................................................................................................................6, 10 55 Pa. Code § 6500.1, et seq. .................................................................................................1, 6, 10 Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 11 of 47 DM2\7686263.4 F2216/00214 I. INTRODUCTION The essence of the Amended Complaint is that Plaintiffs provide services for Defendants as “employees” and that, by failing to treat them as “employees,” Defendants deprived them of wages and benefits attendant to an employment relationship. Plaintiffs assert twelve claims in an attempt to recover wages and benefits they allege are owed to them. The Amended Complaint is a scattershot of allegations that, in the aggregate, are not just implausible, but inscrutable. The original Complaint used a straightforward, albeit implausible logic that Plaintiffs are owed wages and benefits because they are “direct service workers” as defined under Chapter 6500 of the Pennsylvania Code of regulations (hereinafter, the “Code”), 55 Pa. Code § 6500.1, et seq., and that the Code requires “direct service workers” to be treated as “employees.” The Amended Complaint replaces that cohesive logic with convoluted allegations that amount to throwing the proverbial spaghetti on the wall to see what sticks. As a result, Defendants cannot discern what theory of relief they are expected to defend. To illustrate Plaintiffs’ wide-ranging theories, Plaintiffs deny that they are “independent contractors” and assert, instead, that they are both “primary life-sharing caregivers” and “direct service workers,” who allegedly perform the same duties as a third group, JEVS’ “Community Living and Home Supports” employees. Yet, Plaintiffs allege no facts plausibly to connect any of these statuses or non-statuses with the legal conclusion that Plaintiffs are “employees” who are owed wages and benefits by JEVS. Plaintiffs marshal documents deriving from various contexts, created for various purposes, at various times, and prepared by various authors to support their arguments. Rather than lending support to elucidate Plaintiffs’ theories of relief, these documents only muddle the issues. For example, Plaintiffs highlight terminology used in these documents in an apparent attempt to support their legal conclusion that they are “employees.” Yet, Plaintiffs fail to Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 12 of 47 DM2\7686263.4 F2216/00214 2 connect the significance they attribute to the terminology used in these documents to any of their varied theories of relief and provide no facts to support the connection. Twisted out of context, the terminology provides no plausible basis to support Plaintiffs’ allegations. All claims in the Amended Complaint are predicated on Plaintiffs being “employees” as a result of Plaintiffs’ alleged status or non-status in the various groups. However, all claims suffer from the fatal absence of factual allegations to provide the necessary link from Plaintiffs’ status or non-status in the various groups to the legal conclusion that they are “employees.” Accordingly, all claims must be dismissed pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure to state a plausible claim for relief. Alternatively, Defendants move to dismiss the following claims based on Plaintiffs’ failure to set forth sufficient factual allegations to establish a plausible claim for relief under Rule 12(b)(6): violation of the Pennsylvania Wage Payment and Collection Law, 43 P.S. § 260.1 et seq. (“WPCL”) (Count V), breach of contract (Count VI), unjust enrichment (Count VII), accounting (Count VIII), conversion (Count IX), violation of § 502(a)(1)(B) of the Employee Retirement Income Security Act (“ERISA”) (Count X), breach of fiduciary duty under § 502(a)(3) of ERISA (Count XI) and violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“Section 1981” or “§ 1981”) (Count XII). Further, Mr. Costin’s ERISA § 502(a)(1)(B) claim (Count X) must be dismissed for the separate reason that it is untimely. Moreover, in the alternative, if the court does not otherwise dismiss Plaintiffs’ claims of breach of contract (Count VI), unjust enrichment (Count VII), accounting (Count VIII) and conversion (Count IX), Defendants move to dismiss such claims, to the extent they seek benefits, based on preemption under ERISA. Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 13 of 47 DM2\7686263.4 F2216/00214 3 II. RELEVANT FACTUAL BACKGROUND1 JEVS Human Services, Inc. and Jewish Employment & Vocational Service, Inc. d/b/a/ JEVS Human Services (collectively, “JEVS” or “Defendants”) are non-profit corporations that, through the “Providers” 2 in JEVS’ Lifesharing Program (“Lifesharing Program”), provide home supervision and residential care services to individuals with intellectual disabilities. Am. Compl., ¶¶ 8, 24, 26-27. The Pennsylvania Department of Public Welfare (“DPW”) provides payments to JEVS for the Lifesharing services that JEVS delivers. Id., ¶ 43. The Code governs Life Sharing programs. Id., ¶ 28. JEVS is an “Agency” and “Provider” of Lifesharing services under the Code. Id., ¶¶ 28-30 (citing 55 Pa. Code § 6500.4). According to the Amended Complaint, JEVS “employs” “primary life-sharing caregivers” to provide care in their own residences to individuals in the LifeSharing Program. Id., ¶ 44. Primary life-sharing caregivers allegedly are also “Direct Service Worker[s]” because the duties they perform fit the definition of a “direct service worker” in the Code as “[a] person whose primary job function is to provide services to an individual who resides in the Provider’s family living home.” Id., at ¶¶ 45 (citing 55 Pa. Code § 6500.4), 45. Plaintiffs allegedly are/were “primary life-sharing caregivers.” Id., ¶¶ 50, 106, 166-67. Plaintiff Pamela Pendleton (“Ms. Pendleton”) was a Provider in the Lifesharing Program from on or around October 2013 to on or about June 2016. Id., ¶¶ 50, 117. Separate from Ms. Pendleton’s role as a Provider, JEVS has employed her as an Associate Director since February 1 For purposes of this Motion to Dismiss (“Motion”), Defendants accept as true the allegations in the Amended Complaint, but no admission of fact is intended or should be inferred from the recitation of any allegation. 2 For purposes of this Motion, Defendants refer to Plaintiffs as “Providers,” which is the term used in Defendants’ contracts with Plaintiffs. See Am. Compl., Exs. C (p. 1), G (p. 1), H (p. 1), M (p. 2). Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 14 of 47 DM2\7686263.4 F2216/00214 4 2012. Id., ¶ 105. Plaintiff Vernon Costin (“Mr. Costin”) is a Provider in the Lifesharing Program and has been a Provider since in or around September 2010. Id., ¶ 63. The people who live in Providers’ residences are “Individuals” under the Code. Id., ¶ 26, 31 (citing 55 Pa. Code § 6500.4). Plaintiffs provide services to Individuals pursuant to an Individual Service Plan (“ISP”) that governs each Individual’s care. Id., ¶¶ 31, 85, 88-89. JEVS enters into “Room and Board” contracts with Individuals. Id., ¶¶ 32-33. JEVS also enters into contracts with Providers, including Plaintiffs. Id., ¶¶ 51, 64, 154, 169. Pursuant to these contracts, JEVS reimburses Providers for expenses they incur for Individuals, including utilities. Id., ¶ 169. JEVS does not pay wages or benefits to Providers. Id., ¶ 84. JEVS employs “Community Living and Homes Supports [“CLHS”] direct care employees” who reside in “community living homes.” Id., ¶¶ 132, 137-39. CLHS direct care employees are represented by a labor union. Id., ¶ 136. JEVS Human Services is party to a collective bargaining agreement (“CBA”) with the labor union. Id., ¶¶ 136-37. According to Plaintiffs, all Providers are black/African-American. Id., ¶¶ 148, 189. III. PROCEDURAL HISTORY On December 23, 2016, Plaintiffs filed a Complaint against Defendants. See ECF No. 1. On March 3, 2017, Defendants filed a Motion to Dismiss the Complaint, which the Court denied without prejudice to reassertion. See ECF Nos. 13, 16. On March 24, 2017, Plaintiffs filed an Amended Complaint. See ECF No. 15. IV. STANDARD OF REVIEW The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint against the pleading requirements set forth in Rule 8. See Fed. R. Civ. P. 12(b)(6). Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 15 of 47 DM2\7686263.4 F2216/00214 5 Rule 8(a)(2) requires that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). If a complaint fails to allege “enough facts to state a claim to relief that is plausible on its face,” a court must dismiss the complaint. See Fed R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (Rule 8(a) requires that the facts in a complaint plausibly suggest that the pleader is entitled to relief). Facial plausibility requires more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements[.]” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). The factual content of the complaint must “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id., at 678. Although a court must accept as true all of the well-pleaded facts of a complaint, a court “need not accept as true ‘unsupported conclusions and unwarranted inferences.’” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 184 (3d Cir. 2000) (internal citation omitted); see Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). V. ARGUMENT A. Each Claim Lacks Plausibility Absent Factual Allegations Connecting Their Alleged Status or Non-Status in Various Groups to Their Conclusory Allegation That They Are “Employees” Who Are Owed Wages and Benefits. Plaintiffs attempt to use their alleged status or non-status in various groups as a vehicle to obtain relief for their claims, which each rely upon their alleged legal status as “employees.”3 3 See, e.g., Am. Compl., Count I, ¶ 198 (the “FLSA requires employers to pay employees such as Plaintiffs and Collective Plaintiffs no less than minimum wage for all hours worked up to 40 hours per week”) (emphasis added); Count V, ¶ 225 (“The WPCL requires employers to pay covered employees for every hour worked in a workweek and that they pay wages on regular paydays.”) (emphasis added); Count VI, ¶ 231 (“JEVS entered into written contracts with Plaintiffs and the Class for each year of their employment with JEVS . . .”) (emphasis added); id., Count IX, ¶ 254 (“By not paying minimum wage and overtime to Plaintiffs and the Class, JEVS has converted wages owed to Plaintiff and the Class.”); Count XI, ¶ 270 (“ERISA Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 16 of 47 DM2\7686263.4 F2216/00214 6 However, after parsing out the legal conclusions from Plaintiffs’ allegations, it becomes clear that Plaintiffs put forth no facts to illuminate the legal significance of their alleged status or non- status in these groups or to link their status or non-status in these groups with their alleged entitlement to wages and benefits as “employees.” Therefore, the Amended Complaint presents only disjointed allegations that fall short of the standard of facial plausibility necessary to survive a motion to dismiss. See Fowler, 578 F.3d at 210. 1. Plaintiffs Classify Themselves as “Primary Life-Sharing Caregivers” and “Direct Service Workers.” Plaintiffs contend that they are “primary life-sharing caregivers” who “JEVS does not pay wages or offer employee benefits to . . . despite the voluminous hours they work as JEVS’ life-sharing employees.”4 Am. Compl., ¶ 49 (emphasis added); see id., ¶ 44. Plaintiffs do not plead that the Code defines “primary life-sharing caregiver,” which is telling, because the Code mentions no such status. See 55 Pa. Code § 6400.4 (Definitions); id. § 6500.4 (Definitions); Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1201 (Pa. Super. Ct. 2009) (“[T]he best indication of the General Assembly’s intent is the plain language of the statute.”). None of Plaintiffs’ exhibits has the phrase “primary life-sharing caregiver” either. See Am. Compl. ¶¶ 1-293; Exs. A-R. Thus, “primary life-sharing caregiver” appears to be a phrase of Plaintiffs’ own creation. Plaintiffs assign meaning to their coined phrase by alleging that “primary life-sharing caregivers” perform the “very duties to Individuals” that fall within the definition of “direct service worker” in the Code. Id., ¶¶ 3, 45, 46 (citing 55 Pa. Code § 6500.4); 196 (alleging §404(a)(1) . . . requires that employee benefit plan fiduciaries discharge their duties with respect to a plan solely in the interest of participants and their beneficiaries . . .”) (emphasis added). 4 “Life-sharing employees” also appears to be a phrase created by Plaintiffs, as the Code does not reference it. See 55 Pa. Code § 6400.4 (Definitions); 55 Pa. Code § 6500.4 (Definitions). Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 17 of 47 DM2\7686263.4 F2216/00214 7 Plaintiffs “were employed with JEVS as primary life-sharing caregivers and/or as Direct Service Workers”) (emphasis added). However, even if Plaintiffs perform the duties of a “direct service worker,” nothing in the Code supports their apparent conclusion that performing those duties makes one an “employee.” See id., at ¶¶ 84, 133, 138, 145-46. Thus, Plaintiffs’ reliance on the definition of “direct service worker” in the Code provides no plausible basis for their alleged rights to wages and benefits. None of the exhibits that Plaintiffs attach to their Amended Complaint provide the necessary support for Plaintiffs’ conclusion either. For example, Plaintiffs allege that their written contracts with JEVS “govern[] [their] employ as a JEVS primary life-sharing caregiver.” Id., ¶¶ 51, 64 (emphasis added). They contend that the contracts require them to perform “work” for JEVS because they obligate Plaintiffs to supervise an Individual “at all times . . . .” See id., ¶¶ 80-81, 83, Exs. C, ¶ 3, G ¶ 3, H, ¶ 3. Yet, the contracts neither identify Plaintiffs as “primary life-sharing caregivers” (or as “direct service workers”), nor require them to “work” for JEVS for any length of time. See id., ¶¶ 81, 83, Exs. C, at p. 2 ¶ 3 (“The Provider agrees to provide supervision at all times when the Recipient is at the Provider’s residence or outside of the Provider’s residence except for allotted independent time which will be documented in the [ISP].”); G, at p. 2, ¶ 3 (same); H, at p. 2, ¶ 3 (same); M, at p. 3 ¶ 6(A), p. 10 (“Life Sharing Contractors will: Provide a safe, nurturing, healthy environment[,] . . . Meet the needs of the individual as stated in their [ISP][,] . . . .”). Plaintiffs also allege that “[t]he Code identifies primary life-sharing caregivers as members of a Provider’s staff.” See id., ¶ 129 (emphasis added). Plaintiffs point to legislative history of DPW regulations that describes the amount of time “an individual is the [sic] be without direct staff supervision.” See Am. Compl., Ex. N, at p. 18. (emphasis added). Plaintiffs appear to equate the term “staff” in the legislative history with the legal designation of Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 18 of 47 DM2\7686263.4 F2216/00214 8 “employee.” As Plaintiffs’ logic goes, because Plaintiffs are “primary life-sharing caregivers” who are part of a “staff,” and because the legislative history mentions “staff” in discussing care for Individuals, and because “staff” is a term similar to “employee,” Plaintiffs must be afforded the rights of “employee” status. See id. The DPW legislative history does not support Plaintiffs’ great logical leaps, as it neither mentions the phrase “primary life-sharing caregivers,” nor identifies “staff” as legal “employees,” nor states that only legal “employees” may care for an Individual. See id., Ex. N. Absent any factual or legal support, Plaintiffs’ conclusory allegation that they are “primary life-sharing caregivers” provides no plausible basis for treating them as “employees” who are entitled to relief. See Doug Grant, Inc., 232 F.3d at 184. Plaintiffs also allege that the JEVS 2016 Annual Training Plan Requirements “describes the primary life-sharing caregivers as employees.” See Am. Compl. ¶ 130, Ex. E. The document says, “All employees must complete 24 hours of training” and “all Directors, Associate Directors and Direct Service Professionals (DSP) must complete the following mandatory trainings[.]” Id., ¶ 58. Plaintiffs contend that this statement shows that JEVS requires training for “both Direct Service Workers that JEVS classifies as employees and Direct Service Workers that JEVS does not classify as employees.” Id., ¶ 58. Yet, nothing in the document references a “primary life- sharing caregiver” or otherwise supports Plaintiffs’ stretched interpretation. See id. While it is conceivable that the document reflects training requirements that apply both to JEVS’ employees and non-employees (e.g., Plaintiffs), it is not plausible that the document supports Plaintiffs’ claims merely because it uses the term “employee.” See Doug Grant, Inc., 232 F.3d at 184. 2. Plaintiffs Classify Themselves as Employees of JEVS as a “Common Law Employer.” In another faulty attempt to twist terminology from a document to support their alleged status as “employees,” Plaintiffs point to the DPW “Provider Handbook.” See Am. Compl., Ex. Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 19 of 47 DM2\7686263.4 F2216/00214 9 D. Plaintiffs cite this document to support their allegation that JEVS is a “common law employer” and that “DPW requires . . . JEVS, to bear exclusive legal responsibility as employer for all persons who perform life-sharing duties.” Id., ¶¶ 55, 131 (emphasis added); 277 (“JEVS breached its contract with Plaintiffs and the Class by failing and refusing to classify them as employees pursuant to The Code and DPW’s guidance concerning the classification of primary life-sharing caregivers”). Plaintiffs highlight the following statement in the document: “When a provider is responsible for the supports and services that are rendered . . ., the individual receiving service . . . has no legal responsibility for the management of services and supports and all the ‘Common Law Employer’ or ‘Employer of Record’ responsibilities rest with the provider.” See id., Ex. D, at p. 16 (emphasis added). As with the term “staff” in the DPW legislative history described above, Plaintiffs appear to assume that the mention of the phrase “Common Law Employer” in DPW’s Provider Handbook supports Plaintiffs’ alleged status as “employees” of JEVS. However, Plaintiffs do not set forth any factual allegations to show what application, if any, the Provider Handbook or its reference to “Common Law Employer” has to Plaintiffs’ services in the Lifesharing Program. For example, Plaintiffs contend that JEVS has “evade[d] its obligations as a ‘common law employer’ under Pennsylvania and federal law,” id., ¶ 55, but fail to allege what obligations, if any, derive from an entity’s status as a “common law employer,” as that phrase is used in the Provider Handbook. Thus, Plaintiffs’ selective reading of DPW’s Provider Handbook is not plausible and cannot support their claims for relief. See Doug Grant, Inc., 232 F.3d at 184. 3. Plaintiffs Classify Themselves as CLHS Direct Care Employees. Another example of Plaintiffs’ convoluted pleading is their contention that they perform the “same or similar duties” as CLHS direct care employees and, therefore, must “be classified Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 20 of 47 DM2\7686263.4 F2216/00214 10 as JEVS direct care employees too[.]” Am. Compl., ¶¶ 138, 145-46.5 Plaintiffs posit that CLHS direct care employees meet the definition of “direct service worker” in Chapter 6400 of the Code (governing Community Homes For Individuals With an Intellectual Disability), which is the same as the definition of “direct service worker” in Chapter 6500 of the Code (governing Family Living Homes). See id. ¶ 133. Yet, Plaintiffs fail to identify the significance of this definitional similarity in bolstering their claims for relief. See id. Plaintiffs allege that they perform the “same or similar duties” as CLHS direct care employees, but nowhere do Plaintiffs allege facts to support their conclusion. Id., ¶ 138. Plaintiffs do not plead what duties CLHS direct care employees perform or how those duties are like Plaintiffs’ alleged duties for JEVS. See id., ¶¶ 138, 145-46. Thus, the “similarity” of their duties is a mere conclusory allegation that is not entitled to the assumption of truth. See id., ¶¶ 132-34; Doug Grant, Inc., 232 F.3d at 184. Despite the dearth of facts alleged to support Plaintiffs’ conclusory allegation that they are similarly situated to CLHS direct care employees, Plaintiffs cite the alleged terms and conditions of employment of CLHS direct care employees to support their alleged right to wages and benefits from JEVS. Am. Compl., ¶¶ 132, 136, 173-74, Ex. O (Licensing Inspection Summary), Ex. P (CBA). However, without any factual allegations linking Plaintiffs to CLHS direct care employees, nothing in the Amended Complaint allows the Court to “draw the reasonable inference” that Plaintiffs are owed wages and benefits merely because CLHS direct care employees receive wages and benefits. See Iqbal, 556 U.S. at 678. 5 Plaintiffs allege that CLHS direct care employees are also called “Direct Support Professionals” in the CBA. See Am. Compl. ¶ 137. Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 21 of 47 DM2\7686263.4 F2216/00214 11 Instead, the facts as pled support the inference that Plaintiffs are “material[ly] differen[t]” from CLHS direct care employees in all relevant respects. Unlike Plaintiffs, who host Individuals in Plaintiffs’ own residences, CLHS direct care employees provide services in community living homes. Am. Compl., ¶¶ 134, 136-39. Plaintiffs also acknowledge that, unlike them, CLHS direct care employees are represented by a labor union that is party to a CBA which defines their terms and conditions of employment. Id., ¶¶ 136-37. Thus, Plaintiffs plead no plausible basis for their conclusory allegation that they must be classified as JEVS employees because CLHS direct care employees are JEVS employees. Id., ¶ 146. 4. Plaintiffs Allege that JEVS Misclassified Them as Independent Contractors. Plaintiffs contend that JEVS wrongfully “reclassified” its “primary life-sharing caregivers” as “independent contractors” and allege that “DPW does not Authorize Agencies to Treat Primary Life-sharing Caregivers as Independent Contractors.” See Am. Compl., ¶¶ 124, p. 24 (sub-heading). Yet, nothing in the Code or the exhibits on which Plaintiffs rely supports their interpretation that DPW prohibits “primary life-sharing caregivers” (or “direct service workers”) from being independent contractors. See id., Exs. A-R. Plaintiffs’ bare allegation about DPW’s position on independent contractors, without any factual or legal citation, is an “unsupported conclusion[]” that yields no plausible basis for relief. See Doug Grant, Inc., 232 F.3d at 184. As the examples above show, all claims in the Amended Complaint are fatally flawed because they lack the necessary factual support to link Plaintiffs’ alleged status or non-status in various groups to the legal conclusion that they are “employees” who are owed wages and benefits from JEVS. See Twombly, 550 U.S. at 570. All claims are therefore implausible and must be dismissed pursuant to Rule 12(b)(6). Id. Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 22 of 47 DM2\7686263.4 F2216/00214 12 B. In the Alternative, Plaintiffs’ Claims of Breach of Contract, Unjust Enrichment, Violation of the WPCL, Accounting, Conversion, Violations of ERISA, and Violation of Section 1981 Fail as a Matter of Law. If the Court does not dismiss the Amended Complaint in its entirety, the Court should dismiss certain claims under Rule 12(b)(6) for lack of a plausible basis for relief. 1. Plaintiffs’ Breach of Contract Claim Fails Absent Any Alleged Breach of Any Provision in the Contracts Between the Parties. Plaintiffs’ breach of contract claim fails absent any facts showing that: (1) JEVS breached any provision of the contracts, or that (2) the contracts incorporate the Code and on that basis demonstrate a breach by JEVS. To state a breach of contract claim, a plaintiff must establish “‘(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract[,] and (3) resultant damages.’” Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir. 2003). Plaintiffs’ breach of contract claim derives from their contracts with JEVS, see Am. Compl., ¶¶ 51, 64, 230-40, which provide that JEVS “shall reimburse the Provider [Plaintiff] at the daily rate of $60 for this Recipient . . . for all expenses, including but not limited to room and board as defined in DPW 5400 regulations (Sections 5404.4 and 5404.5), and utilities.” See id., ¶ 169, Exs. C, p. 3, ¶¶ 11, 12; G, p. 3, ¶¶ 11, 12; see also id., Ex. M, p. 2, ¶ 5(C), p. 6, ¶ 7(A). Plaintiffs do not identify any contract provision that JEVS breached. Nowhere do they plead that JEVS failed to “reimburse” them “at the daily rate” for “all expenses” incurred for their services or to perform any other contractual obligation. See id., ¶¶ 230-40. Plaintiffs actually allege that JEVS honored the terms of the contracts in that, according to Plaintiffs, “JEVS reimburses JEVS primary life-sharing caregivers for expenses incurred at the JEVS Family Living Home that is also their residence at a rate of $60.00 per day under the 2013-2015 contracts and at a rate of $68.00 per day under the 2016 contracts.” Id., ¶ 169. Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 23 of 47 DM2\7686263.4 F2216/00214 13 Courts consistently dismiss breach of contract claims where the plaintiff pleads no facts to establish that the defendant breached any duty deriving from the contract. For example, in Harris v. St. Joseph’s Univ., No. 13-cv-3937, 2014 WL 1910242, at *3 (E.D. Pa. May 13, 2014), the court dismissed the plaintiff’s breach of contract claim, which was based on the terms of a handbook, for alleging “no clear averments as to what statement or regulations included in the Handbook . . . were violated or breached.” Here, Plaintiffs’ conclusory allegation that JEVS “violated its contractual duty to pay wages and benefits to Plaintiffs” is not anchored in any of the terms of the parties’ contracts, see Am. Compl., ¶ 237, Exs. C, G, H, M and thus cannot survive a motion to dismiss. See Mekuns v. Capella Educ. Co., 655 F. App’x 149, 150 (3d Cir. 2016) (affirming Rule 12(b)(6) dismissal with prejudice of breach of contract claim, where plaintiff’s “allegations and the documents attached to and relied on in his complaint show that [the defendant] did not breach any of the provisions on which he relies.”).6 2. Plaintiffs’ Unjust Enrichment Claim Fails Because Contracts Govern the Parties’ Relationship and There Are No Facts Showing That JEVS Was Unjustly Enriched By Plaintiffs’ Services. Plaintiffs’ unjust enrichment claim fails because: (1) contracts govern their relationship with JEVS, and (2) they allege no facts to show that JEVS unjustly benefited from their services. No claim for unjust enrichment lies where a contract governs the parties’ relationship. See Grudkowski v. Foremost Ins. Co., 556 F. App’x 165, 169-70 (3d Cir. 2014) (unjust enrichment is inapplicable when the parties’ relationship is founded upon a written agreement) 6 Also, Plaintiffs allege that their contracts “incorporate the Code’s definition of a Direct Service Worker,” which is patently false, as their contracts do not reference a “direct service worker,” let alone identify Plaintiffs as such. See id., ¶¶ 53, 67, 155 Exs. C, at pp. 1-5, G, at pp. 1-5, H, at pp. 1-6, M, at pp. 1-15. Even if the contracts incorporated the “direct service worker” definition, Plaintiffs’ claim would still fail because it alleges no facts showing that they are “direct service workers” or that the Code requires “direct service workers” to be treated as “employees.” Id. Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 24 of 47 DM2\7686263.4 F2216/00214 14 (citing Wilson Area Sch. Dist. v. Skepton, 895 A.2d 1250, 1254 (Pa. 2006)). Here, Plaintiffs allege that their contracts with JEVS governs their relationship. See Am. Compl., ¶¶ 51, 58, 64, 65, 72, 73, 122, 154-57, Exs. C, G, H, M. Therefore, Plaintiffs indisputably fail to state a plausible claim of unjust enrichment. See, e.g., Sheinman Provisions, Inc. v. Nat’l Deli, LLC, No. 08-cv-453, 2008 WL 2758029, at *4 (E.D. Pa. July 15, 2008) (granting motion to dismiss unjust enrichment claim where a contract governed the parties’ relationship). Further, where, a plaintiff brings an unjust enrichment claim based on the defendant’s alleged failure to pay wages, the plaintiff must show that he did “more than work to the best of his abilities for defendant as he was engaged to do.” See McGuckin v. Brandywine Realty Trust, 185 F. Supp. 3d 600, 607-08 (E.D. Pa. 2016) (granting motion to dismiss unjust enrichment claim alleging failure to pay adequately for work performed within the scope of the parties’ employment relationship) (citing Ankerstjerne v. Schlumberger, Ltd., 155 F. App’x 48, 52 (3d. Cir. 2005)). Plaintiffs do not allege that they did any “work” beyond the precise Lifesharing services that they were engaged to do under their contracts with JEVS. Plaintiffs merely contend that JEVSs did not compensate them adequately for such alleged “work.” See Am. Compl., ¶¶ 241-46. Plaintiffs’ theory of recovery fails. See McGuckin, 185 F. Supp. 3d at 607. Moreover, Plaintiffs fail to plead any facts showing that JEVS was “enriched” under “unjust” circumstances, a necessary element of their claim. To state a claim for unjust enrichment, a plaintiff must plead: (1) benefits conferred on defendant by plaintiff, (2) appreciation of such benefits by defendant, and (3) defendant’s acceptance and retention of such benefits under circumstances making it inequitable to retain the benefits without paying for them). See Wiernik v. PHH US Mortg. Co., 736 A.2d 616, 622 (Pa. Super. Ct. 1999). Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 25 of 47 DM2\7686263.4 F2216/00214 15 Plaintiffs allege that JEVS “benefited” from their “work” by “collecting from DPW a daily rate for work performed by Plaintiffs and the Class,” see Am. Compl., ¶ 243. Yet, Plaintiffs’ contracts reference the alleged “benefit” that JEVS derived by making clear that JEVS, as the “Agency,” receives funds to support the Lifesharing Program.7 See id., Ex. C, at p. 3, ¶¶ 10, 11 (The Agency “will receive payment for the Recipient’s room and board from the Recipient of his or her representative payee based upon a standard Room and Board Contract as defined in DPW 5400 regulations” and “shall reimburse the Provider . . . for all expenses, including but not limited to room and board as defined in DPW 5400 regulations . . .”); Ex. G, at p. 3, ¶¶ 11, 12 (same); Ex. M, at pp. 1 (identifying as a condition to the contract “. . . the availability of adequate funds from the Department”), 11 (“Lifesharing Consumer agrees to pay Agency. . . .”). Thus, Plaintiffs cannot show that JEVS benefited from Plaintiffs’ services in an “unjust” manner. See id., ¶¶ 51, 64. This pleading deficiency is fatal to their claim. See Wiernik, 736 A.2d at 622 (explaining that merely showing that a defendant benefited in some way from the plaintiff’s actions is insufficient to establish unjust enrichment). 3. Plaintiffs’ WPCL Claim is Fatally Flawed Because Plaintiffs Allege No Contractual Right to Wages. Plaintiffs’ WPCL claim also fails absent any allegation of a contractual right to wages. Plaintiffs contend that the WPCL “requires employers to pay covered employees for every hour worked in a workweek and that they pay wages on regular paydays.” Am. Compl., ¶ 225 (citing 43 P.S. § 260.3). Plaintiffs completely misstate the law. It is beyond dispute that the WPCL does not create a right to compensation, but merely provides a statutory remedy to recover wages and benefits that are contractually due. See, e.g., Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 7 The Room and Board contract likewise reflects the delivery of payment by the Individual to JEVS. See id., Ex. B (“Participant agrees to pay provider agency . . . .”). Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 26 of 47 DM2\7686263.4 F2216/00214 16 953 (Pa. Super. Ct. 2011). Thus, a prerequisite for relief under the WPCL “is a contract between employee and employer that sets forth their agreement on wages to be paid . . . .’” Scott v. Bimbo Bakeries, USA, Inc., No. 10-cv-3154, 2012 WL 645905, at *4 (E.D. Pa. Feb. 29, 2012) (emphasis added). Plaintiffs do not allege that their contracts with JEVS grant them any right to “wages.” See Am. Compl., ¶¶ 222-23. A plain reading of the contracts confirms that Plaintiffs have no contractual right to wages. Id., Exs. C, G, H, M. Rather than alleging a right to wages grounded in their contracts, Plaintiffs allege that their contracts “give[] JEVS the right to direct and supervise the manner in which Plaintiffs performed their duties.” Id. ¶ 222. Plaintiffs’ failure to allege any contractual entitlement to wages thus destroys their breach of contract claim, as described above, as well as their WPCL claim. See, e.g., Weldon v. Kraft, Inc., 896 F.2d 793, 801 (3d Cir. 1990) (affirming dismissal of WPCL claim where plaintiff showed no contractual entitlement to wages); Rosario v. First Student Mgmt., LLC, No. 15-cv-6478, 2016 U.S. Dist. LEXIS 108172, at *25 (E.D. Pa. Aug. 16, 2016) (dismissing WPCL claim where plaintiffs alleged no contractual entitlement to wages); Reyes v. XPO Last Mile, Inc., No. 15-cv-2972, 2016 WL 4063454, at *3 (E.D. Pa. July 29, 2016) (same). 4. Plaintiffs’ Claim of Conversion Fails Absent Any Facts Showing that JEVS Deprived Them of Any Right to Monies and Because It Merely Repackages Their Breach of Contract Claim. Plaintiffs’ conversion claim fails because: (1) it lacks any facts showing that Plaintiffs ever possessed the wages JEVS allegedly converted, and (2) it relies upon the same facts as Plaintiffs’ deficient breach of contract claim. Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 27 of 47 DM2\7686263.4 F2216/00214 17 a. Plaintiffs Have Not Set Forth Any Facts to Support a Plausible Claim of Conversion. Pennsylvania law defines “conversion” as “[a]quiring possession of the goods, with an intent to assert a right to them which is in fact adverse to that of the owner.” Martin v. Nat’l Sur. Corp., 262 A.2d 672, 675 (Pa. 1970) (internal quotation omitted). To plead conversion, a plaintiff must allege: (1) deprivation of another’s right in, use or possession of, property, (2) without the owner’s consent, and (3) without lawful justification. See Universal Premium Acceptance Corp. v. York Bank and Trust Co., 69 F.3d 695, 704 (3d Cir. 1995). For money to be the subject of conversion, the plaintiff must show that the money first belonged to the alleged victim before it was converted. See Shonberger v. Oswell, 530 A.2d 112, 114 (Pa. Super. Ct. 1987) (where the defendant agreed to sell the plaintiff’s goods and remit the proceeds to the plaintiff pursuant to a contract, but failed to remit the proceeds, the court held that the proceeds could be the basis of a conversion claim); Montgomery v. Fed. Ins. Co., 836 F. Supp. 292, 300 (E.D. Pa. 1993) (conversion lies where a party keeps the proceeds arising from the sale or transfer of goods that the other party entrusted him to deliver to the other party). Here, Plaintiffs allege that JEVS “converted wages owed to Plaintiffs” by “not paying [them] minimum wage and overtime.” Am. Compl., ¶ 254. Plaintiffs contend they “had an immediate right to be paid minimum wage and overtime . . .” Id., ¶ 253. However, Plaintiffs allege no facts to show they ever possessed the “wages,” had a contractual right to the “wages,” or that JEVS deprived them of any such “right” without legal justification. Id., ¶¶ 253-55 (emphasis added). Plaintiffs actually plead that JEVS has not paid them “any” of the “wages” they claim are owed to them. Id., ¶¶ 84, 172. In effect, Plaintiffs concede the legal deficiency of their claim because they admit they never possessed the “wages” they seek. See Brown & Brown v. Cola, 745 F. Supp. 2d 588, 624 (E.D. Pa. Oct. 4, 2010) (granting motion to dismiss Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 28 of 47 DM2\7686263.4 F2216/00214 18 conversion claim where the plaintiff had no property interest in the customers and business that were allegedly converted); see also QVC, Inc. v. Resultly, LLC, 159 F. Supp. 3d 576, 600 (E.D. Pa. 2016) (conversion claim failed absent any facts showing that the defendants intended to exercise control of the website servers at issue). Because Plaintiffs allege no facts to suggest that they ever possessed the “wages” JEVS allegedly converted, their claim must be dismissed. See Shonberger, 530 A.2d at 114. b. The Gist of the Action Doctrines Requires Dismissal of Plaintiffs’ Conversion Claim. Plaintiffs’ tort claim of conversion fails for the independent reason that their alleged entitlement to the “wages” that JEVS allegedly converted, Am. Compl., ¶¶ 253-55, derives solely from their contracts with JEVS. The “gist of the action” doctrine bars a plaintiff from re-casting a breach of contract claim as a tort claim. See Vives v. Rodriguez, 849 F. Supp. 2d 507, 516 (E.D. Pa. 2012) (citing Hart v. Arnold, 884 A.2d 316, 339 (Pa. Super. Ct. 2005)). The doctrine precludes tort claims where: (1) the claim arises solely from a contract between the parties; (2) the duties allegedly breached were created by a contract; (3) liability is derived from a contract; or (4) the success of the tort claim depends on the terms of a contract. See Oldcastle Precast, Inc. v. VPMC, Ltd., No. 12-cv-6270, 2013 WL 1952090, at *7 (E.D. Pa. May 13, 2013). Thus, a conversion claim fails where the parties’ contract is the source of the plaintiff’s alleged entitlement to the property. See Target Glob. Logistics Servs., Co., v. KVG, LLC, No. 15-cv-04960, 2015 WL 8014752, at *4 (E.D. Pa. Dec. 3, 2015) (dismissing conversion claim where plaintiffs’ right to funds was based on the parties’ agreement); Vives, 849 F. Supp. 2d at 517 (dismissing conversion claim predicated on a breach of contract); Brown & Brown, Inc., 745 F. Supp. 2d at 622-24 (dismissing Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 29 of 47 DM2\7686263.4 F2216/00214 19 portion of conversion claim alleging that defendants converted customers, because plaintiffs’ right to customers was governed by the parties’ agreements). Here, the “wages” JEVS allegedly converted are the same “wages” that JEVS allegedly had a “duty to pay” to Plaintiffs under the parties’ contract, as alleged in their breach of contract claim. See Am. Compl., ¶¶ 236-37 (breach of contract), 253-55 (conversion). The conversion claim thus relies on the same faculty allegations as Plaintiffs’ breach of contract claim and must be dismissed pursuant to the “gist of the action” doctrine. See Vives, 849 F. Supp. 2d at 517. 5. Plaintiffs’ Claims for an Accounting Are Fatally Flawed. Plaintiffs seek an accounting of “the monetary benefit” that they allegedly conferred upon JEVS through their “hours worked.” Am. Compl., ¶¶ 248-50. These “claims” too fail. a. An Accounting is a Remedy, Not a Cause of Action. At the outset, Plaintiffs’ accounting “claims” fail because an “accounting” - whether at law or in equity - is only a remedy, not an independent cause of action. See Pa. R. Civ. P. 1021(a) (requiring that pleadings set forth the type of “relief sought . . . including an accounting” (emphasis added)); ClubCom, Inc. v. Captive Media, Inc., No. 07-cv-1462, 2009 U.S. Dist. LEXIS 7960, at *39-40 (W.D. Pa. Jan. 31, 2009) (granting motion to dismiss counterclaim for an accounting because it is not a valid cause of action, but is only a remedy). Further, it appears Plaintiffs already demand an accounting in the ad damnum clause of the Amended Complaint, which requests “such other relief as the Court shall deem proper.” See Am. Compl., at p. 53. b. Plaintiffs Cannot Show Any Contractual Obligation by JEVS to Account for Monies to Plaintiffs. To establish a right to an accounting, a plaintiff must show that that there was a valid contract between the parties “whereby the defendant . . . received monies [from plaintiff] as agent, trustee or in any other capacity whereby the [contractual] relationship . . . imposed a legal Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 30 of 47 DM2\7686263.4 F2216/00214 20 obligation upon the defendant to account to the plaintiff for the monies received.” Haft v. U.S. Steel Corp., 499 A.2d 676, 677-78 (Pa. Super. Ct. 1985) (rejecting request for an accounting where plaintiffs did not allege that defendants received money from plaintiffs under a contract). Plaintiffs’ contracts neither contemplate payment of monies to JEVS, nor require JEVS to account to them for monies received. See Am. Compl., Exs. C, at pp. 1-5, G, at pp. 1-5, H, at pp. 1-6, M, at pp. 1-15. Thus, no basis for an accounting exists. See Haft, 499 A.2d at 677-78. c. Plaintiffs’ Claim for an Accounting at Law Fails Because It is Premature and It Requires a Valid Breach of Contract Claim. The right to an accounting at law derives from Pennsylvania Rule of Civil Procedure 1021(a). Pa. R. Civ. P. 1021(a); see Buczek v. First Nat’l Bank of Mifflintown, 531 A.2d 1122, 1123-24 (Pa. Super. Ct. 1987). To establish such a right, a plaintiff generally must plead: (1) a contractual relationship in which the defendant received monies under a legal obligation to account to the plaintiff; and (2) that the defendant breached his contractual duties. See McGough v. Broadwing Commc’ns, Inc., 177 F. Supp. 2d 289, 301-02 (D.N.J. 2001) (applying Pennsylvania law) (quoting Haft, 499 A.2d at 677-78). In Plaintiffs’ accounting claim, they rely on their allegation that JEVS failed to keep “true, accurate and correct records of hours worked,” Am. Compl., ¶ 248, but allege no supporting facts, id., ¶¶ 1-250. Plaintiffs contend that the Unemployment Compensation (“UC”) Law requires employers to keep “records,” id. ¶ 249, and attach a document of the Department of Labor & Industry that identifies records an employer must keep under the UC Law, see id., Ex. R. Again, Plaintiffs fail to explain what relevance, if any, the recordkeeping requirements under the UC Law have to their claim for an accounting. See id. Plaintiffs do not even allege that JEVS failed to keep the “records” as required under the UC Law. See id. Accordingly, Plaintiffs allege no plausible basis for seeking an accounting. See Doug Grant, Inc., 232 F.3d at 184. Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 31 of 47 DM2\7686263.4 F2216/00214 21 Further, Plaintiffs’ claim fails because a legal accounting requires a valid breach of contract claim under which the breaching party’s failure to account leaves the injured party unable to calculate the money owed under the contract. McGough, 177 F. Supp. 2d at 301-02. Here, the court has made no determination of whether JEVS breached any duty owed to Plaintiffs under the parties’ contracts, making any demand for a legal “accounting” premature. See Pollock v. Energy Corp. of Am., No. 10-cv-1553, 2011 WL 5977422, at *2 (W.D. Pa. Nov. 29, 2011) (no cognizable claim for a legal accounting exists where there has been no determination as to the merits of the contract dispute). Moreover, because Plaintiffs’ breach of contract claim is legally deficient, as discussed above, Plaintiffs’ legal accounting claim too fails. d. Plaintiffs’ Claim for an Equitable Accounting Fails Because Discovery Gives Them an Adequate Remedy at Law. Under Pennsylvania law, an “equitable accounting is improper where [1] no fiduciary relationship exists between the parties, [2] no fraud or misrepresentation is alleged, [3] the accounts are not mutual or complicated, or [4] the plaintiff possesses an adequate remedy at law.” Schirmer v. Principal Life Ins. Co., No. 08-cv-2406, 2008 WL 4787568, at *4 (E.D. Pa. Oct. 29, 2008) (quoting Rock v. Pyle, 720 A.2d 137, 142 (Pa. Super. Ct. 1998)). Thus, no claim lies for an equitable accounting where the plaintiff has access to discovery, an adequate remedy at law. See Golkow v. Esquire Dep. Servs., LLC, No. 07-cv-3355, 2009 WL 3030218, at *6 (E.D. Pa. Sept. 23, 2009) (“Equitable jurisdiction for an accounting does not exist merely because the plaintiff desires information that he could obtain through discovery.”); Buczek, 531 A.2d at 1124; Binary Semantics Ltd. v. Minitab, Inc., No. 07-cv-1750, 2008 WL 763575, at *13- 14 (M.D. Pa. Mar. 20, 2008) (granting motion to dismiss equitable accounting claim absent facts showing inability to obtain through discovery amounts of income and gross revenue owed). Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 32 of 47 DM2\7686263.4 F2216/00214 22 Here, discovery provides Plaintiffs with an adequate remedy to obtain the “records of hours worked.” Thus, Plaintiffs’ claim for an equitable accounting should be dismissed. See id. 6. Plaintiffs’ Claim Under ERISA Section 502(a)(1)(B) Must be Dismissed for Failure to Exhaust Administrative Remedies and Mr. Costin’s Claim Also Fails Based on Untimeliness. Plaintiffs plead no plausible basis for seeking relief under ERISA § 502(a)(1)(B). a. Plaintiffs Failed to Exhaust Their Administrative Remedies Under the Plan Under Which They Seek Benefits. A plaintiff must exhaust administrative remedies before seeking judicial relief under ERISA for a denial of benefits by a plan administrator. See Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244, 249-52 (3d Cir. 2002). This exhaustion requirement serves important functions, including to “reduce the number of frivolous lawsuits under ERISA; to promote the consistent treatment of claims for benefits; to provide a nonadversarial method of claim settlement; and to minimize the costs of claims settlement for all concerned.” Id. at 249. Plaintiffs admit they “have not pursued administrative remedies” under the Plan for which they seek ERISA benefits. See Am. Compl., ¶ 266. Thus, it is indisputable that Plaintiffs fail to meet their burden to show exhaustion of administrative remedies before bringing their ERISA claim. See Am. Chiropractic Assoc. v. Am. Specialty Health Inc., 625 F. App’x 169, 173 (3d Cir. 2015) (a defendant has the burden to prove failure to exhaust under ERISA). Plaintiffs seek to excuse their failure to exhaust by arguing that it would have been “futile” to pursue administrative remedies under the Plan. Id., ¶¶ 262-63, 266. A plaintiff must provide a “clear and positive” showing of futility and may not rely just on “bare allegations.” See D’Amico v. CBS Corp., 297 F.3d 287, 290 (3d Cir. 2002); Schweikert v. Baxter Healthcare Corp., No. 12-cv-5876, 2013 U.S. Dist. LEXIS 67355, at *13 (D.N.J. May 10, 2013) (conclusory allegations that the employer made “clear” its intent to deny benefits did not establish futility). Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 33 of 47 DM2\7686263.4 F2216/00214 23 The Third Circuit evaluates the following factors in determining whether to excuse the exhaustion requirement on futility grounds: “(1) whether plaintiff diligently pursued administrative relief; (2) whether plaintiff acted reasonably in seeking immediate judicial review under the circumstances; (3) existence of a fixed policy denying benefits; (4) failure of the [defendant] to comply with its own internal administrative procedures; and (5) testimony of plan administrators that any administrative appeal was futile.” Cottillion v. United Ref. Co., 781 F.3d 47, 54 (3d Cir. 2015) (quoting Harrow, 279 F.3d at 250). Plaintiffs have not set forth any facts under these factors warranting excusal of their requirement to exhaust administrative remedies. Nowhere do Plaintiffs allege that they requested a copy of the Plan documents, inquired about benefits with the Plan administrator, attempted to follow the claims procedure in the Plan, or took any steps to determine whether they could seek benefits under the Plan. See Am. Compl., ¶¶ 1-267. Plaintiffs plead ignorance of their alleged rights to benefits because “they did not have access to the eligibility definition in the Summary Plan Description or the Plan itself.” Id., ¶ 262. However, Plaintiffs’ claimed ignorance is not plausible in light of Ms. Pendleton’s status as a JEVS Associate Director since 2012 who is presumably “benefit[s] eligible,” see id., ¶ 105, Ex. A (JEVS Benefits Overview 2017) and has access to Plan documents. Further, Plaintiffs plead no facts to support their conclusory allegation that JEVS has a “fixed policy” to “exclude Plaintiffs and the Class from participation in the Plan.” See id., ¶ 266. Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 34 of 47 DM2\7686263.4 F2216/00214 24 Thus, futility cannot excuse Plaintiffs’ failure to exhaust administrative remedies, which requires dismissal of their § 502(a)(1)(B) claim. See Bennett v. Prudential Ins. Co., 192 F. App’x 153, 155 (3d Cir. 2006) (affirming dismissal of ERISA claim for failure to exhaust administrative remedies where the plaintiff did not use the appeals procedure of the plan).8 b. Mr. Costin’s ERISA Section 502(a)(1)(B) Claim is Time- Barred. The statute of limitations for an ERISA § 502(a)(1)(B) claim is “borrowed” from the most analogous state law claim. See Gluck v. Unisys Corp., 960 F.2d 1168, 1179 (3d Cir. 1992). Mr. Costin’s § 502(a)(1)(B) claim is based on his conclusory allegations that Plaintiffs are “common law employees,” “primary life-sharing caregivers” and/or “Direct Service Workers” who were denied participation and benefits in JEVS’ ERISA Plan. See Am. Compl., ¶¶ 258, 262, 267. His claim is most analogous to a breach of contract claim, which has a four- year statute of limitations under Pennsylvania law. See 42 Pa. Cons. Stat. Ann. § 5525(a)(8); Bamgbose v. Delta-T Grp., Inc., 638 F.Supp.2d 432, 437 (E.D. Pa. 2009) (a claim for denial of benefits under § 502(a)(1)(B) is closest to a Pennsylvania breach of contract claim); Blood v. Eastman Kodak Co., No. 08-cv-6123, 2009 U.S. Dist. LEXIS 70223, at *16 (D.N.J. Aug. 10, 2009) (statute of limitations for a breach of contract claim applies to § 502(a)(1)(B) claims). The statute of limitations is fatal to Mr. Costin’s § 502(a)(1)(B) claim. His claim accrued in 2010, when he first entered into a contract with JEVS under which he received reimbursement for expenses relating to his Lifesharing services, but no other compensation for such services. 8 See Hayes v. Reliance Std. Life Ins. Co., 92 F. Supp. 3d 276, 292 (M.D. Pa. Mar. 17, 2015) (granting motion to dismiss ERISA claim where the plaintiff alleged he did not appeal his denial of disability benefits under the applicable policy because he did not view ERISA as governing the disability policy); but see Cottillion, 781 F.3d at 54-55 (futility exception met where plaintiffs set forth ample correspondence showing that the plan administrator persisted in its position that plaintiffs were entitled only to actuarially reduced benefits). Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 35 of 47 DM2\7686263.4 F2216/00214 25 Am. Compl., ¶¶ 63-64, 74, 169, 172. Thus, in 2010, Mr. Costin became aware that he was not receiving employee benefits from JEVS in his role as a Lifesharing Provider. By filing the Complaint in 2016, well over four years later, Mr. Costin’s claim is time-barred and must be dismissed. See Bamgbose, 638 F.Supp.2d at 437. 7. Plaintiffs’ ERISA Section 502(a)(3) Claim Fails Absent Factual Allegations of JEVS’ “Fiduciary Status” and Because It Is Duplicative of Their ERISA Section 502(a)(1)(B) Claim. Plaintiffs’ claim under ERISA Section 502(a)(3) is fatally flawed. a. Plaintiffs Fail to State a Claim for Breach of Fiduciary Duty. To establish a breach of fiduciary duty claim under ERISA, a plaintiff must plead: (1) the defendant’s status as an ERISA fiduciary acting as a fiduciary; (2) a misrepresentation by the defendant; (3) the materiality of the misrepresentation; and (4) detrimental reliance on the misrepresentation. See Daniels v. Thomas & Betts Corp., 263 F.3d 66, 73 (3d Cir. 2001). Plaintiffs allege no facts plausibly to suggest that JEVS is a “fiduciary,” a necessary element of their claim. Under ERISA, a person is a “fiduciary” with respect to a “plan” to the extent: (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C. § 1002(21)(A). The linchpin of ERISA fiduciary status is discretion. See Curcio v. John Hancock Life Ins. Co., 33 F.3d 226, 233 (3d Cir. 1994). Fiduciary status applies only to the person or entity with final authority to authorize or deny a claim for benefits under the plan. See Varity v. Howe, 516 U.S. 489, 512 (1996). Plaintiffs make only the conclusory allegation that JEVS is a legal “fiduciary” for the Plan because JEVS “either exercises discretionary authority or discretionary control respecting Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 36 of 47 DM2\7686263.4 F2216/00214 26 management of the Plan and/or exercises authority or control respecting management or disposition of the Plan’s assets.” Am. Compl. ¶ 20. Plaintiffs plead no facts showing that JEVS acted as a fiduciary, i.e., that JEVS exercised any discretionary authority, responsibility or control with respect to the management or administration of benefit plans or the management or disposition of plan assets. See id. Plaintiffs’ claim under ERISA § 502(a)(3) is bereft of factual allegations to support the inference that JEVS is a “fiduciary,” which is a necessary element of their claim, and therefore, must be dismissed. See Lash v. Reliance Std. Life Ins. Co., No. 16-cv-235, 2016 U.S. Dist. LEXIS 78873, at *10-11 (E.D. Pa. June 17, 2016) (granting motion to dismiss § 502(a)(3) claim for failure to allege that facts that would establish that the defendant was a “fiduciary”); Haymaker v. Reliance Std. Life. Ins. Co., No. 15-cv-06306, 2016 U.S. Dist. LEXIS 56452, at *15 (E.D. Pa. Apr. 27, 2016) (granting motion to dismiss § 502(a)(3) claim because plaintiff did not allege facts establishing that the defendant administered or managed the plan or its assets). b. Plaintiffs’ ERISA Section 502(a)(3) Claim Must Be Dismissed as Duplicative of Their ERISA Section 502(a)(1)(B) Claim. ERISA § 502(a)(3) is a “safety net” provision that authorizes suits for equitable relief only where no other provision of ERISA, such as § 502(a)(1)(B), redresses the plaintiff’s alleged injuries. See Varity, 516 U.S. at 512. See 29 U.S.C. § 1132(a)(3) (“[a] civil action may be brought . . . to obtain other appropriate equitable relief.”). Here, Plaintiffs impermissibly seek the same relief under their ERISA § 502(a)(3) claim as is available through their other ERISA claim under § 502(a)(1)(B). See Am. Compl., ¶ 271 (seeking under § 502(a)(3) relief for JEVS’ alleged failure to enroll Plaintiffs in the Plan and to ensure that they were provided benefits under the Plan); 29 U.S.C. § 1132(a)(1)(B) (providing Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 37 of 47 DM2\7686263.4 F2216/00214 27 relief “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan[.]”). Comparison of Plaintiffs’ ERISA claims confirms that they seek precisely the same relief through their § 502(a)(3) claim (Count XI) as their § 502(a)(1)(B) claim (Count X). Both claims derive from the same allegations. Compare Am. Compl. ¶¶ 259-63 (ERISA § 502(a)(1)(B) claim) (alleging that JEVS failed to include Plaintiffs as participants in the Plan and denied them the right to benefits as participants), with ¶¶ 271-75 (ERISA § 502(a)(3) claim) (alleging that JEVS failed to enroll Plaintiffs as participants in the Plan and to ensure they were provided Plan benefits). Likewise, both claims seek nearly identical relief. Compare id., ¶ 267 (seeking order permitting class action notice, declaring unlawful JEVS’ policy or practice of preventing Plaintiffs from attaining rights to benefits, requiring JEVS to place Plaintiffs and the Class in the positions they would have been in but for the unlawful actions, attorneys’ fees and costs, interest, and other relief deemed proper), with ¶ 275 (same). Plaintiffs allege no reason why § 502(a)(1)(B) would not provide them adequate relief for their claim under § 502(a)(3). See id. Thus, Plaintiffs’ claim for benefits under § 502(a)(3) is duplicative of their § 502(a)(1)(B) claim and cannot survive a motion to dismiss. See Potts v. Hartford Life and Accident Ins. Co., No. 16-cv-35, 2016 U.S. Dist. LEXIS 104432, at *11-14 (W.D. Pa. Aug. 9, 2016) (dismissing with prejudice on a Rule 12(b)(6) motion plaintiff’s § 502(a)(3) claim for relying on the same factual assertions and seeking the same relief as is available under § 502(a)(1)(B)) (citing Varity, 516 U.S. at 515); Miller v. Mellon Long Term Disability Plan, 721 F. Supp. 2d 415, 423-24 (W.D. Pa. 2010) (granting motion to dismiss § 502(a)(3) claim because it duplicated the plaintiff’s claim for money damages under § 502(a)(1)(B)); Cohen v. Prudential Ins. Co., No. 08- Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 38 of 47 DM2\7686263.4 F2216/00214 28 cv-5319, 2009 U.S. Dist. LEXIS 71422, at *11-12 (E.D. Pa. Aug. 12, 2009) (dismissing § 502(a)(3) claim because “the relief sought under each count [was] verbatim the same”). Moreover, the fact that Plaintiffs failed to exhaust their administrative remedies under the Plan, as explained above, and therefore cannot assert a valid claim under § 502(a)(1)(B), does not authorize them to bring a § 502(a)(3) claim. See Ogden v. Blue Bell Creameries U.S.A., Inc., 348 F.3d 1284, 1287-88 (11th Cir. 2003) (concluding that the invalidity of plaintiffs’ § 502(a)(1)(B) claim as a result of res judicata does not sanction “two bites at the apple by according them a second ERISA cause of action” under § 502(a)(3) because “it is irrelevant for Varity purposes that the [plaintiffs] no longer have a viable Section 502(a)(1)(B) claim”). 8. Plaintiffs’ Section 1981 Claim Fails Absent Any Plausible Allegations of Race Discrimination. Plaintiffs’ threadbare allegations of race discrimination also yield no plausible basis for relief and must be dismissed pursuant to Rule 12(b)(6). a. Plaintiffs’ Section 1981 Claim Lacks Any Facts Plausibly to Suggest Differential Treatment Because of Their Race. To state a claim of race discrimination under Section 1981, a plaintiff must plead that he or she: (1) is a member of a protected class, (2) is qualified for the position held, (3) suffered an adverse employment action, and (4) that similarly-situated non-members of the protected class were treated more favorably, or the circumstances of the adverse action support an inference of discrimination. See Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009). “Simply stating that one endured race discrimination without presenting allegations suggestive of such conduct does not meet [Third Circuit] pleading standards.” Funayama v. Nichia Am. Corp., No. 08-cv-5599, 2009 WL 1437656 at *5 (E.D. Pa. May 21, 2009). Thus, courts routinely dismiss § 1981 claims alleging only generalized legal conclusions of racial animus. See, e.g., Gross v. R.T. Reynolds, Inc., 487 F. App’x 711, 716-17 (3d Cir. 2012) Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 39 of 47 DM2\7686263.4 F2216/00214 29 (affirming dismissal of § 1981 claim alleging favoritism by defendant towards non-minority contractors based on the removal of work from the parties’ contract, because the plaintiff failed to allege sufficient facts to support any inference of differential treatment based on race, even if the defendant’s actions breached the parties’ contract); Golod v. Bank of Am. Corp., 403 F. App’x 699, 702 (3d Cir. 2010) (granting Rule 12(b)(6) dismissal of § 1981 claim alleging race- based denial of promotions absent facts pled regarding who rejected the plaintiff’s requests for promotions and whether she was qualified to fill the positions she sought).9 Plaintiffs make much of their allegation that “all” Plaintiffs / “primary life-sharing caregivers” are black/African-American. Am. Compl., ¶¶ 148, 278. Yet, mere racial similarity supports no inference of differential treatment in violation of § 1981 because Plaintiffs allege no facts showing that JEVS treated Plaintiffs differently than “other individuals who work for JEVS and who are not members of the protected class,” id., ¶¶ 281, 284-85, based on Plaintiffs’ race. See Gross, 487 F. App’x at 716-17. Further, Plaintiffs fail to identify the races of the decision- makers who allegedly treated them less favorably than the “Caucasian employees” who JEVS allegedly treated more favorably. Am. Compl. ¶¶ 276-293. Thus, Plaintiffs’ § 1981 claim is bereft of facts sufficient for the Court to draw an inference of race discrimination by JEVS and must be dismissed. See Golod, 403 F. App’x at 702. 9 See Kiniropoulos v. Northampton Cnty. Child Welfare Serv., 917 F.Supp.2d 377, 389 (E.D. Pa. 2013) (granting motion to dismiss § 1981 claim where the plaintiff pled no facts showing that putative comparators were similarly situated or were treated differently under similar circumstances); Deserne v. Madlyn & Leonard Abramson Ctr. for Jewish Life, Inc., No. 10-cv- 03694, 2011 U.S. Dist. LEXIS 15377, at *7-9 (E.D. Pa. Feb. 16, 2011) (dismissing § 1981 claim where plaintiff alleged that the defendant gave performance evaluations and raises to Caucasian, but not Haitian, employees and “singled out” Haitian employees for reprimands, where plaintiff pled no facts about the races of the decision-makers or the merit of the reprimands); Anh Truong v. Dart Container Corp., No. 09-cv-3398, 2010 WL 4237944, at *3 (E.D. Pa. Oct. 26, 2010) (dismissing § 1981 claim where plaintiffs’ conclusory allegations of terminations based on their race were devoid of facts suggesting that their terminations were based on race). Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 40 of 47 DM2\7686263.4 F2216/00214 30 b. Plaintiffs Have Not Alleged Facts Sufficient to Show They Suffered an Adverse Employment Action. As to the third element of their claim, Plaintiffs allege no facts to suggest that JEVS committed any adverse action under circumstances supporting an inference of race discrimination. An adverse action must be “serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004) (internal quotation omitted). Generally, a “hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits” constitutes such an adverse action. Greer v. Mondelez Global, Inc., 590 F. App’x 170, 173 (3d Cir. 2014) (internal citation omitted). Plaintiffs allege none of these actions and thus omit a necessary element of their claim. See Am. Compl., ¶¶ 276-93. At most, Plaintiffs argue that their alleged misclassification as independent contractors resulted in JEVS failing to pay them wages and benefits for “work” similar to that performed by CLHS direct care employees. However, this action does not qualify as an adverse action for a § 1981 claim because, as described further below, Plaintiffs proffer no facts to support the conclusory allegation that JEVS treated similarly-situated non-members of the protected class more favorably. See id., ¶¶ 136-38, 145, 282. c. Plaintiffs Cannot Establish That JEVS Treated Similarly- Situated Non-Members of the Protected Class More Favorably. Plaintiffs also allege no facts to support the fourth element of their claim, i.e., that JEVS gave a non-African American an opportunity that they, as African-Americans, were denied.10 10 See Danao v. ABM Janitorial Servs., No. 14-cv-6621, 2015 U.S. Dist. LEXIS 65418, at *35 (E.D. Pa. May 19, 2015) (dismissing § 1981 claim where the plaintiff alleged that a union more vigorously protected Caucasians’ rights than his rights, but set forth no facts on which such conclusory allegations were based); Wilkins v. Bozzuto & Assocs., Inc., No. 09-cv-2581, 2009 Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 41 of 47 DM2\7686263.4 F2216/00214 31 To survive a motion to dismiss, a plaintiff “must allege facts sufficient to make plausible the existence of . . . similarly situated parties.” Perano v. Twp. of Tilden, 423 F. App’x 234, 238 (3d Cir. 2011). To be “similarly situated” for purposes of a discrimination claim, comparator employees must be “similarly situated in all relevant respects.” Danao v. ABM Janitorial Servs., 142 F. Supp. 3d 363, 374-75 (E.D. Pa. 2015) (citing Philpot v. Amtrak, No. 10-cv-1276, 2011 WL 5339030, at *5 (E.D. Pa. Nov. 3, 2011) (citing Wilcher v. Postmaster Gen., 441 F. App’x 879, 882 (3d Cir. 2011)). This determination takes into account their “job responsibilities, the supervisors and [the alleged] decision-makers[.]” Wilcher, 441 F. App’x at 882. Plaintiffs contend that “JEVS treats other individuals who work for JEVS and who are not members of the class more favorably than Plaintiffs and the Class.” Am. Compl., ¶ 281. Plaintiffs allege that JEVS “employs Caucasians and others who are not members of the protected class as CLHS workers” and treats “black African Americans disparately from its employees by not classifying Plaintiffs and the Class as employees.” Id., ¶¶ 282, 285.11 Plaintiffs identify CLHS direct care employees as JEVS employees who allegedly are treated “more favorably” than them and who perform the “same or similar” duties as them. See id.,¶¶ 136-38, 145, 281-82. However, Plaintiffs plead no facts showing: (i) the wages and benefits provided to CLHS direct care employees, (ii) the duties CLHS direct care employees perform, (iii) who CLHS U.S. Dist. LEXIS 115776, at *2-3, 7, 9 (E.D. Pa. Dec. 10, 2009) (dismissing § 1981 claim absent any facts suggesting that the plaintiff was “treated differently in the performance of his employment contract than any individual of another race”). 11 Plaintiffs also make the bald assertion that JEVS “targets” the residences of black or African- Americans to serve as “JEVS’ family living/life sharing homes.” Am. Compl. ¶¶ 278-79. Yet, Plaintiffs set forth no facts to support their conclusory allegations of “targeting,” nor do they identify how the selection of any individual to serve as “JEVS’ family living/life sharing homes” indicates racial animus. Id. Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 42 of 47 DM2\7686263.4 F2216/00214 32 direct care employees report to, or (iv) whether Plaintiffs and CLHS direct care employees perform similar duties. See id., ¶¶ 136-38, 145, 282. Thus, Plaintiffs plead no facts to support their conclusory allegation that they are similarly situated to CLHS direct care employees. Id. Instead, the facts pled suggest only Plaintiffs are not similarly-situated to CLHS employees. Plaintiffs acknowledge that CLHS direct care employees work in community living homes, whereas Plaintiffs host Individuals in Plaintiffs’ own homes. Am. Compl. ¶¶ 136-39. Plaintiffs also acknowledge that CLHS direct care employees are represented by a labor union and are covered by a CBA, id., ¶¶ 136-37, which Plaintiffs are not. Thus, the alleged facts support the inference that Plaintiffs and CLHS direct care employees provide services for JEVS in totally different environments, care for individuals with different needs, have different job responsibilities, report to different supervisors and experience myriad other differences in the day-to-day performance of their services for JEVS. See Am. Compl. ¶¶ 136-39. Plaintiffs’ conclusory statement that they perform “same or similar” duties as CLHS direct care employees thus provides no plausible basis to treat CLHS direct care employees as comparators to Plaintiffs. See Wilcher, 441 F. App’x at 882; Kiniropoulos, 917 F.Supp.2d at 389. Without any facts to support the fourth element of their claim, the claim lacks plausibility and must be dismissed. See id. C. In the Alternative, if the Court Does Not Otherwise Dismiss Plaintiffs’ Breach of Contract, Unjust Enrichment and Conversion Claims, ERISA Preempts Such Claims to the Extent They Seek Benefits. Even if the Court does not otherwise dismiss the Pennsylvania common law claims of breach of contract (Count VI), unjust enrichment (Count VII) and conversion (Count IX), such claims are preempted under ERISA to the extent Plaintiffs seek benefits for such claims. As the statute states, ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . . .” 29 U.S.C. § 1144(a) (emphasis Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 43 of 47 DM2\7686263.4 F2216/00214 33 added). ERISA preemption applies broadly and is not limited to “state laws specifically designed to affect employee benefit plans.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 48 (1987) (internal citations omitted). Where the disposition of a claim requires reference to and consideration of the terms of an ERISA plan, ERISA preempts the claim. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 140 (1990). In alleging breach of contract, unjust enrichment and conversion, Plaintiffs assert a right to “benefits” that JEVS allegedly denied them under an ERISA plan.12 See Am. Compl. ¶¶ 18, 237 (breach of contract claim alleging JEVS had a contractual duty to pay benefits), 245-46 (unjust enrichment claim seeking recovery of the “benefits unjustly retained by JEVS”), 255 (conversion claim seeking an amount equal to the benefits unjustly retained by JEVS). The “employee benefit plan” under which Plaintiffs seek benefits is an ERISA-governed plan. See id., ¶¶ 19-20, 257, 259. The “Plan” is allegedly comprised of the “company sponsored employee benefits plans, including, but not limited to, health insurance, life insurance, long-term disability insurance, flexible spending accounts, participation in the Philadelphia Federal Credit Union, a 401(k) Plan, Tuition Assistance, and RideECO Vouchers.” Id., ¶ 18 and Ex. A. Plaintiffs’ claims of breach of contract, unjust enrichment and accounting therefore “relate to” the “Plan” and are subject to dismissal by ERISA’s broad preemptive sweep. See also 12 Plaintiffs’ statutory claims under the Pennsylvania PMWA and WPCL appear to be limited to claims for unpaid wages, not benefits. See Am. Compl., ¶¶ 210-219 (PMWA claims), 220-29 (WPCL claim). To the extent Plaintiffs seek benefits in their PMWA or WPCL claims, Plaintiffs move to dismiss such claims based on ERISA preemption. See Clark v. Dale Property Servs., No. 11-cv-01623, 2012 U.S. Dist. LEXIS 33549, at *2, 5, 8-10 (W.D. Pa. Mar. 13, 2012) (denying motion to remand claims including PMWA and WPCL claims alleging misclassification as independent contractors because ERISA preempts such claims); Harle v. The Edward B. O’Reilly & Assocs., Inc. Employee Health Care Plan, No. 92-1721, 1992 U.S. Dist. LEXIS 13420, at *6 (E.D. Pa. Sept. 9, 1992) (dismissing WPCL claim under ERISA preemption to the extent it sought benefits, as opposed to unpaid wages). Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 44 of 47 DM2\7686263.4 F2216/00214 34 id., ¶¶ 110, 172, 185. See Menkes v. Prudential Ins. Co. of Am., 762 F.3d 285, 294 (3d Cir. 2014) (affirming grant of motion to dismiss claims of breach of contract, fraud, misrepresentation and breach of fiduciary duty based on ERISA preemption); Scheibler v. Highmark Blue Shield, 243 F. App’x 691, 693-94 (3d Cir. 2007) (affirming ERISA preemption of unjust enrichment claim); U.S. Renal Care, Inc. v. Wellspan Health, No. 14-cv-2257, 2015 U.S. Dist. LEXIS 120401, at *14-18 (M.D. Pa. Sept. 10, 2015) (dismissing conversion claim based on ERISA preemption); Martellacci v. The Guardian Life Ins. Co. of Am., No. 08-cv- 2541, 2009 U.S. Dist. LEXIS 13773, at *8-9 (E.D. Pa. Feb. 20, 2009) (“breach of contract claims are explicitly preempted by ERISA”); Ferry v. Mut. Life Ins. Co., 868 F. Supp. 764, 770 (W.D. Pa. 1994) (ERISA preempts conversion and other state law tort claims). Finally, even if the Court dismisses Plaintiffs’ direct ERISA claims (Counts X and XI), Plaintiffs’ state law claims cannot be saved from preemption because claims that “relate to” an employee benefit plan are handled exclusively under ERISA. See Young v. Reconstructive Orthopaedic Assocs., II, P.C., No. 03-cv-2034, 2005 U.S. Dist. LEXIS 10377, at *42 (E.D. Pa. 2005). In other words, ERISA preemption applies regardless of whether Plaintiffs plead a separate, viable, ERISA claim. See Young, 2005 U.S. Dist. LEXIS 10377, at *36-37 (ERISA preempted tort and contract claims asserting failure to enroll plaintiff under a long-term disability policy, because disposition of the claims required interpretation of the policy and explaining that preemption applies even if the ERISA claim failed); Bernatowicz v. Colgate- Palmolive Co., 785 F. Supp. 488, 492-4 (D.N.J. 1992) (dismissing tort claim as preempted under ERISA even though plaintiffs’ separate ERISA claim also failed), aff’d, 981 F.2d 1246 (3d Cir. 1992). Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 45 of 47 DM2\7686263.4 F2216/00214 35 VI. CONCLUSION JEVS respectfully requests that this Court dismiss the Amended Complaint in its entirety or, in the alternative, dismiss Counts V, VI, VII, VIII, IX, X, XII, and XII. Respectfully Submitted, DUANE MORRIS LLP By: /s/ Caroline M. Austin Caroline M. Austin Atty I.D. No. 75228 Kathryn R. Brown Atty. I.D. No. 313834 Duane Morris LLP 30 S. 17th St. Philadelphia, PA 19103 Tel. 215.979.1000 Fax: 215.979.1020 Attorneys for Defendants Dated: April 28, 2017 Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 46 of 47 DM2\7686263.4 F2216/00214 CERTIFICATE OF SERVICE I, Kathryn R. Brown, hereby certify that on April 28, 2017, I caused a true and correct copy of the foregoing Motion to Dismiss Plaintiffs’ Amended Complaint, and Memorandum of Law in Support Thereof, to be served via ECF, upon all counsel of record: Stephanie J. Mensing Mensing Law LLC The Philadelphia Building 1315 Walnut Street - Suite 917 Philadelphia, PA 19107 (215) 586-3751 (t); (215) 359-2741 (f) Claude I. Schoenberg Kay Sickles Schoenberg Law Office 363 Bala Ave. Bala Cynwyd, PA 19004 (610) 949-9400 (t); (215) 359-2741 (f) /s/ Kathryn R. Brown Kathryn R. Brown, Esquire Case 2:16-cv-06619-JS Document 19 Filed 04/28/17 Page 47 of 47