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Palmisano v. Crowdergulf LLC

United States District Court, D. New Jersey

May 29, 2018

JOSEPH PALMISANO, et ah, Plaintiff,
v.
CROWDERGULF, LLC, et al, Defendants.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         Presently before the Court is Defendants James R. Johnson, David L. Johnson, and Carolyn J. Hordichuk's (hereinafter, "Bil-Jim Defendants") Motion to Dismiss Plaintiffs' Complaint, as it relates to Bil-Jim Defendants, for failure to state a claim. (ECF No. 21). Specifically, because the New Jersey Prevailing Wage Act does not impute personal liability, Defendants contend that Plaintiffs' claim against the Bil-Jim Defendants should be dismissed. For the reasons discussed herein, Defendants' Motion to Dismiss is granted.

         Background

         This is a putative class action based on alleged violations of the New Jersey Prevailing Wage Act (hereinafter, "PWA"), N.J.S.A. § 34:11-56.25 et seq. Plaintiffs Joseph Palmisano, Jay Hajeski, Sean Wall, and Walter Everett filed this complaint, individually and behalf of others similarly situated, based on Defendants CrowderGulf, LLC; Bil-Jim Construction Co., Inc.; Maple Lake, Inc.; R. Kremer and Son Marine Contractors, LLC; John C. Ramsay; Lyman W. Ramsay, Jr.; James R. Johnson, Jr.; David L. Johnson; and Carolyn J. Hordichuk (collectively, "Defendants") failure to properly pay Plaintiffs their prevailing wage for work they performed on public work projects. (Complaint at ¶ 1).

         In January 2013, CrowderGulf entered into contracts with the State of New Jersey to perform "waterway debris removal services, " from the damage caused by Hurricane Sandy (hereinafter, "Sandy Project"). (Complaint at ¶ 6). The project took place in the "Central Region" of New Jersey, primarily the Barnegat Bay waterway and nearby beaches, and involved the "dredging of 'displaced sand' from the bay, transporting it, and using it ... to rebuild nearby beaches, sand dunes, and sand bars." (Id. at ¶¶ 9, 36). On February 28, 2013, CrowderGulf subcontracted its work with the State to Bil-Jim, which then subcontracted with other entities, including Kremer Marine, to perform various services under the Sandy Project. (Id. at ¶¶ 14, 22). Plaintiffs Palmisano and Hajeski were both employees with Kremer Marine and worked as, among other things, tug boat operators and operator engineers on the Sandy Project. (Id. at ¶¶ 30-31). According to the Complaint, from May 2013 to September 2013, both worked "in excess of 40 hours per week, over 8 hours per day, more than a single shift in a day, on weekends, and on holidays." (Id.). Similarly, Plaintiffs Wall and Everett worked for Bil-Jim as, among other things, mechanics and engineers on the Sandy Project. (Id. at ¶¶ 32-33). From November 2012 to March 2013, both claimed to have worked "in excess of 40 hours per week, over 8 hours per day, more than a single shift in a day, on weekends and on holidays." (Id.).

         According to the Complaint, the Sandy Project was paid entirely out of the funds of a "public body" and involved work performed exclusively on land owned by a public body, as within the meaning of N.J.S.A. §§ 34:11-56.26(4)-(5). (Id. at ¶¶ 40-41). Moreover, Plaintiffs claim they "did not receive prevailing wages for the work they performed on the Sandy Project, including but not limited to full prevailing wages . .., 'Shift Differentials', PWA-defined 'Overtime', 'Double Time' for work performed on Sundays and Holidays, and/or other PWA benefits - as delineated in the PW Rate Sheets. (Id. at ¶ 43).

         In addition to bringing suit against Bil-Jim, Plaintiffs have named as defendants Bil-Jim's officers: President, James Johnson; Vice President, David Johnson; and Secretary/Treasurer Carolyn J. Hordichuk. (Id. at ¶ 28). Plaintiffs claim that, as "officers, principals, directors, supervisors, or managers, " they were "responsible for [Bil-Jim's] failure to comply with the PWA - to their employees and to the employees of their subcontractors and sub-subcontractors." (Id. at ¶ 64). As such, Plaintiffs claim, "Defendants violated the PWA by failing to pay Plaintiffs for the subject public work, at prevailing wage rates ('Base' plus 'Fringe' rate), 'Shift Differentials', 'Overtime', 'Double Time' for work performed on Sundays and Holidays, and/or other PWA benefits - all as defined in the applicable PW Rate Sheets; and therefore Defendants are liable to Plaintiffs." (Id. at ¶ 65).

         The Court was presented with essentially the same factual allegations in a related matter, Wall, et al. v. Bil-Jim Construction Co., Inc., et al, 15-cv-8982 (D.N.J. Mar. 7, 2016). In that case, the Court granted the Bil-Jim Defendants' Motion to Dismiss for failure to state a claim. (ECF No. 26). In a written order, the Court granted Plaintiffs thirty days to file an amended complaint to address these deficiencies, which they did not do. (ECF No. 22).

         The Bil-Jim Defendants again seek dismissal of Plaintiffs' Complaint, since individual liability is not permissible under the PWA.

         Legal Standard

         On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court is required to accept as true all allegations in the Complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). "To survive a motion to dismiss, 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Iqbal, 556 U.S. at 678-79; see also Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). A complaint should be dismissed only if the well-pleaded alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir. 2000).

         Analysis

         I. Personal Liability Under the PWA

         Defendants seek dismissal of the Complaint as to the Bil-Jim Defendants, in their individual capacities, since the PWA does not permit personal liability. Plaintiffs respond, contending that the PWA applies the New Jersey Wage Payment Law's ("WPL") definition of "employer, " which would ...


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