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Green v. Sinai Van Service

United States District Court, S.D. New York

January 5, 2018

ANDRE GREEN, Plaintiff,

          Pro Se Plaintiff ANDRE GREEN

          Attorneys for Defendant SCHLOSS & SCHLOSS, PLLC By: Jonathan B. Schloss, Esq.


          ROBERT W. SWEET U.S.D.J.

         Defendant 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.[1] 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 moot.

         I. Prior Proceedings

         The 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.

         II. The Facts

         The Complaint sets forth the following facts, which are assumed true for the purpose of this motion to dismiss.[2] See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012).

         The 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.[3] 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 Defendant.

         Ill. The Applicable Standard

         On a 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).

         While "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).

         In 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).

         IV. The Defendant's Motion to Dismiss ...

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