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Parker v. 4247 FX, Inc.

United States District Court, E.D. Pennsylvania

May 12, 2017

WALTER PARKER and GORDON ROY PARKER Plaintiffs,
v.
4247 FX, INC., a Pennsylvania Corporation; GARY KERSTEIN, a Pennsylvania Resident; JOYCE PRENTISS, a Pennsylvania Resident; MARLA KLEIN KERSTEIN, a Pennsylvania Resident; ALAN H. KLEIN, a Pennsylvania Resident; FAIRFAX APARTMENTS ASSOCIATES, a Pennsylvania Corporation; and, JOHN DOES #1-10 Defendants.

          MEMORANDUM

          C. Darnell Jones, II J.

         I. Introduction

         Pro se Plaintiffs Walter Parker and Gordon Roy Parker commenced the above-captioned suit against Defendants, alleging: violations of the Fair Labor Standards Act and Pennsylvania Wage Payment Collection Law; Breach of Contract; Fraudulent or Negligent Misrepresentation; Unjust Enrichment; Conversion; and, violations of the Fair Housing Act. Presently before the court is Defendants' Motion to Dismiss Plaintiffs' Amended Complaint for failure to state a claim. For the reasons set forth below, Defendants' Motion shall be granted, with leave for Plaintiffs to amend particular claims, as specified herein.

         II. Standard of Review

         In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotations and citation omitted). After the Supreme Court's decision in Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678 (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678; accord Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“[A]ll civil complaints must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”) (internal quotation marks omitted).

         III. Factual Background

         Plaintiffs Walter and Gordon Roy Parker are brothers who live together at The Fairfax apartment building in Philadelphia, Pennsylvania. (Am. Compl. ¶ 1.) For a time, Plaintiffs also worked at The Fairfax as receptionists at “The Desk.” (Am. Compl. ¶ 14.) In 1988, Plaintiffs' mother, Penny Parker, hired them to work in this position. (Am. Compl. ¶ 15.) Plaintiff Gordon Parker was allegedly forced to resign from his position in October 1998, as a result of a controversy with the University of Pennsylvania. (Am. Compl. ¶ 17.) He has not been a formal employee at The Fairfax since that time. (Am. Compl. ¶ 17.) Penny Parker passed away in July, 2007, at which time Plaintiff Walter Parker took over her responsibilities as desk manager. (Am. Compl. ¶ 19.)

         Plaintiffs allege that from 2007 through 2016, Plaintiff Walter Parker was required to provide full coverage for The Desk, with Plaintiff Gordon Parker covering for him at times when Plaintiff Walter Parker was unavailable. (Am. Compl. ¶ 20.) Plaintiff Walter Parker alleges he made himself available “at all times” in the event a time-sensitive issue relating to his duties at The Desk needed resolution. (Am. Compl. ¶ 22.)

         During the time that Plaintiff Walter Parker worked at The Desk, both Plaintiffs also lived at The Fairfax. (Am. Compl. ¶ 1.) Plaintiffs paid a reduced monthly rent of $450. (Am. Compl. ¶ 50.) This reduced monthly rent included an abatement of approximately $700 that offset the $1, 150 per month market value of the apartment Plaintiffs occupy at The Fairfax. (Am. Compl. ¶ 48.)

         Plaintiff Walter Parker left his position at The Desk on February 29, 2016. (Am. Compl. ¶ 57.) Plaintiff sent an Americans with Disabilities Act (ADA) notification to Defendants, which he eventually withdrew. (Am. Compl. ¶ 58(a).) Plaintiff Walter Parker alleges that despite submitting two medical clearances, he was prevented from returning to his job. (Am. Compl. ¶ 58(a).)

         On March 1, 2016, Plaintiffs put Defendants on notice of their unpaid-wage allegations. (Am. Compl. ¶ 58.) Plaintiff Walter Parker claims he is owed a total of $44, 567.50 for the overtime he worked while he was on call. (Am. Compl. ¶ 25.) Plaintiff Walter Parker also claims that Defendants have used his disability as a pretext for not allowing him to return to work, and his constructive termination is, in fact, retaliation for his wage complaint. (Am. Compl. ¶ 58(a).)

         IV. Discussion

         A. Claims Against John Doe Defendants

         Plaintiffs name as Defendants “John Doe #1 through John Doe #10.” (Am. Compl. ¶ 7.) These John Doe defendants are meant to serve as placeholders for “any other entities or individuals, including but not limited to outside investors, who own and operate The Fairfax, or who are officers who assist, directly or indirectly, in its day-to-day operations.” (Am. Compl. ¶ 7.) Defendants urge this Court to dismiss all claims against the John Doe defendants, arguing that while John Doe defendants may be used at times for privacy reasons, their use here is inappropriate, as “Plaintiffs have personal knowledge of every Fairfax employee and discovery will not reveal the existence of unknown parties.” (Defs.' Mot. Dismiss 6 (citing Breslin v. City and Cty. of Phila., 92 F.R.D. 764, 765 (E.D. Pa. 1981)).

         Federal Rule of Civil Procedure 21 provides in pertinent part that “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party.” Fed.R.Civ.P. 21. In this particular case, Plaintiffs have been residents of The Fairfax for decades. Moreover, Walter Parker has been an employee of The Fairfax since 1988, while Gordon Parker was an employee from 1988 through 1998. Plaintiffs filed their original Complaint on June 9, 2016 and amended same on July 11, 2016. Under these circumstances, it is inconceivable there exist any additional defendants that could be unveiled through discovery and would be appropriate to join at this point in the litigation.[1] Accordingly, all claims against John Doe defendants #1 through #10 shall be dismissed with prejudice.

         B. Fair Labor Standards Act Claims Against Individually-Named Defendants

         In addition to naming 4247 FX, Inc. as a Defendant in this action, Plaintiffs have named Joyce Prentis, Gary Kerstein, Marla Klein Kerstein, and Alan Klein as defendants in their individual capacity. Defendants argue that Plaintiffs have failed to prove these defendants should be held individually liable under the FLSA, and thereby move for dismissal of said claims. (Defs.' Mot. Dismiss 7, 9.) For the reasons set forth below, claims against Defendants 4247 FX, Inc., Joyce Prentis, and Alan Klein in their individual capacities shall be dismissed with prejudice and the claims against Gary Kerstein and Marla Klein Kerstein shall be dismissed with leave to amend.

         In Count I of Plaintiffs' Amended Complaint, Plaintiffs allege Defendants violated the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (2012), by refusing to pay Plaintiff Walter Parker for overtime worked at The Desk. (Am. Compl. ¶ 38.) Under the FLSA, an employer is “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 148 (3d Cir. 2014) (citing 29 U.S.C. §203(d) (2012)). Individual liability may be imposed against a company's owners, officers, or supervisory personnel, provided that the individual “exercises ‘supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation' while acting in the employer's interest.” Id. at 153 (quoting Haybarger v. Lawrence County Adult Prob. & Parole, 667 F.3d 408, 417 (3d Cir. 2012)).

         Plaintiffs provide brief explanations for including the individual defendants in their Amended Complaint. Namely, Plaintiffs allege that 4247 FX is “the sole officer listed for Defendant Fairfax Apartments Associates.” (Am. Compl. ¶ 3.) Plaintiffs go on to claim that 4247 FX is “Plaintiff's [sic] employer as defined by the FLSA because it is acting indirectly and/or directly in the interest of Defendant Fairfax Apartments Associates.” (Am. Compl. ¶ 34(b).) Plaintiffs claim Ms. Prentis is “listed on the official Secretary of State website as an officer (treasurer) of Defendant 4247 FX, and Walt's employer as defined by the FLSA because she is acting in/directly [sic] in the interest of Defendant Fairfax Apartments Associates.” (Am. Compl. ¶ 34(c).) Mr. Kerstein is alleged to be the general manager of The Fairfax and is said to have given “the direct order not to rehire Gordon at The Desk in 2006, resulting in Ms. Parker working until just prior to her death.” (Am. Compl. ¶ 34(d).) Mr. Klein is described as “the Klein family patriarch” and the owner of The Fairfax, and is “Plaintiff's employer as defined by the FLSA because he is acting indirectly and/or directly in the interest of Defendant Fairfax Apartments Associates.” (Am. Compl. ¶ 34(e).) Finally, Ms. Klein Kerstein, Mr. Klein's wife, is described as having duties “equivalent to that of [Mr. Klein]; combined, they ‘run' The Fairfax . . . [and] . . . the occasional contact, including the harassing pounding on Plaintiffs' door and telephone call subsequent to the February 29, 2016 events was directed solely by her.” (Am. Compl. ¶ 34(f).)

         Plaintiffs do not allege facts sufficient to establish that Defendants 4247 FX, Inc., Joyce Prentis, or Alan H. Klein can be held individually liable under the FLSA. The Amended Complaint merely names these individual defendants, recites the language of the statute, claiming that each individual defendant “is acting indirectly or directly in the interest of Defendant Fairfax Apartments Associates[, ]” and makes conclusory statements that are immaterial to survival of the claims. Accordingly, all claims of individual liability against these particular defendants shall be dismissed with prejudice.

         Moreover, Plaintiffs' Amended Complaint pleads insufficient facts to plausibly show that Defendants Gary Kerstein and Marla Klein Kerstein had supervisory authority over the Plaintiffs and were responsible in part or in whole for any FLSA violations. See Mackereth v. Kooma, Inc., Civ. No. 14-4824, 2015 U.S. Dist. LEXIS 63143, at *20-21 (E.D. Pa. May 14, 2015) (dismissing individual liability claims that were based solely on allegations that defendants were corporate officers and “‘exercise[d] sufficient control over the labor policies and practices complained of . . . to be considered employers of Plaintiffs' within the meaning of the FLSA” and concluding that the plaintiff needed “something more than the mere positions of the individual defendants to show that they are Plaintiffs' employers.”). Because Plaintiffs have failed to plead facts that could plausibly demonstrate that either of these Defendants had supervisory authority over Plaintiffs and were responsible for violating the FLSA, all claims against them in their individual capacity shall be dismissed with leave to amend.[2]

         C. Counts I and II Alleging Unpaid Overtime and Unpaid On-Call Time in Violation of the FLSA

         Plaintiffs Walter Parker and Gordon Parker allege that Defendants have violated the Fair Labor Standards Act by not compensating Plaintiffs for the overtime and on-call time they had worked between 2007 and 2016. (Am. Compl. ¶¶ 36, 46.) Plaintiffs seek $44, 567.50, which they allege is the total amount of unpaid wages owed by Defendants. (Am. Compl. ¶ 41(a).)

         With regard to Plaintiff Walter Parker's uncompensated overtime claim, this Court does not yet have enough information regarding the rent credit to properly determine whether Defendants have adequately compensated Plaintiff for his scheduled overtime work, therefore Defendants' Motion to Dismiss that claim shall be granted with leave to amend. Plaintiff Walter Parker's claim for unpaid on-call time, and any claim by Gordon Parker shall be dismissed with prejudice, as any amendment would be futile.

         1. Plaintiff Walter Parker's Overtime Compensation Claim

         Plaintiff Walter Parker's FLSA claim for overtime compensation raises three questions. First, this Court must determine whether Plaintiff has sufficiently pleaded the existence of unpaid overtime. Second, this Court must determine whether the reasonable costs of lodging can be counted toward overtime compensation. Third, this Court must decide whether the $700 rent credit at issue here is “reasonable” under Section 203(m) of the FLSA. For the reasons set forth below, this Court grants Defendants' Motion to Dismiss Plaintiff Walter Parker's FLSA claim for unpaid overtime, with leave to amend.

         a. Sufficiency of the Amended Complaint

         At the outset, this Court notes that while Defendants addressed Plaintiff Walter Parker's claims regarding on-call compensation, Defendants did not address his claims for uncompensated overtime. Nevertheless, the court will determine whether said Plaintiff has pleaded facts sufficient to state a claim for unpaid overtime under the FLSA. While there is little case law in the Third Circuit to guide this Court's analysis, a district court case out of the Middle District provides a helpful summary regarding the manner in which the court should evaluate the sufficiency of unpaid overtime claims at the motion to dismiss stage:

While highly specific figures need not be pleaded, Plaintiffs must be “able to estimate the time periods in which they worked without proper overtime compensation.” Mell v. GNC Corp., No. 10-945, 2010 U.S. Dist. LEXIS 118938, 2010 WL 4668966, at *8 (W.D. Pa. Nov. 9, 2010). Precise records as to days and hours owed are not necessary, but instead “a just and reasonable inference that in their capacity as employees . . . they worked a concrete number of hours for which they were improperly compensated.” Beaulieu v. Vermont, No. 2:10-cv-00032, 2010 U.S. Dist. LEXIS 101192, 2010 WL 3632460 at *5 (D. Vt. Aug. 5, 2010) (finding individualized determinations as to each Plaintiff based on a weekly estimate sufficient to meet the pleading standards). Of course, “[t]he critical component of a complaint alleging violations of Section 207 is an approximation of the number of unpaid weekly overtime hours worked over the employment period.” Id. “At a minimum, it must set forth the approximate number of unpaid regular and overtime hours allegedly worked.” Nakahata v. New York-Presbyterian Healthcare System, Inc., Nos. 10 Civ. 2661(PAC), 10 Civ. 2662(PAC), 10 Civ. 2683(PAC), 10 Civ. 3247(PAC), 2011 U.S. Dist. LEXIS 3585, 2011 WL 321186 at *4 (S.D.N.Y. Jan. 28, 2011).

Attanasio v. Cmty. Health Sys., Civ. No. 11-CV-582, 2011 U.S. Dist. LEXIS 121764, at *20-21 (M.D. Pa. Oct. 20, 2011).

         Under this standard, Plaintiff Walter Parker has pleaded sufficient facts to state a claim for relief under the FLSA. Plaintiffs' Amended Complaint alleges that Walter Parker has worked overtime without compensation from 2007 through 2016. (Am. Compl. ¶ 25.) Plaintiff Walter Parker also provides specific figures for the number of scheduled hours he worked per week from August 23, 2015, through February 28, 2016. (Am. Compl. ¶ 26.) Plaintiff has not yet provided evidence to support these assertions, but specific evidence is not required at this stage in the litigation. Plaintiff need only provide an estimate of overtime ...


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