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Marvin Zaldivar v. Anna Bella's Cafe

February 28, 2012

MARVIN ZALDIVAR, PLAINTIFF,
v.
ANNA BELLA'S CAFE, LLC, ANNA BELLA FRANCO, AND MICHAEL FRANCO, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

Plaintiff Marvin Zaldivar ("Plaintiff") commenced this action on March 14, 2011 against Defendants Anna Bella's Cafe, LLC (the "Corporation"), Anna Bella Franco and Michael Franco (collectively "Defendants") asserting claims for unpaid overtime and minimum wages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206-07, and the New York Labor Law ("NYLL"), N.Y. LAB. LAW §§ 650, 663, and for violating New York's "spread of hours" requirement, N.Y. Comp. Code R. & Regs. tit. 12 § 142-2.4. On May 9, 2011, Defendants moved to dismiss the Complaint for lack of subject matter jurisdiction and for failure to state a claim. For the following reasons, the Court GRANTS IN PART, DENIES IN PART, and RESERVES JUDGMENT IN PART on the pending motion to dismiss and ORDERS supplemental briefing consistent with this Memorandum and Order.

BACKGROUND

I. Factual Background*fn1

Defendant Corporation owns and operates a restaurant called "Anna Bella's Cafe" (the "Cafe") which is located in Great Neck, New York. (Compl. ¶¶ 3-5.) From approximately October 3, 2009 through June 3, 2010, Plaintiff worked at the Cafe as a "cook's helper." (Compl. ¶¶ 27, 29.) He worked approximately seventy-two hours per week and was paid $300.00 per week (or approximately $4.17 per hour). (Compl. ¶¶ 33-35.)

Plaintiff asserts that both Anna Bella Franco and Michael Franco: "manage[] the Corporation," "own[] the Corporation," "acted in the interest of the Corporation in relation to the Plaintiff," "had the power to hire and fire the plaintiff," "supervised and controlled the plaintiff's work schedules and conditions," "determined the rate and method of payment of [sic] the plaintiff," and "maintained employment records." (Compl. ¶¶ 10-16, 18-24.) Plaintiff also asserts that the Corporation "is engaged in commerce" and "has revenues in excess of $500,000.00 per year." (Compl. ¶¶ 7-8.)

Plaintiff alleges that Defendants failed to pay him (i) minimum wage, (ii) one and a half times minimum wage for hours worked in excess of forty per week, and (iii) a "spread of hours" premium when he worked in excess of ten hours in one day. (Compl. ¶¶ 31, 32, 37.)

II. Procedural Background

In his Complaint, Plaintiff asserts three causes of action: (i) failure to pay overtime and minimum wages in violation of the FLSA (Compl. ¶¶ 39-48); (ii) failure to pay overtime and minimum wages in violation of the NYLL (Compl. ¶¶ 49-55); and (iii) failure to pay the "spread of hours" premium under New York law (Compl. ¶¶ 56-63). Plaintiff seeks to recover all unpaid minimum and overtime wages, unpaid premiums, liquidated damages, attorneys' fees, and costs.

On May 5, 2011, Defendants moved to dismiss. Defendants argue that Plaintiff's FLSA claim must be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction or under Rule 12(b)(6) for failure to state a claim. In the alternative, Defendants ask the Court to convert their motion to dismiss into a motion for summary judgment and to grant judgment in their favor. Additionally, should the Court dismiss Plaintiff's FLSA claim, Defendants ask that the Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims and dismiss his Complaint in its entirety.

DISCUSSION

The Court will briefly address Defendants' motion to dismiss Plaintiff's FLSA claim for lack of subject matter jurisdiction before turning to Defendants' arguments under Rule 12(b)(6). Because the Court requires supplemental briefing before deciding whether to dismiss Plaintiff's FLSA claim, the Court will not address Plaintiff's New York statutory claims.

I. Lack of Subject Matter Jurisdiction

A. Standard of Review under Rule 12(b)(1) "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court may consider affidavits and other materials beyond the pleadings to resolve jurisdictional questions. See Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, __ U.S. __, 130 S. Ct. 2869, 177 L. Ed. 2d 535 (2010). The Court must accept as true the factual allegations ...


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