United States District Court, E.D. New York
MEMORANDUM & ORDER
L. IRIZARRY, CHIEF UNITED STATES DISTRICT JUDGE
Vadim Mikhaylov (“Mikhaylov”) and Alexandr Sysoev
“Plaintiffs”) bring this action against their
former employer, Y & B Transportation
(“Y&B”), and its agent, Yury Iakovlev
“Defendants”). Individually, Plaintiffs allege
that Defendants: (1) failed to pay them minimum wages in
violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.
(“FLSA Claims”); (2) failed to pay them minimum
wages in violation of New York State Labor Law
(“NYLL”) § 652 (“NYS Minimum Wage
Claims”); (3) failed to provide them with notices of
compensation in violation of NYLL § 195(1) (“NYS
Notice Claims”); (4) failed to provide them with wage
statements in violation of NYLL § 195(3) (“NYS
Statement Claims”); (5) failed to pay them their earned
compensation in violation of NYLL § 198(1-a) (“NYS
Withheld Wages Claims”); (6) breached their employment
contracts (“Breach of Contract Claims”); and (7)
have been unjustly enriched (“Unjust Enrichment
Claims”). See Amended Complaint (“Am.
Compl.”), Dkt. Entry No. 5.
filed the instant Motion to Dismiss arguing insufficient
service of process and failure to state a claim under Federal
Rules of Civil Procedure 12(b)(5) and 12(b)(6), respectively.
See Att'y Aff. in Supp. of Mot. to Dismiss
(“Def. Aff.”), Dkt. Entry No. 11-1. Plaintiffs
oppose the motion. See Pl.'s Att'y Aff. in
Opp. to Def.'s Mot. to Dismiss (“Opp. Aff.”).
Defendants did not file any reply papers. After the motion
was briefed, the parties engaged in discovery under the
supervision of the assigned magistrate judge who certified
discovery was complete on October 25, 2016. Oct. 25, 2016
reasons set forth below, Defendants' Motion to Dismiss is
simplest terms, Plaintiffs allege that they were swindled out
of wages Defendants owed them for work performed over the
course of approximately one month, from July 9, 2014 through
August 5, 2014. Am. Compl. at ¶ 49.
B is a long-haul trucking company organized under the laws of
the Michigan and doing business in New York. Id. at
¶¶ 4, 14. Iakovlev is an agent of Y & B who was
responsible for executing a number of tasks on Y &
B's behalf. During the period at issue, Iakovlev was
charged with, inter alia: hiring and firing
employees, setting employee work schedules and conditions,
setting employee compensation rates, training employees, and
all other “major decisions for the company.”
Id. at ¶¶ 15-18, 28-31, 33-42.
April 2014, Iakovlev contacted Mikhaylov after seeking a
referral for a recent graduate from the Red Hook Commercial
Driving School in Brooklyn, New York. Id. at
¶¶ 20-21. After a phone interview, Iakovlev hired
Mikhaylov to work as a driver for Y & B. Id. at
¶ 22. On or about May 8, 2014, Iakovlev drove his car to
Mikhaylov's apartment in Brooklyn and had Mikhaylov drive
that same vehicle to a truck parked in New Jersey.
Id. at ¶ 23. Iakovlev and Mikhaylov thereafter
drove that truck together to its destination. Id. at
¶ 23. From that point until some time in June 2014,
Iakovlev and Mikhaylov drove trucks for Y & B as a team.
Id. at ¶¶ 24, 32. It was during this
period that Iakovlev trained Mikhaylov to drive trucks,
complete driver logs, and perform various other
maintenance-related tasks. Id. at ¶ 33.
early June 2014, Iakovlev asked Mikhaylov if he could refer
another graduate of the Red Hook Commercial Driving School to
Y & B. Id. at ¶ 25. Mikhaylov referred his
co-plaintiff, Sysoev. Id. Shortly thereafter,
Iakovlev also hired Sysoev to work as a driver for Y & B.
Id. at ¶ 26. Iakovlev had Mikhaylov train
Sysoev, as Iakovlev had trained Mikhaylov. Id. at
employment with Y & B lasted from May 2014 through August
5, 2014. Id. at ¶ 24. Sysoev's employment
lasted from June 13, 2014 through August 5, 2014.
Id. at ¶ 27.
agreement between the parties, Plaintiffs' compensation
was set at $0.20 per mile traveled and $20.00 per loading and
unloading of the truck, if there were more than two loadings
and unloadings per trip. Id. at ¶ 38. Y & B
also would reimburse Plaintiffs for work expenses upon
submission of receipts and documentation. Id. at
¶ 39. Plaintiffs initially received payments by check,
but eventually were paid by wire transfers. Id. at
¶ 40. The responsibility of ensuring that Plaintiffs
were timely and accurately paid belonged to Iakovlev.
Id. at ¶ 42.
allege that they were not paid for the four weeks worked from
July 9, 2014 to and including August 5, 2014. Id. at
¶ 49. According to Plaintiffs, during that time,
Mikhaylov and Sysoev worked a total of 122.25 hours and 147
hours, respectively. Id. at ¶ 50. Applying the
terms of the agreement outlined above, Mikhaylov claims that
he is due $3, 040.00 and Sysoev claims that he is due $2,
967.80. Id. at ¶¶ 51-52. Plaintiffs claim
Defendants' failure to pay them was willful. Id.
at ¶ 53.
addition to being denied the compensation due to them under
their employment agreements, Plaintiffs allege that
Defendants have not maintained adequate employment records
(Id. at ¶ 43) and neither have provided them
with notices stating the terms of their compensation
(Id. at ¶¶ 45, 54) nor statements
documenting their respective gross wages, deductions, and net
wages for any payments (Id. at ¶ 55).
before this Court is Defendants' Motion to Dismiss the
Amended Complaint. See generally Def. Aff.
Defendants argue that the present action should be dismissed
because neither Y & B nor Iakovlev were served within
Federal Rule of Civil Procedure 4(m)'s timeframe.
Id. at ¶¶ 4-31. They further argue that:
(1) the Breach of Contract and Unjust Enrichment Claims must
be dismissed as preempted by the FLSA; (2) the NYS Minimum
Wage Claims must be dismissed because they, too, are
preempted by the FLSA; and (3) the FLSA Claims and the NYS
Minimum Wage Claims should be dismissed because Plaintiffs
allege pay rates above minimum wage (Id. at
Insufficient Service of Process
defendant moves to dismiss for insufficient service of
process under Rule 12(b)(5) of the Federal Rules of Civil
Procedure, “‘the plaintiff bears the burden of
establishing that service was sufficient.'”
Allstate Ins. Co. v. Rosenberg, 771 F.Supp.2d 254,
260 (E.D.N.Y. 2011) (quoting Khan v. Khan, 360 F.
App'x 202, 203 (2d Cir. 2010)). When applying New York
State law, a plaintiff may carry this burden by submitting a
process server's affidavit, thereby establishing a
rebuttable presumption of proper service. Old Republic
Ins. Co. v. Pacific Fin. Servs. of Am., Inc., 301 F.3d
54, 57 (2d Cir. 2001) (citing NYCTL 1997-1 Trust v.
Nillas, 288 A.D.2d 279 (2d Dep't 2001)). A defendant
may rebut this presumption through a sworn affidavit in which
the defendant denies receipt of service. Id. at
57-58 (citing Skyline Agency, Inc. v. Ambrose Coppotelli,
Inc., 117 A.D.2d 135, 139 (2d Dep't 1986));
Id. at 58 (quoting Simonds v. Grobman, 277
A.D.2d 369, 370 (2d Dep't 2000) (explaining that a
defendant must swear to “specific facts” to rebut
the presumption)). Where a defendant's ...