United States District Court, S.D. New York
Plaintiff ANDRE GREEN
Attorneys for Defendant SCHLOSS & SCHLOSS, PLLC By:
Jonathan B. Schloss, Esq.
W. SWEET U.S.D.J.
Sinai Van Service ("Sinai Van Service" or the
"Defendant") has moved pursuant to Federal Rule of
Civil Procedure 12(b)(6) to dismiss the complaint
("Complaint") of Plaintiff Andre Green
("Green" or the "Plaintiff"), in which
the Plaintiff alleged claims pursuant to the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. §§
201-219. Plaintiff has cross-moved for summary
judgment pursuant to Federal Rule of Civil Procedure 56.
Based on the facts and conclusions set forth below, the
Defendant's motion to dismiss is granted, and the
Plaintiff's motion for summary judgment is denied as
pro se Plaintiff commenced this action on May 23,
2017, alleging that he did not receive full payment from his
employer, Sinai Van Service, for his work completed from May
1, 2017 through May 5, 2017. Plaintiff has alleged his
injuries as unpaid wages, $50, 000 in compensatory and
punitive damages, and $50, 000 in mental anguish and
emotional distress. Defendant filed the present motion to
dismiss on September 15, 2017, and Plaintiff filed this
motion for summary judgment on October 12, 2017. Both motions
were thereafter scheduled to be taken on submission on
November 29, 2017, (see Order, Oct. 17, 2017, ECF No. 16), at
which time both motions were marked fully submitted.
Complaint sets forth the following facts, which are assumed
true for the purpose of this motion to dismiss. See Koch v.
Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir.
Plaintiff began his employment with the Defendant on April
27, 2017, was trained on April 27 and 28, 2017, and began as
a driver on April 29, 2017. On May 5, 2017, the Plaintiff
noticed that he had not received all of his calculated time
for hours worked, and that, specifically, he had not received
his payments due according to his calculated time for May 1
through 5, 2017. On May 9, 2017, the Plaintiff's manager
(the "Plaintiff's Manager") allegedly informed
the Plaintiff that he was being terminated for being too slow
for the work. The Plaintiff s Manager further informed the
Plaintiff that his check was being held for "a
week" in order to see whether the Plaintiff had accrued
any driving tickets on the van during his tenure. The
Plaintiff alleges that he requested his pay check on several
occasions, but these requests were denied. He further alleges
that he did not receive a time card or a pay summary of his
wages and earnings, and that he remains unaware of his work
deductions because of this. The Plaintiff also alleges that
he received inconsistent payment from the Defendant on May 5
and May 19 because one pay check was unlawfully retained by
The Applicable Standard
Rule 12(b)(6) motion to dismiss, all factual allegations in
the complaint are accepted as true and all inferences are
drawn in favor of the pleader. Mills v. Polar Molecular
Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). A complaint
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, 663 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). A claim is facially plausible 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. at 663 (quoting Twombly, 550 U.S. at 556). In
other words, the factual allegations must "possess
enough heft to show that the pleader is entitled to
relief." Twombly, 550 U.S. at 557 (internal
quotation marks omitted).
"a plaintiff may plead facts alleged upon information
and belief 'where the belief is based on factual
information that makes the inference of culpability
plausible, ' such allegations must be 'accompanied by
a statement of the facts upon which the belief is
founded.'" Munoz-Nagel v. Guess, Inc., No.
12 Civ. 1312 (ER), 2013 WL 1809772, at *3 (S.D.N.Y. Apr. 30,
2013) (quoting Arista Records, LLC v. Doe 3, 604
F.3d 110, 120 (2d Cir. 2010)); Prince v. Madison Square
Garden, 427 F.Supp.2d 372, 384 (S.D.N.Y. 2006);
Williams v. Calderoni, 11 Civ. 3020 (CM), 2012 WL
691832, at *7 (S.D.N.Y. Mar. 1, 2012)). The pleadings,
however, "must contain something more than . . . a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action." Twombly,
550 U.S. at 555 (citation and internal quotation omitted).
considering a motion to dismiss, "a district court may
consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents
incorporated by reference in the complaint." DiFolco
v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
The Defendant's Motion to Dismiss ...