Johnson v. Carlo Lizza & Sons Paving, Inc.

160 F. Supp. 3d 605, 2016 U.S. Dist. LEXIS 14450, 2016 WL 524640
CourtDistrict Court, S.D. New York
DecidedFebruary 5, 2016
Docket15 Civ. 7423 (PAE)
StatusPublished
Cited by26 cases

This text of 160 F. Supp. 3d 605 (Johnson v. Carlo Lizza & Sons Paving, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Carlo Lizza & Sons Paving, Inc., 160 F. Supp. 3d 605, 2016 U.S. Dist. LEXIS 14450, 2016 WL 524640 (S.D.N.Y. 2016).

Opinion

OPINION & ORDER

Paul A. Engelmayer, District Judge:

Plaintiffs Donald Little and Terrence Johnson allege here that defendants— [608]*608three companies and one individual in the paving business, who allegedly employed plaintiffs as “flagmen” on public works projects in New York City — failed to pay overtime wages, as required by federal and state labor law, and to pay prevailing wages,1 as required by a contract to which plaintiffs were third-party beneficiaries. Defendants now move to dismiss plaintiffs’ breach-of-contract claim for failure to exhaust administrative remedies and their alternatively pled quasi-contract claim. Plaintiffs, in turn, move for conditional certification of a Fair Labor Standards Act (“FLSA”) collective action, so as to authorize notice to an opt-in class of flagmen and other construction employees employed by defendants in the three years preceding the filing of the Complaint. For the reasons that follow, the Court denies defendants’ motion to dismiss and grants plaintiffs’ motion for conditional certification.

I. Background2

A. Parties and Facts

Defendants Carlo Lizza & Sons Paving, Inc. (“Carlo Lizza Paving”), Ships Point Industries Ltd. (“Ships Point”), and A&B Contractors LLC (“A&B”) are New York corporate entities. See Compl. ¶¶ 12-14. Defendant Elia Aly Lizza is the CEO of Carlo Lizza Paving and Ships Point. Id. ¶17.

Carlo Lizza Paving and Ships Point are in the asphalt and paving contracting business; in or around summer 2015, Carlo Lizza Paving transferred its employees and operations to Ships Point. Id. ¶ 34. A&B is in the construction contracting business. Id. ¶ 35. In or around spring 2014, Carlo Lizza Paving subcontracted with A&B to provide safety flagmen for public works projects on New York City roadways. Id. A&B and/or Carlo Lizza Paving “entered into contracts as prime and/or sub-contractors that required Plaintiffs and the Class Members to be paid prevailing wages for work performed on New York City roadways.”3 Id. ¶ 36.

Named plaintiffs Donald Little and Terrence Johnson were or are employees of one or more defendants.4 Id. ¶ 19. They worked for defendants as safety flagmen on New York City road projects, id. ¶¶ 47, 60, and allege that they were therefore third-party beneficiaries to defendants’ public works contracts, entitled to be paid prevailing wages and supplemental benefits pursuant to those contracts, id. ¶¶ 41-43.

[609]*609Specifically, Little’s duties “included setting up orange barrels around the areas in which milling, work was being performed, steering all traffic through detours, and sweeping the ground to ensure that pedestrians walked on a smooth surface.” Id. ¶ 49. Johnson’s duties “included closing off city blocks with barrels, walking alongside machines on city streets to ensure that they moved safely from one side of the street to the other, directing traffic and ensuring safe crossing for pedestrians.” Id. ¶ 62. Plaintiffs further allege that they and other members of the putative class performed tasks including “bolting and connecting beams to form building structures, [and] welding and installing beams to form building floors.” Id. ¶ 44.

Plaintiffs allege that they regularly worked more than 40 hours per week, see id. ¶¶ 50, 63, but were not paid for work in excess of 40 hours per week, let alone overtime premiums, see id. ¶¶ 53, 65. Plaintiffs further allege they were not paid the prevailing wages and supplemental benefits required for workers of their type on New York City public works projects. Id. ¶¶ 51, 64, 70-72. Plaintiffs allege that this failure to pay overtime, prevailing wages, and supplemental benefits was pursuant to a corporate policy that applied to other similarly situated employees. Id. ¶¶ 40, 70. Finally, plaintiffs allege that defendants failed to provide proper wage notices and wage statements. Id. ¶ 73.

B. Procedural History

On September 18, 2015, plaintiffs filed the Complaint. Dkt. 1. It brings six causes of action: (1) unpaid overtime under the FLSA; (2) unpaid overtime under the New York Labor Law (“NYLL”); (3) breach of contract for failure to pay prevailing wages and supplemental benefits; (4) unjust enrichment and quantum meruit (pled in the alternative); (5) wage notice violations under the NYLL; and (6) wage statement violations under the NYLL. See Compl. ¶¶ 74-104.

On November 18, 2015, defendants Carlo Lizza Paving, Ships Point, and Lizza moved to dismiss,5 Dkt. 25, and submitted a memorandum of law, Dkt. 29 (“Def. Br.”), and supporting affidavits. On December 1, 2015, plaintiffs filed an opposition brief. Dkt. 33 (“PI. Br.”). On December 3, 2015, defendants filed a reply brief. Dkt. 35 (“Def. Reply Br.”).

On November 30, 2015, plaintiffs moved to conditionally certify an FLSA collective action, Dkt. 30, and submitted a proposed order, id., Ex. 1 (“Proposed Order”). Plaintiffs also submitted a memorandum of law, Dkt. 31 (“PI. Cond. Cert. Br.”), and a declaration of Brent E. Pelton, Dkt. 32 (“Pelton Deck”), and attached exhibits. On December 15, 2015, defendants Carlo Liz-za Paving, Ships Point, and Lizza filed a letter stating that they do not oppose conditional certification or plaintiffs’ proposed order. Dkt. 39.

II. Discussion

The Court first addresses plaintiffs’ unopposed motion for conditional certification of an FLSA collective action and then considers defendants’ motion to. dismiss.

A. Conditional Certification

Plaintiffs seek conditional certification of an FLSA collective action as to their unpaid overtime claim, with a class defined as “all current and former flagmen and other construction employees who worked for Defendants in New York at any time on or after September 18, 2012” to the date of this order.6 Proposed Order ¶ 2. Plaintiffs [610]*610also seek approval of their proposed notice and consent forms, and an order directing defendants to provide the names, addresses, phone numbers, and email addresses of all members of the class as defined. See id. ¶3. Defendants do not oppose plaintiffs’ motion or their proposed order. See Dkt. 39.

1. Applicable Legal Standards

The FLSA provides that plaintiffs may seek to have their case certified as a collective action on behalf of “themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Courts in this Circuit use a two-stage certification process to determine whether employees are “similarly situated.” See, e.g., Romero v. H.B. Automotive Grp., Inc., No. 11 Civ. 386 (CM), 2012 WL 1514810, at *8 (S.D.N.Y. May 1, 2012). At this early stage, the named plaintiffs are required only to make a “modest factual showing” that there are other potential plaintiffs “who may be ‘similarly situated’ to the named plaintiffs with respect to whether a FLSA violation has occurred.” Myers v. Hertz Corp., 624 F.3d 537

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Bluebook (online)
160 F. Supp. 3d 605, 2016 U.S. Dist. LEXIS 14450, 2016 WL 524640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-carlo-lizza-sons-paving-inc-nysd-2016.