Segovia v. Original Casey's of Drexel Hill, Inc. et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.April 10, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA v. MOTION OF DEFENDANTS ORIGINAL CASEY’S OF DREXEL HILL, INC., FRANCIS MELVIN, individually, AND MATTHEW MELVIN individually, TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) AND IN THE ALTERNATIVE A MORE DEFINITE STATEMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(E) Defendants Original Casey’s of Drexel Hill, Inc. (“Casey’s), Francis Melvin (“Frank”) and Matthew Melvin (“Matt”) (collectively, “Defendants”), by and through their counsel, The Pagano Law Firm, LLC hereby move this Honorable Court pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Plaintiff, Carlos Cesar Cuenca Segovia’s Complaint (“Plaintiff” or “Segovia”) on the grounds that it sets forth claims that are preempted by federal statute, untimely and barred by the applicable statute of limitations and failure to state a claim for which relief can be granted. In the alternative, to the extent any portion of the claims survive, : : : : : : : : : : : : Carlos Cesar Cuenca Segovia Plaintiff, CIVIL ACTION NO.: 2:16-cv-06439-MSG Original Casey’s of Drexel Hill, Inc., Francis Melvin, individually, and Matthew Melvin, individually Defendants. Case 2:16-cv-06439-MSG Document 4 Filed 04/10/17 Page 1 of 2 Defendants move for a more definite statement. In support of Defendants’ Motion, the accompanying Memorandum of Law is incorporated herein as if set forth more fully at length. Respectfully submitted, THE PAGANO LAW FIRM, LLC Dated: 4/10/17 By: /s/ Marlo Pagano-Kelleher Marlo Pagano-Kelleher, Esquire PA Attorney ID No. 84503 115 W. State Street Suite 401 Media, PA 19063 T: 484.442.8750 F: 484.442.8742 marlo@paganolawyers.com Attorneys for Defendants, Original Casey’s of Drexel Hill, Inc., Francis Melvin and Matthew Melvin Case 2:16-cv-06439-MSG Document 4 Filed 04/10/17 Page 2 of 2 i IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA v. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ ORIGINAL CASEY’S OF DREXEL HILL, INC., FRANCIS MELVIN, individually, AND MATTHEW MELVIN individually, MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) AND IN THE ALTERNATIVE A MORE DEFINITE STATEMENT PURSUANT TO RULE 12 (E) : : : : : : : : : : : : Carlos Cesar Cuenca Segovia Plaintiff, CIVIL ACTION NO.: 2:16-cv-06439-MSG Original Casey’s of Drexel Hill, Inc., Francis Melvin, individually, and Matthew Melvin, individually Defendants. Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 1 of 28 ii TABLE OF CONTENTS Page INTRODUCTION ……………………………………………………………………………. 1 ALLEGATIONS IN THE COMPLAINT ……………………………………………………. 3 LEGAL STANDARD ……………………………………………………………………..…. 4 ARGUMENT A. THE FAIR LABOR STANDARDS ACT GOVERNS THIS ACTION AND, AS SUCH, PLAINTIFF’S STATE CLAIMS ARE PREEMPTED AND MUST BE DISMISSED …………………………………………………………………………. 6 B. COUNT I OF PLAINTIFF’S COMPLAINT FOR ALLEGED VIOLATIONS OF THE FAIR LABOR STANDARDS ACT SHOULD BE DISMISSED AS A MATTER OF LAW ………………………………………………………………….. 8 1. Alleged Violations of the FLSA Occurring Between the Fall 2000 and December 15, 2014 Are Time Barred………………………………………..... 8 2. Plaintiff Fails to State a Claim for Relief Under the FLSA ………………….. 10 C. COUNT II OF PLAINTIFF’S COMPLAINT FOR ALLEGED VIOLATIONS OF PENNSYLVANIA’S WAGE PAYMENT & COLLECTION LAW AND MINIMUM WAGE ACT SHOULD BE DISMISSED AS A MATTER OF LAW…………………………………………………………………………………... 11 1. Plaintiff’s Pennsylvania Wage Payment and Collection Law And Minimum Wage Act Claims Are Time Barred…………………………………………… 11 2. Plaintiff’s Failure to Allege the Existence of A Written Employment Contract and/or Any of Its Purported Terms that Casey’s Failed to Pay Him More Than 15 Days After the End of the Pay Period Warrants Dismissal of Plaintiff’s Wage Payment & Collection Claim…………………. 12 D. COUNT III OF PLAINTIFF’S COMPLAINT FOR BREACH OF CONTRACT SHOULD BE DISMISSED AS A MATTER OF LAW …………………………….. 14 1. Any Portion of Plaintiff’s Breach of Contract Arising Out Of Events Occurring Prior to December 15, 2012 Must Be Dismissed As Outside the Statute of Limitations…………………………………………………………. 14 2. Plaintiff’s Claim For Breach of Contract If Not Preempted and/or Found Timely Should Nonetheless Be Dismissed for Failure To State A Claim Upon Which Relief May Be Granted…………………………………………. 15 Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 2 of 28 iii E. COUNT IV OF PLAINTIFF’S COMPLAINT FOR UNJUST ENRICHMENT SHOULD BE DISMISSED AS A MATTER OF LAW …………………………….. 16 1. The Court Should Dismiss Count IV (Unjust Enrichment) Of Plaintiff’s Complaint to the Extent It Is Time-Barred……………………………………. 16 2. Plaintiff’s Claim For Unjust Enrichment Fails As A Matter of Law………….. 17 F. PLAINTIFF’S CONTRACT AND QUASI-CONTRACT CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS FAIL BECAUSE THE INDIVIDUAL DEFENDANTS WERE ACTING AS AGENTS OF THE CORPORATE DEFENDANT, CASEY’S OF DREXEL HILL ……………………………………... 18 G. DEFENDANTS MOVE FOR A MORE DEFINITE STATEMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(E) ……………………………... 19 CONCLUSION …………………………………………………………………………….…. 19 Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 3 of 28 iv TABLE OF AUTHORITIES Pages Cases Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ..................................................................... 5, 14, 16, 20 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007); 127 S. Ct. 1955, 1966 ..... 5, 14, 16, 20 Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 896 (Pa. Super. 2011). ......................................... 18 Bright v. Westmoreland County, 380 F.3d 729, 735 (3d Cir. 2004) ............................................... 5 Bucks v. Buckwalter, 215 A.2d 625, 627 (Pa. 1965) .................................................................... 19 Caucci v. Prison Health Servs., Inc., 153 F. Supp. 2d 605, 610 (E.D. Pa. 2001) ......................... 12 Chen v. Street Beat Sportswear, Inc., 364 F.Supp.2d 269, 292-93 (E.D. N.Y. 2005) .................... 7 Cohen v. Allied Steel Buildings, Inc., 554 F. Supp.2d 1331, 1334-35 (S.D. Fla. March 28, 2008) 9 Cole v. Lawrence, 701 A.2d 987, 989 (Pa. Super. 1997).............................................................. 18 Davis v. Abington Memorial Hospital, 765 F.3d 236, 241 (3d Cir. 2014) ................................... 12 Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir. 1986)............................................................ 12 De Asencio v. Tyson Foods, Inc. 342 F.3d 301, 306 (3d Cir. 2003) ............................................... 7 Drummond v. Herr Foods Inc., CIV. A. 13-5991, 2014 WL 80729, at *3 (E.D. Pa. Jan. 9, 2014) ................................................................................................................................................... 15 Ellis v. Edward D. Jones & Co., L.P. 527 F. Supp. 2d 439, 454 (W.D. Pa. 2007) ......................... 7 Evancho v. Fisher, 423 F.3d 347, 354 (3d Cir. 2005) .................................................................... 5 Gonzalez v. Bustleton Servs., Inc., No. CIV.A. 08-4703, 2010 WL 1813481, at *1 (E.D. Pa. May 5, 2010) ..................................................................................................................................... 13 Griffin v. Leaseway Deliveries, Inc., Civ. A. No. 89-6522, 1990 WL 136349 (Sept. 17, 1990) .. 10 Gutwirth v. Woodford Cedar Run Wildlife Refuge, 38 F. Supp. 3d 485, 492 (D.N.J. 2014) .......... 7 Harris v. Mercy Health Corp., No. Civ.A.97-7802, 2000 WL 1130098 *5 (E.D. Pa. Aug. 9, 2000) ......................................................................................................................................... 12 Hartman v. Baker, 766 A.2d 347, 352 (Pa. Super. 2000) aff’d, No. 13-1631, 2014 WL 341446 at *1 (3d Cir. Jan. 31, 2014) ......................................................................................................... 13 Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 4 of 28 v Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005) ......................................................... 10 Herbst v. General Acc. Ins. Co., Civil Action No. 97-8085, 1999 WL 820194, at *9 (E.D. Pa. Sept. 30, 1999) .......................................................................................................................... 19 Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 999 (3d Cir.1987) .......................... 19 Hishon v. King & Spalding, 476 U.S. 69, 73 (1984) ...................................................................... 5 Kelly .............................................................................................................................................. 10 Kirschner v. Castello, 1992 WL 191153, at *2 (E.D. Pa. Aug. 3, 1992) ..................................... 16 Knepper v. Rite Aid Corp., 3d Cir. (Pa. 2012) ................................................................................ 7 Lehman v. Legg Mason Inc., 532 F. Supp. 2d at 734.................................................................... 14 Martin v. Little, Brown & Co. 304 Pa. Super. 424, 430-31, 450 A.2d 984, 988 (1982) .............. 18 McGoldrick v. TruePosition, Inc., 623 F. Supp. 2d 619, 624 (E.D. Pa. 2009) ............................. 19 McGuckin v. Brandywine Realty Trust, 185 F.Supp.3d 600, 606 (E.D. Pa. 2016) ................. 13, 19 McLaughlin v. Richard Shoe Co., 486 U.S. 128, 133, 108 S. Ct. 1677, 1681, 100 L. Ed.2d 115 (1988) .......................................................................................................................................... 9 Mell v. GNC Corp., No. 10-945, 2010 WL 4668966 at *5 (W.D. Pa. Nov. 9, 2010) .................. 11 Minielly v. Acme Cryogenics, No. 15-6164, 2016 WL 1221640 at *8 (E.D. Pa. Mar. 28, 2016) 13 Mitchell v. Moore, 1999 Pa. Super. 77, 729 A.2d 1200, 1203 (1999) .......................................... 18 Moeck v. Gray Supply Corp., No. 03-1950, 2006 WL 42368, at *2 (D.N.J. Jan. 6, 2006) ............ 8 Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) ......................................... 16 Neitzke v. Williams, 490 U.S. 319, 326-27 (1989) .......................................................................... 5 Pennsylvania Supply Inc. v. American Ash Recycling Corp. of Pennsylvania, 895 A.2d 595, 600 (Pa. Super. 2006)....................................................................................................................... 17 Pieretti v. Dent Enters., Inc., No. 11-2179, 2013 WL 754436 at *4 (E.D. Pa. Feb. 27, 2013) (J. Bartle) ........................................................................................................................... 13, 14, 15 Port Authority of New York and New Jersey v. Arcadian Corp., 189 F.3d 305, 311-312 (3d Cir. 1999) ......................................................................................................................................... 16 Ramirez v. Gromitsaris, No. 13-2371, 2013 WL 2455966, at *1 (D.N.J. June 3, 2013) ............... 8 Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 5 of 28 vi Reich v. Gateway Press, Inc., 13 F.3d 685, 702 (3d Cir. 1994) ............................................... 9, 10 Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). ............................................................. 11 Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989) ................................................... 5 Rototherm Corp. v. Penn Linen & Uniform Serv., Inc., No. CIV. A. 96-6544, 1997 WL 419627, (E.D. Pa. Jul. 3, 1997) ............................................................................................................... 20 Santos ex rel. Beato v. United States, 559 F.3d 189, 197 (3d Cir. 2009) ..................................... 10 Scott v. Bimbo Bakeries, USA, Inc. Civ. A. No. 10-3154, 2012 WL 645905 at *4-5 (E.D. Pa. Feb. 29, 2012) ................................................................................................................................... 14 Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999) .............................. 10 Titchenell v. Apria Healthcare Inc., Civ. A. No. 11-563, 2012 WL 3731341 (E.D. Pa. Aug. 29, 2010) (DuBois, J.) ..................................................................................................................... 10 Torchia v. Torchia, 499 A.2d 581, 582 (Pa. Super. Ct. 1985) ...................................................... 19 Weinberger v. Romero-Barcelo, 456 U.S. 305, 330 n.11 (1982) ................................................... 7 Williams v. School District of Bethlehem, PA., 998 F.2d 168, 176 (3d Cir. 1993)......................... 6 Woodward v. FedEx Freight E., Inc., 250 F.R.D. 178, 193 (M.D. Pa. 2008) .............................. 11 Yevak v. Nilfisk-Advance, Inc., No. 5:15-CV-05709, 2016 WL 1359745, at *2 (E.D. Pa. Apr. 6, 2016) ......................................................................................................................................... 12 Statutes 28 U.S.C. § 1331 ............................................................................................................................. 6 28 U.S.C. § 1337 ............................................................................................................................. 6 29 U.S.C. § 206(a) ........................................................................................................................ 11 29 U.S.C. § 207(a)(I) .................................................................................................................... 11 29 U.S.C. § 216(b) .......................................................................................................................... 6 42 Pa. C.S. §5525 .......................................................................................................................... 15 43 P.S. § 260.9a ............................................................................................................................ 12 43 PS §260.3 ................................................................................................................................. 15 Fair Labor Standards Act (“FLSA”) ...................................................................................... passim Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 6 of 28 vii Pennsylvania Minimum Wage Act ("PMWA") .................................................................... passim Pennsylvania Wage Payment and Collection Law ("PWPCL") ............................................ passim Rules Fed. R. Civ. P. 12(b)(6)................................................................................................ i, 1, 4, 10, 15 Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 7 of 28 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA v. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ ORIGINAL CASEY’S OF DREXEL HILL, INC., FRANCIS MELVIN, individually, AND MATTHEW MELVIN individually, MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) AND IN THE ALTERNATIVE A MORE DEFEINITE STATEMENT PURSUANT TO RULE 12 (E) I. INTRODUCTION Defendants Original Casey’s of Drexel Hill, Inc. (“Casey’s”), Francis Melvin (“Frank”) and Matthew Melvin (“Matt”) (collectively, “Defendants”), by and through their counsel, respectfully request that this Honorable Court dismiss Plaintiff, Carlos Cesar Cuenca Segovia’s (hereinafter “Plaintiff” or “Segovia”) Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff’s Complaint, which consists of four (4) counts, attempts to assert claims under the Fair Labor Standards Act (“FLSA”) for unpaid overtime (Count I), Pennsylvania Wage Payment and Collection Law (“PWPCL”) and Minimum Wage Act (“PMWA”) for unpaid overtime and minimum wage (Count II), Breach of Contract (Count III), and Unjust Enrichment (Count IV). : : : : : : : : : : : : Carlos Cesar Cuenca Segovia Plaintiff, CIVIL ACTION NO.: 2:16-cv-06439-MSG Original Casey’s of Drexel Hill, Inc., Francis Melvin, individually, and Matthew Melvin, individually Defendants. Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 8 of 28 2 Plaintiff’s Complaint fails in large part because Plaintiff’s state law claims are preempted by his federal claims and because Plaintiff did not comply with the applicable statute of limitations for any of the claims asserted in the Complaint. First, this Court must dismiss plaintiff’s state law claims at Counts II, II and IV as preempted by the FLSA to the extent that they arise out of the same set of operative facts (i.e., allegations of minimum wage and overtime violations). Second, as far as Plaintiff’s FLSA claims, this Court must dismiss those portions of the claim that relate to alleged unpaid wages for the period Fall 20001 through December 15, 2014 because Plaintiff did not raise these claims within the applicable two (2) year statute of limitations period and therefore they are time barred. Third, this Court must dismiss that portion of the charge in Count II brought under the WPCL from the period Fall 2000 through December 15, 2013 because Plaintiff similarly did not raise those claims within the applicable three (3) year statute of limitations period. Fourth, this Court must dismiss those portions of Plaintiff’s contract claims and unjust enrichment, Counts III and IV respectfully, that seek damages for the time period of Fall 2000 through December 15, 2012 because Plaintiff failed to bring these claims within the applicable four (4) year statute of limitations period. Moreover, if this Court finds that any portion of Plaintiff’s claims are timely, Plaintiff fails to state a claim upon which relief can be granted and thus his claims must be dismissed as a matter of law. Plaintiff’s claims in Count II, III and IV require the existence of a contractual obligation between the parties. For example, Plaintiff’s claim under the Pennsylvania Wage Payment and Collection Law is barred because that statute only creates a cause of action where an employer has allegedly failed to pay wages as required by a contractual obligation or more 1 In his Complaint, Plaintiff does not state a date specific as to when Mr. Segovia began his employment with Casey’s nor does he allege the date of his last pay period. Instead, Plaintiff alleges only that Mr. Segovia “worked at Casey’s from Fall 2000, to June 24, 2016.” Dkt. 1 at ¶14. Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 9 of 28 3 than 15 days after the applicable pay period. Here Plaintiff fails to allege facts sufficient to support the existence of a contract between the parties, therefore these claims, assuming they were timely filed, must fail as a matter of law. The same analysis would apply to Plaintiff’s breach of contract claim, as it is black letter law that to state a claim for breach a contract a plaintiff must first allege facts sufficient to establish the existence of a contract between the parties. Plaintiff’s failure to allege any terms of a purported agreement between the parties let alone a meeting of the minds is fatal to Plaintiff’s claim. Lastly, Plaintiff’s claim for unjust enrichment fails as a matter of law where, as here, Plaintiff fails to allege that he did anything other than what he was employed to do. II. ALLEGATIONS IN THE COMPLAINT On or about December 15, 2016, Carlos Cesar Cuenca Segovia sued the Original Casey’s of Drexel Hill, Inc. (“Casey’s”) and its officers Francis Melvin (“Frank”) and Matthew Melvin (“Matthew”) by way of Complaint (Compl. [Dkt. 1]). Plaintiff seeks judgment in his favor including compensatory damages, liquidated damages, costs, fees and “[a]ny equitable relief this Court finds just.” Dkt. 1 at p. 8. Plaintiff alleges the following: (1) violations of the Fair Labor Standards Act (“FLSA”); (2) Pennsylvania Wage Payment and Collection Law (“WPCL”) and Minimum Wage Act (“MWA”); (3) breach of contract; and (4) unjust enrichment. Casey’s is a family restaurant located at 812 North Lansdowne Ave., Drexel Hill, Pennsylvania. Dkt. 1 at ¶¶ 5, 6. Plaintiff alleges that Defendant, Francis “Frank” Melvin is the president of Casey’s; Defendant, Matthew “Matt” Melvin the vice president. Dkt. 1 at ¶¶ 8, 10. From the Fall 2000 through to his voluntary quit on June 24, 2016, Plaintiff was employed at Casey’s where it is alleged he would clean the establishment for “3 hours every morning” and Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 10 of 28 4 work in the kitchen “preparing food, washing dishes, storing deliveries, and cooking customer’s orders.” Dkt. 1 at ¶¶ 13, 14, 18, 19, 20. According to the Complaint, Plaintiff (presumably from his first day of employment at Casey’s) worked 7 days a week, 6 to 13 hours a day in the kitchen and an additional 3 hours cleaning for a total of approximately 91 hours per week for 15 consecutive years. Dkt. at 1 ¶¶ 14, 18, 21, 22, 23. Plaintiff alleges that Defendants Frank and Matt “assigned, oversaw, and supervised Mr. Cuenca’s duties” managing payroll, “creat[ing] the restaurant’s schedule, and assigned workers duties.” Dkt. at 1 ¶¶ 15, 16. Plaintiff admits that he was paid a “weekly flat (cash) rate for cleaning [] between $240 and $290” with an hourly rate ranging from “$7.00 to $7.75 per hour during [plaintiff’s] employment.” Dkt. at 1 ¶¶ 25-29. Specifically, Plaintiff alleges that he was paid an hourly rate of $7.00 for the period from “Fall 2000, to December 28, 2008”; $7.15 per hour from “December 29, 2008 to approximately July 12, 2009”; $7.25 per hour from “July 13, 2009 to approximately May 8, 2016” and $7.25 per hour from May 8, 2016 until he quit on or about June 24, 2016. Dkt. at 1 ¶¶ 30-33. Plaintiff further states that he worked in excess of 40 hours per work but cannot state with any specificity how many overtime hours he worked for any given work during his 15-year period of employment with the Defendants. Dkt. at 1 ¶ 37. Finally, noticeably absent from the Complaint are any allegations of misleading actions by the Defendants that would have precluded Plaintiff from a timely filing of his claims or any facts to warrant a fair inference that Defendants engaged in purported conduct that would have prevented plaintiff from bringing an action in a timely manner. III. LEGAL STANDARD The purpose of Federal Rule of Civil Procedure 12(b)(6) is to do away with baseless claims and to streamline litigation by eliminating allegations that will result in needless discovery. Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 11 of 28 5 Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). Where, like here, “the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007); 127 S. Ct. 1955, 1966 (citations and quotations omitted). As such, Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a cause of action where a plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “[t]he applicable standard of review requires the court to accept as true all allegations in the Complaint and all reasonable inferences that can be drawn there from, and view them in the light most favorable to the non-moving party.” Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). “In determining whether a claim should be dismissed under Rule 12(b)(6), the Court should only look to the facts alleged in the Complaint and its attachments without reference to other parts of the record.” Bright v. Westmoreland County, 380 F.3d 729, 735 (3d Cir. 2004) (citations and quotations omitted), see also Evancho v. Fisher, 423 F.3d 347, 354 (3d Cir. 2005) (a court is not required to assume that a plaintiff can prove facts not alleged). Therefore, when it appears from the face of the pleading that a plaintiff can prove no set of facts that would entitle him to relief, the court must dismiss plaintiff’s claims. Hishon v. King & Spalding, 476 U.S. 69, 73 (1984). Moreover, Courts must review l2(b)(6) motions in light of the Supreme Court’s decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Iqbal holds that the “plausibility” standard is applicable to all Complaints, that is, all Complaints must contain sufficient factual matter, accepted as true, “to state a claim to relief that is plausible on its face.” Id. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). Indeed, the United States Supreme Court Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 12 of 28 6 has unequivocally determined that the pleading standard under Federal Rule of Civil Procedure 8 demands more than an “unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Moreover, a pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Id. Furthermore, complaints must do more than merely raise a “sheer possibility” that a defendant has violated the law. Iqbal, 556 U.S. at 678. Instead, Complaints warrant dismissal where they contain “threadbare recitals,” “mere conclusory statements,” or “bare-bones” allegations that are no more than conclusory, and “not entitled to the assumption of truth.” Id. at 678, 680. IV. ARGUMENT A. THE FAIR LABOR STANDARDS ACT GOVERNS THIS ACTION AND, AS SUCH, PLAINTIFF’S STATE CLAIMS ARE PREEMPTED AND MUST BE DISMISSED Plaintiff’s Complaint confers jurisdiction of this matter pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1337 based upon the alleged violations of the Fair Labor Standards Act. 29 U.S.C. 201 et seq., (“FLSA”). Accordingly, Plaintiff’s state claims alleged in the Complaint are preempted by the FLSA. The FLSA prescribes the standards for basic minimum wage and overtime pay for most private and public employers. Congress created an express cause of action for damages under the FLSA, 29 U.S.C. § 216(b). Specifically, the FLSA provides that employers who violate the provisions of the FLSA are “liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional amount as liquidated damages.” 29 U.S.C. § 216(b). Where Congress expressly established a sufficiently comprehensive remedial provision in a federal statute, alternative suits to enforce those same rights are barred. See e.g., Williams v. School District of Bethlehem, PA., 998 F.2d 168, 176 (3d Cir. 1993). The statutory purpose of Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 13 of 28 7 the FLSA was to provide little room for discretion over remedies. Weinberger v. Romero- Barcelo, 456 U.S. 305, 330 n.11 (1982). Furthermore, the Third Circuit has declined to exercise supplemental jurisdiction over state law class action claims where FLSA claims were also asserted. De Asencio v. Tyson Foods, Inc. 342 F.3d 301, 306 (3d Cir. 2003). When determining whether the FLSA preempts state common law claims, the Court will look to whether the claims are etched in the same set of facts. Chen v. Street Beat Sportswear, Inc., 364 F.Supp.2d 269, 292-93 (E.D. N.Y. 2005). “[S]o long as the common law claims are grounded on the same facts as the FLSA claims and are therefore ‘duplicative,’ Plaintiff’s sole remedy lies with the FLSA.” Ellis v. Edward D. Jones & Co., L.P. 527 F. Supp. 2d 439, 454 (W.D. Pa. 2007) citing Chen v. Street Beat Sportswear, Inc., 364 F. Supp. 2d 269, 293 (E.D.N.Y. 2005); disagreed with by Knepper v. Rite Aid Corp., 3d Cir. (Pa. 2012) (holding the FLSA did not impliedly preempt plaintiff’s state claims brought under Ohio’s Minimum Fair Wage Standards Act and Maryland’s Wage and Hour Law). In Gutwirth v. Woodford Cedar Run Wildlife Refuge, 38 F. Supp. 3d 485, 492 (D.N.J. 2014) plaintiff brought claims under the FLSA and New Jersey’s Wage and Hour Law. Plaintiff then sought to amend her complaint to assert claims for unjust enrichment and breach of contract. In opposing plaintiff’s motion, the defendant argued that the proposed state claims were preempted by the FLSA. Ultimately agreeing with the defendant and denying plaintiff’s motion to amend, the Court examined whether the proposed state claims were based upon the same facts and circumstances of the federal claims. In concluding that they were, the Court explained that where, as here, the claims rested solely on the defendant’s alleged failure to pay overtime, the FLSA preempted Plaintiff’s unjust enrichment and breach of contract claims which were each premised on the same allegation of unpaid overtime. See also, Moeck v. Gray Supply Corp., No. 03-1950, 2006 WL Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 14 of 28 8 42368, at *2 (D.N.J. Jan. 6, 2006) (holding plaintiff’s claims for fraud and negligent misrepresentation preempted by the FLSA because the state claims were “‘merely based on Plaintiff’s [federal] overtime claims.’”; see also Ramirez v. Gromitsaris, No. 13-2371, 2013 WL 2455966, at *1 (D.N.J. June 3, 2013) (dismissing unjust enrichment claim where claim was based “‘on the same facts and circumstances of plaintiff[’s] FLSA.’” Here, and similar to the cases cited above, Plaintiff’s state law claims are derived solely from the same set of facts as the FLSA claims. Specifically, Plaintiff’s state law claims are based entirely upon defendants’ alleged failure to pay overtime. Plaintiff’s Complaint sets forth the identical facts and allegations for both the state law and federal, FLSA causes of action. Plaintiff is asking this Court to award “statutorily mandated wages” that allegedly were due him during his period of employment with the defendants. Dkt. 1 at ¶ 65. These claims are duplicative of the FLSA claim which constitutes Plaintiff’s exclusive remedy warranting dismissal of all state counts. B. COUNT I OF PLAINTIFF’S COMPLAINT FOR ALLEGED VIOLATIONS OF THE FAIR LABOR STANDARDS ACT SHOULD BE DISMISSED AS A MATTER OF LAW 1. Alleged Violations of the FLSA Occurring Between the Fall 2000 and December 15, 2014 Are Time Barred The Defendants’ Motion to Dismiss should be granted because Plaintiff’s claims, in large part, are barred by the applicable FLSA statute of limitations. Count I of Plaintiff’s Complaint involves purported violations of the FLSA dating back to the Fall of 2000. Plaintiff filed his Complaint on December 15, 2016. Therefore, this Court must dismiss any alleged violations of the FLSA that presumably accrued2 between the Fall 2000 to December 15, 2014 time period, 2This Court has explained that, [a] separate cause of action accrues each payday when the employer excludes compensation which employees claim” and therefore the statute begins to run from the date the alleged nonpayment was due. Harris v. Mercy Health Corp., 2000 WL 1130098, No. Civ. A. 97-7802 (E.D. Pa. Aug. 9, 2000) (O’Neill, Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 15 of 28 9 because any such claims related to this period of time are time barred pursuant to the statute’s two (2) year limitations period. Specifically, the FLSA provides that a cause of action “may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” See 29 U.S.C. § 255(a) (emphasis added). Thus, unless Plaintiff specifically alleges conduct sufficient to show “willful” conduct under the FLSA, actions arising after two (2) years following the accrual of the cause of action are time barred. A willful violation occurs where an employer “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Reich v. Gateway Press, Inc., 13 F.3d 685, 702 (3d Cir. 1994) (citing McLaughlin v. Richard Shoe Co., 486 U.S. 128, 133, 108 S. Ct. 1677, 1681, 100 L. Ed.2d 115 (1988)). Plaintiff’s only reference to any willful violations of the FLSA is a conclusory allegation of willfulness that is devoid of any facts to support such an accusation3. Plaintiff bears the burden to satisfy “even the most basic standard of allegations sufficient to support” the application of the three (3) year statute of limitation. See e.g., Cohen v. Allied Steel Buildings, Inc., 554 F. Supp.2d 1331, 1334-35 (S.D. Fla. March 28, 2008) (plaintiff’s conclusory allegations of willfulness without fact to substantiate same not enough to warrant application of the three (3) year statute of limitations for willful violations of the FLSA). Here, Plaintiff has failed to show a modicum of evidence that Defendants “either knew or showed J.) citing Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir. 1993). Plaintiff does not allege when payments were due, only that he was employed by Casey’s from the Fall of 2000 through June 24, 2016. Accordingly, for purposes of this Motion, Defendants rely upon these dates presuming that payments were due within one-two weeks after the work was performed or no more than 15 days after the last day of work. 3 Paragraph 48 of the Complaint states without more, “Defendants acted knowingly or with reckless disregard when they failed to pay Mr. Cuenca required overtime wages for hours worked in excess of 40 hours per week.” Dkt. 1 at ¶ 48. Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 16 of 28 10 reckless disregard as to whether its conduct was prohibited.” Reich, supra at p. 702. As such, this Court should not apply a three (3) year statute of limitations to Plaintiff’s FLSA claim. Similarly, the doctrine of equitable tolling does not apply. Because it is known as an extraordinary remedy only to be used under the most extraordinary circumstances, the plaintiff must show that the “defendant made a misrepresentation [to him] for the purpose of inducing the plaintiff to delay suit [and] that plaintiff actually and reasonably relied on it.” Griffin v. Leaseway Deliveries, Inc., Civ. A. No. 89-6522, 1990 WL 136349 (Sept. 17, 1990) (emphasis in original) (Waldman, J.), Titchenell v. Apria Healthcare Inc., Civ. A. No. 11-563, 2012 WL 3731341 (E.D. Pa. Aug. 29, 2010) (DuBois, J.). The doctrine however, is not applied . . . every time a defendant makes an incorrect or even misleading statement to the plaintiff.’” Id. More specifically, this Court, denying plaintiff’s request for equitable tolling of the statute of limitations explained the remedy as follows: “Equitable tolling is an ‘extraordinary’ remedy that ‘can rescue a claim otherwise barred as untimely by the statute of limitations when a plaintiff has been prevented from filing in a timely manner due to sufficiently inequitable circumstances.”” Titchenell v. Apria Healthcare Inc., Civ. A. No. 11-563, 2012 WL 3731341 (E.D. Pa. Aug. 29, 2010) (DuBois, J.) quoting Santos ex rel. Beato v. United States, 559 F.3d 189, 197 (3d Cir. 2009) (quoting Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999) (emphasis added)). Equitable tolling is appropriate “’(1) where the defendant has actively misled the plaintiff respecting the plaintiff’s cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.’” Id. (quoting Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005)). Like Titchenell and many others, none of these situations is present in this case and therefore any argument to suggest otherwise must utterly fail. See i.e., Kelly v. Eckerd Corp., Civ. A. No. 03- 4087, 2004 WL 614822 (March 11, 2004) (Kelly, J. ) (granting the defendant’s motion to Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 17 of 28 11 dismiss plaintiff’s claims that predated the statute of limitations where the complaint failed to allege facts to support the notion that defendants made misrepresentations of any kind to the plaintiff concerning overtime pay), see also Woodward v. FedEx Freight E., Inc., 250 F.R.D. 178, 193 (M.D. Pa. 2008) (“[C]ourts must be cautious about equitably tolling the FLSA limitations period especially where, as here, there are no allegations of wrongdoing on the part of the defendant.”) Courts in this Circuit have held that litigants may raise a statute of limitations defense by way of a 12(b)(6) motion where, as here, a complaint on its face clearly establishes noncompliance with the limitations period. See i.e., Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). Accordingly, Plaintiff’s claims for unpaid overtime pursuant to the FLSA from the Fall 2000 through December 15, 2014 are time-barred and should be dismissed and/or stricken as a matter of law. 2. Plaintiff Fails to State a Claim For Relief Under the FLSA_______________________________________ The remainder of Plaintiff’s claim pursuant to the FLSA should similarly be dismissed as a matter of law because Plaintiff fails to state with any approximation when he worked overtime, the amount of overtime hours owed him and for what period, and the amounts he claims Defendants failed to pay. It is well-established that the Fair Labor Standards Act (“FLSA”) requires employers to pay non-exempt employees no less than the federal minimum wage and to provide them with overtime compensation for each hour worked beyond 40 hours a week. 29 U.S.C. § 206(a); 207(a)(I). To state a claim under the FLSA for minimum wage and overtime violations, plaintiffs must allege: (1) they are “employees” of the defendant; (2) that their ‘work involved some kind of “interstate activity” and (3) the approximate number of hours worked for which they did not receive these wages. Mell v. GNC Corp., No. 10-945, 2010 WL 4668966 at *5 (W.D. Pa. Nov. 9, 2010). Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 18 of 28 12 For example, in Davis v. Abington Memorial Hospital, the Third Circuit explained that “to recover overtime compensation under the FLSA, ‘an employee must prove that he worked overtime hours without compensation, and he must show the amount and extent of his overtime work as a matter of just and reasonable inference.’” 765 F.3d 236, 241 (3d. Cir. 2014), quoting Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir. 1986) (emphasis added). Here, Plaintiff makes no attempt to articulate when Defendants allegedly failed to pay Plaintiff, what paychecks he did not receive and in what amount he is claiming he did not receive them. For these reasons, to the extent any portion of Plaintiff’s claims survive the statute of limitations, they should be dismissed as a matter of law for failure to state a claim. C. COUNT II OF PLAINTIFF’S COMPLAINT FOR ALLEGED VIOLATIONS OF PENNSYLVANIA’S WAGE PAYMENT & COLLECTION LAW AND MINIMUM WAGE ACT SHOULD BE DISMISSED AS A MATTER OF LAW 1. Plaintiff’s Pennsylvania Wage Payment and Collection Law And Minimum Wage Act Claims Are Time Barred________________ This Court should dismiss Count II of Plaintiff’s Complaint alleging violations of Pennsylvania’s Wage Payment and Collection Law (“PWPCL”) and Minimum Wage Act (“PMWA”) because Plaintiff failed to bring his claims within the applicable statute of limitations. Plaintiff’s claims under the PWPCL and PMWA are subject to a three-year statute of limitations. 43 P.S. § 260.9a, see e.g. Harris v. Mercy Health Corp., No. Civ.A.97-7802, 2000 WL 1130098 *5 (E.D. Pa. Aug. 9, 2000) see also Caucci v. Prison Health Servs., Inc., 153 F. Supp. 2d 605, 610 (E.D. Pa. 2001) (stating that “[c]ourts in this district have unanimously applied section 260.9a’s three-year limitations period to claims under the PMWA.”) (citation omitted); see also e.g., Yevak v. Nilfisk-Advance, Inc., No. 5:15-CV-05709, 2016 WL 1359745, at *2 (E.D. Pa. Apr. 6, 2016); see also Gonzalez v. Bustleton Servs., Inc., No. CIV.A. 08-4703, Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 19 of 28 13 2010 WL 1813481, at *1 (E.D. Pa. May 5, 2010). Plaintiff alleges at paragraph 57 of the Complaint that “Defendants violated the PMWA when they paid Mr. Cuenca at a rate of $7.00 per hour until December 28, 2008.” Ex. A, Comp. at ¶ 57. Accordingly, because Plaintiff’s Complaint was not filed until December 15, 2016, Plaintiff’s claims for wages allegedly owed in December 2008 must fail as they fall well outside the statute of limitations period. 2. Plaintiff’s Failure to Allege the Existence of A Written Employment Contract and/or Any of Its Purported Terms or that Casey’s Failed to Pay Him More Than 15 Days After the End of the Pay Period Warrants Dismissal of Plaintiff’s Wage Payment & Collection Claim. Assuming arguendo that Plaintiff’s PWPCL and PMWA claims were not time barred, Plaintiff’s claim nonetheless fails as a matter of law. In Pennsylvania, the WPCL provides employees a statutory remedy to recover wages and other benefits that are contractually due to them.” McGuckin v. Brandywine Realty Trust, 185 F.Supp.3d 600, 606 (E.D. Pa. 2016); see also Pieretti v. Dent Enters., Inc., No. 11-2179, 2013 WL 754436 at *4 (E.D. Pa. Feb. 27, 2013) (J. Bartle) (“The WPCL serves as an enforcement mechanism for employees whose employers have breached a contractual obligation to pay them wages . . . . It does not create an independent, substantive right to compensation.”) (citing Hartman v. Baker, 766 A.2d 347, 352 (Pa. Super. 2000) aff’d, No. 13-1631, 2014 WL 341446 at *1 (3d Cir. Jan. 31, 2014)). Specifically, while the WPCL provides a statutory remedy when an employer breaches a contractual obligation to pay earned wages, it does not create an independent, substantive right to compensation. Pieretti, supra at *4. Indeed, Pennsylvania courts have consistently determined that “[r]elief under the WPCL is implausible without the existence of a contract” and "[t]he contract between the parties governs in determining whether specific wages are earned." Minielly v. Acme Cryogenics, No. 15-6164, 2016 WL 1221640 at *8 (E.D. Pa. Mar. 28, 2016). Moreover, Plaintiff must allege an Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 20 of 28 14 independent contractual right to payment and cannot rest entitlement to minimum and overtime payments solely on federal and state statutory provisions. This omission is fatal to a claim under the WPCL. Pieretti, supra at *4, see also e.g. Scott v. Bimbo Bakeries, USA, Inc. Civ. A. No. 10- 3154, 2012 WL 645905 at *4-5 (E.D. Pa. Feb. 29, 2012) citing Lehman v. Legg Mason Inc., 532 F. Supp. 2d at 734 (rejecting Plaintiff’s WPCL claim holding “Plaintiff’s alleged entitlement to minimum wage and overtime payments is based on federal and state statutory provisions, not the contract at issue, and therefore does not provide a basis to proceed under the WPCL.”). In this case, Count II of Plaintiff’s Complaint must be dismissed for failure to allege facts sufficient to support the existence of a contractual relationship (or obligation on the part of the Defendants) between the parties. Plaintiff’s Complaint alleges that “the minimum wage beginning on July 1, 2007, was $7.15 per hour” and that Casey’s and the Melvins “violated the PMWA when they paid Plaintiff $7.00 per hour “until December 28, 2008.” Dkt. 1 at ¶¶ 56, 57. Not only is this claim time barred, as explained above, but Plaintiff’s summary assertion that “Defendants violated the WPCL when they failed to pay [Plaintiff] his minimum and overtime wages on his regular paydays” is insufficient to state a claim for relief. Dkt. 1 at ¶ 60. Like the FLSA claim in Count I, Plaintiff makes no attempt to articulate when Defendants allegedly failed to pay Plaintiff, what paychecks he did not receive and in what amount he is claiming he did not receive them. Moreover, Plaintiff has failed to make any attempt to establish any contractual obligation on the part of Defendant regarding any of the issues set forth in the Complaint. To the contrary, Plaintiff's Complaint appears to be premised entirely on an alleged violation of state and federal statutes. This, of course, does not satisfy any of the pleading requirements to sustain a claim under the Pennsylvania Wage Payment and Collection Law, let alone with the specificity required by the Supreme Court in Iqbal and Twombly. Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 21 of 28 15 Moreover, the WPCL states that “[a]ll wages [] earned in any pay period shall be due and payable within the number of days after the expiration of said pay period as provided in a written contract of employment or, if not specified, within the standard time lapse customary in the trade or within 15 days from the end of such pay period.” 43 PS §260.3 (emphasis added). Nowhere in the Complaint does the Plaintiff tell us when the payments were allegedly due from the Defendants and in what amount. Similarly, nowhere in the Complaint does the Plaintiff tell us the number hours and type of work Plaintiff allegedly performed for the Defendants. Plaintiff’s failure to do so is fatal to his claim and this Court must dismiss Count II in its entirety. See, e.g. Pieretti v. Dent Enterprises, Inc., No. 11-2179, 2013 WL 754436 at *4 (E.D. Pa. Feb. 27, 2013) (J. Bartle) (rejecting Plaintiff’s WPCL claim, this Court held Plaintiff’s claim without merit for failure to demonstrate any contractual obligation on the part of the Defendant to pay Plaintiff overtime); See also Drummond v. Herr Foods Inc., CIV. A. 13-5991, 2014 WL 80729, at *3 (E.D. Pa. Jan. 9, 2014) (holding that in order for Plaintiff to state a WPCL claim, he must establish an independent contractual obligation to compensation not simply rely upon state and federal statutory provisions). Based upon the above, Count II of Plaintiffs Complaint should be dismissed as a matter of law. D. COUNT III OF PLAINTIFF’S COMPLAINT FOR BREACH OF CONTRACT SHOULD BE DISMISSED AS A MATTER OF LAW 1. Any Portion of Plaintiff’s Breach Of Contract Arising Out Of Events Occurring Prior to December 15, 2012 Must Be Dismissed As Outside the Statute of Limitations____________________________________________ This Court should also dismiss or strike that portion of Plaintiff’s breach of contract claim that relies upon events occurring outside the statute of limitations. In Pennsylvania, in order to bring a claim for breach of contract, the action must be commenced within four (4) years of the date of the alleged breach. 42 Pa. C.S. §5525. As stated earlier, Mr. Segovia filed suit on Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 22 of 28 16 December 15, 2016. As such, and for the reasons similar to those set forth above, any and all claims dating back to events occurring prior to December 15, 2012 are outside the statute of limitations and must be barred. 2. Plaintiff’s Claim For Breach of Contract If Not Preempted and/or Found Timely Should Nonetheless Be Dismissed For Failure To State A Claim Upon Which Relief May Be Granted_______________________________ Assuming for purposes of this Motion, that Count III for breach of contract is not preempted by the FLSA and that any part of it is found timely, Plaintiff’s claim nonetheless fails as a matter of law for failure to state facts sufficient to warrant relief. It is axiomatic that a complaint should be dismissed where it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6); Port Authority of New York and New Jersey v. Arcadian Corp., 189 F.3d 305, 311-312 (3d Cir. 1999) (Rule 12(b)(6) is designed to screen out claims for which there is clearly no remedy or which the plaintiff is without right or power to assert). Moreover, this Court may not accept Plaintiff’s conclusory and improperly pled allegations that liability exists. As stated in the standard above, supra section III, labels, conclusions and formulaic recitation of the elements of a cause of action will not suffice to withstand a motion to dismiss. Iqbal, 556 U.S. at 678 see also Twombly, 550 U.S. at 544, 558; 127 S. Ct. at 1964- 1965, n. 3 (stating that the amended complaint must make a showing, as opposed to a mere blanket assertion, or entitlement to relief). Legal conclusions made in the guise of factual allegations are accorded no presumption of truthfulness. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (“[A] court need not credit a complaint’s ‘bald assertions’ or ‘legal conclusions’ when deciding a motion to dismiss.”). In addition, a plaintiff cannot rely on anticipated discovery to cure the insufficiency of his pleadings. Kirschner v. Castello, 1992 WL 191153, at *2 (E.D. Pa. Aug. 3, 1992). Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 23 of 28 17 Here, glaringly absent from the complaint are any facts to support a contract existed between the parties. Instead, Plaintiff simply alleges that for some unspecified period of time he was undercompensated in some unspecified amount for some unspecified type of work he performed as an employee of the Defendants. Without more, these bare allegations are insufficient to state a claim for breach of contract. Indeed, while every term in a contract need not be pled in complete detail, every element must be specifically pleaded. Pennsylvania Supply Inc. v. American Ash Recycling Corp. of Pennsylvania, 895 A.2d 595, 600 (Pa. Super. 2006). As such, plaintiff must specifically plead at minimum the contract’s essential terms, the defendant’s breach and the damages that allegedly resulted therefrom. In this case, Plaintiff apparently believes that if he can prove he had a contract by virtue of his employee status with the Defendants then he is entitled to be paid some unknown amount for some unknown period of time for some unspecified type of work for which he alleges he was undercompensated. And, while nowhere in the Complaint does Plaintiff account for the weekly cash payments he received he similarly fails to allege the parties’ intent as to what those payments were intended for. Similarly, absent are the terms in which Plaintiff was to work each week. How many hours was he expected to work and how many hours he indeed did work during any period of time. Additionally, nowhere in the complaint does he allege when or how the parties purportedly agreed payment would be made. For these reasons, this Honorable Court should dismiss Count III of Plaintiff’s Complaint for breach of contract. Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 24 of 28 18 E. COUNT IV OF PLAINTIFF’S COMPLAINT FOR UNJUST ENRICHMENT SHOULD BE DISMISSED AS A MATTER OF LAW 1. The Court Should Dismiss Count IV (Unjust Enrichment) Of Plaintiff’s Complaint to the Extent It Is Time-Barred________ In Count IV, Plaintiff seeks to assert a claim for unjust enrichment. Unjust enrichment, is based on the concept of an implied contract. See Mitchell v. Moore, 1999 Pa. Super. 77, 729 A.2d 1200, 1203 (1999) (“[w]here unjust enrichment is found, the law implies a contract, which requires the defendant to pay to the plaintiff the value of the benefit conferred”); accord Martin v. Little, Brown & Co. 304 Pa. Super. 424, 430-31, 450 A.2d 984, 988 (1982). Therefore, the appropriate statute of limitations for an unjust enrichment claim is the same statute of limitations for all implied contracts that being four (4) years. Cole v. Lawrence, 701 A.2d 987, 989 (Pa. Super. 1997) (“Appellant’s quasi-contract/unjust enrichment action is likewise subject to a four- year limitations period”). Accordingly, this Court should dismiss Count IV of the Complaint to the extent that it seeks recovery for wages earned before December 15, 2012. 2. Plaintiff’s Claim For Unjust Enrichment Fails As A Matter Of Law__________________________________________________ If this Court accepts that Plaintiff’s assertions are timely, in whole or in part, Plaintiff has still failed to state a claim of Unjust Enrichment because he only alleges that he was not paid adequately for work performed within the scope of his employment. To state a claim for unjust enrichment, a plaintiff must plead: (1) a benefit conferred on the defendant by the plaintiff; (2) appreciation of the benefit by the defendant; and (3) the defendant’s acceptance and retention of the benefit under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 896 (Pa. Super. 2011). “In the employment context, to state a claim for unjust enrichment, plaintiff must allege that he did ‘more than work to the best of his abilities for defendant as he was engaged to do.’” Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 25 of 28 19 McGuckin v. Brandywine Realty Trust, 185 F. Supp. 3d 600, 607 (E.D. Pa. 2016) (citing Herbst v. General Acc. Ins. Co., Civil Action No. 97-8085, 1999 WL 820194, at *9 (E.D. Pa. Sept. 30, 1999). This includes unique circumstances outside the scope of the employment relationship that would render the retention of the benefit conferred upon the employer inequitable. See Id. “In order to show unjust enrichment a ‘claimant must show that the party against whom recovery is sought either wrongfully secured or passively received a benefit that would be unconscionable for the party to retain without compensating the provider.’” McGoldrick v. TruePosition, Inc., 623 F. Supp. 2d 619, 624 (E.D. Pa. 2009) citing Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 999 (3d Cir.1987); see also, Torchia ex rel. Torchia v. Torchia, 499 A.2d 581, 582 (Pa. Super. Ct. 1985). In McGuckin, this Court reasoned that the plaintiff only asserted that he was not paid adequately for the work performed within the scope of his employment. As a result, this Court stated that the plaintiff did not state a claim for unjust enrichment because he did not show that he provided the employer with anything more than what he was hired to do. Similarly, here Plaintiff only asserts that he was not paid adequately for the work performed within the scope of his employment. Specifically, Plaintiff generally alleges that “Defendants received the benefit of Mr. Cuenca’s discounted labor.” Dkt. 1 at ¶ 71. Without more, Plaintiff’s claim fails as a matter of law and accordingly must be dismissed. F. PLAINTIFF’S CONTRACT AND QUASI-CONTRACT CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS FAIL BECAUSE THE INDIVIDUAL DEFENDANTS WERE ACTING AS AGENTS OF THE CORPORATE DEFENDANT, CASEY’S OF DREXEL HILL________ Under Pennsylvania law, an employee cannot be held personally liable for contractual obligations incurred on behalf of their employer. See Bucks v. Buckwalter, 215 A.2d 625, 627 (Pa. 1965); see also Rototherm Corp. v. Penn Linen & Uniform Serv., Inc., No. CIV. A. 96-6544, Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 26 of 28 20 1997 WL 419627, (E.D. Pa. Jul. 3, 1997) (concluding that the individual defendant, an executive vice president, cannot be held liable for and employer’s breach of contract.) Messrs. Melvin are being sued based on some ill-defined theories of Breach of Contract (Count III) and Unjust Enrichment, a quasi-contract (Count IV). And, while Plaintiff alleges Messrs. Melvin are officers of Casey’s, namely president and vice president of the company respectively, nowhere in the Complaint does Plaintiff allege that they acted outside the scope of their authority. Dkt. 1 at ¶¶ 8, 10. To the contrary, Plaintiff’s claims against Messrs. Melvin rest solely on the high-ranking nature of their employment positions and their alleged power as managers to “assign[], over[see] and supervise[]” Plaintiff’s activities, restaurant schedules, payroll and administrative tasks. Dkt. 1 at ¶¶ 15, 16. Because employees are not liable for the contractual and quasi-contractual obligations of their employers, this Court should dismiss Counts III and IV against Defendants Francis Melvin and Matthew Melvin in their individual capacities. G. DEFENDANTS MOVE FOR A MORE DEFINITE STATEMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(E) Moreover, while Plaintiff admits he was paid a lump sum in cash of “240 and $290” 4 per week in addition to the 40-hour paycheck, nowhere in the Complaint does he set forth the amount of time for which he allegedly was not compensated nor does he set forth the amount in which he purportedly was undercompensated. Under the Iqbal/Twombly pleading standard, if plaintiff is permitted to proceed with his claims to any extent, Plaintiff should be required to, at minimum, set forth the time period in which he believes he worked in excess of 40 hours and the amounts he believes are due and owing to him for those same periods. 4 Dkt. 1 at 26. Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 27 of 28 21 V. CONCLUSION Based on the foregoing, Defendants respectfully request that this Honorable Court enter an Order dismissing Plaintiff’s Complaint in its entirety. Plaintiff’s state law claims at Counts II, III and IV should be dismissed in their entirety as preempted by the Fair Labor Standards Act. In addition, Counts II, III and IV fail to state a claim for which relief can be granted and in large part are barred by their respective statute of limitations. In addition, Count I for the period 2000 through to 2014 should be dismissed as barred by the applicable statute of limitations and to the extent any part of the claim survives, Plaintiff fails to state a claim for relief. In addition, Defendants Francis Melvin and Matthew Melvin cannot in their individual capacity be liable to the Plaintiff on his contract and quasi-contract claims as any action they are alleged to have engaged in would have been as an agent of the corporate defendant. Accordingly, these claims, if left to survive must be dismissed against Messrs. Melvin individually. Respectfully submitted, Date: /s/ Marlo Pagano-Kelleher Marlo Pagano-Kelleher, Esquire THE PAGANO LAW FIRM, LLC Attorney I.D. No.: 84503 115 W. State Street; Suite 401 Media, PA 19063 T: (484) 442-8750 F: (484) 442-8742 marlo@paganolawyers.com Counsel for Defendants Case 2:16-cv-06439-MSG Document 4-1 Filed 04/10/17 Page 28 of 28 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA v. ORDER AND NOW, this ________ day of ____________, 2017, upon consideration of Defendants, Original Casey’s of Drexel Hill, Inc., Francis Melvin, individually, and Matthew Melvin, individually (collectively “Defendants”) Motion to Dismiss and any and all answers and replies thereto, it is HEREBY ORDERED AND DECREED that Defendants’ Motion is GRANTED as follows: (1) Defendants’ Motion to dismiss Counts II, III, and IV is GRANTED on the grounds that they are preempted by Count I and/or barred by the applicable statutes of limitations; (2) Defendants’ Motion to Dismiss Count I is GRANTED on the grounds that it is barred by the applicable statute of limitation and/or fails to state a claim upon which relief may be granted; : : : : : : : : : : : : Carlos Cesar Cuenca Segovia Plaintiff, CIVIL ACTION NO.: 2:16-cv-06439-MSG Original Casey’s of Drexel Hill, Inc., Francis Melvin, individually, and Matthew Melvin, individually Defendants. Case 2:16-cv-06439-MSG Document 4-2 Filed 04/10/17 Page 1 of 2 (3) Defendants’ Motion to Dismiss Count II of the Complaint is GRANTED for failure to state a claim upon which relief may be granted; (4) Defendants’ Motion to Dismiss Counts III and IV is GRANTED for failure to state a claim upon which relief may be granted; and (5) Defendants’ Motion to Dismiss Counts III and IV against Defendants Francis Melvin and Matthew Melvin each in their individual capacity is GRANTED and Count III for breach of contract and Count IV for unjust enrichment are dismissed with prejudice. SO ORDERED: BY:_________________________ J. Case 2:16-cv-06439-MSG Document 4-2 Filed 04/10/17 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA v. ORDER AND NOW, this ________ day of ____________, 2017, upon consideration of Defendants, Original Casey’s of Drexel Hill, Inc., Francis Melvin, individually, and Matthew Melvin, individually (collectively “Defendants”) Motion for a More Definite Statement and any and all answers and replies thereto, it is HEREBY ORDERED AND DECREED that Defendants’ Motion is GRANTED. Plaintiff is permitted leave to amend the Complaint in twenty (20) days of this Order or the matter is dismissed with prejudice. SO ORDERED: BY:_________________________ J. : : : : : : : : : : : : Carlos Cesar Cuenca Segovia Plaintiff, CIVIL ACTION NO.: 2:16-cv-06439-MSG Original Casey’s of Drexel Hill, Inc., Francis Melvin, individually, and Matthew Melvin, individually Defendants. Case 2:16-cv-06439-MSG Document 4-3 Filed 04/10/17 Page 1 of 1 CERTIFICATE OF SERVICE I, Marlo Pagano-Kelleher, Esquire, hereby certify that the foregoing Motion of Defendants to Dismiss Plaintiff’s Complaint, Memorandum of Law in Support of Defendants’ Motion to Dismiss Plaintiff’s Complaint, and Proposed Orders were electronically filed with the Clerk of the Court using CM/ECF. It is also certified that a copy of this document has been served contemporaneously upon the counsel of record listed below via Notices of Electronic Filing generated by CM/ECF or by regular first class mail for those counsel or parties who are not authorized to receive the Notices of Electronic Filing electronically. Jennifer J. Lee, Esquire Sheller Center for Social Justice Temple University Beasley School of Law 1719 N. Broad St. Philadelphia, PA 19122-6002 4/10/17 /s/ Marlo Pagano-Kelleher Date Marlo Pagano-Kelleher, Esquire Case 2:16-cv-06439-MSG Document 4-4 Filed 04/10/17 Page 1 of 1