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Peck v. Hillside Children's Center

United States District Court, W.D. New York

January 10, 2013

Mary PECK, Michael Sculli, Carolyn Proper, On behalf of themselves and all others similarly situated, Plaintiffs,
HILLSIDE CHILDREN'S CENTER Hillside Family of Agencies, Defendants.

Page 436

Robert L. Mullin, Ferr and Mullin, Fishers, NY, for Plaintiffs.

Stephen J. Jones, Todd R. Shinaman, Nixon Peabody LLP, Rochester, NY, for Defendants.


DAVID G. LARIMER, District Judge.

This is an action under the Fair Labor Standards Act (" FLSA" ) 29 U.S.C. ยงยง 201 et seq., and the New York Labor Law, alleging that defendants, Hillside Children's Center and Hillside Family of Agencies (collectively " Hillside" ) have failed to pay plaintiffs wages as required by law. The three named plaintiffs, Mary Peck, Michael Sculli, and Carolyn Proper, all of whom are former employees of Hillside, assert claims on behalf of themselves and a class of Hillside employees who allegedly have not been paid for all the hours they have worked.

By Order entered on October 1, 2012 (Dkt. # 24), the Court denied defendants' motion to dismiss the original complaint (Dkt. # 5), and gave plaintiffs until October 26, 2012 to file an amended complaint.

Page 437

Plaintiffs did so on October 8, 2012 (Dkt. # 25). Defendants have now moved to dismiss or strike that portion of the amended complaint that asserts claims on behalf of the abovementioned class. Defendants concede, at this stage at least, that plaintiffs have pleaded facially sufficient claims on their own behalf, but defendants contend that the class, or " collective" action claims are not well pleaded and are subject to dismissal.

The parties have filed several other motions, not all of which are ripe for decision. Plaintiffs have filed a motion (Dkt. # 14) seeking " conditional" certification of a class under the FLSA. In that motion, plaintiffs request that the Court issue an order directing the issuance of a notice to potential class members, informing them of the filing and general nature of this action, and of their right to opt in to the FLSA action.

Shortly after plaintiffs filed that motion, defendants filed a motion (Dkt. # 17) to stay the Court's consideration of the conditional certification motion, pending resolution of the then-pending motion to dismiss the original complaint. As memorialized in a letter from defense counsel to the Court dated September 6, 2012, the parties agreed that the deadline for defendants to file their opposition to the conditional certification motion would be postponed until after the Court's decision on the motion to dismiss and/or the motion to stay.[1]


Rule 12(b)(6) provides that a complaint may be dismissed when it fails to state a claim upon which relief can be granted. In deciding a motion to dismiss under Rule 12(b)(6), a court must " accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994) (citing Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir.1987)).

To survive a motion to dismiss, the complaint must contain more than mere " 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted); accord Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). At the same time, however, " a plaintiff need not plead specific, admissible evidence in support of a claim...." Campanella v. County of Monroe, 853 F.Supp.2d 364, 378 (W.D.N.Y.2012). See Briggs v. Women in Need, Inc., 819 F.Supp.2d 119, 124-25 (E.D.N.Y.2011) (" Twombly ‘ affirmed the vitality of Swierkiewicz [ v. Sorema, 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ], which applied a notice pleading standard, and explained that its decision did not require heightened fact pleading of specifics' " ) (quoting Boykin v. KeyCorp., 521 F.3d 202, 213 (2d Cir.2008)) (additional internal quotation marks omitted).

To state a claim under the FLSA, a plaintiff must allege that (1) he was an employee eligible for overtime pay; and (2) that he actually worked overtime without proper compensation. See DeSilva v. North Shore-Long Island Jewish Health Sys., Inc., 770 F.Supp.2d 497, 507 (E.D.N.Y.2011); Zhong v. August August Corp., 498 F.Supp.2d 625, 628 ...

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