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Szewczyk v. United Parcel Service, Inc.

United States District Court, E.D. Pennsylvania

October 22, 2019

TODD A. SZEWCYZYK, JUAN DONES-CRUZ, and KIMBERLY RUCKER, on behalf of themselves and all others similarly situated
v.
UNITED PARCEL SERVICE, INC.

          MEMORANDUM

          JOHN R. PADOVA, J.

         Plaintiffs 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.

         I. BACKGROUND

         The 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.)

         According 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.)

         The 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 Rule 12(b)(2).

         II. LEGAL STANDARD

         A. Rule 12(b)(6)

         When 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)).

         A 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).

         Where a 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)).

         B. Rule 12(b)(2)

         “[I]n 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.

         III. DISCUSSION

         Defendant 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 jurisdiction.

         A. Motor ...


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