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Bojaj v. Moro Food Corp.

United States District Court, S.D. New York

November 13, 2014

ASTRID BOJAJ, et al., Plaintiffs,
v.
MORO FOOD CORP., et al., Defendants.

OPINION

THOMAS P. GRIESA, District Judge.

Plaintiffs, former employees of several restaurants, bring a civil complaint on behalf of themselves and others similarly situated. Plaintiffs allege that restaurants and their operators withheld overtime pay, minimum wages, and tips.

Three defendants - Mamma Ristorante Corp. ("Mamma"), The Five Amigos Inc. ("Five Amigos"), and Ramon Mario Zarate - move to dismiss the claims under Federal Rule of Civil Procedure 12(b)(6). Mamma and Five Amigos contend they did not employ plaintiffs, or that the claims against them are otherwise defective. Zarate argues that he did not operate any restaurants that employed plaintiffs.

The court grants the motions, dismissing the claims against those three defendants. Claims against all other defendants remain.

Claims and Parties

This is a putative class action pursuant to the Fair Labor Standards Act, with related state law claims. Named plaintiffs, twelve former restaurant employees, allege that several restaurants and restaurant operators violated employees' rights.

Plaintiffs allege that, from 2006 to the present, these restaurants and their operators consistently underpaid employees, depriving them of minimum wages, overtime pay, and tips. Specifically, plaintiffs claim defendants failed to pay minimum wages required by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 203 and 206, and New York Labor Law ("NYLL") §§ 650 et seq. They also claim defendants denied them overtime pay, violating the FLSA, 29 U.S.C. § 207, New York Code of Rules and Regulations § 142-2.2, and NYLL § 663. Finally, they claim defendants withheld tips in violation of the FLSA, 29 U.S.C. § 203(m), and NYLL §§ 190 et seq.

Defendants are divided into two groups: the restaurants that employed plaintiffs (the "restaurant defendants"), and the individuals who allegedly control those restaurants (the "individual defendants"). The restaurant defendants are 802 Restaurant Corp., Ajarl Restaurant Corp, The Five Amigos Inc., Luigi's Trattoria Inc., Moro Food Corp., Mamma Ristorante Corp., Tutto Pizza Inc., and Volo Restaurant Corp. The individual defendants are: Antonio Romano, Rosa Romano, Salvatore Romano, Julian Romano, Christopher Lomatta, Daniella Lomatta, and Ramon Mario Zarate.

Plaintiffs do not allege that all seven individual defendants control all the restaurant entities. Plaintiffs instead allege that the individual defendants are a group of associated business people, operating with a common policy of underpaying employees at their restaurants.

Standard for Motion to Dismiss

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead sufficient facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007). Reciting the cause of action does not suffice. Instead, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Unless a plaintiff's well-pleaded allegations have "nudged [her] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570.

The court now turns to the allegations concerning defendants who seek dismissal, and discusses each in turn.

Mamma Ristorante Corp.

The Complaint


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