United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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.
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).
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."
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 ¶
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).
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.
Bil-Jim Defendants again seek dismissal of Plaintiffs'
Complaint, since individual liability is not permissible
under the PWA.
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).
Personal Liability Under the PWA
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