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granting motion to dismiss where plaintiffs alleged no specific facts outside recitation of elements of economic reality rest
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12 Civ. 9044 (CM)
10-08-2013
ABEL BRAVO, on behalf of himself, FLSA Collective Plaintiffs, and the class, Plaintiffs, v. ESTABLISHED BURGER ONE LLC, ESTABLISHED BURGER TWO LLC, ESTABLISHED BURGER THREE LLC, ESTABLISHED BURGER FOUR LLC, ESTABLISHED BURGER FIVE LLC, PHILIP SCOTTI, ARNOLD PENNER, JOHN MURPHY GOOD BURGER INC., 636 LEXINGTON AVENUE RESTAURANT CORP., 43RD STREET REST. LLC, UNION SQUARE BURGER CORP., PEARL MAIDEN BURGER INC., 45TH STREET BURGER CORP., NIKOLAOS TSOULOUS, NIKOLAOS PASHALIS, SHANEEZA MOHAMMAD, TOM GIALAMBOUKIS Defendants.
DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
Introduction
Abel Bravo ("Bravo"), Martin Allende ("Allende"), Sergio Cerqueda ("Cerqueda"), and Jose Alberto Martinez ("Martinez"), bring this action against Established Burger One LLC, Established Burger Two LLC, Established Burger Three LLC, Established Burger Four LLC, and Established Burger Five LLC (collectively the "Established Burger Corporate Defendants"), Philip Scotti, Arnold Penner, and John Murphy (the "Established Burger Individual Defendants," and together with the Established Burger Corporate Defendants, the "Established Burger Defendants") and against Good Burger Inc., 636 Lexington Avenue Restaurant Corp., 43rd Street Rest. LLC, Union Square Burger Corp., Pearl Maiden Burger Inc., 45th Street Burger Corp., (collectively the "Good Burger Corporate Defendants") and Nikolaos Tsoulous, Nikolaos Pashalis, Shaneeza Mohammad, and Tom Gialamboukis (the "Good Burger Individual Defendants," and together with the Good Burger Corporate Defendants, the "Good Burger Defendants").
Plaintiffs bring claims under the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL") as a putative collective and class action. Defendants move to dismiss.
Background
I. The "Goodburger" Restaurants
For the purposes of a motion to dismiss, all allegations in the Complaint are taken as true. Plaintiffs are kitchen staff and delivery people for "Goodburger" restaurants. Five Goodburger restaurants have been operated by Established Burger Defendants since July 2012. (SAC ¶ 13(a)). The Established Burger Individual Defendants are the principals of the Established Burger Corporate Defendants. (SAC ¶ 12(a)). The Established Burger Defendants acquired the Goodburger restaurants from the Good Burger Defendants in July 2012. (SAC ¶ 13(a)). The Good Burger Individual Defendants are the principals of Good Burger Corporate Defendants. (SAC ¶ 12(b)).
The Established Burger Defendants currently operate five locations in New York City, at 636 Lexington Avenue, 800 2d Avenue, 870 Broadway, 101 Maiden Lane, and 977 8th Avenue. (SAC ¶ 13(a)). Previously the Good Burger Defendants had operated at least one additional restaurant at 23 West 45th Street in New York City. (SAC ¶ 13(c)).
Prior to the sale, the Good Burger Defendants jointly advertised on the website www.goodburgerny.com, marketed the restaurants as one entity, used the same menus at all the locations, moved employees and food among the restaurants, and paid the employees using the same payroll methods from a central office. (SAC ¶ 13(c)). Following the acquisition in August 2012, the Established Burger Defendants continued these same practices, as well as retaining all the employees. (SAC ¶ 13(b)).
Prior to the August 2012 acquisition, the Good Burger Individual Defendants exercised control over the terms and conditions of Plaintiffs' employment: They each exercised power to fire and hire, determine rate and method of pay, determine employee work schedules, maintain employee records, and otherwise affect the quality of employment. Following the acquisition, the Established Burger Individual Defendants similarly exercised control over the terms and conditions of Plaintiffs' employment: They each exercised power to fire and hire, determine rate and method of pay, determine employee work schedules, maintain employee records, and otherwise affect the quality of employment.
II. The Plaintiffs
Plaintiff Bravo was hired to work at the 870 Broadway Goodburger location in February 2008. (SAC ¶ 29). Bravo also worked at the 800 2nd Avenue location. (SAC ¶ 29). Although Bravo was retained by the Established Burger Defendants when they acquired the Goodburger restaurant in August 2012, he was subsequently terminated in on November 5, 2012. (SAC ¶ 29). (SAC ¶ 30). Bravo originally made $11 an hour, but in December 2011 he was promoted to the position of kitchen manager and made $900 a week; however, there was no agreement that this salary covered overtime. (SAC ¶ 31). Other "kitchen managers" were compensated in the same manner. (SAC ¶ 31).
Plaintiff Martinez was hired in February 2009 to work as a delivery person at the West 45th Street Goodburger restaurant. (SAC ¶ 33). In addition, Martinez worked at the 870 Broadway restaurant. (SAC ¶ 33). Martinez was a tipped employee and received an hourly wage of $5.65 per hour. (SAC ¶ 35). Martinez was terminated in December 2011.
Plaintiff Cerqueda was hired as delivery person in June 2008 to work at the 870 Broadway Goodburger. (SAC ¶ 37). Cerqueda also worked at the 23 West 45th Street, 101 Maiden Lane, and the 800 2nd Avenue locations. (SAC ¶ 37). Cerqueda worked at all these locations until he was terminated in November 2011. (SAC ¶ 37). Cerqueda received an hourly rate of $7.50 for hours 8am to 1 lam and $5.00 per hour for the hours between 11am and 4:30pm. (SAC ¶ 38).
Plaintiff Allende was hired in November 2008 to work as a delivery person at the 870 Boradway Goodburger restaurant. (SAC ¶ 39). Allende also worked at the 23 West 45th Street Goodburger. (SAC ¶ 39). Allende had an hourly rate of $5.65 per hour, and was a tipped employee. (SAC ¶ 40). Allende's employment was terminated in November 2012. (SAC ¶ 39).
Bravo's, Martinez's, and Allende's schedules were set by Defendant Pashalis, who also hired and fired employees, distributed their checks, and dealt with employee complaints. (SAC ¶¶ 32, 36, 41). Both Bravo and Martinez observed that Defendant Gialamboukis would check in on the restaurants daily to see if there were problems with the employees. (SAC ¶ 37). Additionally Martinez was told that he would have to talk to Defendant Gialamboukis if he wanted more hours. (SAC ¶ 36).
All of the Plaintiffs would were required to purchase their uniforms with the Goodburger logo on them. (SAC ¶ 42). Plaintiffs were required to pay between $5 and $25 for hats, t-shirts, and jackets, which made up their Goodburger uniform. (SAC ¶ 42). This policy was discontinued in May of 2012.
All the named Plaintiffs worked over 40 hours a week, and Bravo and Martinez regularly worked over 10 hours a day.
III. Procedural History
On December 12, 2012, the Plaintiff Bravo filed the Complaint against the Established Burger Defendants alleging violations of the FLSA and NYLL. On February 26, 2013, Plaintiff Bravo filed the First Amendment Complaint which asserted the same claims, now against both the Good Burger Defendants and the Established Burger Defendants.
On March 19, 2013, the Good Burger Defendants moved to dismiss the First Amended Complaint. Later, on April 3, 2013, the Established Burger Defendants also moved to dismiss the First Amended Complaint.
On April 1, 2013, Plaintiffs Allende, Martinez, Cerqueda joined the lawsuit as opt-in claimants. At the same time Plaintiffs filed a motion to certify for conditional certification of the FLSA collective, and requested leave file a second amended complaint by April 30, 2013 "to add the new claimants and their additional claims" by April 30, 2013, and requesting that the Court "terminate Defendants' outstanding motion to dismiss, subject to renewal pending Plaintiffs' filing of an amended Complaint."
On April 2, 2013, in response to the Plaintiffs' request for leave to amend the complaint, this Court ordered: "(1) If [the additional claimants] have timely opted in, there is no need to amend the complaint. (2) I cannot terminate the motion to dismiss. But if no answer has been filed you can amend at any time to add the plaintiffs to the caption, ought not take 30 days."
On April 11, 2013, the Good Burger Defendants and the Established Burger Defendants each sent letters to this court opposing Plaintiffs' request to amend their complaint. On the same day, the Plaintiffs also sent a letter arguing that they did not need consent from the Defendants' to file an amended complaint since this Court had already authorized it.
On April 15, 2013, in response to the party's letters, this Court issued three orders. In response to the Established Burger Defendants' letters this Court wrote: "The only thing 1 have authorized is the addition of the new plaintiffs, I will NOT allow a second amendment to assert new claims while a motion to dismiss is pending."
Similarly, in response to the Good Burger Defendants' letter, this Court wrote: "See my earlier order and letter—I have authorized a 2d Am Cplt to add new parties only."
In response to the Plaintiffs' letter, the Court's order stated that it was "correct" that the Plaintiffs did not need Defendants' consent to file a second amended complaint, because the Court had already authorized it. This Court also wrote: "I have already told you—you can add new named plaintiffs. So just do it."
On May 24, 2013, Plaintiffs filed a Second Amended Complaint, which added the three opt-in claimants as named Plaintiffs. The Second Amended Complaint also asserted new claims that related specifically to these new plaintiffs.
In response to the Second Amended Complaint, both the Good Burger Defendants and the Established Burger Defendants moved to dismiss the Second Amended Complaint. These motions to dismiss are currently before the Court.
IV. The First Amended Complaint
The First Amended Complaint filed by Bravo brought claims under the FLSA and the NYLL. On behalf of a FLSA Collective Bravo alleged that Defendants failed to pay overtime for hours worked above 40 hours a week.
Bravo additionally brought claims under the NYLL, on behalf a putative class which consists of all non-exempt person employed by the Defendants for the six years prior to the filing of the complaint. Plaintiff alleged that the Defendants violated NYLL by failing to pay overtime compensation and "spread of hours" premium, by providing insufficient wage statements to the class members, by failing to provide wage and hour notice to the class members, and by paying non-exempt employees on a salary rather than hourly basis.
V. The Second Amended Complaint
In addition to the claims in the First Amended Complaint, the Second Amend Complaint asserted new claims on behalf of the newly added named plaintiffs who were all "tipped employees," as opposed to Bravo, who was a "fixed-salary employee." The new claims were brought on behalf of other "tipped employees."
Under the FLSA, and on behalf of FLSA Collective, Plaintiffs alleged the Defendants failed to pay the minimum wage because that the Defendants were not entitled to take a tip credit since they did not provide adequate notice and shared tips with non-tipped employees.
Under the NYLL, on behalf of a putative class of tipped employees, Plaintiffs claim that defendants failed to pay the minimum wage because they were not entitled to take a tip credit since they failed to provide notice pursuant to the NYLL, failed to provide proper wage statements, required tipped employees to engage in non-tipped duties, and shared tips with non-tipped employees. Additionally, Plaintiffs claimed that the Defendants violated NYLL by failing to provide uniforms free of charge.
Discussion
I. The Defendants' Motions to Dismiss are Granted in Part and Denied in Part
The Good Burger Defendants move to dismiss Plaintiffs' Second Amended Complaint on the grounds that the newly asserted claims exceed the scope of the leave to amend and that it fails to allege an employment relationship between Plaintiff and any of the Good Burger Defendants. The Established Burger Defendants move to dismiss the Plaintiffs' Second Amended Complaint against all but Established Burger Three, LLC, and Established Burger Five, LLC for the same reasons. For the reasons set forth below, the motions are granted in part and denied in part.
A. Legal Standard for Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a complaint that "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When ruling on such a motion, the court must "accept the material facts alleged in the complaint as true" and "draw[] all reasonable inferences from its allegations in favor of the plaintiff." Lee v. Sony BMG Music Entm't, Inc., 557 F. Supp. 2d 418, 423 (S.D.N.Y. 2008).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . 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)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotations, citations and alterations omitted). This means that the complaint must assert "enough facts to state a claim to relief that is plausible on its face." Id. at 570. Thus, unless a plaintiff's well-pleaded allegations have "nudged [his] claims across the line from conceivable to plausible, [the plaintiff's] complaint must be dismissed." Id.; Iqbal, 556 U.S. at 680.
B. The Claims Asserted for the First Time in the Second Amended Complaint Are Dismissed
Both sets of Defendants move to dismiss the claims asserted in the Second Amended Complaint on the grounds that they exceed this Court's leave to amend. Because the newly asserted claims are different claims, on behalf of a different class, and because the Plaintiffs exceeded the scope of the Court's orders, the newly asserted claims are dismissed.
The Second Circuit recently recognized that "District courts in this Circuit have routinely dismissed claims in amended complaints where the court granted leave to amend for a limited purpose and the plaintiff filed an amended complaint exceeding the scope of the permission granted." Palm Beach Strategic Income, LP v. Salzman, 457 Fed.Appx. 40, 43 (2d Cir. 2012) (citing cases). The power to dismiss claims that exceed a leave to amend stems from the Court's inherent authority. See Wilson v. Pasquale's DaMarino's, Inc., No. 10 Civ. 2709 (PGG), 2013 WL 1195603, at *5 (S.D.N.Y. Mar. 24, 2013) ("Courts' inherent powers include the power to dismiss a party's claims and to strike a party's pleadings for failure to obey court orders."); Hirsch v. Pabusta, No. 11 Civ. 04986, 2013 WL 18566576, at *2 ("Consistent with that inherent authority, applicable law explicitly empowers a district court, in the exercise of its sound discretion, to dismiss an action "[i]f the plaintiff fails . . . to comply with these rules or a court order." (quoting Lewis v. Rawson, 564 F.3d 569, 575 (2d. Cir. 2009)).
Through a series of orders, this Court was very clear that the Plaintiffs could amend their complaint only to add new parties on the same claims already asserted. Instead, the Plaintiffs Second Amended Complaint asserts totally different claims, on behalf of an entirely new class of "tipped plaintiffs." These claims not only exceed this Court's leave to amend, but should brought as a separate lawsuit. Therefore, the claims are dismissed. To the extent they are not time barred they are dismissed without prejudice. Should counsel file a new action on behalf of a class of tipped employees this Court will not accept the case as related.
C. The Motions to Dismiss Claims Against the Established Burger Individual Defendants and Defendants Mohammad and Tsoulous are Granted
Both groups of Defendants move to dismiss the remaining claims on the grounds that Plaintiffs fail to allege that any of the Individual Defendants were their employer.
"To be liable under the FLSA and NYLL, a person must be an 'employer.'" Lopez v. Acme American Environmental Co., Inc., No. 12 Civ. 511(WHP), 2012 WL 6062501, at *3 (S.D.N.Y. Dec. 6, 2012) (citing Herman v. BSR Sec. Serv. Ltd., 172 F.3d 132, 139 (2d Cir.1999)). The FLSA defines an "employer" as "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). The NYLL uses the same definition of an employer. See Lopez, 2012 WL 6062501, at *3; Spicer v. Pier Sixty LLC, 269 F.R.D. 321, 335 n.13 (S.D.N.Y. 2010). The FLSA's definition of "employer" encompasses "an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons." See 29 U.S.C. §§ 203(a), (d).
"The 'overarching concern' in determining whether an entity is an 'employer' is whether the entity 'possessed the power to control the workers in question, with an eye to the economic reality presented by the facts of each case.'" See Lopez, 2012 WL 6062501, at *3 (quoting Herman, 172 F.3d at 139 (internal quotation marks and citations omitted)). "Thus, an entity may be held liable under the FLSA as an employer if, as a matter of 'economic reality,' the entity functions as an individual's employer." Perez v. Westchester Foreign Autos, Inc., No. 11 Civ. 6091(ER), 2013 WL 749497, at *6 (S.D.N.Y. Feb. 28, 2013) (citing Zheng v. Liberty Apparel Co., 355 F.3d 61, 66 (2d Cir. 2003)).
The Second Circuit has delineated a four factor "economic reality" test for determining whether an entity exercised "formal control" over an employee: "[T]he relevant factors include 'whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.'" Herman, 172 F.3d at 139 (quoting Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir.1984)); see also Lopez, 2012 WL 6062501, at *3; Perez, 2013 WL 749497, at *6.
Meeting the "economic reality" test however, is "sufficient but not necessary." Perez, 2013 WL 749497, at *6. "The 'economic reality' test encompasses the totality of the circumstances; the four factors are not exclusive, and no one of the factors standing alone is dispositive." Diaz v. Consortium for Worker Educ., Inc., No. 10 Civ. 01848(LAP), 2010 WL 3910280, at *2 (S.D.N.Y. Sept. 28, 2010) (citing Herman, 172 F.3d at 139). Therefore, "district courts are required to examine 'the circumstances of the whole activity . . . viewed in light of economic reality'" and are "free to consider any other factors it deems relevant to its assessment of the economic realities." Perez, 2013 WL 749497, at *6 (quoting Zheng, 355 F.3d at 71-72); see also Diaz, 2010 WL 3910280, at *2. Further, "whether a particular defendant can be considered a plaintiff's "employer" is a fact-specific inquiry." Perez, 2013 WL 749497, at *7. Thus, "on a motion to dismiss, the relevant inquiry is whether a defendant has been put 'on notice of the theory of employer liability.'" Perez, 2013 WL 749497, at *7 (quoting Addison v. Reitman Blacktop, Inc., 283 F.R.D. 74, 84 (E.D.N.Y. 2011)).
Plaintiffs allege that, prior to July 2012, each of the Good Burger Individual Defendants exercised control over the terms and conditions of Plaintiffs' employment by exercising power to fire and hire, determining rate and method of pay, determining employee work schedules, maintaining employee records, and otherwise affecting the quality of employment. Plaintiffs make the same allegations regarding the Established Burger Individual Defendants for the period after the July 2012 acquisition. Additionally, Plaintiffs allege that the Individual Defendants are all "Principals" of each of their respective Corporate Defendants. Aside from Defendants Pashalis and Gialamboukis, addressed below, there are no additional factual allegations directed at the other four individual defendants. Because these conclusory allegations alone are insufficient to satisfy the "economic reality test," the claims against the Established Burger Individual Defendants and Defendants Mohammad and Tsoulous are dismissed.
Courts in this circuit have held that "mere boilerplate allegations that an individual meets the various prongs of the economic reality test" are insufficient to survive a motion to dismiss. Diaz, 2010 WL 3910280, at *4 (S.D.N.Y. Sept. 28, 2010); Sampson v. MediSys Health Network, Inc., No. CV 10-1342(SJF)(ARL), 2012 WL 3027850, at * (E.D.N.Y. Feb. 9, 2012) adopted as modified by 2012 WL 3027838; Tracy v. NVR, Inc., 667 F.Supp.2d 244, 247 (W.D.N.Y. 2009). Similarly, the Supreme Court has directed that "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotations, citations and alterations omitted).
Here, Plaintiffs allege no specific facts, aside from the elements of the "economic reality test," to satisfy their pleading burden. The cases cited by the Plaintiffs are distinguishable, because in those cases plaintiffs alleged facts which indicated the defendants did in fact meet the economic reality test. For example, in Leal v. Masonry Services, Inc., No. 12-CV-588 (DLI)(VVP), 2013 WL 550668, at *2-3 (E.D.N.Y. Feb. 12, 2013), the court denied a motion to dismiss where in addition to alleging the bare elements of the economic reality test, the plaintiff asserted that the individual moving defendants were "owners, principal shareholders, and directors" of the corporate defendants, who "made major personnel decisions and dominated day-to-day operations" and that the plaintiff "worked under the[ir] direction." Similarly in Wilk v. VIP Health Care Servs., Inc., 2012 WL 5 60738, at *8 (E.D.N.Y. Feb. 21, 2012), the plaintiff provided factual allegations that the individual defendant exercised "operational control" over the plaintiff, rather than just reciting the elements of the "economic reality test."
Since Plaintiffs do not make any factual allegations directed at Defendants Tsoulous and Mohammad, or any of the Established Burger Individual Defendants, the claims against these defendants are dismissed.
D. The Motion to Dismiss Claims Against the Defendants Pashalis and Gialamboukis is Denied
Specific factual allegations are made regarding Defendants Pashalis and Gialamboukis. Two of the Plaintiffs allege that Pashalis set their schedule, distributed paychecks, and handled employee complaints. These factual allegations are sufficient to make it plausible that Pashalis exercised control over the Plaintiffs and was their employer.
Similarly, two of the Plaintiffs allege that Gialamboukis would check in on the restaurants, and one plaintiff alleged that when he asked for more work he was told that he would have to speak to Giamboukis. These factual allegations also similarly are sufficient to deny a motion to dismiss. The Plaintiffs Second Amended Complaints puts Defendants Pashalis and Gialamboukis on notice of the Plaintiff's theory of employment liability, which is the relevant inquiry on this motion to dismiss. See Perez, 2013 WL 749497, at *7. The motion to dismiss is denied as to Defendants Pashalis and Gialamboukis.
E. The Motions to Dismiss the Claims Against the Corporate Defendants Are Denied
The Good Burger Defendants argue that the Plaintiffs' claims against the Good Burger Corporate Defendants should be dismissed because Plaintiffs fail to allege that any of the Good Burger Corporate Defendants was Plaintiffs' employer. For the same reason, the Established Burger Defendants move to dismiss the claims against Established Burger One LLC, Established Burger Two LLC, and Established Burger Four LLC. Because the Plaintiffs allege the existence of a "single integrated enterprise" all the Corporate Defendants motions are denied.
"A 'single employer' situation exists where two nominally separate entities are actually part of a single integrated enterprise." Perez, 2013 WL 749497, at *7 (quoting Clinton's Ditch Coop. Co. v. NLRB, 778 F.2d 132, 137 (2d Cir.1985)). "There is well-established authority under [the single integrated enterprise] theory that, in appropriate circumstances, an employee, who is technically employed on the books of one entity, which is deemed to be part of a larger 'single-employer' entity, may impose liability for certain violations of employment law not only on the nominal employer but also on another entity comprising part of the single integrated employer." Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 198 (2d Cir.2005).
"In determining whether multiple defendants constitute a single employer, courts consider the following factors: (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control. Perez, 2013 WL 749497, at *7 (citing Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995). But, "companies that are part of an 'integrated enterprise' or 'engaged in a joint venture' may nevertheless employ separate people and, absent control, are not liable for the separate employees of joint ventures." Lopez, 2012 WL 6062501, at *4 (citing Camion v. Douglas Elliman, LLC, No. 06 Civ. 7092(NRB), 2007 WL 4358456, at *4 n. 3 (S .D.N.Y. Dec. 10, 2007)). But, despite alleging "an 'integrated enterprise,' Plaintiffs cannot escape their obligation under the FLSA to allege a relationship of control between the . . . Defendants and themselves." Lopez, 2012 WL 6062501, at *4.
Here, the Plaintiffs have sufficiently alleged that the Good Burger Corporate Defendants functioned as a "single integrated enterprise" prior to the July 2012 sale. Plaintiffs allege that the Good Burger Defendants jointly advertised on the website www.goodburgerny.com, marketed the restaurants as one entity, used the same menus at all the locations, moved employees and food among the restaurants, and paid the employees using the same payroll methods from a central office. Further, these allegations are supplemented by the allegations that several of the Plaintiffs worked at more than one, and as many as four different Goodburger locations. Finally, Plaintiffs allege common management, because Defendant Gialamboukis allegedly checked in on more than one of the restaurants. These factual allegations, taken as true, are sufficient establish all the Good Burger Corporate Defendants were the Plaintiffs' employers under the single enterprise theory.
Additionally, following the July 2012 acquisition, Plaintiffs allege that the Established Burger Corporate Defendants continued to operate the Goodburger restaurants as a common enterprise, and continued to jointly advertise on the website www.goodburgemy.com, marketed the restaurants as one entity, used the same menus at all the locations, moved employees and food among the restaurants, and paid the employees using the same payroll methods from a central office. This is sufficient to overcome the motion to dismiss. Obviously, Plaintiffs bear the burden of proving this is met down the road.
Conclusion
For the reasons set forth above, the motions to dismiss the claims against Philip Scotti, Arnold Penner, John Murphy Nikolaos Tsoulous, and Shaneeza Mohammad are granted. The motions to dismiss the claims against all the Corporate Defendants as well as Nikolaos Pashalis and Tom Gialamboukis are denied. The Clerk is directed to close out docket entries 17, 30, 46, and 53. Dated: October 8, 2013
/s/_________
U.S.D.J. [BY ECF TO ALL PARTIES]