     12-4565
     Dejesus v. HF Management Services, LLC


 1                   UNITED STATES COURT OF APPEALS

 2                       FOR THE SECOND CIRCUIT

 3                          August Term, 2012

 4   (Argued: April 30, 2013                  Decided: August 5, 2013)

 5                         Docket No. 12-4565

 6               -------------------------------------

 7                           RAMONA DEJESUS,

 8                        Plaintiff-Appellant,

 9                                - v -

10                    HF MANAGEMENT SERVICES, LLC,

11                         Defendant-Appellee.

12               -------------------------------------

13   Before:   JACOBS, Chief Judge, SACK, Circuit Judge, and
14             Rakoff, District Judge.*

15             The plaintiff appeals from a judgment of the

16   United States District Court for the Eastern District of New

17   York (Edward R. Korman, Judge) dismissing her claims under

18   the Fair Labor Standards Act and the New York Labor Law.       We

19   agree with the district court that the plaintiff failed to

20   allege adequately that she worked overtime without receiving

21   the compensation mandated by the statutes.


          *
            Judge Jed S. Rakoff, of the United States District
     Court for the Southern District of New York, sitting by
     designation.
 1            Affirmed.

 2
 3                           ABDUL K. HASSAN, Queens Village, New
 4                           York, for Plaintiff-Appellant.

 5                           SETH L. LEVINE (Scott B. Klugman, on
 6                           the brief), Levine Lee LLP, New York,
 7                           New York; Andrew P. Marks, Littler
 8                           Mendelson P.C., New York, New York,
 9                           for Defendant-Appellee.



10   SACK, Circuit Judge:

11            This is the third in a series of recent decisions

12   by this Court addressing the question of the adequacy of

13   pleadings alleging that defendant health-care companies

14   failed to pay their employees for overtime work as required

15   by the Fair Labor Standards Act ("FLSA"), 29 U.S.C.

16   § 207(a)(1).   See Nakahata v. New York-Presbyterian

17   Healthcare Sys., Inc., No. 11-0734, ___ F.3d ___, 2013 WL

18   3743152, 2013 U.S. App. LEXIS 14128 (2d Cir. July 11, 2013);

19   Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106

20   (2d Cir. 2013).   They each reflect a tension among, inter

21   alia, (1) the frequent difficulty for plaintiffs in such

22   cases to determine, without first having access to the

23   defendant's records, the particulars of their hours and pay

24   in any given time period; (2) the possible use by lawyers

25   representing plaintiffs in such cases of standardized, bare-

26   bones complaints against any number of possible defendants

                                   2
 1   about whom they have little or no evidence of FLSA

 2   violations for the purpose of identifying a few of them who

 3   might make suitable defendants -- which is to say, the

 4   ability to engage in "fishing expeditions"; and (3) the

 5   modern rules of pleading established by the Supreme Court in

 6   Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic

 7   Corp. v. Twombly, 550 U.S. 544 (2007).

 8                             BACKGROUND

 9            Ramona Dejesus was employed in the Borough of

10   Queens, New York, by HF Management Services, LLC

11   ("Healthfirst"), a company that provides support and

12   administrative services to not-for-profit health-care

13   organizations.   Dejesus brought the action that is the

14   subject of this appeal on March 15, 2012, in the United

15   States District Court for the Eastern District of New York,

16   claiming that Healthfirst failed to pay her overtime wages

17   under the FLSA and the New York Labor Law ("NYLL").

18             Dejesus alleged that she was a wage-earning

19   employee of Healthfirst for the three years preceding August

20   2011, during which time she promoted the insurance programs

21   Healthfirst offered and recruited members of the public to

22   sign up for Healthfirst's services.    Compl. ¶¶ 19-20.   As a

23   part of her wage agreement, Dejesus was entitled to receive

24   a commission for each person she recruited to join

                                   3
 1   Healthfirst's programs, in addition to her non-commission

 2   wage.   Id. ¶ 21.

 3             Dejesus also alleged that she worked more than

 4   forty hours per week during "some or all weeks" of her

 5   employment and, in violation of the FLSA, through April 2011

 6   was not paid at a rate of at least 1.5 times her regular

 7   wage for each hour in excess of forty hours.1   Id.   ¶ 24.

 8   She relied on the FLSA's provision stating that employers

 9   are not permitted to "employ any . . . employees . . . for a

10   workweek longer than forty hours unless such employee

11   receives compensation for his [or her] employment in excess

12   of [forty hours] at a rate not less than one and one-half

13   times the regular rate at which he [or she] is employed."

14   29 U.S.C. § 207(a)(1).2




         1
            Dejesus did receive overtime wages for her work
     after April 2011, but allegedly not for the nearly three
     years prior.
         2
             Section 207(a)(1) reads in its entirety:

         Except as otherwise provided in this section, no
         employer shall employ any of his employees who in any
         workweek is engaged in commerce or in the production of
         goods for commerce, or is employed in an enterprise
         engaged in commerce or in the production of goods for
         commerce, for a workweek longer than forty hours unless
         such employee receives compensation for his employment
         in excess of the hours above specified at a rate not
         less than one and one-half times the regular rate at
         which he is employed.
                                   4
 1            Dejesus also alleged that there were weeks in

 2   which she was paid for her overtime hours but in which

 3   Healthfirst "failed to include the commission payments in

 4   the calculation of [her] overtime pay."       Compl. ¶ 27.

 5            On May 7, 2012, Healthfirst filed a motion to

 6   dismiss pursuant to Rule 12(b)(6) of the Federal Rules of

 7   Civil Procedure, arguing that Dejesus was exempt from the

 8   overtime protections of the FLSA because she was an outside

 9   salesperson and that her claim was not properly stated.

10            The district court (Edward R. Korman, Judge)

11   granted the motion to dismiss.       Dejesus v. HF Management

12   Services., LLC, No. 12-cv-1298, 2012 WL 5289571, 2012 U.S.

13   Dist. LEXIS 152263 (E.D.N.Y. Oct. 23, 2012).       The court

14   explained that to properly state a claim, Dejesus was

15   required to allege that: "(1) she was an employee eligible

16   for overtime pay; and (2) that she actually worked overtime

17   without proper compensation."       Id. at *1, 2012 U.S. Dist.

18   LEXIS 152263, at *3.

19            The district court concluded that Dejesus had

20   satisfied neither requirement.       She had "fail[ed] to set

21   forth the precise position she held, any approximation of

22   the number of unpaid overtime hours worked, her rate of pay,

23   or any approximation of the amount of wages due."       Id. at

24   *2, 2012 U.S. Dist. LEXIS 152263, at *4.       Listing her duties

                                     5
 1   as a "promoter," Dejesus had not sufficiently alleged that

 2   she was an "employee" within the meaning of the FLSA; and

 3   adding a "sole allegation" that she worked more than forty

 4   hours "in some or all weeks," she had failed to make any

 5   approximation of her hours that would render her claim

 6   plausible rather than merely conceivable.     Id. at *2, 2012

 7   U.S. Dist. LEXIS 152263, at    *4-*5.   In arriving at its

 8   conclusions, the court relied on other district court

 9   decisions requiring plaintiffs to approximate overtime hours

10   allegedly worked.   Id. at *1, 2012 U.S. Dist. LEXIS 152263,

11   at *4.

12            The district court dismissed Dejesus's claims

13   without prejudice, providing her the opportunity to "replead

14   to correct the complaint's defects."     Id. at *2, 2012 U.S.

15   Dist. LEXIS 152263, at *5.    Dejesus chose not to replead,

16   disclaimed any intent to amend her complaint, and, instead,

17   on November 11, 2012, filed a notice of appeal.     By

18   disclaiming intent to amend, she rendered the district

19   court's otherwise non-final order "final" and therefore

20   immediately appealable.   See Slayton v. Am. Express Co., 460

21   F.3d 215, 224-25 (2d Cir. 2006).




                                    6
 1                                DISCUSSION

 2               I.    Governing Legal Standards

 3               "We review the District Court's dismissal of a

 4   complaint pursuant to Rule 12(b)(6) de novo, accepting all

 5   the factual allegations in the complaint as true and drawing

 6   all reasonable inferences in favor of the plaintiff."        Doe

 7   v. Guthrie Clinic, Ltd., 710 F.3d 492, 495 (2d Cir. 2013)

 8   (citation omitted).      The "complaint must [nonetheless]

 9   contain sufficient factual matter, accepted as true, to

10   'state a claim to relief that is plausible on its face.'"

11   Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

12   Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

13               "Threadbare recitals of the elements of a cause of

14   action, supported by mere conclusory statements, do not

15   suffice."    Id.    A complaint must therefore contain more than

16   "'naked assertion[s]' devoid of 'further factual

17   enhancement.'"      Id. (quoting Twombly, 550 U.S. at 557)

18   (alteration in original).      Pleadings that contain "no more

19   than conclusions . . .      are not entitled to the assumption

20   of truth" otherwise applicable to complaints in the context

21   of motions to dismiss.      Id. at 679.

22               II.    Whether Dejesus Adequately Alleged Overtime

23               We agree with the district court that Dejesus did

24   not plausibly allege that she worked overtime without proper

                                       7
 1   compensation under the FLSA, and on that basis, affirm the

 2   judgment of the district court.

 3            Section 207(a)(1) of the FLSA requires that "for a

 4   workweek longer than forty hours," an employee working "in

 5   excess of" forty hours shall be compensated for those excess

 6   hours "at a rate not less than one and one-half times the

 7   regular rate at which [she or] he is employed."   29 U.S.C. §

 8   207(a)(1).

 9            In Lundy v. Catholic Health System of Long Island,

10   711 F.3d 106 (2d Cir. 2013), we considered "the degree of

11   specificity" required to make a section 207(a)(1) FLSA

12   overtime claim plausible.   Id. at 114.   We noted that

13   federal courts had "diverged somewhat on the question," id.,

14   with some requiring an approximation of the total number of

15   uncompensated hours in a given workweek, see, e.g., Nichols

16   v. Mahoney, 608 F. Supp. 2d 526, 547 (S.D.N.Y. 2009), and

17   others not requiring any estimate of overtime, but simply an

18   allegation that the plaintiff worked some amount in excess

19   of forty hours, see, e.g., Butler v. DirectSat USA, LLC, 800

20   F. Supp. 2d 662, 667-68 (D. Md. 2011).

21            Formulating our own standard, we concluded that

22   "in order to state a plausible FLSA overtime claim, a

23   plaintiff must sufficiently allege 40 hours of work in a

24   given workweek as well as some uncompensated time in excess

                                   8
 1   of the 40 hours."    Lundy, 711 F.3d at 114.   We also observed

 2   that "[d]etermining whether a plausible claim has been pled

 3   is a context-specific task that requires the reviewing court

 4   to draw on its judicial experience and common sense."     Id.

 5   (internal quotation marks omitted).    We therefore declined

 6   to make an approximation of overtime hours a necessity in

 7   all cases.    We remarked, however, that an approximation "may

 8   help draw a plaintiff's claim closer to plausibility."     Id.

 9   at 114 n.7.

10            Applying that standard, we reasoned that the Lundy

11   plaintiffs had failed to allege that they worked

12   uncompensated overtime because, although the employees went

13   to some lengths to approximate the hours they typically

14   worked, even setting out their typical breaks and shift

15   lengths, the hours alleged did not add up to a claim that

16   over forty hours had been worked in any particular week.3


         3
            For example, when discussing one plaintiff, we
     observed:

              Wolman was "typically" scheduled to work
              three shifts per week, totaling 37.5
              hours. She "occasionally" worked an
              additional 12.5-hour shift or worked a
              slightly longer shift, but how
              occasionally or how long, she does not
              say; nor does she say that she was denied
              overtime pay in any such particular week.
              She alleges three types of uncompensated
              work: (1) 30-minute meal breaks which
              were "typically" missed or interrupted;
                                    9
 1   The allegations in Lundy thus failed because of arithmetic:

 2   tallying the plausible factual allegations, we could not get

 3   beyond forty hours in any given week, and therefore to a

 4   plausible claim for overtime.

 5             Very recently, we had occasion to revisit this

 6   issue.   Nakahata v. New York-Presbyterian Healthcare System,

 7   Inc., No. 11-0734, ___ F.3d ___, 2013 WL 3743152, *4-*6,

 8   2013 U.S. App. LEXIS 14128, *15-*21 (2d Cir. July 11, 2013).

 9   In Nakahata, the plaintiffs also had alleged uncompensated

10   work during meal breaks, training sessions, and extra shift

11   time as evidence of an overtime violation without


               (2) uncompensated time before and after
               her scheduled shifts, "typically"
               resulting in an additional 15 minutes per
               shift; and (3) trainings "such as" a
               monthly staff meeting, "typically"
               lasting 30 minutes, and [] training
               consisting of, "on average," 10 hours per
               year.
               She has not alleged that she ever
               completely missed all three meal breaks
               in a week, or that she also worked a full
               15 minutes of uncompensated time around
               every shift; but even if she did, she
               would have alleged a total 39 hours and
               45 minutes worked. A monthly 30-minute
               staff meeting . . . could theoretically
               put her over the 40-hour mark in one or
               another unspecified week . . . but her
               allegations supply nothing but low-octane
               fuel for speculation, not the plausible
               claim that is required.
     Lundy, 711 F.3d at 114-15 (internal citations omitted)
     (emphases in original).
                                     10
 1   demonstrating how these instances added up to forty or more

 2   hours in a given week.     Id. at *5, 2013 U.S. App. LEXIS

 3   14128, at *19.      We therefore concluded that the allegations

 4   lacked the "specificity" required, because though they

 5   "raise[d] the possibility" of an overtime claim, "absent any

 6   allegation that Plaintiffs were scheduled to work forty

 7   hours in a given week," they did not state a plausible claim

 8   for relief.      Id., 2013 U.S. App. LEXIS 14128, at *19-*20.

 9            Dejesus provided less factual specificity than did

10   the plaintiffs in Lundy or Nakahata, although she made

11   allegations of more widespread improper behavior by the

12   defendant.    She did not estimate her hours in any or all

13   weeks or provide any other factual context or content.

14   Indeed, her complaint was devoid of any numbers to consider

15   beyond those plucked from the statute.     She alleged only

16   that in "some or all weeks" she worked more than "forty

17   hours" a week without being paid "1.5" times her rate of

18   compensation, Compl. ¶ 24, no more than rephrasing the

19   FLSA's formulation specifically set forth in section

20   207(a)(1).    Whatever the precise level of specificity that




                                     11
 1   was required of the complaint, Dejesus at least was required

 2   to do more than repeat the language of the statute.4

 3            In this regard, Dejesus's claim is similar to one

 4   that the First Circuit recently confronted.     There, the

 5   plaintiffs had alleged that they "regularly worked" more

 6   than forty hours a week and were not properly compensated.

 7   Pruell v. Caritas Christi, 678 F.3d 10, 12 (1st Cir. 2012).

 8   The court concluded that such a formulation was "one of

 9   those borderline phrases" that while not stating an

10   "ultimate legal conclusion[]," was "nevertheless so

11   threadbare or speculative that [it] fail[ed] to cross the

12   line between the conclusory and the factual."     Id. at 13

13   (internal quotation marks omitted).   "Standing alone," the

14   panel reasoned, the allegation was "little more than a

15   paraphrase of the statute."   Id.   Like the allegations in

16   Iqbal, the ones in Pruell were "too meager, vague, or

17   conclusory" to survive a motion to dismiss.     Id. (internal

18   quotation marks omitted).




         4
            Nor does Dejesus's allegation in paragraph 27 of her
     complaint regarding the calculation of overtime payments (in
     the weeks when she allegedly received them) contain
     sufficient factual specificity. Among other things, Dejesus
     alleges neither the number of weeks during which Healthfirst
     improperly calculated her overtime pay, nor which weeks they
     were.


                                   12
 1            The First Circuit's reasoning is persuasive.

 2   Dejesus's complaint tracked the statutory language of the

 3   FLSA, lifting its numbers and rehashing its formulation, but

 4   alleging no particular facts sufficient to raise a plausible

 5   inference of an FLSA overtime violation.   Her FLSA and NYLL5

 6   claims were therefore inadequate and properly dismissed.

 7       Lundy's requirement that plaintiffs must allege

 8   overtime without compensation in a "given" workweek, 711

 9   F.3d at 114, was not an invitation to provide an all-purpose

10   pleading template alleging overtime in "some or all

11   workweeks."   It was designed to require plaintiffs to

12   provide some factual context that will "nudge" their claim

13   "from conceivable to plausible."   Twombly, 550 U.S. at 570.

14   While this Court has not required plaintiffs to keep careful

15   records and plead their hours with mathematical precision,

16   we have recognized that it is employees' memory and

17   experience that lead them to claim in federal court that

18   they have been denied overtime in violation of the FLSA in



         5
            In light of the fact that "[t]he relevant portions
     of New York Labor Law do not diverge from the requirements
     of the FLSA," our conclusions below about the FLSA
     allegations "appl[y] equally to [the NYLL] state law
     claims." Whalen v. J.P. Morgan Chase & Co., 569 F. Supp. 2d
     327, 329 n.2 (W.D.N.Y. 2008), rev'd on other grounds sub
     nom. Davis v. J.P. Morgan Chase & Co., 587 F.3d 529 (2d Cir.
     2009).


                                   13
 1   the first place.   Our standard requires that plaintiffs draw

 2   on those resources in providing complaints with sufficiently

 3   developed factual allegations.

 4            In reaching this conclusion, we would be less than

 5   candid if we did not register our concern about the failure

 6   of the plaintiff, through counsel, at least to attempt to

 7   amend her complaint to add specifics while the district

 8   court kept the door open for her to do so.6   We would like

 9   to believe that the decision not to amend was made for some

10   reason that benefitted Dejesus, rather than as an effort on

11   counsel's part to obtain a judicial blessing for plaintiffs'

12   counsel in these cases to employ this sort of bare-bones

13   complaint.

14            III. Whether Dejesus Adequately Alleged Employment

15   Status

16            We conclude that the judgment of the district

17   court must be affirmed because, as the court held, Dejesus's

18   pleading that she worked overtime without proper

19   compensation under the FLSA was inadequate.   We therefore

20   need not decide whether the district court was also correct


         6
             Cf. Nakahata,    F.3d at   , 2013 WL 3743152, at
     *3, 2013 U.S. App. LEXIS 14128, at *11 ("[W]e will not deem
     it an abuse of the district court's discretion to order a
     case closed when leave to amend has not been sought."
     (internal quotation marks omitted)).


                                   14
 1   when it first concluded that Dejesus had not sufficiently

 2   alleged that she was an "employee" of Healthfirst within the

 3   meaning of the FLSA.    We nonetheless offer our views on the

 4   issue as guidance for the district courts in light of the

 5   spate of similar litigation within this Circuit, the fact

 6   that the issue has been fully briefed and argued on appeal,

 7   and because we disagree with the district court's conclusion

 8   on the point.

 9               Under the statute, an "employee" is "any

10   individual employed by an employer," 29 U.S.C. § 203(e)(1),

11   and an "employer" includes "any person acting directly or

12   indirectly in the interest of an employer in relation to an

13   employee," id. § 203(d).    To "employ" means "to suffer or

14   permit to work."    Id. § 203(g).

15               In her complaint, Dejesus alleged that she "worked

16   for defendant Health First," Compl. ¶ 11, and was "employed

17   by defendant for about three years," id. ¶ 20, as "an hourly

18   employee," id. ¶ 22.    She also alleged that she was

19   "employed by defendant within the meaning of the FLSA."       Id.

20   ¶ 29.   She added that as such an employee, she worked "to

21   promote insurance programs to the public and to recruit

22   members of the public to join those insurance programs."

23   Id. ¶ 19.    And she explained her wage structure ("a



                                    15
 1   commission for each person recruited to join the insurance

 2   programs promoted by defendant, in addition to a regular

 3   non-commission wage").   Id. ¶ 21.   Dejesus therefore alleged

 4   facts both about her employment status and duties in order

 5   to support the inference that she was an employee within the

 6   meaning of the FLSA.

 7            The Supreme Court has referred to the "striking

 8   breadth" of the FLSA's definition of the persons who are

 9   considered to be employees.   Nationwide Mut. Ins. Co. v.

10   Darden, 503 U.S. 318, 326 (1992); see also Rutherford Food

11   Corp. v. McComb, 331 U.S. 722, 729 (1947) ("This Act

12   contains its own definitions, comprehensive enough to

13   require its application to many persons and working

14   relationships, which prior to this Act, were not deemed to

15   fall within an employer-employee category."   (internal

16   quotation marks omitted)); accord Frankel v. Bally, Inc.,

17   987 F.2d 86, 89 (2d Cir. 1993) (noting that in light of "the

18   expansive nature of the FLSA's definitional scope and the

19   remedial purpose underlying the legislation," courts,

20   including the Supreme Court, have construed the statute to

21   reach beyond the common law standard for determining

22   employee status).




                                   16
 1               In light of this broad interpretation of

 2   "employee" under the statute, we have "treated employment

 3   for FLSA purposes as a flexible concept."          Barfield v. N.Y.

 4   City Health & Hosps. Corp., 537 F.3d 132, 141 (2d Cir.

 5   2008); see also Benshoff v. City of Virginia Beach, 180 F.3d

 6   136, 140 (4th Cir. 1999)(concluding that employment "is to

 7   be determined by its commonly understood meaning").           And, in

 8   the context of a motion to dismiss, district courts in this

 9   Circuit have therefore found that complaints sufficiently

10   allege employment when they state where the plaintiffs

11   worked, outline their positions, and provide their dates of

12   employment.     See, e.g., DeSilva v. North Shore-Long Island

13   Jewish Health Sys., 770 F. Supp. 2d 497, 508 (E.D.N.Y.

14   2011); Zhong v. August Corp., 498 F. Supp. 2d 625, 628

15   (S.D.N.Y. 2007) (where a plaintiff alleging that he "was an

16   employee" in multiple places was found to have provided a

17   reasonable inference that the relationship was one covered

18   by the statute).

19               Here, Dejesus detailed where she worked, providing

20   Healthfirst's address and its corporate purposes.           Compl. ¶¶

21   9-10, 18.     She outlined what her position as a "promoter"

22   generally entailed, describing her responsibilities and the

23   pay structure.     Id. ¶¶ 19-21.        And she provided her dates of



                                        17
 1   employment.    Id. ¶¶ 11-13.   In addition, she alleged that

 2   she was an hourly employee "within the meaning of the FLSA."

 3   Id. ¶ 29.     She thus, in our view, adequately pled that she

 4   was an employee and Healthfirst was her employee under the

 5   FLSA, especially in light of the expansive scope of the

 6   definition employed in the statute.7     Cf. DeSilva, 770 F.

 7   Supp. 2d at 508 (concluding similar allegations constituted

 8   adequate pleading of employee status).

 9                               CONCLUSION

10               For the foregoing reasons, we affirm the judgment

11   of the district court.

12




         7
            We also agree with Dejesus that she was not required
     to plead facts at this stage of the proceedings to support
     her position that she was a non-exempt employee, that is,
     one who falls outside of the FLSA's exemptions. A claim of
     exemption under the FLSA is an affirmative defense, and the
     employer bears the burden of proof in making any such claim.
     See, e.g., Corning Glass Works v. Brennan, 417 U.S. 188, 196
     (1974); Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614
     (2d Cir. 1991). We think, contrary to Dejesus's position,
     however, that the district court properly recognized this
     when it observed that a "claim of exemption under the FLSA
     is an affirmative defense, on which the employer bears the
     burden of proof." Dejesus, 2012 WL 5289571, at *2, 2012
     U.S. Dist. LEXIS 152263, at *6.



                                     18
