United States District Court, S.D. New York
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge.
Between April 2011 and March 2014, plaintiff Sarabudeen Abdul Azeez was employed as a waiter at Flagship S B New York, LLC, d/b/a Saravana Bhavan Lexington ("Saravana"), a restaurant in Manhattan. Azeez brings this suit against Mathaiah Ramaiah, the owner of that restaurant. Azeez alleges that Ramaiah failed to pay him minimum wage and overtime compensation, unlawfully retained and pooled his tips, did not maintain proper records and notices, and terminated him in retaliation for filing a complaint with the New York State Department of Labor ("DOL"), in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216, and the New York Labor Law ("NYLL"), N.Y. Lab. Law §§ 198, 215, 663. Ramaiah now moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the Court grants the motion to dismiss in part and denies it in part.
A. Factual Background
On April 15, 2011, Azeez began working as a waiter at Saravana. Am. Compl. ¶ 13, Between that date and approximately December 17, 2012, Azeez "typically worked between 61 and 66 hours per week" and "received a fixed weekly rate of pay in cash ranging from $475 to $600, regardless of the amount of hours he actually worked." Id. ¶¶ 16, 19. Azeez was also required to turn over all cash tips he received; Ramaiah "retained the cash tips collected, as well as all tips paid by credit card." Id. ¶ 24. He "did not return any tips to the employees." Id.
At some point, the New York State DOL began investigating Saravana in response to an employee's complaint of unlawful employment practices. Id. ¶ 27. On or about December 17, 2012, Ramaiah "implemented new employment and payment practices" to address the DOL's concerns. Id. ¶ 28. Azeez's "weekly schedule was reduced from an average of 65 hours per week to approximately 40 hours or less per week." Id. ¶ 29. For that work, Azeez received $5 per hour plus a share of the tips received during each shift he worked. Id. ¶ 30. Under the "mandatory tip pool" that Ramaiah implemented, "tips were collected, pooled, and redistributed" to "the captain, waiters, food runners, busboys, and expeditors" at the end of each shift. Id. ¶¶ 30-34. Expeditors, "[a]lthough included in the tip pool, " were primarily responsible for plating food and "worked entirely within the kitchen." Id. ¶¶ 35-36.
On January 31, 2013, Azeez filed a complaint with the New York State DOL regarding, inter alia, the allegedly unlawful tip pool. Id. ¶ 39. Azeez believes this complaint is still pending. Id. In February 2014, Saravana filed for Chapter 11 bankruptcy. Id. ¶ 40. On March 6, 2014, "[w]ithin a month after Saravana filed for bankruptcy, " Azeez was fired. Id. ¶ 41, 43. Azeez "was told that he was fired for arriving ten minutes late to work. During [his] employment, however, it was not the restaurant's usual practice to fire an employee for arriving ten minutes late on one occasion." Id. ¶ 43. Two other employees, both of whom had also filed complaints with the DOL, were fired the same week, id. ¶ 41; the Amended Complaint is silent as to the circumstances of those terminations.
In late May or early June 2014, Azeez moved back to India, his country of origin. See id. ¶ 60. He may not be able to return to the United States due to his immigration status. Id. ¶ 61, Before leaving the country, however, he authorized counsel to pursue FLSA and NYLL claims on his behalf. Id. ¶¶ 59, 63, 66.
B. Procedural History
On July 23, 2014, Azeez filed the original complaint in this action. Dkt. 1. On September 2, 2014, Ramaiah moved to dismiss. Dkt. 10-14. On September 22, 2014, Azeez filed the Amended Complaint. Dkt. 16. On October 8, 2014, Ramaiah filed a renewed motion to dismiss, Dkt. 21, along with a memorandum of law, Dkt. 22 ("Def. Br."), the Affirmation of Brian L. Greben, Dkt. 23 ("Greben MT."), and the Affidavit of Mathaiah Ramaiah, Dkt. 24 ("Ramaiah Aff."). Ramaiah moves to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). On October 21, 2014, Azeez submitted his opposition. Dkt. 25 ("Pl. Br"). And on October 28, 2014, Ramaiah submitted his reply. Dkt. 26 ("Reply Br.").
II. Subject Matter Jurisdiction
Under 28 U.S.C. § 1331, a district court has original jurisdiction over all civil actions arising under federal statutes such as the FLSA. Ramaiah nevertheless argues that the Court lacks subject matter jurisdiction over this case because the "affidavit of Mr. Ramaiah, as well as the employment records annexed to the accompanying Affirmation of Brian L. Greben, demonstrate that no violations of the FLSA occurred with respect to plaintiff." Def. Br. 10-11. But a complaint's "failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188 (2d Cir. 1996) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)). Dismissal "for want of jurisdiction" is appropriate only "where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Id (quoting Bell, 327 U.S. at 682-83); see also id. at 1189 (permitting dismissal for lack of subject matter jurisdiction only "where the federal question is so plainly insubstantial as to be devoid of any merits and thus [does] not present any issue worthy of adjudication.'" (quoting Giulini v. Blessing, 654 F.2d 189, 192 (2d Cir. 1981)) (alterations in original). Azeez's claims, even if ultimately unsuccessful, are not "wholly insubstantial and frivolous." On the contrary, as discussed at pages 8-11, infra, the Amended Complaint states a viable claim for relief under the minimum-wage provisions of the FLSA.
Moreover, although a district court may consider evidence outside the pleadings on a defendant's motion to dismiss for lack of subject matter jurisdiction, see Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000), that extrinsic evidence must pertain to jurisdictional facts, see Kickstarter, Inc. v. ArtistShare, Inc., No. 11 Civ. 6909 (PAC), 2012 WL 1192021, at *3 (S.D.N.Y. Apr. 10, 2012); Monaia v. Grinell, No. 96 Civ. 9769 (LMM), 1997 WL 363813, at *1 (S.D.N.Y. July 1, 1997), not the merits of the plaintiff's case. For example, the requirement that defendant be an "enterprise engaged in commerce" as defined by the FLSA- i.e., that it "has employees engaged in commerce" and has annual gross sales "not less than $500, 000, " 29 U.S.C. § 203(s)(1)(A)-has sometimes been treated as "jurisdictional." Velez v. Vassallo, 203 F.Supp.2d 312, 330 (S.D.N.Y. 2002) (collecting cases). The affidavits and records presented here, however, pertain to the merits of Azeez's claims, not to a jurisdictional fact. The Court therefore declines to consider them in evaluating the viability of Azeez's claims.
Ramaiah asserts two other challenges to the Court's jurisdiction, but both are unavailing. First, Ramaiah objects that the Amended Complaint is "unverified" and does not attach any "sworn statements." Def. Br. 12. Plaintiffs, however, are not required to verify their complaints in FLSA cases. See Fed.R.Civ.P. 11(a) ("Unless a rule or statute ...