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Disantis v. Allied Construction, LLC

United States District Court, D. New Jersey

July 31, 2018

JOHN DISANTIS and VICTOR HUNTER, on behalf of themselves and those similarly situated, Plaintiffs,
v.
ALLIED CONSTRUCTION, LLC and JOHN DOES 1-10. Defendants.

          Joshua S. Boyette, Esq., Travis B. Martindale-Jarvis, Esq. SWARTZ SWINDLER LLC Attorneys for Plaintiff

          Matthew Adam Green, Esq., Lisa Michelle Koblin, Esq. OBERMAYER REBMANN MAXWELL & HIPPELL LLP Attorneys for Defendants

          OPINION

          HONORABLE JEROME B. SIMANDLE JUDGE

         I. INTRODUCTION

         This is an action brought by Plaintiffs John DiSantis (“DiSantis”) and Victor Hunter (“Hunter” and, collectively, “Named Plaintiffs”), on behalf of themselves and others similarly situated, against their former employer, Defendant Allied Construction, LLC (“Allied” or “Defendant”). Plaintiffs generally allege that Allied failed to fully compensate them for overtime work performed and owed commissions and/or non-discretionary bonuses in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., the New Jersey Wage Payment Law (“NJWPL”), N.J.S.A. § 34:11-4.1 et seq., the New Jersey Wage and Hour Law (“NJWHL”), N.J.S.A. § 34:11-4.1 et seq., and the common law. Pending before the Court are three motions filed by Defendant: (1) a motion to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(2), 12(b)(4), and 12(b)(5) [Docket Item 6]; (2) a motion to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) [Docket Item 14]; and (3) a motion to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). [Docket Item 19.] For the following reasons, the first and second motions will be denied as moot, and the third motion will be granted in part.

         II. BACKGROUND

         A. Factual Background

         Allied is an energy efficiency specialization company that informs its customers of government incentive programs for improving their homes' energy efficiencies, assesses existing energy uses, and then creates programs to increase the homes' efficiencies. [Docket Item 25 (“Am. Compl.”) at ¶¶ 11, 40-41.] During the relevant period, Allied's sales team included Surveyors, Community Representatives, Technicians and Auditors. (Id. at ¶¶ 16, 26, 42.) Community Representatives first canvass neighborhoods to promote Allied's services and set up appointments.[1] (Id. at ¶¶ 46-47.) Then, Technicians attend these appointments to inform homeowners about Allied's services and the government programs, conduct a “mini-audit, ” and schedule a second appointment with an Auditor. (Id. at ¶ 44.) At these second appointments, Auditors assess each home's energy efficiency and acquire installation agreements for implementing a customized program. (Id. at ¶ 45.) Allied employed DiSantis as a Technician from May 2015 until April 2017, and Hunter as a Community Representative from February 2017 to August 2017. (Id. at ¶¶ 7-8, 38-39.)

         In the Amended Complaint, Plaintiffs allege that Allied failed to fully compensate the “Collective Action Plaintiffs”[2] - which includes the “Overtime Class Plaintiffs”[3] for overtime work performed and the “Unpaid Wages Class Plaintiffs”[4] for commissions and/or non-discretionary bonuses - in violation of the FLSA, the NJWPL, the NJWHL, and the common law. Specifically, Plaintiffs bring claims against Allied for: 1) failure to properly compensate DiSantis, Hunter, and the Collective Action Plaintiffs for overtime work in violation of the FLSA (Count One); 2) failure to properly compensate DiSantis, Hunter, and the Overtime Class Plaintiffs for overtime work in violation of the NJWHL (Count Two); 3) failure to properly compensate DiSantis, Hunter, and the Unpaid Wages Class Plaintiffs for their owed commissions and/or non-discretionary bonuses in violation of the NJWPL (Count Three); and 4) breach of contract for failure to pay DiSantis, Hunter, and the Unpaid Wages Class Plaintiffs owed commissions and/or non-discretionary bonuses (Count Four). (Id. at ¶¶ 49-89.)

         B. Procedural History

         On November 17, 2017, Plaintiffs filed the initial Complaint. [Docket Item 1.] Plaintiffs first attempted to serve Allied by delivering a copy of the Summons and Complaint to Ellen McDowell (“McDowell”), whom Plaintiffs believed was an attorney for Allied, on December 5, 2017. [Docket Item 5 at 1.] On December 26, 2017, Allied moved to dismiss the Complaint for insufficient process pursuant to Fed.R.Civ.P. 12(b)(4), for insufficient service of process pursuant to Fed.R.Civ.P. 12(b)(5), and for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2) because, according to Allied, McDowell was neither Allied's representative nor authorized to accept service on Allied's behalf. [Docket Item 6 at 2.] On January 17, 2018, Plaintiffs served Allied again, this time by delivering a copy of the Summons and Complaint to Allied's managing agent. [Docket Item 8.] Allied agreed that the January 17th service was proper but declined to withdraw its first motion to dismiss. [Docket Item 12 at 4.] Plaintiffs subsequently filed a response brief in opposition to Allied's motion to dismiss [Docket Item 10] and Allied filed a reply brief. [Docket Item 12.]

         Allied next moved to dismiss the Complaint in part pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), arguing, inter alia, that Plaintiffs' breach of contract claim was preempted by the FLSA and that Plaintiffs had failed to set forth a claim for Auditors upon which relief can be granted. [Docket Item 14.] Rather than respond to the second motion to dismiss, Plaintiff filed a consent motion (i.e., a motion with Defendant's consent) for leave to file an Amended Complaint. [Docket Item 16.] The Court granted the unopposed motion [Docket Item 17], and the Amended Complaint was filed.[5] [Docket Item 25.]

         Thereafter, Allied filed a motion to dismiss the Amended Complaint in part pursuant to Fed R. Civ. P. 12(b)(1) and 12(b)(6). [Docket Item 19.] In this motion, Allied avers that Plaintiffs' FLSA claim preempts the breach of contract claim in the Amended Complaint and so the latter should be dismissed. [Id. at 5-7.] Further, Allied asserts that claims on behalf of the Auditors should be dismissed because DiSantis and Hunter lack standing to represent them and because, as currently plead, the Amended Complaint does not assert any wrongful conduct by Allied towards Auditors. [Id. at 7-12.] Plaintiffs filed a response brief in opposition to Allied's motion to dismiss in part [Docket Item 21] and Allied filed a reply brief in support of its motion to dismiss in part. [Docket Item 24.]

         The motions to dismiss are now fully briefed and will be decided without oral argument pursuant to Fed.R.Civ.P. 78.[6]

         III. STANDARD OF REVIEW

         A. ...


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