Chapones v. Cargill Incorporated

• Court: District Court, N.D. New York
• Decided: June 27, 2023
• Docket: 1:23-cv-00038
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

FREDDIE FLORES, on behalf of himself and all other persons similarly situated,

Plaintiff,

-v- 1:23-cv-38

CARGILL INCORPORATED,

Defendant.

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APPEARANCES: OF COUNSEL:

THE TOWNE LAW FIRM, P.C. JAMES T. TOWNE, JR., ESQ. Attorneys for Plaintiff RYAN L. ABEL, ESQ. 500 New Karner Road, PO Box 15072 Albany, NY 12212

FAEGRE DRINKER BIDDLE & DANIEL H. DORSON, ESQ. REATH LLP GERALD T. HATHAWAY, ESQ. Attorneys for Plaintiff MATTHEW FONTANA, ESQ. 1177 Avenue of the Americas New York, NY 10036

DAVID N. HURD United States District Judge DECISION and ORDER

I. INTRODUCTION On January 10, 2023, Anthony Chapones filed this putative class action against Cargill Incorporated (“Cargill” or “defendant”). Dkt. No. 1. On February 22, 2023, an amended complaint was filed, substituting Freddie Flores (“Flores” or “plaintiff”) as the named plaintiff. Dkt. No. 5. Plaintiff’s

amended complaint asserts that defendant violated New York Labor Law (“NYLL”) § 191 by failing to pay him, and the putative class members, timely wages. Id. On April 7, 2023, Cargill moved to dismiss the amended complaint

pursuant to Federal Rules of Civil Procedure (“Rule”) 12(b)(1) and 12(b)(6). Dkt. No. 16. The motion has been fully briefed and will be considered on the basis of the submissions without oral argument. II. BACKGROUND

Flores alleges that during his employment with Cargill as a manual worker, defendant paid him, and the putative class members, untimely wages in violation of NYLL § 191. Compl. ¶¶ 14–15. According to plaintiff, defendant’s payments were untimely because defendant paid him, and the putative class members, bi-weekly instead of weekly, and without express authorization from the New York State Department of Labor. Id. ¶¶ 15, 17.

III. LEGAL STANDARD A. Rule 12(b)(1) “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional

power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Luckett v. Bure,

290 F.3d 493, 497 (2d Cir. 2002)). B. Rule 12(b)(6) To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual allegations must be enough to elevate the plaintiff’s right to relief above the

level of speculation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So while legal conclusions can provide a framework for the complaint, they must be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In short, a complaint must contain “enough facts to state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. To assess this plausibility requirement, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In doing so, the court generally confines itself to the facts alleged in

the pleading, any documents attached to the complaint or incorporated into it by reference, and matters of which judicial notice may be taken. Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs., L.P. v. Ent. Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).

IV. DISCUSSION Flores’ one-count amended complaint asserts that Cargill paid him, and the putative class members, untimely wages in violation of NYLL § 191. See Compl. ¶¶ 30–34. Defendant seeks dismissal of plaintiff’s amended

complaint pursuant to Rules 12(b)(1) and 12(b)(6). See Def.’s Mem., Dkt. No. 16-1 at 3.1 A court faced with a motion pursuant to both Rules 12(b)(1) and 12(b)(6) must decide the jurisdictional question first because a disposition of a Rule

12(b)(6) motion is a decision on the merits, and as such, an exercise of jurisdiction. Kumpf v. N.Y. State United Tchrs., --F. Supp. 3d--, 2022 WL 17155847, at *4 (N.D.N.Y. Nov. 22, 2022) (citation omitted). Therefore, Cargill’s Rule 12(b)(1) motion will be addressed first.

1 Pagination corresponds to CM/ECF. A. Standing Cargill first seeks dismissal of Flores’ amended complaint pursuant to

Rule 12(b)(1) on the basis that plaintiff lacks standing to pursue his NYLL § 191 claim. Def.’s Mem. at 7–9. According to defendant, plaintiff has not properly alleged that “Cargill’s purported violations of § 191(1)(a) caused him any concrete harm.” Id. at 7.

“Article III, Section 2 of the Constitution limits the subject-matter jurisdiction of the federal courts to ‘Cases’ and ‘Controversies.’” SM Kids, LLC v. Google LLC, 963 F.3d 206, 211 (2d Cir. 2020) (citing Dhinsa v. Krueger, 917 F.3d 70, 77 (2d Cir. 2019)). “The doctrine of standing gives

meaning to these constitutional limits by identifying those disputes which are appropriately resolved through the judicial process.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (cleaned up). The Supreme Court has “established that the ‘irreducible constitutional

minimum’ of standing consists of three elements.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “[T]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is

likely to be redressed by a favorable judicial decision.” SM Kids, LLC, 963 F.3d at 211 (cleaned up). The instant motion concerns only the injury in fact component of standing. See Def.’s Mem. at 7–9. To establish an injury in fact, a plaintiff “must show

that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc., 578 U.S. at 339 (quoting Lujan, 504 U.S. at 560). “To be concrete, an injury must actually exist, that is, it must be real, and not

abstract.” Strubel v. Comenity Bank, 842 F.3d 181, 188 (2d Cir. 2016) (cleaned up). Flores alleges that Cargill violated NYLL § 191 by paying him and the putative class members on a bi-weekly basis. Compl. ¶¶ 15–17, 33–34.

Pursuant to NYLL § 191, employers are required to pay manual workers on a weekly basis, and not later than seven calendar days after the end of the week in which the wages were earned, unless the New York Department of Labor authorizes the employer to pay less frequently. Id. ¶ 32; see also NYLL

§ 191(1)(a)(i). Courts in this Circuit “have held that workers paid on an untimely basis necessarily incur a concrete harm due to the time value of money and thus have standing to claim damages” under NYLL § 191, together with the

remedial provisions of NYLL § 198. Ramirez v. Urion Constr. LLC, --F. Supp. 3d--, 2023 WL 3570639, at *6 (S.D.N.Y. May 19, 2023) (collecting cases). As the Court in Levy v. Endeavor Air Inc. explained, “the loss of the time value of the money owed to plaintiff is not a harm that might occur, but one that has occurred; it is not a harm that might materialize, but one that has

materialized.” --F. Supp. 3d--, 2022 WL 16645829, at *4 (E.D.N.Y. Nov. 1, 2022). While Flores does not specifically allege that the temporary deprivation of money resulted in a loss of the time value of money, for purposes of this

motion to dismiss, plaintiff’s allegations are sufficient to establish an injury in fact. Plaintiff “need not, as defendant suggests, spell out how the time value of money, as an economic theory, applies to their case.” Levy, 2022 WL 16645829, at *4. “It does apply; the delay in payment alleged, due to

defendant’s unlawful rate-of-payment practices, necessarily means that plaintiff[] [was] forced to wait to receive money that, as compared with when they should have received it, was, when [he] did receive it, worth less.” Id. (citing Porsch v. LLR, Inc., 380 F. Supp. 3d 418, 424 (S.D.N.Y. 2019)).

Nor does Flores need to detail how he would have spent his wages had they been received on a weekly basis. See Levy, 2022 WL 16645829, at *4; Petrosino v. Fastenal Co., 2023 WL 3496362, at *4 (N.D.N.Y. May 17, 2023); Gillett v. Zara USA, Inc., 2022 WL 3285275, at *7 (S.D.N.Y. Aug. 10, 2022).

Indeed, “[a]t the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support a claim.” Lujan, 504 U.S. at 561 (cleaned up); see also Espinal v. Sephora USA, Inc., 2022 WL 16973328, at *4 (S.D.N.Y. Nov. 16,

2022), report and recommendation adopted, 2023 WL 2136392 (S.D.N.Y. Feb. 21, 2023). Thus, while plaintiff’s allegations can fairly be described as thin, dismissal under Rule 12(b)(1) at this early stage of the litigation is unwarranted.2 See Elhassa v. Hallmark Aviation Servs., L.P., 2022 WL

563264, at *2 (S.D.N.Y. Feb. 24, 2022). Accordingly, Cargill’s motion to dismiss for lack of standing shall be denied.3 B. Private Right of Action Next, Cargill advocates for dismissal of Flores’ amended complaint

pursuant to Rule 12(b)(6) on the basis that NYLL § 191 does not afford plaintiff a private right of action. Def.’s Mem. at 9–21. As noted supra, NYLL § 191 provides that employers are required to pay manual workers on a weekly basis, and not later than seven calendar days

after the end of the week in which the wages were earned, unless the New

2 The district court cases on which Cargill relies, Rath v. Jo-Ann Stores, 2022 WL 3701163 (W.D.N.Y. Aug. 26, 2022), and Rosario v. Icon Burger Acquisition LLC, 2022 WL 198503 (E.D.N.Y. Jan. 21, 2022), “are outliers in requiring more particularized allegations and are inconsistent with the familiar pleading standard.” Nunez v. Exec. Le Soleil New York LLC, 2023 WL 3319613, at *4 (S.D.N.Y. May 9, 2023) (citation omitted). 3 Flores’ opposition requests that “if this Court finds that [p]laintiff has not adequately pleaded facts sufficient to establish this Court’s subject matter jurisdiction, then [p]laintiff respectfully submits that this Court should grant [p]laintiff’s Cross-Motion to amend his Amended Complaint to include the necessary factual allegations to establish such subject matter jurisdiction.” Pl.’s Opp’n, Dkt. No 19-1 at 4. As it has been determined that dismissal for lack of standing is unwarranted, plaintiff’s attempt to cross-move to amend need not be addressed. York Department of Labor authorizes the employer to pay less frequently. NYLL § 191(1)(a)(i). Under NYLL § 198(1-a), when an employee prevails

after instituting a wage claim: the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney’s fees, prejudgment interest . . . and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due.

NYLL § 198(1-a). In Vega v. CM & Assocs. Constr. Mgmt., LLC, the First Department held that NYLL § 198(1-a) expressly provides a private right of action for violations of NYLL § 191. 175 A.D.3d 1144, 1145–46 (1st Dep’t 2019). The Court reasoned that the late payment of wages constitutes “underpayment” for purposes of the statute even if the employee was fully paid prior to bringing a claim. Id. Cargill advocates for rejecting the holding in Vega. Def.’s Mem. 9–21. “To do so, this Court would have to be convinced that the highest court of the state is likely to reject Vega’s reasoning.” Rankine v. Levi Strauss & Co., --F. Supp. 3d--, 2023 WL 3582323, at *5 (S.D.N.Y. May 22, 2023). Although

federal courts applying state law are not strictly bound by state intermediate appellate courts, rulings from such courts are a basis for ascertaining state law, which is not to be disregarded by a federal court, unless it is convinced

by persuasive data that the highest court of the state would decide otherwise. Id. (citing DiBella v. Hopkins, 403 F.3d 102, 112 (2d Cir. 2005)). “In the absence of such data, or other contrary authority, federal courts applying state law are generally obliged to follow the state law decisions of state

intermediate appellate courts.” Id. (cleaned up). Cargill maintains that Vega was wrongly decided. See Def.’s Mem. at 9– 21. According to defendant, Vega is “wholly inconsistent with the legislative history of § 198(1-a).” Id. at 12. In particular, defendant asserts that a

comprehensive review of the legislative history of NYLL § 198(1-a) clearly indicates that the remedies of NYLL § 198(1-a) are intended to compensate employees for unpaid wages, not untimely or late payments. Id. at 9–17. Upon review, Cargill’s argument must be rejected. The Court of Appeals

could reasonably find that Vega’s interpretation of NYLL § 191 and NYLL § 198 comports with the basic policies underlying the statutes. Indeed, the purposes of NYLL § 191 and NYLL § 198 “are to protect employees who are ‘dependent upon their wages for sustenance’ and deter labor law violations.”

Mabe v. Wal-Mart Assocs., Inc., 2022 WL 874311, at *7 (N.D.N.Y. Mar. 24, 2022) (quoting Vega, 175 A.D.3d at 1146)). Thus, “[g]iven the importance the legislature attached to the timely payment of wages, it would ‘promote the legislative purpose of the statute’ to recognize a private right of action.” Beh v. Cmty. Care Companions Inc., 2021 WL 3914297, at *3 (W.D.N.Y. Feb. 1,

2021), report and recommendation adopted, 2021 WL 3914320 (W.D.N.Y. June 23, 2021); see also Rankine, 2023 WL 3582323, at *6 (finding unpersuasive the argument that Vega is inconsistent with the legislative history of NYLL § 191 and NYLL § 198(1-a)).

Without more, Cargill has failed to present any persuasive reason “why this Court should depart from the myriad decisions in this Circuit that have followed Vega in finding a private right of action to enforce Section 191.” Gillett, 2022 WL 3285275, at *11; see also Caul v. Petco Animal Supplies,

Inc., 2021 WL 4407856, at *3 (E.D.N.Y. Sept. 27, 2021) (noting that since Vega, “every court in this Circuit to consider that decision appears to have followed its construction of the New York Labor Law”). As such, defendant’s argument that Vega was wrongly decided and that there is no express private

right of action under NYLL § 191 must be rejected. Accordingly, defendant’s motion to dismiss Flores’ complaint shall be denied.4

4 In concluding that Cargill has failed to provide persuasive evidence that the New York Court of Appeals would reject Vega’s holding that there is an express private right of action for violations of NYLL § 191, defendant’s argument that an implied private right of action does not exist need not be addressed. See Rath v. Jo-Ann Stores, LLC, 2022 WL 17324842, at *8–9 (W.D.N.Y. Nov. 29, 2022). Nonetheless, the Court finds that defendant has failed to provide persuasive evidence that the New York Court of Appeals would reject Vega’s finding that an implied right of action exists. See Harris v. Old Navy, LLC, 2022 WL 16941712, at *7 (S.D.N.Y. Nov. 15, 2022), report and recommendation adopted, 2023 WL 2139688 (S.D.N.Y. Feb. 20, 2023). V. CONCLUSION Therefore, it is ORDERED that 1. Defendant’s motion to dismiss is DENIED; 2. Plaintiffs cross-motion to amend is DENIED; and 3. Defendant shall file and serve an answer to the amended complaint on

or before Friday, July 14, 2028. The Clerk of The Court is directed to terminate the pending motion. IT IS SO ORDERED.

Dated: June 27, 2023 PUG Utica, New York. U.S. Disfrict Judge

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