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United States ex rel. Krol v. Arch Ins. Co.

United States District Court, S.D. New York

September 11, 2014

UNITED STATES OF AMERICA ex rel., HENRYK KROL, on behalf of himself and all others similarly situated, Plaintiffs,

For Plaintiffs: Lloyd Ambinder, Jack Newhouse, Virginia & Ambinder, LLP, New York, NY.

For Defendants: Chris Georgoulis, Monica Barron, Georgoulis & Associates PLLC, New York, NY.

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RICHARD J. SULLIVAN, United States District Judge.

Plaintiff Henryk Krol brings this putative class action against Defendant Arch Insurance Company (" Arch" ), the surety of a payment bond issued under the Miller Act, to recover wages allegedly due under a contract covered by the Davis-Bacon Act. Now before the Court is Arch's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which the Court deems to be a motion for judgment on the pleadings pursuant to Rule 12(c).

For the reasons discussed below, the Court finds that Krol cannot maintain his claim unless (1) there has been an administrative determination that his employer failed to pay the prevailing wage rates required by the Davis-Bacon Act, and (2) any funds administratively withheld by the government are insufficient to reimburse him. Because Krol's claim does not plead these elements, the Court grants Arch's motion.

I. Background

A. Facts

This case arises out of a public works contract (the " Contract" ) between the United States General Services Administration (the " GSA" ) and Fox Industries Ltd. (" Fox" ) for Fox to perform work on the Jacob K. Javits Federal Building in Manhattan (the " Project" ).[1] (Compl. ¶ 1.) The Contract called for Fox to perform construction work on the Project, including " bricklaying, masonry, stone setting and other construction trades." ( Id. ¶ 14.) Pursuant to the Davis-Bacon Act, 40 U.S.C. § § 3141 et seq., the Contract contained a provision requiring Fox, and any subcontractors of Fox, to pay laborers who worked on the Project wages and benefits at the prevailing rates for the type of labor performed. ( Id. ¶ ¶ 16-17.) In addition, the Contract included a schedule of prevailing rates (the " Prevailing Rate Schedule" ) for various job classifications. ( Id. ¶ 17.) As required by the Miller Act, 40 U.S.C. § § 3131 et seq., Fox obtained a payment bond, issued by Arch, to guarantee payment to laborers and suppliers. (Compl. ¶ ¶ 6, 18.)

Plaintiff Krol performed labor at the Project as a bricklayer from July 2012 to August 2012. (Compl. ¶ 20.) He was paid wages between approximately $46.00 per hour and $74.00 per hour, and was not paid supplemental benefits. ( Id. ¶ ¶ 20, 21.) At the time, the prevailing wage rate for bricklayers in New York County was $51.97 per hour and the prevailing benefits rate was $24.06 per hour. ( Id. ¶ 21.) Fox also failed to pay other members of the putative class the prevailing wages and benefits they were due under the classifications of labor they performed. ( Id. ¶ 22.)

B. Procedural History

On January 18, 2013, Krol filed this action, on behalf of himself and a putative class of all laborers who worked for Fox on the Project, to recover prevailing wages due under the Davis-Bacon Act on the Miller Act bond issued by Arch. (Compl. ¶ 1.) Arch filed its answer on February 21, 2013. (Doc. No. 3.) On October 17, 2013,

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Krol filed a motion to certify the putative class pursuant to Rule 23 of the Federal Rules of Civil Procedure. (Doc. No. 15.) Arch filed an opposition to Krol's motion on November 25, 2013. (Doc. No. 22.) On December 30, 2013, while the class certification was still pending, Arch filed the instant motion, arguing that Krol's claim cannot be maintained absent an administrative determination that a Davis-Bacon Act violation occurred.[2] (Doc. No. 24.) The motion was fully briefed on February 17, 2014. (Doc. No. 35.)

II. Legal Standard

Although Arch's motion is styled as a motion to dismiss under Rule 12(b)(6), a defendant may not make a motion under Rule 12(b) after it has filed its responsive pleading. Fed.R.Civ.P. 12(b). A post-answer motion arguing that a complaint fails to state a claim must be brought, instead, as a motion for judgment on the pleadings under Rule 12(c). Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). Accordingly, the Court deems Arch's motion to be brought pursuant to Rule 12(c).

Courts evaluate a motion for judgment on the pleadings pursuant to Rule 12(c) under the same standard as a motion for failure to state a claim pursuant to Rule 12(b)(6). See Nicholas v. Goord, 430 F.3d 652, 657 n.8 (2d Cir. 2005). To survive such a motion, a complaint must " provide the grounds upon which [the] claim rests." ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). Plaintiffs must allege " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " 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." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In reviewing a Rule 12(b)(6) motion to dismiss, a court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. ATSI Commc'ns, 493 F.3d at 98. However, that tenet " is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. Thus, a pleading that only offers " labels and conclusions" or " a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. If the plaintiff " ha[s] not nudged [its] claims across the line from conceivable to plausible, [its] complaint must be dismissed." Id. at 570.

III. Discussion

Arch does not dispute that Fox did not pay Krol the prevailing wages and benefits for a " bricklayer." Instead, it argues that Krol was properly classified as a " laborer" and " cement mason" and that he was paid the prevailing wages and benefits under those classifications. (Decl. of George J. Curis, dated Dec. 23, 2013, Doc. No. 29 (" Curis Decl." ) ¶ ¶ 11-14.) Thus, the principal substantive dispute in this case is whether Krol was properly classified.

That substantive question is not posed by the motion before the Court, however. Instead, the issue before the Court is whether Krol may maintain this claim at all, unless (1) the U.S. Department of Labor (the " DOL" ) or the contracting federal agency -- here, the GSA -- has made ...

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