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Quinn F. Scott, et al. v. Bimbo Bakeries

February 29, 2012


The opinion of the court was delivered by: Goldberg, J.


This case raises several issues under the Fair Labor Standards Act ("FLSA") and related Pennsylvania statutes. Plaintiffs, Quinn F. Scott, Ronald Sochacki, William J. Davenport, III, Robert Dando, Sr., Kevin Kazarnowicz,*fn1 on behalf of themselves and all others similarly situated ("Plaintiffs"), initiated this lawsuit against Defendants, Bimbo Bakeries USA, Inc. and Bimbo Foods Bakeries, Inc. ("Defendants") for alleged violations of the Pennsylvania Wage Payment and Collection Law ("WPCL"), 43 PA. CON. STAT. §§ 260.1 et seq. (Count I), the Pennsylvania Minimum Wage Act ("PMWA"), 43 PA. CON. STAT. §§ 333.101 et seq. (Count II), the FLSA, 29 U.S.C. §§ 201 et seq. (Counts III), and for negligent misrepresentation (Count IV).

Before the Court are Defendants' Motion to Dismiss and Plaintiffs' Motion for Approval of Notice to Potential Class Members. (Doc. Nos. 7, 9.) For the following reasons, Defendants' Motion will be granted in part and denied in part, and Plaintiffs' Motion will be granted.


Plaintiffs deliver fresh baked goods for Defendants nationwide, pursuant to Distribution Agreements that identify them as "independent contractors." Plaintiffs allege that, although they are classified as "independent contractors," Defendants control and manage their work and thereby treat them as their "employees." Under Defendants' alleged "nationwide policy" of mis-classifying their drivers in this manner, Plaintiffs contend that they were denied certain rights, privileges, and benefits owed to "employees" under the law. (Am. Compl. ¶¶ 21, 28-48.)

More specifically, Plaintiffs' amended complaint alleges that: - There are "unwritten policies" that Plaintiffs are expected to follow, which "govern the ordering of product, frequency of deliveries and manner of store service," id. ¶ 35; - Defendants "employ supervisors and managers . . . who have extensive supervisory and disciplinary control over the class members," and that "Defendants unilaterally increase or decrease orders placed by the Plaintiffs with or without prior notice," id. ¶¶ 37, 44-45; - Defendants "unilaterally determine which fresh baked good[s] products are available for purchase," and prohibit Plaintiffs from delivering baked goods which are in direct competition with their products, id. ¶¶ 46-47; - Defendants make "unauthorized deductions" from their pay and require them to cover "operation expenses," which reduces their salary below the federal minimum wage, id. ¶¶ 63-67; and - They are "required to work in excess of 40 hours per week without overtime pay. Specifically, Plaintiffs allege they regularly work from approximately 3:00AM -1:00PM five days per week in addition to 2-3 hours on Sundays . . . . [and] an extra half-hour every evening placing orders and adjusting orders." Id. ¶ 59.

On October 1, 2010, Defendants filed a motion to dismiss Plaintiffs' amended complaint. (Doc. No. 7.) On October 9, 2010, Plaintiffs filed a Motion for Approval of Notice to Potential Class Members, requesting that we conditionally certify this case as a collective action under the FLSA. (Doc. No. 9.) In response, Defendants requested leave to perform limited discovery to determine whether conditional certification was appropriate. We granted this request and the parties engaged in limited discovery pursuant to a joint discovery plan, which included depositions of named Plaintiffs and certain opt-in Plaintiffs, as well as targeted interrogatories and document requests. On October 3, 2012, after completion of this discovery period and supplemental briefing, we held oral argument on Plaintiffs' Motion.

Defendants' motion to dismiss and Plaintiffs' motion for conditional certification are now fully briefed and ready for disposition.


A. Standard of Review

When considering a motion to dismiss, the court must assume the veracity of well-pleaded factual allegations, construe them in a light most favorable to the plaintiff, and "then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950 (2009). The court may only look to the facts alleged in the complaint and its attachments when deciding a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). "'[B]are-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (quoting Iqbal, 129 S.Ct. at 1949).

B. Discussion

Defendants seek dismissal of each of Plaintiffs' claims, arguing that they failed to state claims for relief under the FLSA, PMWA, WPCL, and the Pennsylvania common law cause of action for negligent misrepresentation.*fn2 We will address each argument in turn.

1. Plaintiffs' Claims Under the FLSA

The FLSA requires employers to pay employees "engaged in commerce" no less than the federal minimum wage, 29 U.S.C. § 206(a), and to provide them overtime compensation for each hour worked beyond 40 hours a week. 29 U.S.C. § 207(a)(1). To state a claim under the FLSA for minimum wage and overtime compensation, 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. See Zhong v. August August Corp., 498 F.Supp.2d 625, 628 (S.D. N.Y. 2007). In addition, where plaintiffs brings suit on behalf of themselves and those similarly situated, "the complaint should indicate who those other employees are, and allege facts that would entitle them to relief." Id.

Defendants argue that Plaintiffs' complaint does not contain sufficient facts to suggest that their compensation fell below the minimum wage or applicable overtime rate, as is required under the third element of the FLSA standard.*fn3 The United States Court of Appeals for the Third Circuit has not addressed how precisely a plaintiff must plead the third element of an FLSA claim and district courts are split on this question. While some district courts simply require plaintiffs to allege that they did not receive overtime or minimum wage payments,*fn4 others apply a more stringent standard and require plaintiffs to allege the approximate number of hours for which they did not receive such payments.*fn5

Viewing the alleged facts in a light most favorable to Plaintiffs, we conclude that a plausible FLSA claim has been pled, even under the more stringent pleading standard. Plaintiffs allege that they "were regularly paid less than the federal minimum wage that applied during the applicable limitations period by Defendants as payment for hours worked." In support of this allegation, Plaintiffs point to "numerous and various deductions" associated with "the delivery of the fresh baked goods" that allegedly caused their "wages to fall below minimum wage[,]" including "lease payments in regards to the truck lease, lease payments for computer equipment, insurance, the cost of returned 'off code' baked goods, the cost of servicing a sales area at its own direction and penalties or fees assessed by retail outlets[.]" (Am. Compl. ¶¶ 32, 52.)

Plaintiffs also allege that they "regularly worked more than 40 hours per week, but did not receive overtime pay. Specifically, Plaintiffs regularly work from approximately 3:00 AM -- 1:00 PM five days per week in addition to 2-3 hours on Sundays resulting in well over 40 hours per week. [Plaintiffs also] spend an extra half-hour every evening placing orders and adjusting orders. At no time were Plaintiffs ever paid an hourly wage or time and one half for overtime hours worked." (Am. Compl. ¶¶ 59, 98-100.)

Viewed in a light favorable to Plaintiff, their allegations reflect that they worked approximately 55 hours per week and that their compensation, which is not based on an hourly wage, fell below the federal minimum wage due to "deductions" and operational costs that they were required to assume. Although Plaintiffs do not include an actual calculation of their average hourly rate of pay, we conclude that such specificity is unnecessary at this stage. Plaintiffs allegations regarding their work schedule and a list of the "deductions" that allegedly reduced their compensation below the applicable minimum wage and overtime pay are more than sufficient to support a plausible FLSA claim and will allow Defendants to formulate a defense.*fn6

Defendants also contend that Plaintiffs have failed to allege facts which indicate that the other "similarly situated" Plaintiffs are entitled to relief under the FLSA. We disagree. Plaintiffs have presented this case as a collective action on behalf of other individuals who were "designated by Defendants as 'independent contractors' and/or 'independent operators' whom pick-up fresh baked goods from Mt. Laurel, New Jersey depot for delivery in Pennsylvania and New Jersey from 2007 to the present . . . and/or 'independent operators' nationwide from 2007 to the present." Plaintiffs claim that there are "over 30 class members in a depot located in Mt. Laurel, New Jersey" as well as "over several thousand" nationwide. Plaintiffs also provide that the allegations set forth in support of their claim apply to the potential class of similarly situated individuals and that each potential plaintiff was subject to the "uniform policies of Defendants" and "the same or substantially similar 'Distribution Agreement.'" (Am. Comp. ¶¶ 3, 16, 18-21.)

Viewing the alleged facts in a light most favorable to Plaintiffs, we conclude that they have identified the other potential class members with sufficient specificity and alleged facts that would entitle these individuals to relief. See Zhong v. August August Corp., 498 F.Supp.2d 625, 628, 631 (S.D.N.Y. 2007) (holding that to allege collective action, plaintiffs must provide allegations that ...

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