United States District Court, E.D. New York
NICHOLAS CASCI, individually and on behalf of all other persons similarly situated, Plaintiff,
NATIONAL FINANCIAL NETWORK, LLC and/or any other entities affiliated with or controlled by NATIONAL FINANCIAL NETWORK, LLC, Defendant.
LEEDS BROWN LAW, P.C. Daniel Harris Markowitz, Esq., Jeffrey Kevin Brown, Esq., Michael Alexander Tompkins, Esq., Carle Place, NY, Attorneys for Plaintiff.
VIRGINIA & AMBINDER LLP Lloyd Robert Ambinder, Esq., New Yor, NY, Attorneys for Plaintiff.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Melissa Jill Osipoff, Esq., New York, NY, Attorneys for Defendant.
CERASIA & DEL REY-CONE LLP Edward Cerasia, II, Esq., New York, NY Attorneys for Defendant.
MEMORANDUM AND ORDER
DENIS R. HURLEY, District Judge.
Plaintiff Nicholas Casci ("plaintiff") commenced this action against defendant National Financial Network, LLC ("defendant") asserting claims of unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206 and 216(b), and New York Labor Laws ("NYLL").
Presently before the Court is Defendant's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). Defendant contends that the original complaint filed in this action "is devoid of any factual allegations supporting the assertions that [defendant] violated the FLSA or NYLL." (Def.'s Mem. in Supp. at 1.) Plaintiff argues in response that "[t]he Complaint clearly proffers specific factual allegations more than sufficient to satisfy the pleading requirements, " (Pl.'s Mem. in Opp'n at 1), but asks that if the Court finds any of the claims to be insufficiently plead, he be permitted to file an amended complaint, which he has submitted along with his opposition papers and labeled Proposed Amended Complaint ("PAC"). For the foregoing reasons, the Court dismisses plaintiff's overtime and minimum wage claims and denies plaintiff's request to file the PAC.
From approximately December 2009 to May 2010, defendant employed plaintiff as a Field Representative in New York. Plaintiff's job responsibilities included "making cold calls' to market and sell financial and insurance products, and engaging in natural market solicitation." (PAC ¶ 28.) Plaintiff claims that defendant wrongfully classified him "as exempt from minimum wages and overtime compensation." (Id. ¶ 3.) Plaintiff "typically worked thirty-four to thirtynine (34-39) hours per week, although occasionally he worked in excess of forty (40) hours per week, without receiving overtime compensation." (Id. ¶ 28.) Plaintiff further alleges that he was "required to perform work for and on behalf of Defendants without compensation, " and was "paid zero (0) dollars per hour." (Id. ¶ 29.)
A. Rule 12(b)(6) Standard
Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). In recent years, the Supreme Court has clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).
First, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court disavowed the wellknown statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 550 U.S. at 561. Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Id. at 570.
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than 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 ...