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Acosta v. Devilbiss Landscapr Architects, Inc.

United States District Court, D. Delaware

October 17, 2018


          Frank E. Noyes, II, Offit Kurman P.A., Wilmington, DE; Wendel V. Hall, Hall Law Office, PLLC, Washington, DC - attorneys for Plaintiff

          Matthew R. Epstein, U.S. Department of Labor, Office of the Solicitor, Philadelphia, PA -attorney for Defendants



         On March 31, 2017, Plaintiff, R. Alexander Acosta, Secretary of Labor (''Plaintiff' or "Secretary") filed this suit against Defendants DeVilbiss Landscape Architects, Inc. and Paul DeVilbiss (collectively "Defendants") asserting violations of the Fair Labor Standards Act ("FLSA"). (D.I. 1). Pending before the Court is Defendants, motion to dismiss the Complaint, or in the alternative, for summary judgment. (D.I. 7). In addition, in connection with the briefing on that motion to dismiss, Defendants have moved (D.I. 13) to strike paragraphs 11-14 of the Declaration of Rowena Luk (D.I. 10, Exh A), which was submitted in connection with Plaintiffs opposition. For the reasons stated below, the Court will deny both motions.


         Paul DeVilbiss, a landscape architect, is the president and owner of DeVilbiss Landscape Architects, Inc., a company engaged in landscape design. (D.I. 1 at ¶¶ 1, 2). The Complaint in this action alleges that during the period from "at least April 18, 2014 through at least April 15, 2016," Defendants employed workers "engaged in retail and wholesale nursery operations, who worked over 40 hours in a workweek" but failed to compensate them appropriately for their overtime hours. (D.I. 1 at ¶ 6). It alleges that Defendants' employees engaged in activities such as "routinely handling landscaping materials including but not limited to mulch, bricks, pavers, and gravel" and handling "plants and trees that were not grown" by Defendants, which are "not agriculture within the meaning of the [FLSA]." (Id., }, The Complaint further alleges that Defendants "failed to make, keep, and preserve adequate and accurate records of their employees, which they maintained as prescribed by the regulations issue and found at 29 C.F. R Part 516." (Id. at ¶ 7).


         A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This requires a "'showing,' rather than a blanket assertion, of entitlement to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). To survive a motion to dismiss under Rule 12(b)(6), the plaintiffs obligation to provide the grounds for his entitlement to relief necessitates that the complaint contain "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.

         The factual allegations of a complaint are assumed true and construed in favor of the plaintiff, "even if it strikes a savvy judge that actual proof of those facts is improbable and 'that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). "[0]n the assumption that all the allegations in the complaint are true (even if doubtful in fact)," the allegations in the complaint must "raise a right to relief above the speculative level." Id. at 555-56. Put simply, the complaint must plead "enough facts to state a claim for relief that is plausible on its face." Id. at 547. "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (the plausibility standard does not require probability but requires more than a sheer possibility that a defendant has acted unlawfully.).

         Determining whether a complaint states a plausible claim for relief is "a context-specific task" that requires the court "to draw on its judicial experience and common sense." Id. at 679. Accordingly, under Twombly, a court considering a motion to dismiss may begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. Id. Although legal conclusions "can provide the framework of a complaint, they must be supported by factual allegations." Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id.

         Thus, the court must find "enough factual matter (taken as true) to suggest" that "discovery will reveal evidence" of the elements of the claim. Twombly, 550 U.S. at 556. When the allegations in a complaint, however true, could not raise a claim of entitlement to relief, the complaint should be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Twombly, 550 U.S. at 558; Iqbal, 556 U.S. at 679.


         A. Motion to Dismiss

         1. The Complaint Sufficiently Alleges ...

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