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Alberto J. Lopez and Others Similarly Situated v. Tri-State Drywall

March 20, 2012

ALBERTO J. LOPEZ AND OTHERS SIMILARLY SITUATED
v.
TRI-STATE DRYWALL, INC.,
AND DEAN GANOUDIS



Memorandum and Order

I. BACKGROUND

Plaintiff in this case, Alberto J. Lopez was hired by Defendants, Tri-State Drywall, Inc. and Dean Ganoudis (collectively, "Tri-State"), as a "framer" to install, tape, hang and finish drywall at a veteran's residence facility. In his First Amended Complaint (Doc. 10) ("Complaint"), he alleges that he was hired as an employee under a prevailing wage rate of $59.59 per hour, but was paid as an independent contractor at $17.00 per hour. Compl. ¶ 3. Mr. Lopez brings this action on his own behalf and on behalf of a putative class of "potentially over fifteen" current and former employees of Tri-State, alleging that Tri-State failed to pay contracted for compensation in violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201 - 219 ("FLSA") and the Pennsylvania Wage Payment and Collection Law, 43 PA. STAT. ANN. §§ 260.1 - 260.11a ("WPCL"). He also brings claims for violations of the FLSA's record keeping provisions, 29 U.S.C. §§ 211(c) and 215(a)(5), and notice provision, 29 C.F.R. § 516.4. Finally, Mr. Lopez brings claims for common law conversion and unjust enrichment stemming from the same alleged conduct.

Before the court is the Motion of Defendants, Tri-State Drywall, Inc. and Dean Ganoudis, to Dismiss Counts I, III, and IV of the First Amended Complaint, and to Dismiss Count II of the First Amended Complaint to the Extent that it Seeks Unpaid Overtime Compensation (Doc. 13), Plaintiff's Response in Opposition thereto (Doc. 14), and Defendants' Reply (Doc. 15). Having considered the parties arguments, and for the reasons set forth below, the court will grant TriState's motion to dismiss Count I of the Complaint, Plaintiff's claim under the FLSA, with prejudice, for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The court will decline to exercise jurisdiction over Plaintiff's remaining state law claims without prejudice to pursue any applicable claims in state court.

II. STANDARD OF REVIEW

Under Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief can be grated. Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss pursuant to Rule 12(b)(6), the court must view all allegations stated in the complaint as true, and construe all inferences in the light most favorable to the plaintiff. See Hishon v. King & Spalding, 467U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Rule 8(a) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although Rule 8(a) does not demand "'detailed factual allegations,'" mere "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, ----, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2001)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

III. DISCUSSION

A. Plaintiff Failed To State A Claim Under The FLSA*fn1

Tri-State advances the following arguments:

That Mr. Lopez's FLSA claims should be dismissed because the Complaint does not allege that Mr. Lopez himself was ever owed and denied overtime compensation;

That the FLSA does not provide a remedy for unpaid non-overtime compensation for an employee who was paid at least the minimum wage, and Mr. Lopez therefore does not state a claim under the FLSA;

That Mr. Lopez cannot bring an FLSA collective action on behalf of any other person he alleges was not paid overtime compensation; and

That the FLSA's record keeping and notice provisions do not afford Mr. Lopez a private right of action.

In his responsive pleadings Mr. Lopez confirms that he does not claim lost overtime. Nevertheless, Mr. Lopez argues that he is entitled to discovery prior to a determination by this court as to whether he is sufficiently similarly situated to other potential plaintiffs such that he may bring a claim under the FLSA on their behalf. Mr. Lopez further argues that it is not, as the defendant claims, "well-settled" there is no private right of action for a recording-keeping violation, and urges this court to find such a right in the text, legislative history, and structure of the statute.

The Fair Labor Standards Act was enacted by Congress to govern the maintenance of standard hour and wage practices. Pursuant to the FLSA, an employer must pay its employees at least a specified minimum hourly wage for work performed, 29 U.S.C. § 206, and one and one half times the employer's regular wage for hours worked in excess of forty hours per week, 29 U.S.C. § 207. Employers who violate these provisions are "liable to the employee or employees affected in the amount of their unpaid minimum wages, or ...


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