The opinion of the court was delivered by: Seybert, District Judge:
Plaintiffs Patricia Wolman ("Wolman"), Kelly Iwasiuk ("Iwasiuk"), and Dennis Lundy ("Lundy," collectively the "Lead Plaintiffs"), commenced this putative class action against Defendants*fn1 asserting violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207, the New York Labor Law ("NYLL"), N.Y. LAB. LAW § 650 et seq., and various state common law claims. Pending before the Court is Defendants' motion to dismiss the Fourth Amended Complaint ("FAC"). For the following reasons, the motion to dismiss is GRANTED.
Although the FAC is over forty pages long, the majority of its 246 paragraphs are mere "threadbare recitals of the elements of a cause of action, supported by conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). Such conclusory allegations are "not entitled to the assumption of truth" in deciding a motion to dismiss, and, accordingly, the Court will not consider them. As this is the Court's third's opinion addressing the sufficiency of Plaintiffs' claims, the Court assumes familiarity with most of Plaintiffs' underlying allegations and will address only those facts that are new to the FAC.
As the Court previously stated, the factual basis for Plaintiffs' claims are actually very simple: Plaintiffs assert that Defendants did not compensate them for all time worked. In this regard, Plaintiffs complain about three aspects of Defendants' work and pay policies: (1) that Defendants automatically deducted meal periods from Plaintiffs' compensation even though they were frequently required to work during their meal breaks (FAC ¶¶ 69-100); (2) that Defendants "suffered or permitted" Plaintiffs to work before and/or after their scheduled shifts without compensation (FAC ¶¶ 101-128); and (3) that Defendants failed to compensate Plaintiffs for attending training programs (FAC ¶¶ 129-146).
The FAC purports to assert claims for unpaid wages on behalf of the Lead Plaintiffs--all of whom work or have worked at Good Samaritan--and a purported class of up to 15,000 individuals employed by Good Samaritan and the other Defendant healthcare facilities.*fn2
A. Lead Plaintiffs' Individual Claims
Wolman was employed by Good Samaritan as a respiratory therapist from 1983 through August 2009. According to the FAC, Wolman was "typically" scheduled to work from 7:00AM through 8:00PM, minus a half hour lunch break, three days a week, totaling 37.5 hours for which she was properly compensated. (FAC ¶ 56.) In addition to her scheduled shifts, she alleges that her meal breaks were "typically" missed or interrupted and that she would "typically" work fifteen minutes "before her scheduled start time in order to prepare her assignments." (FAC ¶ 56.) Thus, in a "typical" week, Wolman worked an additional two hours and fifteen minutes without compensation, or a total of 39.75 hours. One week per month, Wolman was required to attend a mandatory staff meeting, which lasted approximately thirty minutes, for which she was not compensated, and each year she earned, on average, ten hours of respiratory therapy credits. She also "occasionally" picked up an additional 12.5 hour shift or worked a longer shift for which she was properly compensated. (FAC ¶ 56.) Wolman was not subject to a collective bargaining agreement ("CBA") while employed at Good Samaritan.
The FAC does not assert that Wolman ever sought to cancel the automatic meal deduction or formally report the additional uncompensated time worked. However, it does state that Wolman asked her manager, Jim O'Connor, why she was not being compensated for the work performed during meal breaks or for attending mandatory staff meetings "several times" over the course of her twenty-six years at Good Samaritan and was told that "such time did not have to be compensated." (FAC ¶ 57.)
Iwasiuk was employed by Good Samaritan as a registered nurse from August 2007 through March 2009. According to the FAC, Iwasiuk was "typically" scheduled to work from 8:00AM through 4:00PM, minus a half hour lunch break, four days a week, totaling thirty hours for which she was properly compensated. (FAC ¶ 58.) Approximately twice a month, Iwasiuk worked an extra one or two 7.5 hour shifts for which she was properly compensated. (FAC ¶ 58.) In addition to her scheduled shifts, she alleges that her meal breaks were "typically" missed or interrupted and that she would "typically" work thirty minutes "before her scheduled start time in order to prepare her assignments or read report [sic]" and up to two hours after her scheduled shift "writing and uploading reports." (FAC ¶ 58.) Iwasiuk was also never a party to a CBA during her time at Good Samaritan. (FAC ¶ 58.)
Iwasiuk asserts that she tried recording the additional hours worked "but the defendants wrote that she could not be paid for such time." (FAC ¶ 59.) Iwasiuk allegedly followed up with Cindy Dodenhoff, her direct supervisor, and Donna Roberto, the Director of Nursing, regarding Defendants' decision not to compensate her for working during meal breaks and before and after her scheduled shift and was told that "this time was not compensable." (FAC ¶ 59.) She first spoke to Ms. Dodenhoff and Ms. Roberto in early fall 2007 and recalls having at least ten subsequent conversations with them regarding the compensation policies. (FAC ¶ 59.) In 2008, she spoke with Mary Ellen Polit*fn3 "regarding her unpaid work" and was told "that the defendants did not need to pay for that time, and she needed to get her work done in a more timely fashion." (FAC ¶ 59.)
Lundy worked as a registered nurse for Good Samaritan from January 2009 through December 2009. (FAC ¶ 60.) He was not employed directly by Good Samaritan, but rather he was placed there by a nurse referral agency. (FAC ¶ 61.) According to the FAC, Lundy was "typically" scheduled to work at Good Samaritan from 11:00PM to 7:00AM, minus a half hour lunch break, three days a week, totaling 22.5 hours for which he was properly compensated. (FAC ¶ 60.) In addition to his scheduled shifts, he alleges that his meal breaks were "typically" missed or interrupted and that he would "typically" work thirty minutes "before his scheduled start time in order to receive report [sic] from previous shift and prepare for the shift" and thirty minutes after each shift to "finish charting, give report [sic], work with patients, deal with an unexpected procedure, speak with a family or meet with a supervisor." (FAC ¶ 60.) This post-shift work "at times" lasted as long as three hours. (FAC ¶ 60.) Lundy was also required to attend staff meetings, which lasted approximately thirty minutes, for which he was not compensated. (FAC ¶ 60.) The FAC does not specify how often these staff meetings occurred. Lundy also "occasionally" picked up an additional shift for which he was properly compensated. (FAC ¶ 60.) He was not subject to a CBA during his time at Good Samaritan. (FAC ¶ 60.)
Lundy asserts that he recorded the additional hours worked "but the defendants wrote that [he] was not entitled to compensation for the work he recorded." (FAC ¶ 61.) Lundy allegedly followed up with the Director of Nursing regarding Defendants' decision not to compensate him for the additional time worked, and he was told that "defendants did not need to pay for all meal breaks during which an employee did work, or pay for all times an employee decided to work before or after the scheduled shifts," and was advised to "manage his time better." (FAC ¶ 61.) Lundy recalls having at least two subsequent conversations with the Director of Nursing regarding the compensation policies. (FAC ¶ 61.)
The Lead Plaintiffs purport to represent a class of
all employees of the Defendant healthcare facilities "who were suffered or permitted to work by [D]efendants and not paid their regular or statutorily required rate of pay for all hours worked." (FAC ¶ 62.) They seek to certify two subclasses: one subclass that includes employees who were subject to CBAs and one subclass that includes employees who were not subject to CBAs. (FAC ¶¶ 100, 128, 145.)
Defendants seek to dismiss Plaintiffs' FAC pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure for failing to state a claim. (Docket Entry 193.) Plaintiffs oppose and, in the alternative, seek leave to amend the FAC to properly assert their claims. (Docket Entry 196 at 2.) Defendants also move to strike: (1) an affidavit submitted by Plaintiffs in opposition to the motion to dismiss, and (2) two letters submitted by Plaintiffs providing the Court with supplemental authority. (Docket Entries 202, 214.)
I. Standard under Rule 12(b)(6)
In deciding Rule 12(b)(6) motions to dismiss, the Court applies a "plausibility standard," which is guided by "[t]wo working principles," Iqbal, 129 S. Ct. at 1949; Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). First, although the Court must accept all allegations as true, this "tenet" is "inapplicable to legal conclusions;" thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris, 572 F.3d at 72 (quoting Iqbal, 129 S. Ct. at 1949). Second, only complaints that state a "plausible claim for relief" can survive a Rule 12(b)(6) motion to dismiss. Id. Determining whether a complaint does so is "a context specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
To state a claim for a violation of the FLSA,
Plaintiffs must adequately plead that: (1) Plaintiffs were employed by Defendants; (2) Defendants are engaged in commerce; and (3) Defendants failed to pay Plaintiffs for compensable hours worked. 29 U.S.C. § 207(a)(1). Defendants do not contest that they are engaged in commerce. See 29 U.S.C. § 203(s)(1)(B) (defining engaged in commerce as "engaged in the operation of a hospital"). Rather, Defendants argue that the FLSA claims must be dismissed because the FAC failed to sufficiently plead (1) an employer-employee relationship with all Defendants and (2) that ...