United States District Court, E.D. Pennsylvania
TODD A. SZEWCYZYK, JUAN DONES-CRUZ, and KIMBERLY RUCKER, on behalf of themselves and all others similarly situated
UNITED PARCEL SERVICE, INC.
R. PADOVA, J.
Todd A. Szewczyk, Juan Dones-Cruz, and Kimberly Rucker filed
this putative Collective and Class Action against their
former employer, Defendant United Parcel Service, Inc.,
asserting claims under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq., the
Pennsylvania Minimum Wage Act (“PMWA”), 43 Pa.
Stat. Ann. § 333.101 et seq., and the Pennsylvania Wage
Payment and Collection Law (“WPCL”), 43 Pa. Stat.
Ann. § 260.1 et seq. Defendant has moved to dismiss the
Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can
be granted and Federal Rule of Civil Procedure 12(b)(2) for
lack of personal jurisdiction. For the following reasons, we
grant the Motion in part and deny it in part.
Complaint alleges that the three named Plaintiffs are former
employees of Defendant United Parcel Service, Inc. (Compl.
¶¶ 7, 13, 19.) Defendant is “the world's
largest package delivery company and a leading global
provider of specialized transportation and logistics
services, ” operating in more than 220 countries, and
servicing “every address in North America.”
(Id. ¶¶ 25-26 (quotations omitted)).
Plaintiffs Szewczyk and Dones-Cruz worked as delivery
drivers, driving brown delivery trucks to perform pick-ups,
transfers, and deliveries of packages throughout
Pennsylvania. (Id. ¶¶ 8, 14.) Plaintiff
Rucker was a driver helper, working in a brown delivery truck
and assisting with the pick-up, transfer, and delivery of
packages throughout Virginia. (Id. ¶ 20.)
to the Complaint, Defendant has failed to pay both delivery
drivers and driver helpers overtime compensation for all
hours that they have worked beyond forty in a work week.
(Id. ¶ 2.) Rather, delivery drivers and driver
helpers are required to work off-the-clock for periods of
time when they are picking up, transferring, and delivering
packages. (Id. ¶ 4.) Szewczyk, Dones-Cruz, and
Rucker, in particular, routinely worked in excess of 40 hours
per week without receiving overtime compensation.
(Id. ¶¶ 9, 15, 21.) While Defendant had
systems in place whereby the named Plaintiffs and other
employees were to record their own hours, managers instructed
delivery drivers, and driver helpers to record that they
worked fewer hours than they actually worked or, in the
alternative, the managers edited the employees' time to
show that the employees worked less time than they actually
worked. (Id. ¶¶ 43, 57.) The
employees' recorded hours worked are altered because
Defendant has strict labor budgets and managers are directed
not to exceed those budgets. (Id. ¶¶
55-56.) Among the ways that the hours recorded are minimized
is that records are changed to include lunch breaks that the
drivers and driver helpers did not actually take.
(Id. ¶¶ 58, 61.) All three named
Plaintiffs had their hours edited to reflect lunch breaks
that they had not taken. (Id. ¶¶ 61, 65,
69.) As a result of Defendant's practices, the named
Plaintiffs (along with other members of the putative classes)
were not paid for all of the hours that they worked,
including overtime compensation. (Id. ¶ 72.)
Complaint contains five Counts. Counts I and II assert claims
under the FLSA, grounded on Defendant's failure to
properly pay the three named Plaintiffs and others overtime
compensation at 1.5 times their regular rate of pay. Count
III asserts a claim pursuant to the PMWA, based on
Defendant's failure to pay Szewczyk, Dones-Cruz, and
others for all hours worked and overtime wages to which they
were entitled. Count IV asserts a claim under the WPCL, based
on Defendant's failure to pay Szewczyk, Dones-Cruz, and
others their regular wages for all hours worked up to forty
(40) in a workweek. Count V asserts a claim under the FLSA,
asserting that Defendant unlawfully retaliated against
Szewczyk when he complained about Defendant's failure to
pay him all the wages that he was owed. Defendant has moved
to dismiss all five Counts, based on either Rule 12(b)(6) or
considering a motion to dismiss pursuant to Rule 12(b)(6), we
“consider only the complaint, exhibits attached to the
complaint, [and] matters of public record, as well as
undisputedly authentic documents if the complainant's
claims are based upon these documents.” Mayer v.
Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing
Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). We take the
factual allegations of the complaint as true and draw all
reasonable inferences in favor of the plaintiff.
DelRio-Mocci v. Connolly Props., Inc., 672 F.3d 241,
245 (3d Cir. 2012) (citing Warren Gen. Hosp. v. Amgen,
Inc., 643 F.3d 77, 84 (3d Cir. 2011)). Legal
conclusions, however, receive no deference, as the court is
“‘not bound to accept as true a legal conclusion
couched as a factual allegation.'” Wood v.
Moss, 572 U.S. 744, 755 n.5 (2014) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)).
plaintiff's pleading obligation is to set forth “a
short and plain statement of the claim, ” Fed.R.Civ.P.
8(a)(2), which gives the defendant “‘fair notice
of what the . . . claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (alteration in original) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). The
complaint must contain “‘sufficient factual
matter to show that the claim is facially plausible,'
thus enabling ‘the court to draw the reasonable
inference that the defendant is liable for [the] misconduct
alleged.'” Warren Gen. Hosp., 643 F.3d at
84 (quoting Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009)). “[W]here the well-pleaded facts do
not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged -- but it has not
‘show[n]' --‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679
(alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)).
“The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678 (citing
Twombly, 550 U.S. at 556). In the end, we will grant
a motion to dismiss brought pursuant to Rule 12(b)(6) if the
factual allegations in the complaint are not sufficient
“‘to raise a right to relief above the
speculative level.'” W. Run Student Hous.
Assocs., LLC v. Huntington Nat'l Bank, 712 F.3d 165,
169 (3d Cir. 2013) (quoting Twombly, 550 U.S. at
555) (additional citations omitted).
Rule 12(b)(6) motion to dismiss is based on an affirmative
defense, the “defendant must show that the
‘defense is apparent on the face of the complaint and
documents relied on in the complaint.'” Lupian
v. Joseph Cory Holdings LLC, 905 F.3d 127, 130 (3d Cir.
2018) (quoting Bohus v. Restaurant.com, Inc., 784
F.3d 918, 923 n.2 (3d Cir. 2015)) (additional citations
omitted). Moreover, “a plaintiff is not required to
negate an affirmative defense in its complaint.”
Arrington v. Terrace, Civ. A. No. 16-2599, 2016 WL
5899925, at *5 (E.D. Pa. Oct. 7, 2016) (citation omitted).
Thus, “dismissal is appropriate under Rule 12(b)(6)
only when ‘[the affirmative defense] is manifest in the
complaint itself.'” Lupian, 905 F.3d at
130-31 (quoting In re Asbestos Prods. Liab. Litig. (No.
VI), 822 F.3d 125, 133 n.6 (3d Cir. 2016)). Furthermore,
“[o]n a Rule 12(b)(6) motion, an affirmative defense .
. . is appropriately considered only if it presents an
insuperable barrier to recovery by the plaintiff.”
Mazzarella v. Fast Rig Support, LLC, Civ.
A. No. 13-2844, 2014 WL 2861027, at *3 (M.D. Pa. June 23,
2014) (second alteration in original) (quoting Flight
Sys., Inc. v. Elec. Data Sys. Corp., 112 F.3d 124, 127
(3d Cir. 1997)).
reviewing a motion to dismiss under Rule 12(b)(2), we
‘must accept all of the plaintiff's allegations as
true and construe disputed facts in favor of the
plaintiff.'” Pinker v. Roche Holdings,
Ltd., 292 F.3d 361, 368 (3d Cir. 2002) (quoting
Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141,
142 n.1 (3d Cir. 1992)). Nonetheless, a motion made pursuant
to Rule 12(b)(2) “is inherently a matter which requires
resolution of factual issues outside the pleadings.”
Time Share Vacation Club v. Atl. Resorts, Ltd., 735
F.2d 61, 66 n.9 (3d Cir. 1984). Therefore, once a defendant
has properly raised a jurisdictional defense, the plaintiff
bears the burden of proving, either by “sworn
affidavits or other competent evidence, ” sufficient
contacts with the forum state to establish personal
jurisdiction. North Penn Gas Co. v. Corning Natural Gas
Corp., 897 F.2d 687, 689 (3d Cir. 1990) (citation
omitted). “[A]t no point may a plaintiff rely on the
bare pleadings alone in order to withstand a defendant's
Rule 12(b)(2) motion to dismiss for lack of in personam
jurisdiction.” Time Share Vacation Club, 735
F.2d at 66 n.9.
has moved to dismiss Counts I-III, which assert FLSA and PMWA
claims, contending that the Complaint fails to state
plausible claims because Defendant has a meritorious
affirmative defense to FLSA and PMWA liability pursuant to
the FLSA's and PMWA's Motor Carrier Act Exemptions.
Defendant has also moved to dismiss (1) the WPCL claim in
Count IV, asserting that the claim is preempted by federal
labor law, and (2) Szewczyk's FLSA retaliation claim in
Count V, arguing that Szewczyk has failed to allege protected
activity or adverse action. Finally, it asks that, in the
alternative to dismissing Rucker's FLSA claim in Count II
based on the Motor Carrier Act Exemption, we dismiss that
claim pursuant to Rule 12(b)(2) for lack of personal