United States District Court, E.D. New York
SHIRLEY GUZMAN-REINA, on behalf of herself and all others similarly-situated, Plaintiff,
ABCO MAINTENANCE, INC., JAMES VIRGA, THOMAS VIRGA, and PETE GHAZARIAN, Defendants.
MEMORANDUM AND ORDER
GLASSER, SENIOR UNITED STATES DISTRICT JUDGE
Shirley Guzman-Reina (“Plaintiff”), a former
dispatcher, brings this action on behalf of herself and
others similarly-situated against ABCO Maintenance, Inc.,
ABCO's CEO James Virga, its President Thomas Virga, and
Pete Ghazarian, who was Plaintiff's supervisor
(collectively, “the Defendants”) seeking payment
of unpaid wages and overtime compensation under the Fair
Labor Standards Act, 29 U.S.C. §207(a)(1)
(“FLSA”), and New York labor law. Plaintiff also
seeks other various forms of relief including liquidated
damages, civil penalties, interest, costs, and attorneys'
before the Court is the Defendants' motion to dismiss all
claims against them pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. For the reasons set forth below,
the Defendants' motion is hereby DENIED.
following facts are taken from the Plaintiff's Complaint
(“Complt.”) and are accepted as true for purposes
of this motion. From September 23, 2013 through May 2, 2016,
Plaintiff worked as one of several dispatchers for the
Defendants at ABCO Maintenance in Staten Island, New York.
Complt. at ¶¶ 2, 9. As a dispatcher, Plaintiff was
responsible for communicating and coordinating with
ABCO's laborers regarding their daily tasks. Id.
at ¶18. Plaintiff typically worked five night-shifts per
week, beginning at 10 p.m. and ending the following morning
at either 7 or 8 a.m. Id. at ¶ 19.
alleges that the Defendants routinely required her to work
more than forty hours per workweek and that she regularly
worked “between forty-five and fifty hours per
week” without additional compensation. Id. at
¶ 19, 21. Plaintiff further alleges that the Defendants
generally refused to pay wages for more than 40 hours of
work, as a deliberate policy, and that they obscured their
time keeping records to minimize such payments. Id.
at ¶ 21.
initiated this action on March 7, 2017, asserting FLSA and
state law claims. (Dkt. 1). On May 8, 2017, the Defendants
filed a joint motion to dismiss the Complaint and a
memorandum of law in Support of their motion
(“Def.'s MOL”). (Dkt. 16, 16-11). On June 6,
2017, Plaintiff filed her opposition to the Defendants'
joint motion to dismiss, (“Pls.' MOL”). (Dkt.
21). On June 28, 2017, the Defendants filed their reply
(“Reply”). (Dkt. 23).
8(a)(2) of the Federal Rules of Civil Procedure requires a
complaint to include “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” To survive a motion to dismiss pursuant to
Rule 12(b)(6), the plaintiff's pleading must contain
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (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.” Iqbal, 556 U.S.
detailed factual allegations are not necessary, the pleading
must include more than an “unadorned,
the-defendant-unlawfully-harmed-me accusation;” mere
legal conclusions, “a formulaic recitation of the
elements of a cause of action, ” or “naked
assertions” by the plaintiff will not suffice.
Id. (internal quotations and citations omitted).
This plausibility standard “is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly, 550 U.S. at
556). Determining whether a complaint states a plausible
claim for relief is “a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts
do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it
has not ‘show[n]'-‘that the pleader is
entitled to relief.'” Iqbal, 556 U.S. at 679
(quoting Fed.R.Civ.P. 8(a)(2)).
adjudicating a Rule 12(b)(6) motion, a district court must
confine its consideration to facts stated on the face of the
complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters of
which judicial notice may be taken.” Serdarevic v.
Centex Homes, LLC, 760 F.Supp.2d 322, 328 (S.D.N.Y.
2010) (quoting Leonard F. v. Israel Disc. Bank of
N.Y., 199 F.3d 99, 107 (2d Cir. 1999)). If the Court
considers “matters outside the pleadings, ” then
“the motion must be treated as one for summary judgment
under Rule 56.” Fed.R.Civ.P. 12(d); see Chambers v.
Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002).
Defendants attach numerous exhibits to their motion. Dkt. 16,
Exs. A-I. The Court will not consider these extrinsic
documents in deciding the Defendants' Rule 12(b)(6)
motion. The Defendants' exhibits are internal
communications, financial statements, and other documents
that are neither appended to nor referenced in the Complaint,
and are not the kinds of facts that may be judicially
noticed. Fed.R.Evid. 201(b). Moreover, Plaintiff may not have
been aware of much of this information. Since “lack of
notice” is the primary “harm to the plaintiff
when a court considers material extraneous to the complaint,