Opinion
16-CV-1506 (CBA) (JRR)
09-29-2017
MOMINNA ANSORALLI and ZAIRE LAMARR-ARRUZ, on behalf of themselves and all other similarly situated employees, Plaintiffs, v. CVS PHARMACY, INC., Defendant.
NOT FOR PUBLICATION
MEMORANDUM & ORDER AMON, United States District Judge :
On March 3, 2016, Plaintiffs Mominna Ansoralli and Zaire Lamarr-Arruz commenced this this action on behalf of themselves and other similarly situated individuals ("Plaintiffs") against CVS Pharmacy, Inc. ("Defendant"), alleging overtime violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. and New York Labor Law ("NYLL") § 190, et seq., as well as claims for unpaid wages under NYLL §§ 191 and 193. (D.E. # 1.) Plaintiffs also asked for conditional collective-action certification under FLSA, 29 U.S.C. § 216(b), and to allow them to proceed as a class action under Federal Rule of Civil Procedure 23 for their NYLL claims. (D.E. # 1, 5.) Defendant requested to file a motion to dismiss, (D.E. # 9), and after holding a pre-motion conference on the motions for conditional certification and to dismiss, the Court referred the motion for collective certification to Magistrate Judge Ramon E. Reyes, Jr. and granted Plaintiffs leave to amend their complaint. (D.E. dated July 29, 2016.) That day, Plaintiffs filed the amended complaint, which dropped Ansoralli's time-barred FLSA overtime claim, (D.E. # 27 ("Compl.")), and on August 10, 2016, Defendant moved to dismiss the complaint. The Court heard oral argument on November 22, 2016, at which it denied Defendant's motion to dismiss Plaintiffs' overtime claims under FLSA and NYLL but reserved judgment on Plaintiffs' claims under NYLL §§ 191 and 193. (See D.E. dated Nov. 22, 2016.) The Court now writes to articulate the reasoning behind its oral ruling denying Defendant's motion as to the overtime claims and to grant Defendants' motion to dismiss Plaintiffs' claims under NYLL §§ 191 and 193.
BACKGROUND
Plaintiffs worked as Market Investigators for Defendant's Loss Prevention Department, for which they would go undercover to identify, prevent, and investigate shoplifting at Defendant's stores in New York City. Plaintiffs were "paid on an hourly basis and regularly generally worked on-the-clock for approximately 40 hours per week (usually five shifts of eight hours each)" with some fluctuation in the hours from week to week. (Compl. ¶ 16.) In addition to their paid "on-the-clock" work, however, Plaintiffs allege that they were required to work "off-the-clock" hours for which they "were not compensated in any manner." (Id. ¶ 17.) This unpaid work included "extensive telephone calls" with their supervisors which were held "approximately 2 to 4 times per week" throughout Plaintiffs' employment, during which Plaintiffs would discuss their productivity and job performance. (Id. ¶ 18-19.) These calls "were often lengthy (30 minutes or longer)." (Id. ¶ 19.) Plaintiffs allege that these weekly mandatory telephone calls for which Plaintiffs were not paid occurred both in weeks where Plaintiffs "worked 40 hours on the clock, as well as in weeks where Plaintiffs . . . worked less than 40 hours on the clock." (Id.) According to Plaintiffs, they were also required to participate in unpaid meetings between two to five times each month, "both in weeks where Plaintiffs . . . worked 40 hours on the clock, as well as in weeks where Plaintiffs . . . worked less than 40 hours on the clock." (Id. ¶ 21.) Due to these extra weekly and monthly unpaid hours, Plaintiffs allege that that Defendant withheld pay that was owed to Plaintiffs, both at the regular hourly rate (for the unpaid off-the-clock hours worked—until a total of 40 hours—during weeks when Plaintiffs worked on-the-clock for fewer than 40 hours) and at the premium one-and-one-half overtime rate (for any off-the-clock unpaid time worked in excess of 40 hours in a given week). (Id. ¶ 23.)
STANDARD OF REVIEW
In resolving a motion to dismiss, the Court must "construe the Complaint liberally, accepting all factual allegations in the Complaint as true, and drawing all reasonable inferences in plaintiff['s] favor." Galiano v. Fid. Nat'l Title Ins. Co., 684 F.3d 309, 311 (2d Cir. 2012). Nevertheless, the "[f]actual allegations must be enough to raise a right of relief above the speculative level," and the complaint must plead "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [plaintiff's claim]." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Put differently, "[t]o 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 Twombly, 550 U.S. at 570).
"The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 555). Thus, if Plaintiff has not "nudged [his or her] claims across the line from conceivable to plausible, [those claims] must be dismissed." Twombly, 550 U.S. at 570.
In applying these principles, the Court "must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Tarshis v. Riese Org., 211 F.3d 30, 39 (2d Cir. 2000) (citing Allen v. WestpointPepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). "Factual allegations contained in legal briefs or memoranda are also treated as matters outside the pleading for purposes of Rule 12(b)," Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988), and thus "[n]ew facts and allegations, first raised in a Plaintiffs' opposition papers, may not be considered." Simone v. United States, No. 09-CV-3904 (TCP), 2012 WL 4891617, at *6 (E.D.N.Y. Oct. 9, 2012). Thus, the Court will consider the facts contained in the Amended Complaint only, not the declarations attached to plaintiffs' opposition memo or facts introduced for the first time in a party's brief.
DISCUSSION
"The NYLL largely adopts the same standard as the FLSA with respect to overtime compensation, i.e., a covered employee must 'be compensated at a rate of no less than one and one-half times the regular rate of pay for any hours worked in excess of forty per week'" and claims under both statutes rely upon the same facts, Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 43 (E.D.N.Y. 2015) (quoting Nakahata v. N.Y.-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200 (2d Cir. 2013)). Because the Court finds that Plaintiffs adequately plead their FLSA overtime claims, the Court will retain supplementary jurisdiction over Plaintiff's state-law overtime claims under the NYLL. See 28 U.S.C. § 1367 ("The district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy . . . ."); Lundy v. Catholic Health Sys. of Long Island, Inc., 711 F.3d 106, 118 (2d Cir. 2013) (finding the "exercise of supplemental jurisdiction" in FLSA cases over NYLL overtime claims "entirely consistent with this Court's precedent").
FLSA requires employers to compensate their employees at an overtime rate of one-and-one-half times their regular hourly rates for all hours worked in excess of forty hours per week. See 29 U.S.C. § 207(a)(1). Defendant argues that Plaintiffs have not adequately pleaded their FLSA unpaid overtime claims under a trio of recent Second Circuit decisions applying the Twombly/Iqbal pleading standard to FLSA overtime claims. See Lundy v. Catholic Health Sys. of Long Island, Inc., 711 F.3d 106 (2d Cir. 2013); Nakahata v. N.Y.-Presbyterian Healthcare Sys., Inc., 723 F.3d 192 (2d Cir. 2013); DeJesus v. HF Mgmt. Servs ., LLC, 726 F.3d 85 (2d Cir. 2013). The Court disagrees.
Only Plaintiff Lamarr-Arruz, individually and on behalf of the putative collective action, brings FLSA overtime claims.
In Lundy, the Second Circuit held that, "in order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours." Lundy, 711 F.3d at 114. The Court did not require plaintiffs to state a specific calendar week (i.e., the week of October 2) in which they worked over 40 hours and were not compensated for additional overtime. Id. Rather, the Second Circuit held that plaintiffs must sufficiently allege that the instances in which they worked at least 40 hours and the instances in which they performed additional unpaid work coincided in the same week. Id.; see also, e.g ., Perry v. City of New York, No. 13-CV-1015 (JMF), 2013 WL 6641893, at *3 (S.D.N.Y. Dec. 17, 2013) (denying motion to dismiss where plaintiffs allegations showed that, for 35 weeks in the year, they worked unpaid overtime).
The Second Circuit applied this principle in both Lundy and Nakahata. In Lundy, the plaintiffs alleged that they sometimes worked more than 40 hours per week. 711 F.3d at 110-13. The plaintiffs also alleged that they sometimes performed work that went uncompensated. Id. But the plaintiffs neither alleged that they were underpaid for the weeks in which they worked overtime, nor that they worked overtime in the weeks for which they were underpaid. Id. at 114-15. Similarly, in Nakahata, the plaintiffs flatly alleged that they "regularly worked hours both under and in excess of forty per week and were not paid for all of those hours." 723 F.3d at 199. Like the plaintiffs in Lundy, however, the plaintiffs in Nakahata failed to allege that any of that unpaid work occurred during weeks in which the plaintiffs worked more than 40 hours. 723 F.3d at 201. In both cases, the plaintiffs failed to state claims for relief, because the district courts could not have plausibly determined that the plaintiffs worked unpaid overtime hours without having to "speculat[e]" about how the work hours converged. Lundy, 711 F.3d at 115; see also Nakahata, 723 F.3d at 201 n.10.
See also Burns v. Haven Manor Health Care Ctr., LLC, No. 13-CV-5610 (DLI), 2015 WL 1034881 (E.D.N.Y. Mar. 10, 2015) (refusing to "engage in [the] sheer speculation" required to find that plaintiff's "distinctly pleaded claims" of "three time keeping practices converged during one particular week"); Cromwell v. N.Y.C. Health & Hosps. Corp., No. 12-CV-4251 (PAE), 2013 WL 2099252 (S.D.N.Y. May 15, 2013) (dismissing FLSA overtime claim, because the plaintiff failed to allege that a week in which he worked over 40 hours coincided with a week in which he worked unpaid hours).
Plaintiffs need not specify exactly how many unpaid overtime hours they worked, but they must "provide sufficient detail about the length and frequency of their unpaid work to support a reasonable inference that they worked more than forty hours in a given week." Nakahata, 723 F.3d at 201 & n.10; see also Lundy, 711 F.3d at 115. Neither Lundy nor Nakahata, then, provide support for dismissal where, as here, the complaint specifically alleges that plaintiffs were required to perform uncompensated work during weeks when they worked at least 40 hours. (See Compl. ¶ 19, 21.)
Defendant's reliance on Dejesus is equally misplaced. There, the Court faced a plaintiff's bare-bones complaint that "provided less factual specificity than did the [complaints] in Lundy or Nakahata," in that it "did not estimate [plaintiff's] hours in any or all weeks or provide any other factual context or content" aside from essentially repeating FLSA's language that "in 'some or all weeks' she worked more than 'forty hours' a week without being paid." Dejesus, 726 F.3d at 89. While plaintiffs in this case are forthright that they "generally"—but not unfailingly—worked 40 hours per week, (Compl. ¶ 16), that statement is merely the basis for their claim, not, like in Dejesus, the full extent of it. Here, plaintiffs also allege with sufficient specificity (1) the frequency of their weekly and monthly off-the-clock work, (id. ¶¶ 19, 21), (2) the approximate length of the weekly meetings, (id. ¶ 19), and (3) that these unpaid weekly and monthly meetings took place during weeks when plaintiffs worked at least 40 paid hours, (id. ¶¶ 19, 21). Thus, the Court need not engage in any speculation to determine that Plaintiffs allege that they went undercompensated in weeks in which they worked more than 40 hours.
Nor must the Court simply rely, as defendant suggests, on the complaint's say-so "that Plaintiffs 'regularly worked and continue to work in excess of forty (40) hours per workweek." (Def. Mem. at 7.) Even relying upon the lowest estimates as provided in the complaint, which for the purposes of a motion to dismiss, this Court must accept as true, Galiano, 684 F.3d at 311: Plaintiffs sometimes worked 40 paid hours in a week, (Compl. ¶ 16); every week had at least two unpaid telephone calls, some of which lasted 30 minutes or longer, (id. ¶¶ 18-19); and at least twice a month attended unpaid meetings, (id. ¶ 21). Given that off-the-clock calls were held every week, the Court need only apply its "common sense," Iqbal, 556 U.S. at 679, to see that there logically must have been at least one week during which plaintiffs worked 40 hours on the clock and were required to participate in at least two phone calls off the clock. Even without inferring the likelihood that such events also coincided with a week during which plaintiffs were required to attend unpaid meetings, the complaint plainly sets forth a plausible FLSA overtime claim.
If the Court were to dismiss Plaintiffs' FLSA overtime claims here, it would essentially require Plaintiffs to "keep careful records and plead their hours with mathematical precision." Dejesus, 726 F.3d at 90. That is not what the Second Circuit demands. See id. Instead, the Second Circuit demands that plaintiffs draw on their "memory and experience" to allege, with "sufficiently developed factual allegations," that there were some weeks in which they worked unpaid overtime. Id.; see also Nakahata, 723 F.3d at 201 n.10. Plaintiffs have done so. For this reason, defendant's motion to dismiss the FLSA overtime claims is denied.
II. NYLL § 191 Claims
Plaintiffs have failed to state a claim under NYLL § 191, which governs the frequency of payments according to which employers must pay their workers. Section 191 sets out different rules for manual workers, railroad workers, salespeople working on commission, and clerical and other workers. Plaintiffs fit best within the last category, which includes everyone not included in the other lists. See N.Y. Lab. Law § 190 (McKinney) (defining the categories); see also Compl. ¶ 12 (relying on the pay period applicable to latter category). Section 191(d) provides that "clerical and other worker[s] shall be paid the wages earned in accordance with the agreed terms of employment, but not less frequently than semi-monthly, on regular pay days designated in advance by the employer." N.Y. Lab. Law § 191.
Plaintiffs allege three violations of § 191, which, as clarified at oral argument, only seek recovery for (1) off-the-clock work by Plaintiffs that was not in excess of 40 hours in a week and (2) the difference between (a) the amount that Plaintiffs were allegedly owed by virtue of their contract with Defendant and (b) the minimum wage. That is, Plaintiffs seek compensation for "gap-time" or unpaid "straight-time" worked. They neither seek, under § 191, to recover unpaid minimum wages (for off-the-clock work up to 40 hours in weeks when they worked less than 40 hours on the clock), nor unpaid overtime wages (for any off-the-clock work done in excess of 40 hours per week). Thus, their sole claim under § 191 is that, for weeks when they worked less than 40 hours on the clock but worked additional off-the-clock hours up to 40 hours, they are entitled to the amount of payment above the minimum wage that their employment contract with defendant would have entitled them (as well as liquidated damages, prejudgment interest, fees and costs).
To explain in simplified numerical terms, if the minimum wage was $8 per hour and their employment contract promised S10 per hour, Plaintiffs seek only the $2 per hour difference for any off-the-clock work that they performed up to 40 hours per week. Thus, if plaintiffs worked 35 hours on the clock and 5 hours off the clock, they would be entitled, under their theory, to $10 extra compensation under § 191 (5 hours x $2 difference between contract wages and minimum wage). --------
All three of Plaintiffs' alleged violations of § 191 rely on the premise that failure to pay part of an earned wage amounts to a § 191 violation, because that part of the wage—by not being paid at all—is by definition not being paid on time. First, Plaintiffs allege that, by failing to pay Plaintiffs for their off-the-clock work, Defendant violated § 191 because Plaintiffs were not paid the wages "in accordance with the agreed terms of employment," or, in other words, their full wages for all hours actually worked. (Compl. ¶ 9.) Second, Plaintiffs allege that the payments that were provided were incomplete, because they left out payment for off-the-clock work, and thus that Defendant violated § 191 by not making the (full) wage payments "not less frequently than semi-monthly." (Compl. ¶ 13.) Finally, Plaintiffs allege that Defendant violated § 191 when it failed to pay Plaintiffs who were "separated" (i.e., terminated or fired) their full wages by their final payday, given that they were not paid for their off-the-clock work. (Compl. ¶ 9.)
These allegations fail to state a claim under § 191. Plaintiffs do not allege that their paychecks were sent to them in an untimely manner, but rather that the timely paychecks did not include all the money that Plaintiffs allege they were owed. (Compl. at 13-15.) Courts in this Circuit, relying on New York State cases, have held that § 191 "is 'an inappropriate vehicle for . . . recovery' where 'the gravamen of plaintiffs' complaint is that the sums paid were not equal to what plaintiffs claim they were entitled to receive,' and the plaintiff has not otherwise pleaded that payments were untimely." Kone v. Joy Constr. Corp., No. 15-CV-1328 (LTS), 2016 WL 866349, at *4 (S.D.N.Y. Mar. 3, 2016) (quoting Jara v. Strong Steel Door, Inc., 20 Misc. 3d 1135(A), No. 14643/05, 2008 WL 3823769, at *12 (N.Y. Sup. Ct. Aug. 15, 2008)). The Second Circuit itself has noted that § 191, "by its terms[,] only involves the timeliness of wage payments, and does not appear to afford to plaintiffs any substantive entitlement to a particular wage." Myers v. Hertz Corp., 624 F.3d 537, 545 (2d Cir. 2010). The Second Circuit is "somewhat doubtful therefore that § 191 is the appropriate vehicle to seek" wages that the plaintiffs claim were never paid; "Section 191 guarantees plaintiffs only timely payment of 'wages earned in accordance with the agreed terms of employment.'" Id. at 545 n.1 (quoting N.Y. Labor Law § 191). In Myers, the sole basis for the plaintiffs' § 191 claim, as stated in their complaint, was that "[b]y wrongfully and deliberately not paying Plaintiff and the class members the overtime wages they were entitled to under the FLSA and New York Labor Law, [Defendant] has violated New York Labor Law § 191." Id. at 546. The plaintiffs there never "alleged that overtime payments were part of the 'agreed terms' of their employment with [Plaintiff]." Id. at 545 n.1 (quoting N.Y. Labor Law § 191).
Plaintiffs here argue that Myers is distinguishable, because Plaintiffs claims arise from wages "set by agreement between Plaintiffs and CVS." (Opp. Mem. at 13 n.1.) Thus, they argue, § 191 merely provides a statutory remedy to the substantive right owed to them by virtue of their contracts with Defendant. (Id.)
The Court agrees with Plaintiffs that both Kone and Myers could be read to stand only for the proposition that a party cannot state a claim under § 191 based on conduct that independently violates another section of the NYLL (such as failure to pay overtime or minimum wage). In Kone, for example, the court specified that the plaintiffs' only allegation regarding § 191 was that they were not paid wages that they claimed "they were entitled by statute rather than the amounts that the employer had in fact agreed to pay." Kone, 2016 WL 866349, at *4 (emphasis added). Likewise, in Myers, the Second Circuit opined that § 191 was not intended to provide a cause of action for plaintiffs to "seek unpaid wages to which they claim to be entitled under a statute." Myers, 624 F.3d at 545 n.1 (emphasis added). Thus, these cases do not rule out Plaintiffs' view that an action may lie under § 191 where the right to the wage springs from "the agreed terms of employment."
More recent cases in this circuit, however, have squarely addressed this issue and have determined that § 191 is not the appropriate vehicle for recovering unpaid contract wages above the statutory minimum wage. See Gaughan v. Rubenstein, No. 16-CV-8062 (PAE) (KHP), 2017 WL 2964710, at *16 n.6 (S.D.N.Y. May 23, 2017), report and recommendation adopted, No. 16-CV-8062 (PAE) (KHP), 2017 WL 2964818 (S.D.N.Y. July 11, 2017) ("To the extent that Plaintiffs' claim for untimely payment of wages [under § 191] is premised upon her allegation that she was not compensated for the work she performed for Radwan, such a claim is only actionable as a claim for unpaid minimum wage and overtime compensation, and cannot be recast as a duplicative claim for untimely payment of wages."); Perez-White v. Advanced Dermatology of N.Y. P.C., No. 15-CV-4858 (PGG), 2016 WL 4681221, at *11 (S.D.N.Y. Sept. 7, 2016) (finding that the plaintiff, who was not timely paid her balance of contract wages upon her termination, had not stated a claim under § 191 where "the gravamen of her claim is that Defendants 'failed to provide [her] with full payment'"); Thind v. Healthfirst Mgmt. Servs., LLC, No. 14-CV-9539 (LGS), 2015 WL 4554252, at *5 (S.D.N.Y. July 29, 2015) (concluding that § 191 does not support a cause of action for recovery of unpaid hours at the regular rate of pay); Gurung v. Malhotra, 851 F. Supp. 2d 583, 590 (S.D.N.Y. 2012) (noting that the "Second Circuit has expressed doubt . . . as to whether NYLL § 191 provides a remedy for unpaid wages, as opposed to wages not timely paid" and rejecting the plaintiff's contention that §191 "entitle[d] her to collect unpaid wages at the contract, rather than just the statutory minimum wage, rate for the hours she worked"). Indeed, the Second Circuit has noted that § 191 concerns the "[w]holesale withholding of wages," which would appear to exclude Plaintiff's claims here that they were paid some, but not all, the wages to which they were entitled. Goldberg v. Jacquet, 667 F. App'x 313, 314 n.1 (2d Cir. 2016).
The Court finds these interpretations persuasive. First, to the extent that Myers and Kone found that § 191 was unavailable where another section of the NYLL provides independent redress for the underpayment, the Court notes that a traditional breach of contract claim is the more obvious means by which a party can seek redress for a failure to pay contractually mandated wages. See Gurung, 851 F. Supp. 2d at 590 (holding that plaintiff "need not rely on NYLL § 191 because she is entitled to recover these damages on a contract theory alone, inasmuch as her employment contract unambiguously states that [she] will be paid" a given wage); Cowell v. Utopia Home Care, Inc ., 144 F. Supp. 3d 398, 405 (E.D.N.Y. 2015) (plaintiff states a breach of contract claim for unpaid wages by alleging failure to pay agreed-upon hourly wage for non-overtime off-the-clock work). Plaintiffs, however, do not state a claim for breach of contract in their complaint; rather, their sole contention as it relates to § 191 is that "[a]s a result [of the failure to pay Plaintiffs for off-the-clock work], Defendant violated [NYLL] for failure to pay wages." (Compl. ¶ 1.)
Second, the Court notes that this interpretation appears to provide the more natural reading of § 191, which is titled "Frequency of payments." It would seem odd, indeed, that a section so-titled would, as Plaintiffs would have it, be intended as the catch-all to provide a remedy for non-payment of contractual (as opposed to statutory) wages that are not otherwise covered by the NYLL. See, e.g., Bhd. of R. R. Trainmen v. Balt. & Ohio R. Co ., 331 U.S. 519, 529 (1947) ("For interpretative purposes, [statute headings] are of use only when they shed light on some ambiguous word or phrase."). Given the subject matter of the section, the Court doubts Plaintiffs' implication that § 191's mandate that employees "shall be paid the wages earned in accordance with the agreed terms of employment" is in reference to the substantive wages established per the "agreed terms" of the contract. Rather, in light of the modifying phrase that follows it ("but not less frequently than semi-monthly"), the phrase "in accordance with the agreed terms of employment" more likely refers to a time period for payment set in the contract (which can be more frequent, but not less frequent than bi-monthly), rather than to the substantive terms of the contract ( like the wage amount). Plaintiffs' broader interpretation would unduly expand the reach of a section that is plainly directed to address the more discrete matter of payment timing. See, e.g., Yates v. United States, 135 S. Ct. 1074, 1085 (2015) ("[W]e rely on the principle of noscitur a sociis—a word is known by the company it keeps—to 'avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of Congress.'" (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995))).
Finally, while Plaintiffs asserted at oral argument that their salary was above the minimum wage, such that they could turn to § 191 for recovery of the difference between the NYLL's minimum wage guarantee, see N.Y. Lab. Law §§ 652, 673, and the full value of their contract, Plaintiffs do not adequately plead such a contract. The only factual allegations that Plaintiffs make is that they "were paid on an hourly basis," (Compl. ¶ 16), that they "should have been paid at their regular hourly rate," (id. ¶ 23), and that they were not paid "in accordance with the agreed upon terms of their employment," (id. at 13, ¶ 9). None of these allegations sufficiently plead either that (1) Plaintiffs actually entered into a contract with Defendant (as opposed to, for instance, simply working at-will according to the minimum conditions set by the NYLL), or (2) that any contract between the parties set out wages that exceeded the prevailing minimum wage, such that the excess over the minimum wage could be recoverable under Plaintiffs' view of § 191. Given that this Court "will not consider any fact raised for the first time in the opposition papers as a well-pleaded allegation for purposes of the motion to dismiss," Small Bus. Bodyguard, Inc. v. House of Moxie, Inc ., No. 14-CV-7170 (CM), 2014 WL 5585339, at *3 (S.D.N.Y. Oct. 30, 2014) (citing Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998)), Plaintiffs have pleaded no substantive right to unpaid wages other than those granted by FLSA and NYLL, which on their own do not provide a basis for a claim under § 191. See Myers, 624 F.3d at 545 & n.1; Kone, 2016 WL 866349, at *4 ("Section 191 provides no independent recourse for such an alleged failure to pay statutorily-required additional amounts.").
Accordingly, the Court grants Defendant's motion regarding Plaintiffs' § 191 claims and dismisses Plaintiffs' third, fourth, and fifth causes of action.
III. NYLL § 193
Because Plaintiffs consent to the dismissal of their claims under § 193, (Opp. Mem. at 14 n.5), Defendant's motion to is granted as to Plaintiffs' claims under § 193, and Plaintiffs' sixth cause of action is dismissed.
CONCLUSION
For these reasons, the Court grants Defendant's motion in part and denies it in part. Defendant's motion to dismiss is denied as to Plaintiffs' FLSA and NYLL overtime claims, but is granted as to Plaintiffs' claims under NYLL §§ 191 and 193. The Clerk of Court is directed to enter judgment accordingly. SO ORDERED. Dated: September 29, 2017
Brooklyn, New York
/s Carol Bagley Amon
Carol Bagley Amon
United States District Judge