The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action pursuant to the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301-4335. Now before the Court is Defendants' motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP"). (Docket No. [#5]). For the reasons that follow, the application is denied.
Unless otherwise noted, the following facts are taken from Plaintiff's Complaint in this action. At all relevant times Andrae Evans ("Plaintiff") was a commissioned officer in the New York Army National Guard. At all relevant times MassMutual Financial Group ("MassMutual") was a corporation with an office in Rochester, New York, and William D. Costello ("Costello") was MassMutual's General Agent in Rochester. In or about October 2003 Plaintiff began working for MassMutual as a career sales agent and manager. According to Plaintiff, in that capacity he was an "employee" of MassMutual, within the meaning of USERRA. In April 2004 Plaintiff was called to active duty for service in Iraq, and he so notified MassMutual. Thereafter, Plaintiff remained on active duty until November 2006. In November 2006, Plaintiff applied for reemployment with MassMutual, but Defendants denied the application. On January 20, 2009, Plaintiff commenced the instant action, claiming that Defendants' refusal to re-hire him violated USERRA.
On April 6, 2009, Defendants filed the subject motion [#5] to dismiss pursuant to FRCP 12(b)(6), claiming that the complaint fails to state a claim under USERRA since, contrary to the allegations in the complaint, Plaintiff was an independent contractor and not an employee. In that regard, Defendants state, and Plaintiff does not dispute, that "[t]he Regulations promulgated under USERRA . . . specifically provide that USERRA does not cover independent contractors." (Defendants' Memo of Law [#5-2] at 4) (citing 20 C.F.R. § 1002.44). Defendants further cite two employment agreements*fn1 between Plaintiff and Massmutual, which specify that Plaintiff was an "independent contractor." Defendants contend that the Court may consider these agreements on a 12(b)(6) motion, because "they are both referenced by Plaintiff in his Complaint, and are in Plaintiff's possession." (Defendants' Memo of Law [#5-2] at 4).
Defendants further state that under the law of New York State, insurance agents are deemed to be independent contractors. Id. at 5. Additionally, Defendants indicate that the U.S. Equal Employment Opportunities Commission ("EEOC") has determined, in connection with complaints made against MassMutual under Title VII, that "MassMutual's agents are independent contractors and not employees." Id.
In opposition to the motion to dismiss, Plaintiff maintains that the Court is limited to considering the Complaint, which alleges that he was an employee of MassMutual. In that regard, Plaintiff states that "he was an employee for USERRA purposes . . . regardless of how Defendants may characterize his status or how the status of MassMutual insurance agents may have been characterized for other legal purposes." (Plaintiff's Memo of Law [#6] at 3) (emphasis in original). On this point, Plaintiff contends that courts must construe USERRA liberally, and that under USERRA and its implementing regulations, and specifically 20 C.F.R. § 1002.44, a court must apply a six-factor "economic reality test" to determine whether a plaintiff is an employee or independent contractor. Plaintiff argues that under such test, he was an employee of MassMutual. In any event, Plaintiff maintains that at this stage of the litigation, "Defendants cannot establish, for purposes of a motion to dismiss, that there is no set of facts that Plaintiff could prove that would entitle him to relief." (Plaintiff's Memo of Law [#6] at 17-18).
In reply, Defendants state that "Plaintiff has failed to establish that he was an employee of MassMutual, a condition precedent to bringing suit under USERRA," and that, "other than merely alleging it in his Complaint, Plaintiff provides no substantive evidence that he was an employee." (Defendants' Reply Memo [#9] at 2). Defendants further maintain that the Court should apply the so-called "common law control test"*fn2 in determining whether Plaintiff was an employee or an independent contractor. Id.
As recently clarified by the U.S. Supreme Court, the standard to be applied to a 12(b)(6) motion is clear:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, No. 05-1126, 550 U.S.544, 127 S.Ct. 1955, 1964-65 (May 21, 2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]" as opposed to merely conceivable.), reversed on other grounds, Ashcroft v. Iqbal, 129 S.Ct.1937 (2009). When applying ...