United States District Court, E.D. Pennsylvania
Darnell Jones, II J.
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.
Standard of Review
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
accusation.”) (internal quotation marks omitted).
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.)
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.)
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.)
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).)
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).)
Claims Against John Doe Defendants
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)).
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. Accordingly, all claims against John
Doe defendants #1 through #10 shall be dismissed with
Fair Labor Standards Act Claims Against Individually-Named
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.
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)).
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. ¶
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.
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.
Counts I and II Alleging Unpaid Overtime and Unpaid On-Call
Time in Violation of the FLSA
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. ¶
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.
Plaintiff Walter Parker's Overtime Compensation
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
Sufficiency of the Amended Complaint
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,
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 ...