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Gerardo Valdez v. Cabana Management

December 22, 2010

GERARDO VALDEZ LUJAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY CABANA MANAGEMENT, INC. AND/OR GLENN FRECHTER; AND/OR ANY OTHER ENTITIES AFFILIATED WITH OR CONTROLLED BY CABANA MANAGEMENT, INC. AND/OR GLENN FRECHTER, PLAINTIFF,
v.
CABANA MANAGEMENT, INC. AND/OR GLENN FRECHTER, AND/OR ANY OTHER ENTITIES AFFILIATED WITH OR CONTROLLED BY CABANA MANAGEMENT, INC. AND/OR GLENN FRECHTER, DEFENDANTS.



The opinion of the court was delivered by: Glasser, United States Senior District Judge

MEMORANDUM AND ORDER

BACKGROUND

Plaintiff Gerardo Valdez Lujan ("Lujan" or "Plaintiff") brings this purported class action against his alleged employers Cabana Management Inc. and Glenn Frechter ("Defendants") seeking unpaid wages, attorneys fees and costs under the Fair Labor Standards Act, ("FLSA") 29 U.S.C. §§ 201-219, as well as various provisions of the New York state labor laws.

Defendant Cabana Management, Inc. is a New York corporation engaged in the restaurant business with its principal place of business in Forest Hills, New York.

Plaintiff alleges that Defendant Glenn Frechter is the owner and president of Cabana Management, Inc., has complete control of the activities of the company, and actively participated in the company's unlawful behavior.

Plaintiff is a former employee of the Defendants and was employed in various positions on the wait staff since 2004. Lujan alleges that the Defendants have engaged in a policy since that time of failing to pay him as well as other dishwashers, runners and busboys earned minimum wages, overtime compensation and have also made improper deductions from their wages, withheld earned gratuities and have not paid the employees in a timely manner.

Plaintiff alleges one federal and four state law causes of action. Specifically, he alleges that the Defendants: (1) failed to pay him and other employees overtime at one and one half times the hourly rate, in violation of 29 U.S.C. § 207; (2) failed to make payments in a timely manner, as required by New York Labor Law § 191; (3) made certain illegal deductions from employee wages in violation of New York Labor Law § 193; (4) failed to pay overtime at one and one half times the hourly rate in violation of 12 N.Y.C.R.R. § 137-1.3; and (5) illegally withheld gratuities earned by him and other employees in violation of New York Labor Law § 196-d.

This motion to dismiss by the Defendants followed. Defendants ask this Court to:

(1) dismiss the claims against Defendant Glenn Frechter because he was not timely served with process; (2) dismiss the Complaint in its entirety because the Plaintiff does not have standing to sue; (3) dismiss the claims against Defendant Glenn Frechter because the Complaint is insufficient to establish he was Plaintiff's employer; (4) dismiss the § 193 and § 196-d claims for failure to state a claim.

DISCUSSION

A. Standard of Review

Dismissal of a complaint is appropriate where a plaintiff does not offer factual allegations sufficient to make the asserted claim plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Determining plausibility is "a context-specific task." Id. at 1950. However, "detailed factual allegations" are not required in the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

For purposes of a motion to dismiss, all factual allegations in the complaint are accepted as true and all reasonable inferences are drawn in the light most favorable to the plaintiff. Arar v. Ashcroft, 585 F.3d 559, 567 (2d Cir. 2009). But, allegations that are solely legal conclusions ...


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